Hon’ble Mr. Haradhan Mukhopadhyay, President.
The concise fact of the case of the Complainant is that the Complainant Sri Manab Barman belongs to Schedule Cast Rajbonshi Community as a businessmen of jute and tobacco stored 400 mound tobacco of Rs. 18 Lakhs in March, 2017 keeping in their rural godown namely Bharatiya Gramin Bhander at Bhetaguri, Cooch Behar. The Complainant is an insurance policy holder under the OP bearing No. OG-17-2472-4010-00000401(Bunglary Policy), OG-17-2472-4001-00000356(Fire Policy) sum insured Rs.17 Lakhs. The Complainant carrying on the said business due to maintaining his livelihood and it is only the earning source of the Complainant. So, the Complainant is a consumer under the CP Act. The Complainant secured loan from UBI, Dinhata Branch having Account No.1685250004411 credit limit Rs.15 Lakhs the interest of the loan account of the bank secured the property hypothecated to them through the present insurer. Loan sanction letter and existing report are submitted. On 29.05.17 at about 10.30 P.M. in the night the insured property was attacked by unknown miscreants with deadly weapons. They broke door and the part of the godown and burgled all the tobacco in trade after entry into the premises of Bharatiya Gramin Bhander. The matter was informed to the police, bank and the insurer. Inspected and surveyed, assessed loss and remarked that incident was true police submitted final report Dinhata P.S. case No.812/17 dated 26.08.2017 under section 143/448/427/379 of IPC and GDR No.506 dated 28.08.2017 was submitted to the insurer. The surveyor admitted that he had received the necessary papers from the insured. Reminder letter was submitted to the insurer on 31.08.17, 05.09.17, 16.10.17, 27.07.17, 13.02.18, 15.02.18, 09.05.18, 07.04.18, 18.06.18 and 04.07.18 but all efforts were in vain. After 15 months delay in August, 2018 the Branch Manager of Bajaj Alliance General Insurance Company proposed and amount of Rs.2,14,550/- and issued their discharged voucher accordingly. The said proposed amount was opposed by the Complainant with a request to enhance it but the insurer did not agree. The insurer did not issue any paper supporting his proposal of Rs.2,14,550/. When the Complainant understood that the insurer harassed him. The discharged voucher was issued to the Complainant in the Branch Office at Cooch Behar on 24.08.2018 and it was submitted to the insurer on 27.08.2018. The discharged voucher was signed by the insured 27.08.2018 as per direction of the insurer Rs.2,14,550/- was transferred to the account of the insured on 01.09.18. Being dissatisfied with the said claim the Complainant collected surveyed report from the surveyor and it was found that the loss was assessed for the damages for Rs. 17 Lakhs only but the OP paid Insurance claim amount of Rs.2,14,550/-. So a complaint was lodged to the ministry of Justice of social empowerment and the Finance Minister but no response was received. So a reminder also sent on 20.09.19. On 14.11.19 to 09.06.20 several correspondences were taken between the insured and Ministry of GOI. Over the following resolution (1) The claim has been settled as per policy terms and condition. (2) “Please find enclosed claim summary and discharge voucher”. The claim summary of the final claim recommendation is completely new to the Complainant and the claim summary sent by the insurer to the Complainant on 22.11.19 remark No.4 no purchase bill as the tobacco is purchased from farmers this remark is not appropriate. Section2(4) in sale of goods shows that document of title of goods includes bill of lading, dock warrant, warehouse keepers certificate, railway receipt etc. warrant issued by the warehouse keeper is sufficient to prove the insurable interest of the insured upon the property. Remark-5 “claim intimated after 4 months and FIR lodged after 3 months”. That remark is condonable on the following grounds:-
- Date of loss was 29.05.2017 intimated to bank on 30.05.2017 the bank and insurer are tied up insurer knew all.
- The police was intimated about the loss over mobile. Delay to receive FIR is also a ground. Police knew everything.
The insured and his family members were threatened against lodging FIR. The Complainant and his family members were insecured. Remark-6 recommendation for repudiation:- Actually the insurer did not repudiate the claim. Insurer paid Rs.2,14,550/-. The surveyor and loss Assessor assessed loss of Rs. 17 Lakhs and the insurer paid Rs. 2,14,550/-. The Complainant also sent a letter of complaint on 26.02.20 stating the ground against the resolution of the insurer dated 13.02.20. The Complainant also submitted other documents on 29.01.20, 20.05.20, and 31.01.20. On the resolution dated 09.06.20 the insurer settled as full and final after obtaining consent from the insured in writing. On 06.02.20 then he Consumer Affairs Department sent a letter over the subject of difference in ascertaining loss and actual amount was settled but the insurer did not issue satisfactory response. The Complainant was dissatisfied with resolution sent to him by the OP. Due to such whimsical attitude the Complainant suffered irreparable loss. The cause of action arose on 27.05.18 and on different dates till the filling of this case. The Complainant therefore prayed for an award for Rs.17 Lakhs as insurance claim as per surveyor report against the OP, Rs.50,000/- for deficiency in service, Rs.50,000/- for mental pain and agony and harassment and Rs.15,000/- towards cost of the proceedings.
The OP contested the case denying each and every allegation of the Complainant. The defence case in brief is that the case is not maintainable and there is no cause of action. Further defence case is that the OP, Bajaj Alliance General Insurance Company Limited, Boroda Bhawan, Bangchatra Road, Cooch Behar had issued an insurance policy valid from 27.01.17 to 26.01.18 in the name of Sri Manab Barman for stored category of nodules biscuits etc. with hypothecation with UBI, Dinhata Branch subject to some terms and condition but the Complainant violated the said terms and conditions. After getting the fire intimation from the Complainant the OP deputed one surveyor/ loss assessor to assess and investigate the fire and loss as claimed by the Complainant and thereafter the said assessor went to the spot and investigated and assessed the loss suffered by the Complainant. The surveyor asked the Complainant to submit certain document to assess the claim but the Complainant did not submit purchase bill on fabulous ground that it were burnt. The Complainant also did not submit the stock register, sale register/ purchase register. The surveyor while assessing the claim observed that the stock submitted to the bank were almost near to CC loan account. Detail balance sheets were not submitted. Therefore, exact stock figure could not be ascertained by the surveyor. Therefore, the assessor assessed the loss taking into bank account statement wherein it was found that in one last year before the incident the Complainant deposited Rs.44,06,507/- to the bank. Since the items of the Complainant were fast moving item so to determine probable stock he may keep Rs.3,67,208.90/- per month. The volumetric analysis of effected burnt room of size 27’2” by 13’2” and height of stock say 5’ taken even though height of room was 8’4”. The height of stock 5 fit was taken considering facts of carbon deposition mark found in round shape in side wall as well as height of door and windows were also kept in mind and found 1844.84 cubic fit. Majority of burnt stock were of value of Rs.5/- MRP. So surveyor has taken volume of one such packet as 5 fit X 6” X 0.5”= 0.0085 cubic fit. So Rs.2,19,623.81/- could not store in effected burnt area. On that basis the surveyor prepared and independent assessment of loss to the tune of Rs.3,93,604/-. Accordingly the OP provided the claim form and Complainant submitted duly filled up document. The OP sanctioned Rs.3,92,562/- but the Complainant refused to receive the same. There is no latches or deficiency in service by the OP. The Op is still ready to pay the said sum of Rs.3,93,604/-. The OP Bajaj Alliance General Insurance Company claimed that the case is liable to be dismissed with cost.
Having perused pleadings of the parties and the evidence on the case record the following points emerge to be decided.
Points for Determination
- Whether the present case is maintainable or not?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
Decision with reasons
Point No.1.
The OP challenged the case as not maintainable on the ground that the Complainant is not a consumer under the CP Act because the Complainant Manab Barman is a businessman. The business is run for commercial purpose and it is not for earning his livelihood.
The complaint discloses that the Complainant categorically stated that he is carrying on business due to maintain his livelihood and it is only the earning source of the Complainant.
Save and except taking the said plea as not maintainable, the OP seems to have not cross-examined the Complainant to unearth the truth as to whether the said business is run for commercial purpose or not.
As per Order No.17 dated 06.07.2022 both the parties did not want to cross-examine. So other than an evasive denial to call spade-a-spade, the OP failed to establish the defence plea.
So, having perused the pleadings of the parties and the evidence on record it is held that the Complainant is a consumer under the CP Act.
Accordingly, Point No.1 is answered in favour of the Complainant.
Point Nos.2 & 3.
These points relate to ascertainment as to whether the Complainant is entitled to get any relief or not.
The Complainant alleged that the insured property was attacked by 30/40 unknown miscreants with deadly weapons and burgled all the tobacco in trade for which he sustained huge loss. Therefore the Complainant lodged insurance claim. Police case was lodged vide Dinhata P.S. case No. 812/17 dated 26.08.17 under section 143/448/427/379 of IPC. The Complainant duly proved the FIR.
The Complainant also proved the letter of intimation of burglary dated 30.05.17 to the OP Branch UBI which they received on 30.05.17. The Complainant further proved the post sanction inspection report. The said inspection report corroborates the veracity of the said incident.
The best document of the case stands also proved which corroborate the veracity of the complaint case.
The Complainant proved the Annexure-E which is the assessment report of the assessor Indranil Bhattacharjee. As per the said assessment report the loss sustained by the Complainant is Rs.17 Lakhs.
It is also the specific case of the Complainant that the assessor assessed the damages for Rs.17 Lakhs but the OP paid insurance claim for Rs.2,14550/- only for claim No. OC-19-2405-4010-00000004 and Rs.9,79.246/- for claim No. OC-19-2405-4010-00000005 as per Annexure-H. It is important to consider that under the claim Grievance Redressal System procedure it is stipulated inter alia that where within two weeks the company sends the Complainant a written response which offers redress or reject the complaint and gives reasons the insurer shall inform the Complainant about how he may pursue the Complainant.
In the instant case the OP Company did not comply with the aforesaid clause or terms of grievance or redress in as much as the OP company did not actually redress the grievance of the Complainant nor did they reject the claim. Instead the OP settled the claim for Rs.2,14,550/- out of Rs.17 Lakhs. This amounts of settlement as claimed by the Complainant is whimsical. They could have repudiated the claim. The argument is reasonable and acceptable in as much as the assessor assessed the damages for Rs.17 Lakhs but it was reduced to Rs.2,14,550/- without sufficient ground. So the settlement of claim for Rs.2,14,550/- is arbitrary and whimsical.
Ld. Advocate for the Complainant also argued that against such arbitrary settlement the IRDA intervened into the matter and gave a liberty to the Complainant to file a complaint to other appropriate forum.
Annexure-H/59 strengthened the said argument wherefrom it transpires that after scrutiny of all the documents the IRDA gave an opportunity to the company to file complaint if he so desires.
Ld. Defence Counsel argued that the IRDA advised to take recourse of appropriate Forum but did not advice that Bajaj Allianz is liable to pay the compensation. This Commission is only adjudicating authority. No stock register is produced. There is no deficiency in service. So it is not acceptable at this stage.
The defence plea as well as the argument is not acceptable in as much as the assessor assessed after due inspection and having examined the necessary documents assessed the loss to the tune of Rs.17 Lakhs. There is no document filed before this Commission as to why the said assessed loss of Rs.17 Lakhs was not paid to the Complainant. So, there is deficiency in service on the part of the OP.
The argument is not acceptable because previously it was held that there is a relation of consumer and service provider between the Complainant and the OP. The C.P. Act provides for ample opportunity to the Complainant to file a case before this Commission in addition to the opinion of IRDA that the Complainant is at liberty to take recourse of appropriate Forum. This is a rider to the right of the Complainant for redressal of his grievance.
Since there are sufficient ground for claiming relief by the Complainant against the OP so the adjudicating authority granted relief of Rs. 2,14,550/-. On the contrary the Complainant assessed the claim to the tune of Rs. 17 Lakhs. The OP did not cross-examine the Complainant as to the quantum of the compensation. As per Order No.17 the OP did not cross-examine the Complainant. So, the specific claim of the Complainant for a sum of Rs.17 Lakhs towards compensation stands uncontroverted. Accordingly, the refusal of the said claim by the OP without sufficient reason tantamounts to deficiency in service on the part of the OP. Despite loss of huge amount of money by the Complainant and refusal to grant the relief has caused the Complainant to suffer mental pain and agony which should be compensated.
Having considered the actual claim vis-a-vis the approval of compensation by the adjudicating authority, this Commission comes to the finding that a sum of Rs. 10 Lakhs towards insurance claim should be just and proper to meet the ends of justice in the instant case.
Accordingly, Point Nos. 2 & 3 are answered in favour of the Complainant.
In the result the complaint case succeeds.
Hence, it is
Ordered
That the complaint case No. CC/23/2020 be and the same is allowed on contest with litigation cost of Rs.10,000/-.
The Complainant do get an award for a sum of Rs.10 Lakhs towards insurance claim, Rs.10,000/- towards deficiency in service, Rs.10,000/- towards mental pain and agony.
The OP, Bajaj Allianz General Insurance Company Limited is directed to pay a sum of Rs.10,30,000/- (Rupees Ten Lakhs Thirty thousand only) to the Complainant within 30 days from the date of passing the Final Order failing which the entire award money shall carry an interest @ 8% per annum from the date of passing the Final Order till the date of its realization.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
