BEFORE THE DISTRICT CONSUMER REDRESSAL FORUM
(DISTRICT FORUM)
UNOKUTI DISTRICT : KAILASHAHAR
C A S E NO. C. C. 18/4
SRI NARAYAN SARKAR
Son of late Dhirendra Sarkar
of Halaimura,PS – Kumarghat,
District- Unakoti ,Tripura.
Pin- 799264
…......COMPLAINANT
V E R S U S
1. Branch Manager,
Bandhan Bank
Kumarghat Branch, Kumarghat,
District- Unakoti, Tripura.
PIN- 799264.
2. The Senior Claim Manager,
Tata AIG General Insurance Company Ltd.
Constantia Office Complex, 2nd. Floor,
11, Dr. U. N. Brahmachari Street, Kolkata,
PIN- 700017
3. Managing Director,
Tata AIG General Insurance Company Ltd.
15th Floor, Tower A, Peninsula Business Park,
Ganpatrao Kadam Marg, Lower Parel,
Mumbai - 400013
….....OPPOSITE PARTIES
P R E S E N T
SHRI J. M. MURASING
PRESIDENT
DISTRICT CONSUMER REDRESSAL FORUM
UNAKOTI DISTRICT::KAILASHAHAR
A N D
SMTI. S. DEB, MEMBER
&
SRI P. SINHA, MEMBER
C O U N S E L
For the Complainant : Shri R. R. Kar, Advocate, and
Shri M. K. Arya, Advocate For the opposite parties : Mrs. P. Chakraborty, Advocate
ORIGINAL DATE OF INSTITUTION :25-05-2018
JUDGMENT DELIVERED ON :20-08-2019
J U D G M E N T
This is a complaint U/S 12 of the Consumer Protection Act filed by the complainant Sri Narayan Sarkar against the opposite parties claiming compensation of Rs.4,45,000/- along with interest for deficiency in service for not paying him legitimate insured amount.
2. The case of the complainant, as manifested from the complaint petition, is that the complainant has owned a restaurant at Kumarghat Netaji Chowmohony. He is having a bank account in Bandhan Bank, Kumarghat Branch, vide account No. 50150082926645. For development of his restaurant the complainant took a loan of Rs. 2,50,000/- from the said Bandhan Bank along with one general insurance, but the bank did not provide any insurance policy copy to the complainant. Complainant on many occasions visited the bank for insurance policy, but on every occasions he was declined. It is further contended in the complaint that on 18/02/2018 early morning the restaurant of the complainant was burnt by a fire accident. Thereafter the complainant informed Kumarghat Fire Station and the fire was doused by the Fire Service personnel. After the incident the complainant informed the Bandhan Bank, Kumarghat Branch on 21/02/2018 about the fire accident and also made a GD entry with the Kumarghat PS stating about the incident. After some days complainant again went to the Bandhan Bank for taking necessary action regarding process of insurance claim, but the OP No 1 did not cooperate with the complainant and even did not inform the policy details to the complainant. On 12/05/2018 complainant made a complaint against the OP NO 1 before the National Consumer Help Line and on the advice of the National Consumer Help Line complainant lodged another complainant before the Consumer Grievance Forum of the Bandhan Bank through e-mail and the complainant also sent another e-mail to the OP No 1 stating the whole incident. Thereafter by the initiative of the National Consumer Help Line the OP No. 1 sent Field Surveyor and Assessor, namely, Sri Ashish Bhattacharjee to inspect the alleged place of occurrence and after inspection Sri Bhattacharjee gave notice to the complainant supplying him details of insurance policy and mentioning the required list of documents to stand his claim. During inspection the Surveyor was provided with trade license, loan sanction letter and copy of GD entry by the complainant. It is further mentioned in the complaint that on 11/04/2018 OP No. 2 sent a letter to the complainant informing that they could not process the claim of the complainant because the insured premises was used as restaurant while occupancy of the premises was mentioned as Shop in the insurance policy document. The complainant having received the letter went to the OP No 1 for collecting concerned policy, but OP No 1 did not pay any heed to the request of the complainant and in that juncture finding no other alternative complainant contacted with the Kolkata office of the insurance company who advised the complainant to approach the Tata AIG General Insurance Office at Agartala and accordingly, complainant collected the concerned policy and he was informed that the policy was auto-generated by broker/agent of insurance company during taking loan. After getting the policy documents complainant found that in occupancy column 'Shop' is mentioned in stead of 'Restaurant'. Complainant found that the insured sum was Rs. 3,75,000/- having policy No. 2200209125 and the period of insurance was from 26/04/2017 to 25/04/2018. It is reiterated by the complainant that during taking loan he provided all documents of his restaurant, including trade licence, where it is specifically written as Restaurant in the occupancy column and as such, the mistake was done by the OPs, not by him and for this intentional mistake on the part of the OPs complainant was not given the insured amount against his policy and hence, this complaint for getting compensation from the opposite parties.
3. On receipt of the notice, OP No. 1 appeared and contested the case by filing the written statement stating the inter alia that the complainant has availed a small enterprise loan of Rs. 2,50,000/- from OP No.1 and accordingly, after all formalities the bank authority disbursed the said loan to the complainant. OP No. 1 acts as a facilitator of TATA AIG General Insurance Co. Ltd. and as per request of the complainant he was also provided with fire and burglary insurance from TATA AIG General Insurance Co. Ltd., the OP No. 2 and 3 in the instant case and the OP No. 1 has no role to play in respect of insurance policy. It is further contended by the OP No. 1 that OP No. 1 forwarded the claim of the complainant to the insurance company and coordinated with them regularly for the said claim of the complainant. The settlement of the claim is only done by OP No. 2 and 3 and as such it is the OP No. 2 and 3 who sent the Field Surveyor to inspect the alleged burnt shop premises of the complainant. The illegation of the complainant is that he was denied to be given the insurance claim as in the loan application form occupancy was shown as shop instead of restaurant and in this respect OP No. 1 is not at all liable because the loan application form was taken care of by the OP No. 2 and 3 and the mistake is on the part of the insurance company and as such, OP No. 1 has not rendered any deficiency of service towards the complainant because in providing loan it discharged its duties properly and the grievance of the complainant is about the insurance claim, which rests on the OP No. 2 and 3. Therefore, OP No. 1should be absolved from any sort of liability towards the complainant.
4. On receipt of the notice, OP No. 2 also appeared and submitted written statement contending that the complainant had availed 'my business my choice package policy' for the period from 26.04.2017 to 25-04-2018 which covered fire and burglary. OP No. 2 admitted that on 18-02-2018 restaurant of the complainant caught fire and also admitted that they were intimated about the incident on 08-03-2018. The OP interrogated the complainant regarding delay of eighteen days in reporting the incident to them, but the complainant remained silent about the reason for delay in intimation. It is further stated that OP No. 2 appointed one surveyor for assessment of loss of the restaurant. As per coverage of the policy only stock items are covered and during the survey the complainant could not produce any of the damaged items of the stock for assessment / physical inspection. However, based on the complainant's declaration about the damaged items surveyor considered the cost of stock items only while assessing the loss and accordingly, the surveyor assessed the loss for Rs.41,950/-. It is further contended by the OP No.2 that the complainant's claim for insured sum of Rs. 3,75,000/- is baseless as policy only covers the loss of stock items. The claim with respect to the loss of other items is not covered and hence those items are not considered while assessment of damages and as such, there is no deficiency of service on the part of the OP No. 2. It is a fact that initially they raised query regarding the admissibility of the claim as occupancy of insured premises was mentioned as shop in the policy instead of restaurant, but finally based on the survey report they determined the liability for Rs. 34,158/- which was offered to the insured and as such, the complaint of the complainant being devoid of any merit should be dismissed.
In order to substantiate the claim, complainant examined himself as PW 1. In his deposition he stated the facts as was put down in his complaint petition. During his re-examination he has exhibited the following documents :-
1. Passbook of Bandhan Bank in the name of the complainant- Exbt. 1 series.
2. Copy of GD entry dated 21-02-2018 addressed to the OC, Kumarghat PS in 1 sheet- Exhibit 2.
3. Report of the surveyor dated 12-03-2018 in two sheets- Exhibit 3/1 and Exhibit 3/2.
4. Copy of letter addressed to the complainant by the Sr. Manager, TATA AIG, Insurance Co. Ltd. in 1 sheet- Exhibit 4.
5. Report submitted by DFO in 1 sheet- Exhibit 5.
6. Trade license issued by Kumarghat Nagar Panchayet -Exhibit 6.
7. Copy of petition of the complainant addressed to the Fire Officer, Kailashahar- Exhibit 7.
8. Copy of insurance policy in 24 sheets- Exhibit 8 series.
The complainant was cross examined on behalf of the opposite parties. He denied the suggestion that the OP handed over the policy documents to him timely. He admitted that in his policy the insured premise has been shown as shop and also admitted that the insurer issued a cheque for an amount of Rs. 34,158/- in his name, but he did not receive it. He admitted that after the accident the surveyor visited his shop premisses, but denied that the assessment done by the surveyor is correct.
From the side of the OPs one witness, namely, Sri Ashish Bhattacharjee has been examined as OPW 1. He stated that in the year 2018 he was a panel surveyor of TATA AIG General Insurance Co. Ltd. as per endorsement made by the said insurance company for surveying an incident that happened in the shop of the complainant, Narayan Sarkar at Kumarghat, he visited the said shop premises at 18-03-2018. He further stated that he found that the insurance was covered only for the stock of the shop as per policy of the insurance, but on his inquiry and survey he found that it was a restaurant not a shop and he also found that a fire incident was occurred in the shop establishment of the insured and also found the the complainant informed about the fire incident to the insurance company after about eighteen days. He also stated that during his survey he found no stock of the shop articles since the shop was repaired after the incident. During his survey he was also handed over a copy of FIR and considering all circumstances and taking evidence of the surrounding shop owners he estimated the loss suffered by the complainant at Rs. 51,950/- for stock before deduction of Rs. 10,000/- and other incidental expenses. The survey report prepared by him has been marked Exhibit A. He further stated that thereafter on assessment of loss the company offered Rs. 34,158/- to the complainant towards compensation by way of cheque bearing No. 371603 dated 23-11-2018, but the complainant did not receive the same.
In course of cross examination OPW 1 stated that during survey he came to know from the complainant and the shop keepers of the surrounding shop establishments of the complainant before the incident that there had been furniture, fixtures, fittings in the shop establishment of the complainant. He further stated that during survey except FIR and claim statement nothing was produced before him by the complainant . He denied that during survey the complainant could not collect relevant documents in support of his sustaining loss and as such he could not submit those relevant documents at the time of survey and also denied that his assessment regarding loss suffered by the complainant at Rs. 51, 950/- was totally false and without basis.
6. The moot point for adjudication of the case in hand is whether there is ant deficiency of service on the part of OPs in not providing with the complainant the legitimate claim amount derived from the insurance policy?
7. Heard argument of both sides.
Learned Counsel appearing for the complainant submitted that the complainant has been deprived of his legitimate insured claim only for the deficiency of service on the part of the opposite parties and as such, he is entitled to compensation besides the claimed insured amount as per the assessment made by the Divisional Fire Officer.
Per contra, learned Counsel appearing for the opposite parties submitted that there is no question of deficiency on the part of the OP No. 1 as because by maintaining all the formalities OP No. 1 allowed the complainant to avail the loan and also provided the policy to the complainant as per his prayer and as such, the claim of the complainant is no way entertainable and same is liable to be dismissed. Learned Counsel for the OP-TATA AIG General Insurance Company Ltd. submitted that the complainant at the time of taking the policy very illegally mentioned that it was a restaurant, but in the policy it has been mentioned as shop. The complainant also did not inform the alleged firing accident to the OP in time quite intentionally so as to make out a good case to get a lofty amount other than the actual loss sustained by him. Moreover, as per the policy conditions the complainant could not produce the stock items and considering the estimated loss the OP offered a cheque of Rs. 34,158/- which the complainant denied to receive. The complainant is no way entitled to get the amount as paid for as per the terms and conditions of the policy and therefore, there is no deficiency on the part of the TATA AIG, the insurer and complaint petition deserves dismissal.
DECISION AND REASONS FOR DECISION
8. It is admitted fact that the complainant being a consumer of the OP No. 1 was provided a loan of Rs. 2,50,000/- along with one General Insurance given by OP No. 2 and 3. It is also admitted fact that on 18-02-2018 early morning the restaurant of the complainant was gutted by a fire accident and it is also an admitted fact that the OPs were informed about the fire accident after eighteen days of the occurrence. The repudiation of the insurance company in regard to the fire insurance claim towards the complainant was due to the fact that while asking for bank loan the complainant mentioned in the occupancy column the word 'shop', but practically it was restaurant. However, it is the assertion of the opposite parties that they even then treated the case of the complainant quite liberally and on assessment of the loss by employing a surveyor ultimately offered loss for an amount of Rs. 34,158/- to the complainant, but the complainant denied to receive the same. It is urged by the complainant that during the process of obtaining loan for development of his business premises he submitted all necessary documents relating to his restaurant, including copy of trade licence on the basis of which the loan as prayed for by him was sanctioned by OP No.1 which was also insured by the OP-TATA AIG the insurer. The complainant has submitted the copy of trade licence issued by Kumarghat Nagar Panchayet (Exbt.6), which is valid up to 31-03-2019 ( as reflected overleaf ) and on perusal of the same it is found that the shop premises of the complainant is styled as restaurant. How could the word 'shop' be inserted in the occupancy column while the base document clearly indicates as restaurant. Therefore, this Forum is constrained to hold that the mistake cannot be done on the part of the complainant but surely it is done by the opposite parties.
9. From Exbt. 8 series, the insurance policy, it is found that the restaurant of the complainant is covered under fire building and / or contents for sum of 3,75,000/-. The policy was issued by the OP-TATA AIG insurance Co. Ltd. and it was effective from 26-04-2017 to 25-04-2018. The restaurant of the complainant was gutted by a fire incident which took place on 18-02-2018 and as such, it is found that the restaurant of the complainant is very much covered under the insurance policy under fire building and / or contents. Following the fire incident the complainant recorded the same with the Kumarghat PS vide GD entry No. 13 dated 21-02-2018. It is a formal information and thus makes no difference even after delay of three days in making a GD entry. As such, the complainant is entitled to insured amount for damage of the building and its contents by way of fire accident, which the policy issued by the OP, guarantees. The assessor and surveyor, Sri Ashish Bhattacharjee, who has been deputed by the OP, insurance Company, has been examined from the side of the opposite parties as OP No.1. In his evidence, Sri Bhattacharjee stated that he found that the insurance was covered only for the stock of the shop as per policy of the insurance and during his survey he found that a fire incident was occurred in the shop establishment of the insured. He further stated that during his survey he found no stock of the shop articles since the shop was repaired after the incident. The restaurant of the shop of the complainant was his bread earning source and the surveyor surveyed the restaurant after about one month of the fore accident and to survive with his family members the complainant had no other alternative left with him but to run the restaurant somehow and for this reason the complainant was obliged to repair his restaurant. The OP No. 1 also stated in his examination in chief that considering all circumstances and taking evidence of the surrounding shop owners he estimated the loss suffered by the owner at Rs. 51,950/- for stock and ultimately on deduction of all incidental expenses the complainant was offered Rs. 34,158/- by way of cheque which the complainant discarded to receive. During cross examination OP No. 1 also admitted that during survey he came to know from the complainant and the shop keepers of the surrounding shop establishments that before the incident there had been furnitures, fixtures and fittings in the shop establishment of the complainant. Kitchen units come under fixtures, while ovens, refrigerators and other free standing items of furniture come under fittings category. The extent of loss sustained by the complainant was assessed by the Divisional Fire Officer and the report has been submitted on behalf of the complainant and marked Exbt. 5 . In his assessment report Divisional Fire Officer has mentioned the articles like Fridge, Inverters, Chair , table, rack etc. as damaged articles. As per report of the DFO the category of Fire accident is major, which invariably goes to say that the building and the articles contained therein have been damaged and beyond use. The DFO in his report has declared the value of the property lost to the tune of Rs. 2,10,000/- approximately. For building Rs. 30,000/- has been assessed while for the articles Rs. 1,80,000/- has been assessed. The measurement of the shop premises (restaurant) of the complainant was measured 6x12 sq. mtr. for which assessment of loss to the extent of Rs. 30,000/- is not at all on the higher side, but very much justified and as such, the complainant is entitled to this amount towards the damage cost of the building. The surveyor (OPW No. 1) appointed on behalf of the OPs while assessing the damage mentioned the existence of fittings and fixtures in the restaurant of the complainant, but in his survey report he has only mentioned about the existence of one fridge of LG Company. Vol. 215 ltrs., which is totally contrary to his evidence. No list of articles as damaged has also been submitted and exhibited from the side of the complainant. However, in the record a list of articles and goods which were allegedly damaged submitted by the complainant and authenticated by the president and Secretary of Kumarghat Merchant Association, Kumarghat, Unakoti District is found. Though the same has not been exhibited from the side of the complainant, but this Forum can take judicial notice of this document in assessing the existence of the articles at the time of fire accident and their prices. With due regard to the evidence of the OPW No. 1 and also taking into consideration the report of the Divisional Fire Officer about the existence of fixtures and fittings in the restaurant at the time of accident, the articles like refrigerator, mixture grinder, cooker, cash counter, fan, almirah, inverter, utensils, chair and table, coffee machine, juicer, micro hot case were supposed to be kept in the restaurant at the time of fire accident, this Forum can assess their prices judiciously. The restaurant of the complainant was opened in the year 2015 and on imposition of depreciation cost the price of the refrigerator may not be more than Rs. 5,000/- . The cost of the mixer grinder is assessed at Rs. 3,000/-, cooker at Rs. 3,000/-, cash counter at Rs. 2,000/-, the number of fans taking to be six the cost of the same is assessed at Rs.10,000/-, almirah at Rs. 6,000/-, inverter with battery at Rs. 20,000/-, utensils roughly at Rs. 8,000/-, chair and table approximately at Rs. 15,000/-, coffee machine, juicer and micro hot cases together at Rs. 15,000/-. As the building has already been damaged by the fire incident besides re-construction of the building the complainant has also to re-wire his building for which he is also entitled to Rs. 15,000/-. Because of the activities of the OPs the complainant has also suffered mental pain and agony, which may be compensated by way of some pecuniary supplementation by awarding Rs. 15,000/- on pain and sufferings. Since the shop premises of the complainant was a restaurant he must have at least two ovens and stored some raw materials like spices, vegetables , rice etc. for which a sum of Rs. 8,000/- is awarded. As such, on totaling all the heads the complainant is entitled to the damaged cost of his building and articles at Rs. 1,55,000/- (Rupees One lac fifty five thousand) only.
On appreciation of the evidence and documents on record it is tangible that OP No. 1 and 2 have failed to discharge their duties properly towards the complainant. Had the policy documents been handed over to the complainant by OP No. 1 in time and if the word 'restaurant' in the occupancy column would be mentioned by the OP No. 2, the complainant would not be resorted to file the complaint by not getting the proper insured claim amount, but in this manner by not doing their duties properly both the OP No. 1 and 2 are found to be deficient and as such, the amount of compensation shall be borne by both the OP No. 1 and 2 jointly and severally.
The point is decided accordingly.
ORDER
10. In the result, the complaint filed by the complainant stands allowed. The OP No. 1 and 2 are directed to pay Rs. 1,55,000/- (Rupees One lac fifty five thousand) only to the complainant within a period of two months with interest at the rate of 7 % p.a. from the date of filing of this claim petition, i.e., on and from 25-05-2018, failing which the complainant shall be entitled to further interest of 9 % from the O.P. till the date of final payment.
11. Furnish copy of this judgment to the complainant and the O.P No. 1 and 2 free of cost through their respective learned counsels.
ANNOUNCED
(J.M. MURASING)
PRESIDENT
(P.SINHA) (S. DEB)
MEMBER MEMBER
