BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
CACHAR :: SILCHAR
Con. Case No. 44 of 2013
M/S Vivekananda Speciality Hospital & Research Centre,
Prop. Mrs. Sanghamitra Nath, ……………………………………. Complainant.
-V/S-
1. The Branch Manager,
Bajaj Allianz General Insurance Company Ltd.,
Jagannath Travels Building Complex, Hospital Road,
P.O. & P.S. Silchar-1, Dist. Cachar. O.P No.1.
2. The Chief Manager,
Regd. & Head Officer, GE Plaza,
Airport Road, Yerwada, Pune-41006. O.P No.2.
3. The Regional Manager,
Bajaj Allianz General Insurance Company Ltd.,
2B, 2nd Floor, N.H. Centre Point, Opp. Bora Services Station,
G.S. Road, Ulubari, Guwahati-781007. O.P No.3.
4. The Manager,
Grievance Redressal Cell,
Insurance Ombudsman Aquanus,
Bhaskar Nagar, R.G. Baruah Road,
Guwahati, Assam-781021. O.P.No.4.
5. The Branch Manager,
United Bank of India,
Ghungoor Branch, Ghungoor, Silchar-14. O.P.No.5.
Present: - Sri Bishnu Debnath, President,
District Consumer Forum,
Cachar, Silchar.
Mrs. Chandana Purkayastha, Member,
District Consumer Forum,
Cachar, Silchar.
Shri Kamal Kumar Sarda, Member,
District Consumer Forum,
Cachar, Silchar.
Appeared :- Sri Jagodish Barbhuiya, Advocate for the complainant.
Sri A.S. Mitra, Advocate for the O.Ps.
Date of Evidence……………………….. 12-08-2014, 18-10-2014, 13-02-2015
Date of written argument……………… 04-04-2015, 15-05-2015
Date of oral argument ……………….... 04-05-2017, 12-07-2017, 31-10-2017
Date of judgment………………………. 22-11-2017
JUDGMENT AND ORDER
Sri Bishnu Debnath,
- This complaint case is brought by Smti. Sanghamita Nath under Consumer Protection Act,1986 for award of 20,00,000/- as damages of machinery of the Nursing Home name and style M/S Vivekananda Specialty Hospital and Research Centre, Silchar including cost of proceeding.
- M/S Vivekananda Specialty Hospital and Research Centre is a proprietary Firm. Smti. Sanghamita Nath is the proprietor (referred hereafter as Nursing Home). Machineries of the said Nursing Home were insured with Bajaj Allianz General Insurance Company Ltd., which covered standard Fire and special perils policy, vide policy No. OG-13-2438-4001-00001444 and item code No. 1002,1006 and 1009. The period of insurance was from 09-01-2013 to 08-01-2014.
- Unfortunately on 09-02-2013 some miscreants ransacked the Nursing Home and set fire and destroyed machineries. The list of damaged machineries have been mentioned in the schedule of the complaint. Accordingly, FIR lodged and Silchar P/S Case No. 298/2013 U/S 447/379/427/506/34 IPC registered. The incidence was duly informed to the Insurer on 01-03-2013 and on 24-04-2013. The Insurer assessed the total loss but did not settle the claim rather asked to submit more documents vide its letter dated 18-07-2013.
- On being aggrieved, the complainant brought the instant case against the Branch Manager, Bajaj Allianz General Insurance Company Ltd., and 4 (four) others for reliefs.
- The Insurance Company and its officer being arrayed as O.P No.1 to 4, submitted their joint W/S. In the W/S, they challenged the jurisdiction of this District Forum and also took plea that the case is not maintainable to decide by adopting summary procedure as per the provision of Consumer Protection Act,1986. However, the aforesaid O.P stated inter-alia as follows:-
“That upon intimation of loss, opposite party immediately deputed on IRDA licensed surveyor to verify and assess the loss. The complainant failed to assist the surveyor in assessing the loss. Finally, the surveyor assessed the loss with available documents in the tune of Rs.2,80,632/- and submitted him report with findings to this opposite party”.
- Hence, as per the above O.Ps there is no negligence or any type of deficiency of service on the part of the O.P-Insurance Company toward the complainant.
- The O.P No.5 is the Branch Manager, UBI, Ghungoor Branch, Silchar. The said O.P did not turn up. So, this case is proceeding exparte against the O.P No.5, vide order dated 29-03-2014.
- During hearing the complainant deposed as P.W-1 and exhibited as many as 17 (seventeen) documents. The O.P No.1 to 4 examined Sri Kalyan Sengupta, the senior legal Manager as D.W-1 and exhibited 8 (eight) documents including 4 (four) reminder for submission of documents.
- After closing evidence, the Ld. Advocate of the complainant and the Ld. Advocate of the O.P No.1 to 4 submitted written argument. Heard oral argument of both sides’ counsels.
- In this case it is admitted fact in view of evidence on record that machineries of the Nursing Home were under coverage of Insurance Policy on the date of incidence on 09-02-2013. It is also not denied by the contesting O.P that the listed machineries mentioned in the schedule attached to the complainant were damaged by the miscreants. But the Ld. Advocate of the contesting O.P during argument tried to convince that the sudden attack of mob/miscreant and causing damage of the insured machineries are not covered within the policy. On perusal of Insurance Policy vide Ext-9 and Ext-A, it is appeared that as per Annexure- I, Add on Cover Description is only Earthquake with plinth and foundation and premium received by the insurance company for covering the said risk is RS.1,898/- for the period from 09-01-2013 to 08-01-2014. In the Annexure-III of standard Fire and Special Perils Policy attached to the above insurance policy No. 0G-13-2438-4001-00001444 also described detain about the exclusion of Terrorism Damages which is expressly mention in the insurance policy very clearly in the column for subject to clauses. The meaning of Terrorism Damage also explained in that documents which cover the attacked and damaged by the miscreants.
- Anyhow, in the instant case from the evidence on record though we do not find any facts regarding specific profession of the complainant. There is also no iota of evidence available in the record to conclude that the complainant engaged herself for self-employment with any of the machineries of the Nursing Home which has been damaged by the miscreants. Of course, M/S Vivekananda Specialty Hospital and Research Centre is a proprietary firm but it does not mean that in all proprietary firm, the proprietor engaged himself/herself as self-employment. To be treated as self-employment in that Nursing Home, the complainant must have a special knowledge to operate the machineries and must engaged herself directly to earn livelihood by operating those machineries. Of course, she may engaged one or two employee to help her. But in the instant case there is no evidence available to determine those relevant factors in her favour to conclude that the machineries which were damaged, not used for commercial purpose as per provision of section 2(d)(ii) of Consumer Protection Act,1986.
- Therefore, in this case after careful perusal of material on record, evidence and argument of the parties we are of opinion that the machineries which have been damaged by the miscreants were used for the commercial purpose and the service of Insurance Company for covering risk of those machineries are also avail by the complainant for commercial purpose. So the complainant is not a Consumer under the Consumer Protection Act, 1986 and as such this District Forum has no jurisdiction to pass any award in favour of the complainant. Of course, the complainant may approach before the appropriate Civil Court for remedy subject to the period of limitation as per law and procedure.
- With the above, this case is dismissed on contest without cost. Supply free certified copy of judgment to the parties. Given under hand and seal of the District Forum on this the 22nd day of November,2017.
