The instant case was instituted on the basis of a petition of complaint filed by one Jahangir Alam S/o. Hazi Maniruddin Momin, Prop. Of M/s. Sahil Electronics, New Market, R/o.Gharialichak, P.S. Kaliachak, Dist. Malda u/s. 12 of the C.P. Act, 1986 which was registered before this Forum as Complaint Case No. 04/2010.
The fact of the case as revealed from the petition of complaint as well as from the evidence is that the complainant is running a business of electronic items and owns a shop situated at New Market, Kaliachak Bazar and a same business is running in the name and style ‘Sahil Electronics’. The further case of the complainant is that the complainant took loan for the said business from the Pro forma O.P. No. 5, United Bank of India, Khejuria Branch vide Loan A/c. No. RICC -67. After taking loan the complainant took a special policy i.e. Perils Policy in the name of the complainant from the Bajaj Allianz Company and the same Special Perils Policy was valid from 28/06/08 to 27/06/09 for which the complainant paid Rs. 2697/- (Rupees Two Thousand Six Hundred Ninety Seven Only) as insurance premium. While running the business smoothly unfortunately on 25/12/2008 at midnight a fire took place at the shop of the complainant and the said shop room along with its electronic gadgets lying inside the shop room was destroyed by fire for which the complainant lodged a G.D. entry bearing No. 1330 dt. 26/12/2008 to the Kaliachak Police Station and the fact of the said fire was also informed to the fire brigade.
As the said shop was covered under the Insurance Policy the complainant lodged damage to the O.P. along with necessary documents amounting to Rs.15,05,500/- (Rupees Fifteen Lakh Five Thousand Five Hundred Only). After the submission of the claim one Surveyor –cum-Loss Assessor known by Mr. Indranil Bhattacharya was deputed. But after lapse of considerable period the complainant did not get any information about the claim. This is why he sent a Lawyer’s Notice through his Ld.Lawyer Mr. Bipul Datta on 02/09/2009 and the said notice was duly received by the O.P. on 04.09.2009. In spite of receiving such notice no action was taken on the part of O.Ps as such the complainant finding no other alternative came to this Forum to redress his grievances
The case has been contested by O.P. Nos. 1 to 4 by filing a written version jointly denying all the material allegations as leveled against the O.P. Nos. 1 to 4 contending inter alia that the instant case is not maintainable, the case has been filed by suppressing the material fact and real facts, the case is also barred by law of limitation. The definite defense case of O.P. Nos. 1 to 4 is that the policy was for shop-room not for the go-down.
The further definite defense case is that due to the violation of general condition as per Policy Terms Clause No. 8 the O.P., Insurance Company repudiated the claim of the complainant. The further defense case is that the Surveyor appointed by the O.P. submitted the report as assessed by the Surveyor to the tune of Rs. 1,20,865/- (One Lakh Twenty Thousand Eight Hundred Sixty Five Only). The further defense case is that after initial survey the Surveyor find that a huge amount of false bill has been filed to enhance the loss of assessment. So considering the facts and circumstances the instant case is liable to be rejected against the O.P. Nos. 1 to 4.
The O.P. No. 5 i.e. the United Bank of India filed written version stating that there is no cause of action against the O.P. This O.P. i.e. UBI is not directly or indirectly involved with the alleged claim made by the complainant. So considering the facts and circumstances the instant case against the O.P. No.5 is to be dismissed.
During trial the complainant was himself examined as P.W.-1 and cross-examined. On the other hand Indranil Bhattacharya was examined as O.P.W.-1.
During trial the complainant has proved and marked the documents as Ext. 1 to 10 series. On the other hand the O.P. has proved and marked the documents as per exhibited list from Ext. A to F.
The complainant filed the documents in xerox copy.
The case has a checker history. My predecessor in office on 22/02/2012 disposed the case on contest and awarded Rs. 8,00,000/-(Rupees Eight Lacs Only) as compensation for loss of the goods and Rs. 25,000/- (Rupees Twenty Five Thousand Only) for mental pain and agony and harassment of Rs. 5,000/-(Rupees Five Thousand Only) for litigation cost. Against that final order the O.Ps filed an appeal before the Hon’ble State Commission at Kolkata. The Hon’ble State Commission on 10/02/2015 allowed the appeal and set aside the order and sent back a remand to this Forum for fresh order after giving the opportunities to the both sides for hearing and adducing such further evidence as they would like to submit. After receiving the record opportunities were given to the both parties for adducing evidence as per order of Hon’ble State Commission. But after order of remand the complainant did not adduce any evidence. But on 12/07/2017 the O.P. Insurance Company filed the Surveyor Report. The argument was heard.
Now the points for determination whether the complainant is entitled to get any relief or not ?
::DECISION WITH REASONS::
There is no dispute that a fire took place at the shop of the complainant situated at Kaliachak on the night of 25/12/2008 as because there is no dispute to that point as because Surveyor was appointed and the Surveyor inspected the premises and found that electric gadgets were destroyed by fire. Now the main point comes for the consideration what will be the amount of compensation. The Hon’ble State commission was unable to accept the ground of fixing compensation of Rs.8,00,000/-(Rupees Eight Lakh Only) as assessed by my predecessor in office by approximation and common sense in spite of the fact that the documents were furnished before them by the complainant /O.Ps in support of their claim. The Hon’ble State Commission was not sanguine whether the survey report was presented before the Ld.Forum or not .
It is a fact that at the time of disposal of the case by my predecessor in office the Surveyor Report was not filed. So my Ld.Predecessor in office passed the compensation on the basis of approximation and common sense and on the basis of cross-examination of the parties. Perhaps my predecessor in office was influenced by the cross-examination of P.W.-1 which was cross-examined by the Ld.Lawyer of the O.P. as follows:-
Ld.Advocate for the O.Ps placed a document in the hand of the witness in the witness box and asked “What is the figure of closing stock according to the balance sheet for the period from 1st April, 2007 to 31st March, 2008?” The witness replied that the closing stock is Rs. 8,71,822/- (Rupees Eight Lakh Seventy One Thousand Eight Hundred Twenty Two Only) which has been marked Ext.-A. Perhaps by such cross-examination my predecessor in office was influenced and passed the order of compensation as Rs.8,00,000/- (Rupees Eight Lakh Only). But the alleged incident took place on 25/12/2008. So it has no relation with that cross-examination.
Now we find that the surveyor report which is a vital document The survey was done with the knowledge of complainant and on perusal of survey report it is found that the shop room is situated in the first floor and go-down is situated in the second floor and no damage was caused due to fire in the go-down. Moreover, the policy was for the shop room. Now let us consider whether the Surveyor Report is to be accepted or not.
There are several judgments of the Hon’ble Supreme Court and National Commission that non-consideration of Surveyor Report leads to miscarriage of justice. The complainant had the knowledge about the survey inspection. If the complainant was not satisfied with the Survey Report he should have prayed for engagement of another Surveyor but nothing was done by the complainant. On perusal of the record it is found that original Survey Report has been filed, copy was served though that survey report has not been marked exhibited by the O.P. but on perusal of the original Survey Report this Forum can take the judicial notice. On perusal of the Survey Report it is found that the Surveyor assessed the proportionate loss of the damages in the shop premises if admitted will be Rs. 2,43,161. 25 P. So the complainant is entitled to get the amount as per the Surveyor Report which has not been rebutted. So the complainant is entitled to get Rs. 2,43,161/- (Rupees Two Lakhs Forth Three Thousand One Hundred Sixty One Only)
C.F. paid is correct.
Hence, ordered that
that the case be and the same is allowed on contest with cost.
The complainants gets Rs.2,43,161/- (Rupees Two Lakhs Forty Three Thousand One Hundred Sixty One Only)for loss of goods due to fire in the shop and Rs. 2,000/-(Rupees Two Thousand Only) for mental pain and agony and harassment and Rs. 5,000/- (Rupees Five Thousand Only) as litigation cost.
The O.P. No.1 to 4 are directed to pay the amount within 45 days from the date of order failing which it will carry an interest @ 5% p.a. from the date of filing of this case and the petitioner is at liberty to put the decree in execution. The case against Pro O.P. No.5 i.e. United Bank of India, Khejuria Branch is dismissed as no relief is claimed against O.P. No.5.
Let a copy of this order be given to each of the parties free of cost with proper application.
