Order No. -  13                                                                                         Date 29/03/2018

FINAL ORDER/JUDGMENT

Sri Sibasis Sarkar, Ld. President.

            The complainant Shri Dulal Banik has filed the present petition of complaint under section 12 of the Consumer Protection Act, 1986, wherein he has stated that he was running a business from a shop at Dhupguri market, near Thana More in the name & style “Banik Photo Binding”.  He was running the said business exclusively for his self-employment and for maintaining his livelihood. The O.P no.3/UCo Bank, Dhupguri Branch, advanced a cash credit loan to the complainant to the tune of Rs.11 lakhs for running the business of the complainant.  For the safety of their money, as per request of O.P no.3 the complainant insured the loan with the O.P no.1Reliance General Insurance Company Ltd under the shop-keepers insurance policy being policy no.1507752614000862 to the tune of Rs.11 lakhs valid from 5.4.2016 to 4.4.2017.The complainant also covered by another policy with the O.P no.1 being insurance policy no.1507752614000280 to the tune of Rs.5 lakhs. Both the insurance policies were also valid for fire incident. On 11.4.2016/12.4.2016 at night a devastating fire broke out at Dhupguri market place where the shop of the complainant was fully gutted. So, the complainant intimated the fact of fire to O.P no.1 and O.P no.3 in due time both orally and in writing.  The claim form was duly submitted to the O.P no.1. The O.P. no.1 engaged O.P no.2 Kabi Das as Surveyor to assess the loss of the complainant.  The Surveyor engaged by the O.P. no.1 submitted his final survey report calculating the insurance loan as Rs.8,25,175/-.  In spite of receiving the survey report submitted by O.P. no.2, the insurance company/O.P no.1 released only Rs.4,75,000/- under policy no. 1507752614000280 and credited the said amount in the loan account of the complainant lying with O.P no.3. The complainant requested the O.P.no.1 several times and in writing also to release the remaining amount as per the loss incurred by him.  But the O.P no.1 refused to release any further amount which has compelled the complainant to file the present case for relief as per prayer of the petition of complaint.

            In the instant case the O.P no.2 is not contesting the case.  As such the case has been taken as heard ex parte against O.P. no.2.

            The O.P no.3 is contesting the case by filing written version admitting the case of the complainant.

            The O.P no.1 is contesting the case by filing written version denying all the material allegations mentioned in the petition of complaint, contending, inter alia, that the case is not maintainable in its  present form and prayer.  The specific case of the O.P no.1 is that the complainant is a businessman.  So, he cannot be treated as a consumer. As such the case is not maintainable in its present form and prayer.  There is no cause of action for the present case.  The specific case of the O.P no.1 is that they admitted that the complainant took a cash credit loan from O.P. no.3 to the tune of Rs.11 lakhs and the said loan was insured with the O.P. no.1 by an insurance policy being no. 150775564000280 to the tune of Rs. 5 lakhs.  The O.P no.1 has also admitted that fire broke out on 11.4.2016/12.4.2016 at night at Dhupguri market place and as a result the shop of the complainant was fully gutted.  The Surveyor/O.P no.2 was engaged by O.P no.1 who submitted his final survey report. On perusal of the said survey report, the O.P. no.1 released Rs.4,75,000/- for the insurance policy being no. 1507752614000280.  The said amount has already been credited in the loan amount of the complainant lying with O.P no.3. As there is no existence of any insurance policy being Policy no. 1507752614000862 in the name of the complainant for the period from 5.4.2016 to 4.4.2017, as such no further amount was released by the O.P. no.1. No such insurance policy was issued by O.P. no.1 in the name of the complainant. So, the complainant is not entitled to get any further amount from the O.P no.1. There is no deficiency in service on the part of the complainant. As such the complainant is not entitled to get any relief as prayed for and the case is liable to be dismissed with cost.

            Considering the rival pleadings of both the parties the following points have been framed.

                                     POINTS FOR CONSIDERATION :-

1)         Is the complainant  a consumer?

2)         Was the insurance policy  being no.1507752614000862  not issued by

             O.P no.1 in the name of the complainant, as alleged ?

3)         Was there any deficiency in service on the part of the O.P. no.1  ?

4)         Is the complainant entitled to get any relief as prayed for ?

5)         To what other relief or reliefs is the complainant entitled ?     

                                       DECISION WITH REASONS :-

            In the instant case both the parties neither adduced any oral evidence, nor filed any affidavit-in-chief. However, both the parties submitted before the Forum to pass final order/judgment on the basis of the petition of complaint supported by affidavit along with the documents annexed therein and the written version supported by affidavit along with documents annexed therein filed by the opposite parties treating them as their respective evidence on affidavit. Accordingly we have carefully gone through the petition of complaint along with the documents annexed therein and the written version along with the documents annexed therein accepting them as their respective evidence on affidavit.  We have also carefully perused the B.N.A filed by both the parties. We have also heard argument on behalf of the complainant as well as on behalf of the opposite parties in full and at length. 

POINT NO.1 :-

            The Ld. Lawyer for the O.P no.1 pointed out that the complainant is a businessman. The present dispute relates to his business. So, he cannot be treated as a consumer.

            From the petition of complaint, we find that there is specific averment that the complainant was running a business of Photo-binding in the name & style “Banik Photo Binding” from a rented shop-room at Dhupguri market, near Thana More. It has also been mentioned in the averment of the petition of complaint that he was running his business by self-employment exclusively for the purpose of earning his livelihood.  From the Xerox copy of documents filed by the complainant, we find that the business of the complainant has been registered before the Directorate of Cottage & Small Scale Industries, Govt.  of West Bengal.  We also find that he was invited by the General Manager, District Industrial Centre, Jalpaiguri, to participate in the fair of artisans to sell his products.  So, the business of the complainant comes within Small Scale Cottage Industry, which is certainly for the purpose of earning his livelihood.  The complainant himself works as Photo-binder.  So, the complainant was running his business by self-employment.  This squarely comes within the explanation to section 2(d) of the Consumer Protection Act which defines the term “consumer.” Therefore, as per explanation to section 2(d) of the Consumer Protection Act, 1986, the complainant is a consumer.

            This point is thus decided in favour of the complainant.      

Point No. 2 :-

            The Ld. Lawyer for O.P No.1 argued that there is no existence of insurance policy being no.1507752614000862 valid for the period from 5.4.2016 to 4.4.2017. No such shopkeepers policy was issued at any point of time by O.P no.1/Reliance General Insurance Company Ltd in the name of the complainant.

            From the documents filed by the complainant, we find that the complainant has filed one computer generated Reliance shopkeeper insurance policy being no.1507752614000862 along with one letter issued by the authorized signatory for Reliance General Insurance Company Ltd. addressed to the complainant. In the said letter the authorized signatory has clearly stated that the complainant has been insured under policy number 1507752614000862. From the computer generated copy of the said insurance policy, we find that the said policy was issued in lieu of cover note/proposal no.150708021566 dated 5.4.2016 in the name of the complainant Sri Dulal Banik for his photo shop for the period from 5.4.2016 to 4.4.2017.  We also find that the sum insured was Rs.11 lakhs and the complainant paid Rs.4,548/- towards total premium.  The O.P no.3/UCO Bank, Dhupguri branch in their W.V have specifically stated that the said amount was debited from the account of the complainant.  The complainant has also filed bank’s statement of his account lying with UCO Bank, Dhupguri branch. From the said bank’s statement  we find that  a sum of Rs.4,546/- was debited from the account of the complainant on 5.4.2016.  From the computer generated copy of the said insurance policy we find that it bears the signature of the authorized signatory. From the letter of the surveyor namely, Kabi Das dated 4.6.2016, addressed to the complainant we find that there is reflection of policy number 1507752614000862.  So, it can be presumed that the insurance company had knowledge about the said policy while they engaged the surveyor Kobi Das for assessment of loss. The said surveyor Kabi Das in his final report dated 12.4.2017 also reflected the number of the said policy. The surveyor submitted his said final report/loss assessment report to O.P no.1. So, the O.P no.1 is not entitled to say that they have got no knowledge about the said policy. The O.P no.1 has failed to produce a single document to show that no amount of Rs.4,548/- was deposited in their account towards premium on 5.4.2016.  The O.P no.1 also did not produce any document to show that no policy being no.1507752614000862 was issued on 5.4.2016 in the name of the complainant  Thus, it is difficult to believe that there is no existence of such policy or that no such policy was issued by O.P no.1 in the name of the complainant.

            Accordingly, this point is also decided in favour of the complainant.  

POINT NO.3 :-

            It is the case of the complainant that he was running a shop in the name & style ‘Banik Photo Binding’ in a rented room at Dhupguri market near Thana More. The complainant took a cash credit loan of Rs.11 lakhs from O.P no.3 for running his business. On 11.4.2016/12.4.2016 at night a devastating fire broke out at Dhupguri market place. As a result the shop of the complainant was fully gutted.  It is the further case of the complainant that the loan amount along with the trade articles were covered under two insurance policies with the O.P no.1.  Out of those two policies, the coverage of insurance policy no.1507752614000862 was Rs,11 lakhs and the coverage of insurance policy no.1507752614000280 was Rs. 5 lakhs.  On receiving information about the fire incident, the O.P no.1 engaged one surveyor named Kabi Das for assessment of loss of the complainant. The said surveyor assessed the loss of the complainant and submitted his final loss assessment report to O.P. no.1 showing insurance liability to the tune of Rs.8,25,175/-. On receiving the said loss assessment report  the O.P no.1 deposited Rs.4,75,000/- in the cash credit loan account of the complainant lying with O.P no.3 in respect of policy no. 1507752614000280, but the O.P no.1 remained silent in respect of the other insurance policy of the complainant being no. 1507752614000862.  Accordingly, the complainant issued legal notice upon the O.P. no.1, but the O.P no.1 did not give any reply to the said legal notice.

            From the W.V filed by O.P no.1 we find that they have admitted the fact of fire incident and accordingly they released Rs.4,75,000/- towards insurance policy no.1507752614000280 and deposited the same in the cash credit loan account of the complainant lying with the O.P no.3. The said O.P. no.3 UCO bank, Dhupguri branch has admitted the said fact.  The O.P no.1 in their written version took the plea that the another insurance policy being no.1507752614000862 for the period from 5.4.2016 to 4.4.2017 with insurance  coverage of Rs. 11 lakhs is fictitious and no such policy was issued by O.P no.1 in the name of the complainant.

            In this respect we have already decided that the plea taken by the O.P no.1 is not correct. The said policy being no. 1507752614000862 was duly issued by O.P no.1 in the name of the complainant on 5.4.2016 which bears the signature of the authorized signatory. So, the said policy was legal and valid. In spite of that the O.P. no.1 did not release any amount for the said policy. We have already found that the surveyor Kobi Das in his final loss assessment report has mentioned the insurance liability as Rs.8,25,175/-. So, the O.P no.1 was  required to pay Rs.3,50,175/-(Rs.8,25,175 – 4,75,000).  But the O.P no.1 did not pay the said amount in spite of receiving the legal notice.  Therefore, we think that this is a negligence on the part of the O.P no.1 which tantamounts  to deficiency in service.  Therefore, there was deficiency in service on the part of O.P no.1. 

            This point is also decided in favour of the complainant.

POINT NOS. 4 AND 5 :-

            From the discussions made above and in the light of our observations, we have already found that the complainant was running photo-binding business in the name & style ‘Banik Photo Binding’ by self-employment and for the purpose of maintaining his livelihood from a rented shop-room at Dhupguri market near Thana More. The complainant took cash credit loan of Rs. 11 lakhs from O.P no.3 UCo bank, Dhupguri branch for the purpose of running his business. The said loan amount along with the trade articles of the complainant was insured with the O.P. no.1/Reliance General Insurance Company Ltd. with two shop-keepers insurance policy vide policy no.1507752614000862 valid from 5.4.2016 to 4.4.2017 with insurance coverage of Rs. 11 lakhs and shopkeepers insurance policy no.1507752614000280 for the period from 18.11.2015 to 17.11.2016 with insurance coverage of Rs.5 lakhs.  We have also found that the shop of the complainant was fully gutted by devastating fire broke out on 11.4.2016 night at Dhupguri market place.  We have also found that the Surveyor Kobi Das was engaged by O.P no.1 for assessment of loss who submitted his final loss assessment report showing insurance liability of Rs.8,25,175/-.  We have also found that the O.P no.1 released Rs.4,75,000/- in respect of insurance policy being no. 1507752614000280 and deposited the said amount in the loan account of the complainant lying with the O.P no.3.  But the O.P no.1 did not release any amount in respect of another insurance policy of the complainant being no. 1507752614000862. At least the O.P no.1 was required to pay Rs.3,50,175/-, but the O.P no.1 did not pay the said amount which tantamounts to deficiency in service. This has certainly caused sufficient mental agony and sufferings to the complainant. The act of the O.P no.1 compelled the complainant to file the present case.  As such the complainant is entitled to get relief. We think that the O.P. no.1 should deposit Rs.3,50,175/- in the loan account of the complainant lying with O.P no.3. The O.P. no.1 should also pay Rs.50,000/- to the complainant towards harassment, mental agony etc. The complainant is also entitled to get litigation cost.

            Both these points are thus decided in favour of the complainant

            As a result, the case succeeds.

            Hence, it is

                                               O  R  D  E  R  E  D :-

that the Consumer case No.54/2017 be and the same is allowed on contest against the opposite party nos. 1 and 3 and ex parte against O.P no.2 with a litigation cost of Rs.5,000/-to be paid by O.P no.1. The O.P no.1 is directed to deposit  Rs. 3,50,175/- in the loan account of the complainant lying with O.P no.3 within one month from this day. The complainant is also entitled to get Rs.50,000/- from O.P no.1 towards compensation. Thus the O.P no.1 is directed to pay Rs.5,000/- + Rs.50,000/- i.e. Rs.55,000/- by Account payee cheque in the name of the complainant Dulal Banik within one month from this day. In case of failure to comply this order the entire amount i.e. Rs.3,50,175/- , Rs.5,000/- and Rs.50,000/- will carry interest @ 9% per annum from the date  of filing of this case i.e. on and from 8.11.2017 and will also deposit a sum of Rs.100/- per day in the bank account of the Consumer State Welfare Fund, West Bengal, from the date of order till realization. It is further ordered that O.P no.3 will be at liberty to recover from the complainant any outstanding dues of the cash credit loan of the complainant, as and  when this Award is carried out by O.P no.1.

Let the original documents, if any,filed by the parties and the extra sets  be returned on proper receipt.

Let a plain copy of this order be supplied to the contesting parties free of cost on proper acknowledgement or be sent by ordinary post in terms of Rule 5(10) of West Bengal Consumer Protection Rules, 1987.