West Bengal

Paschim Midnapore

CC/4/2015

Nayan Ranjan Dey - Complainant(s)

Versus

Branch Manager, Bajaj Allianz General Insurance Co.Ltd. - Opp.Party(s)

30 May 2016

ORDER

 

 

 

                                                                DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

Bibekananda Pramanik, President,

and

Mrs. Debi Sengupta, Member

 

   

Complaint Case No.04/2015

                                                       

Nayan Ranjan Dey…..….………Complainant

Versus

                             B.M., Bajaj Allianz General Insurance Co. Ltd.,

                             Kharagpur and another………Opposite. Parties.

 

 For the Complainant: Mr. Subal Chakraborty, Advocate.

 For the O.P.              : Mr. Pinaki Sengupta, Advocate.        

 

 

Decided on: -30/05/2016

                               

ORDER

   Mrs. Debi Sengupta, Member- The  case of the   complainant in a nut shell is that the complainant is a whole seller of  poultry feed business and chicks. The complainant runs said business after taking over draft facilities from the O.P. No.2-U.B.I., Balichak branch. The business of the complainant was duly insured with the O.P. No.1, i.e. Bajaj Allianze General Insurance Co. Ltd. and the insurance coverage were for burglary and flood.

The  complainant contends that on 05/07/2007 due to divastating flood the poultry feeds and materials  were damaged and destroyed.

The complainant states that he intimated the matter to the O.P. and the O.P. No.1 after physical verification of the damage the appointed a  Surveyor to assess the loss of the complainant and finally the Surveyor assessed the loss of the complainant at Rs.59,700/-(fifty nine thousand seven hundred) only.

Contd……………….P/2

 

 

( 2 )

Thereafter  the O.P. No.1 most illegally sent a cheque for Rs.26,665/- and the complainant refused to accept the cheque. The complainant states that the O.P. No.1 appointed the Surveyor and the Surveyor assessed the loss at Rs.59,700/-. But the O.P. No.1 and 2 did not pay the legitimate claim of the complainant and the O.P. sent cheque of Rs.26,665/- in place of Rs.59,700/-. Finding no other way the complainant sent notice to the O.Ps.  through his Ld. Advocate on 29/08/2014. The complainant contends that he suffers from the act of the O.Ps. and it amounts to deficiency in service and unfair trade practice  on the part of the O.Ps. As the O. P. No.1 has no right to deny the claim which was assessed by their own surveyor. For such wrong activities and unfair trade on the part of the Ops., complainant suffered irreparable loss and injury. The complainant states in his complaint that the O.P. No.1  is liable to make payment of Rs.59,700/- towards the policy  benefit and also prays for compensation of Rs.40,000/- for deficiency of  service and unfair trade practice.

O.P. No.1 has contested this case by filing a written objection  O.P. No.2 though received the summons but he did not appear and  as such the case was ordered to be heard exparte against O.P. No.2.

In the written objection the O.P. No.1 has denied all the allegations made by the complainant O.P. No.1 also  states that the allegations made against the O.P. No.1 is put to strict proof and the complainant case is not maintainable either in law or in facts and prays for dismissal of the complaint filed   by the complainant. In the written objection the O.P. No.1 states that the complainant has not come before the Hon’ble Forum with clean hand and the complainant has suppressed the material facts in order to get the claim amount.  The O.P. No.1 in his written objection admitted that the Narayan Chandra Dey is the policy holder being no. OG-07-2401-4001-00009074 for the period of one year i.e. from 02/09/2006 to 01/09/2007.  In the annexure-A, the O.P. No.1 contended that the complainant submitted a list showing stock before the surveyor wherein it was found that 259 nos. of bag were in stock. It was found from the photograph that the water level raised on height of 10 inches. The average height of each column is considered 6 bags and accordingly 43 bags were damaged. According to copy of photograph annexure-‘B’ the O.P. No.1 contended that the complainant submitted a list of damage bags of different articles at the time of inspection by the surveyor which is without any basis.

Contd……………….P/3

 

 

 

( 3 )

O.P. No.1 states that from photograph showing the water level raised 10 inches  which may caused damage of minimum one row , consisting 43 bags as the column was found 6-4 and somewhere 9-10 and total stock was 259 as per statement supplied by the complainant. So the O.P. No.1 denied that 50 bags could  not be damaged any manners.

 Op. No.1 enclosed the annexure-‘D’  wherein the O.P. assessed the  net loss of the complainant and in annexure-‘E’ the O.P. states that the assessment amount sent to the complainant account through account payee cheque dated 21/07/2007 and thereafter the Chief Manager requested to the O.P.–Bajaj Allianz Insurance Co. Ltd. to reassess the claim but they informed him that they have no scope to reassess the matter. O.P. also contends in para 8 of the written objection that the present case is barred by limitation under the provisions of Consumer Protection Act as the cause of action arises for this damage on 05/07/2007 and the claim was disbursed through account payee cheque no.804111 dated 21/07/2007 and lastly 06/08/2007. The  company informed that the claim could not be reassessed and after lapse of more than two years the complainant issued demand  notice on 28/12/2014 for which the present complaint case is absolutely barred by limitation.

O.P. again submitted that the O.P. has paid the claim of the complainant after proper application of mind. So there is no deficiency of service from the side of the O.P.  Therefore the complaint is liable to be dismissed on the same lack of merits and the complaint is not at all maintainable for the reason mentioned above and the Hon’ble Forum may be pleared to dismiss the complainant with cost.                                                                         

Points for decision

1)Whether the case is maintainable or not ?

2)Is the case barred by limitation ?

3)Whether the complainant is entitled to get reliefs, as prayed for ? 

                   

                         Decision with reason

 

                                    All the above points are taken up together for consideration for the sake of convinious and brevity.

                                    In order to prove his case the complainant has examined himself as PW-1 by tendering an examination-in-chief duly supported by affidavit and the documents filed by the complainant were marked as Exhibit 1 to 19. On the other hand O.P.

Contd……………….P/4

 

 

( 4 )      

                       No.1 has examined one witness i.e. Mr. Arkadev Sarkar, the legal executive of O.P. No.1 as OPW-2 and during his evidence few documents were marked ‘X’ series for identification.

                                        Admitted by the alleged occurrence of damage of the poultry foods and goods due to devastating flood took place on 05/07/2007. Admittedly after the said occurrence O.P. No.1 appointed a surveyor for assessing the loss after such survey the OP-Insurance  Company issued a cheque of Rs.26,652/- towards the loss under policy in question although the surveyor assess the loss at Rs.59,700/-. According to the complainant he did not receive the said cheque amount of Rs.26,652/- and inspite of request for reassessing the loss the O.P. No.-1 did not reassess the claim of  the complainant for which this case has been filed praying for directing the O.P. No.1 to make  payment of Rs.59,700/- with interest and for compensation and cost. We have already stated that alleged occurance of damage took place on 05/07/2007. From the copy of cheque in question for Rs.26,652/- we filed that the payment advise of that cheque was done on  21/07/2007. It also appears from the ‘X’6 (for identification) that vide their letter dated 16/08/2007 O.P. No.1 inform the O.P. No.2 to accept the claim at the above amount of Rs.26,652/-, so assessed by them. It thus appears that the O.P. No.1 refused to reassess the claim as made by the complainant by their said letter dated 16/08/2007. But the present complain has been filed on 06/01/2015i.e long after period of limitation of two years from the date of refusal for reassessment on 16/08/2007. It thus appears that the present case is clearly barred by limitation under the provision of Section-24(A) of C.P. Act and as such the present case is not maintainable and liable to be dismissed.

                                               Hence, it is

                                                                  ORDERED

                                                           that the complaint case no.4/2015 is dismissed on contest against O.P. No.1 and exparte against O.P. No.2.

                                    Let plain copy of this order be given to the parties free of cost.

                   

                           Dictated and Corrected by me

                                     Sd/-D. Sengupta.                                                        Sd/-B. Pramanik. 

                                          Member                                                                        President

                                                                                                                           District Forum

                                                                                                                       Paschim Medinipur