Fact of the case of the Complainant in short is that the Complainant is running wood business in the name and style M/S Sarkar Traders under Mouja Dangar Para Plot No. 737 after taking loan from O.P. No.2. U.CO. Bank, Shilta Branch and the said business is being done by the Complainant for his self-employment to earn his livelihood.

It is further case of the Complainant that the articles of his business have been hypothecated to the O.P. No.2 Bank from the said Bank.

The Complainant also took insurance policy from the O.P. No.1 Insurance Co. and the said policy was renewed from time to time and lastly for the period 27-03-2007 to 26-03-2008.

On 04-07-2007 due to heavy rain, the river guard o Sali River was broken as a result the vast area of Kalberia and Chanduria village were affected by flood and majority of wooden logs staged in the stockyard of plot no. 737 were carried away by the flow of flood water.

Thereafter, on 07-07-2007 this Complainant intimated to the O.P. No.1 Insurance Co. through O.P. No.2 about his loss/damage of wooden logs due to flood.

Subsequently, on 21-07-2007 this Complainant submitted claim prescribed from t5o the O.P. No.1 and claimed Rs. 5,00,000/- along with all relevant papers; but O.P. No.1 repudiated his claim by sending letter dated 30-01-2008.  So, this Complainant has filed this case and prayed for making directions upon O.P. No.1 to reimburse his claim amount to the tune of Rs. 5,00,000/- and has also made further prayed for physical and mental agony Rs.75,000/- and also prayed for Rs. 2,00,000/- as cost litigation.

This case is being contested by the O.P. No.1 Insurance Co. has denied all allegations/claim/statement claimed by the Complainant contending inter alia that the claim made by the Complainant is excessive, arbitrary, illegal and without any basis.

The Complainant has got no existence of his shot as claimed.

It is further defence of the O.P. No.1 is that the Surveyor submitted his report after visiting the place that the Complainant used to stock the logs of wood in front of his house and no mark of flood was visible on the surrounding house of the Complainant where logs were stocked.  The claim of Complainant as made is false.

The lands where logs of wood were stocked was higher level than the surrounding paddy fields.  So, there was no chance of carrying away the said logs of wood by the water of the flood as logged.  So, according to the O.P. No.1 this complaint is to be dismissed.

The O.P. No.2 UCO Bank has submitted W.V. separately and supported the case of the Complainant.

                                                Points for determination.

1)  Is the case maintainable?

2)  Whether the Complainant is entitled to reimburse his claim from O.P. No.1 Insurance Company.

3)  Whether the Complainant is entitled to relief as prayed for.

                                                Decisions with Reasons.

This case was disposed of by the Forum previously by passing judgment on contest.  Therefore, this Complainant preferred an appeal to State Commission, W.B. and Hon’ble State Commission has been pleased to send back this case on remand with a direction for passing fresh order after fresh hearing.

Thereafter, the matter was heard afresh after giving opportunity to both sides.

No further evidences have been adduced by any parties.

Ld. Advocate for the Complainant argued inter alia that this case by recapitulating the fact as stated in petition of Complainant.  He has also drawn our notice to the certificate given by local     B.D.O. & Panchayet Samity, etc. to prove flood.  He has also argued that Complainant had valid Insurance Policy for his business.  But O.P. No.1 has repudiated the claim of petitioner ignoring the fact of flood and damage of logs of wood in flood illegally.

So, he prays for awarding compensation as prayed in petition of Complainant.

Ld. Advocate for the O.P. No.1 argued that the Surveyor was sent by the O.P. No.1 Insurance Company and who has submitted his report after making inspection of business place of Complainant and as per his report that no damage was caused in the logs of wood on account of flood as claimed by the Complainant and he has also submitted that Complainant also could not be able to prove his damage to substantiate his claim by adducing cogent evidence.

Stock of logs of wood at the relevant time of incident was also not been proved by Complainant.

So, repudiation of claim made by the O.P. No.1 was correct.  So, Complainant is not entitled to any claim as prayed for.  Moreover, Complainant is not insured under in O.P. No.1 Insurance Company.  O.P. No.2 is insured.  So, he has not locus standi to make any claim under case Insurance Policy.

Ld. Advocate for the O.P. No.2 UCO Bank submitted before us inter alia that O.P. No.2 is insured person.  So, if any amount of award towards damages is made by this Forum to be made in favour of the O.P. No.2 UCO Bank.

We have carefully heard the submissions made by the Ld. Advocate for the both sides.

Perused the materials on record it appears that this Complainant has stated in this complaint that he is running business under the style of M/S. Sarkar Traders in Plot no.737 under Mouja Danga Para and he is the dealer-cum-supplier of logs of wood and he has paid VAT and also get Trade License from Beliatore Gram Panchayet.  It is further case of the Complainant that he had insured his stock of logs to the O.P. NO.1 Insurance Co. and same was renewed from time to time and lastly for the period of 27-03-2007 to 26-03-2008 Annexure-B.  It reveals from insurance policy (annexure –B) that name of the Insured is UCO Bank Shitla Branch.  Address Account Anup Sarkar, Kalberia District Bankura for the period 27-03-2007 to midnight 28-03-2008 and incident took place on 04-07-2007.

So, we find that name of Arup Sarkar proprietor of M/S. Sarkar Traders has not been mentioned in Insurance Policy (Annexure-B), but name of Sarkar Taders mentioned there.

On perusal of W.V. submitted by the both sides that they have not made any statement denying that the Complainant is not the insured person but they have made argument in this point at the time of argument after travelling beyond their respective pleadings.  Moreover, O.P. No.2 supported the claim of Complainant in its W.V.  Anyway we found from annexure-B that account of Arup Sarkar was the insured and this complaint i.e. Arup Sarkar is the proprietor of M/S. Sarkar Traders.  So, the argument advanced by the Ld. Advocate for the both side in this point is not acceptable and we hold proprietor of Sarkar Traders has locus Standi to make claim under Insurance Policy.  The dispute arose when this Complainant submitted his claim form for Rs.5,00,000/- as insured person for washing away his wooden logs by dint of flood.  So, Complainant is to prove his case by adducing cogent evidence.

It has been observed by the Hon’ble National Commission reported in 2016(3) CPR page 245(NC) that Complainant must prove his case by adducing full evidence. So we find that Complainant to prove his case that he suffered loss of logs of wood due to flood occurred on 04-07-2007.

In this case no documents like receipt showing purchase of logs of woods by him has been filed.  No Stock Register has been filed to show the number of logs of woods were in his stock on 04-07-2007 i.e. on the date of incident.

No oral evidence from the locality has been adduced to show that the all logs of woods were washed away due to floods.  Moreover, certificate given by B.D.O., Panchayet Samity stated about flood, nothing stated about damage of logs of wood of Complainant due to flood.  So, these certificates will not assist Complainant t5o prove his alleged damage due to flood.  

So, we hold that Complainant could not able to prove the number of the logs of woods and its value washed away due to flood as alleged by him.

Moreover, we find from annexure -(I) which is a Xerox copy of report given by Surveyor and as per report that the Danga Para Village was suffering from water logging/floods, but the area in which the wood was stocked did not suffer from any kind of water logging or water flow which could have carried away the logs of wood kept their.  The photographic evidence submitted by Complaint in the form of Compact Disc does not in any way substantiate the claim about the fact that logs of wood were carried away by flow of water.  Surveyor submitted his report after inspecting business of logs of Complainant.  Name of Arup Sarkar by Surveyor in his report but number of case insurance policy is identical and same as mentioned in Surveyor report.

So we find that there was a mistake in the report in incorporating name of Anup Sarkar in place of Arup Sarkar who is the proprietor of M/S Sarkar Traders; by policy number mentioned in Surveyor report is identical/same to the policy nos. of Complainant.  So it’s a mere clerical mistake and there is no reason to reject this Surveyor report for that mistake.

Moreover, this report has not been challenged by the Complainant. So, we hold that annexure – (I) is the report given by the Surveyor in respect of the case insurance policy under which Complainant submitted his claim.  We also found that name of one Anup Sarkar has been incorporate in lieu of name as Complainant in body of Surveyor Report (Annexure – I).  Contents of Surveyor Report has not been challenged.

It has been observed by the Hon’ble National Commission report in 2015(3) C.P.R. page 35(NC) “Surveyor being a third party, report submitted by him is entitle to a great weight and ordinarily be accepted.”  It has also been observed by Hon’ble National Commission reported in 2017(1) CPR 259(NC) that Assessment made by surveyor must be given weight.

It is also been observed by the Hon’ble National Commission reported in 2016(3) CPR page 461(NC) report made by Surveyor cannot be disbelieved unless there are cogent and convincing reasons to do so.”

In this case, this Complainant has not challenged the contents of report submitted by Surveyor against his claim by filing W.O.   No prayer has been made for appointing second Surveyor.  No evidences have been adduced to prove that the report given by surveyor is wrong.  So, we like to give great weight of this Surveyor report (Annexure-10 and find no reason to reject the Surveyor Report.

In view of the above facts and circumstances and observations made by the Hon’ble National Commission we have no hesitation to hold that the some area of the Kalberia Village had suffered from water logging/floods but stock of logs of wood of business of Complainant had not been carried away by the flood as claimed by the flood as claimed by the Complainant and he had suffered loss/damage as damage as claimed in this case, relying on the Report of Surveyor (Annexure-1).

Moreover, the Complainant could not be able to prove numbers of logs of wood were in his stock at the time of alleged incident by filing Stock Register and other evidences.

The value of the logs of wood alleged to have washed away has also not been proved.

In view of the above facts & circumstances and discussion made above we are inclined to hold that the Complainant has not been able to prove his case.

Accordingly, he is not entitled to any relief as prayed for.

Hence it is                

                                                            Ordered

That the Complaint No. 20of 2009 be and same is here by dismissed on contest but without cost.

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