Date of Filing: 17-03-2015 Date of Final Order: 22-06-2016
Sri Bankim Chandra Chattopadhyay, President
The gist of the complaint as culled out from the record is that the Complainant, Md. Surat Ali is the owner of a shop namely Kayum Gift House at Deyurhat and the Complainant took loan from the O.P. No.2 for smoothly running his business. In that time the O.P. No.1, the Branch Manager, Cholamandalam MS General Insurance Co. Ltd., Siliguri Branch met with the Complainant and advised to insure his shop from the O.P. No.1 by which the Complainant will get financial help, if any loss in future. Accordingly, the Complainant purchased one insurance policy from the O.P. No.1 bearing No.2143/00025813/000/00, Sum assured of Rs.3,00,000/-, Yearly installment of Rs.735/-. According to the agreement, the yearly installment was deducted from the Complainant’s account and the O.P. No.1 sent all the relevant documents relating to the said policy.
Unfortunately, on 18/03/2013 at night, many shops with the Complainant’s shop were destroyed by fire. Thereafter, the Complainant lodged an written complaint to Kotwali P.S vide G.D Entry No.1335 dated 20/03/2013. The Complainant also informed to the O.P. No.1. After survey by the O.P. No.1 & 2, the O.P. No.1 agreed to pay Rs.25,000/- to the Complainant as loss by fire. But the said amount was refused to take by the O.P. No.2. Thus, the O.P. No.1 failed to keep their promise as the O.P. No.1 promised to provide financial help, if any loss in future.
Due to such activities of the O.P. No.1, the Complainant was suffered from mental pain & agony and financial loss also there was deficiency in service and unfair trade practice, adopting by the O.P.
Hence, the Complainant filed the present case praying for issuing a direction upon the O.Ps to pay (i) Rs.3,00,000/- as insurance amount, (ii) Rs.50,000/- as compensation for mental pain & agony, (iii) Rs.1,00,000/- for business loss and (iv) Rs.10,000/- towards litigation costs, besides other relief(s) as the Forum deem fit, as per law & equity.
The O.P. No.1, the Branch Manager, Cholamandalam MS General Insurance Co. Ltd., Siliguri Branch has contested the case by filing Written Version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the Complainant has no cause of action to bring the case. The main contention of the O.P. No.1 is that the Complainant submitted a claim to the office of the this O.P. No.1 at Siliguri and after receiving such claim intimation as per rule of Insurance Act and IRDA norms, the O.P. No.1 appointed one surveyor & loss assessor namely Somendra Chakraborty for survey the loss of shop goods. Thereafter, Mr. Somendra Chakraborty sent a letter dated 21/03/2013 to the Complainant and the O.P. No.2, the Branch Manager, Central Bank of India, Chandamari Branch, Cooch Behar for supply relevant documents relating to such claim and also required to produce Charge Sheet/Police Report. After receiving the surveyor’s report, the O.P. No.1 offered settlement of the claim amount of Rs.25,000/- ex-gratia on humanitarian grounds as no proper documents in support of the claim were submitted which is not admissible as per policy condition, but the Complainant was not willing to settle the matter in the said amount. Therefore, there was no negligence or deficiency in service on the part of the O.P. No.1.
Ultimately, the O.P. No.1, prayed for dismissal of the case with cost for such harassment.
The O.P. No.2, Branch Manager, Central Bank of India, Chandamari Branch, Cooch Behar has appeared in the case by filing Written Version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the Complainant has no cause of action to bring the case. The main contention of the O.P. No.2 is that the Complainant carried one business of gift item shop namely Kayum Gift House. He availed financial assistance from the O.P. No.2 in the form of Cash Credit Loan vide Account No.2354930290. As per the condition precedent of sanctioning the loan, the entire stock of the shop was to be hypothecated to the O.P. No.2 and the Complainant has to insure his stock. Accordingly, the Complainant executed loan agreement and hypothecation agreement, creating interest in form of hypothecation of his stock, in favour of the Central Bank of India. Thereafter, he also insured the stock from the O.P. No.1 for any loss due to fire, burglary etc.
The O.P. No.2 further contended that the shop of the Complainant, among the other shops in the locality caught fire on 18/03/2013 and the entire stock present in the shop of the Complainant were destroyed. As per the stock statement of the Complainant submitted on 02/01/2013 to the branch, the Complainant had a stock of Rs.2,98,001 as on 01/01/2013. Further, as per his statement, at the time of the incident of fire on 18/03/2013, he had stock of more than Rs.3,00,000/- present in the shop. After the said incident the O.P. No.1 was contacted and all the required documents was submitted to them towards claim of the insurance, but Rs.25,000/- was admitted instead of the claim of Rs.3,30,000/-. It was a matter of utter dissatisfaction for the O.P. No.2 that the admitted claim was such meager. Therefore, the O.P. No.2 raised the issue with the O.P. No.1 and as advised to submit all the bills of stock present at the time of fire. Though there were some delay in submission of the said bills but ultimately, the bills were submitted afresh to the O.P. No.1. Thereafter, the O.P. No.2 sent a letter dated 03/03/2014 to the O.P. No.1 to settle the claim. The entire stock was procured out of the fund from loan of the O.P. No.2 provided in loan account No.2354930290 and the same was hypothecated to the O.P. No.2. Therefore, the O.P. No.2 is entitled to get the claim or compensation towards insurance claim of the Complainant.
By putting all this, the O.P. No.2 prayed for direction for payment of any compensation and cost to the Complainant and the same may please be directed to be deposited in the account No.2354930290 of the Complainant maintained with this O.P. No.2, Central Bank of India, Chandamari Branch, Cooch Behar.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency in service by repudiating the claim of the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully. Perused the entire documents in the record and also heard the argument as advanced by the parties at length. Though the O.P. No.2 appeared but ultimately they did not turn up before this Forum.
Point No.1 & 2.
Admittedly, the complainant took an Insurance Policy of his shop viz Kayum Gift House at Deyurhat from O.P. No.1/Cholamandalam MS General Insurance Co. Ltd, Siliguri Branch and insured the stock of his shop to get financial help, if any loss occurred in future by fire, burglary etc. The said fact was not denied by either of the parties. It shows that the validity of the insurance policy runs from 21.03.2012 to 20.03.2013 which includes the date of incident which happened on 18.03.2013.
The complainant in this case has claimed Rs.4,60,000/- in total under different heads which is less than the pecuniary limit of this Forum. The complainant has brought this case against the Branch Manager of Cholamandalam MS General Insurance Co. Ltd, Siliguri Branch and the Branch Manager, Central Bank of India, Chandamari Branch under Kotwali P.S, Cooch Behar which is within the territorial jurisdiction of this Forum.
Therefore, having heard the Ld.Agents of both sides and on considering the facts and circumstance, we have no hesitation to hold that the complainant is a consumer as per provision u/s 2(1)(d)(ii) of C.P. Act, 1986.
In our view, this Forum has sufficient jurisdiction i.e. pecuniary as well as territorial jurisdiction to entertain the instant case.
Thus, both the points are decided in favour of the complainant.
Point No.3 & 4.
These points are taken up together for the sake of convenience and brevity.
Admittedly, the complainant took loan from O.P.No.2 and insured the stock of his shop viz. Kayum Gift House at Deyurhat with O.P. No.1/Cholamandalam MS General Insurance Co. Ltd, Siliguri Branch amounting to Rs.3,00,000/- with accidental benefit. The Policy of Insurance covered from 21.3.2012 to 20.03.2913 which includs the date of incident. Admittedly, the shop of the complainant caught fire on 18.03.2013 at night. According to the version of the complainant that his shop was set fire on that date along with other shops in bazar area and the stocks of his shop were completely destroyed by fire and he sustained a loss of Rs.2,85,000/-. The complainant further alleged that he had another fish selling shop there and he sustained a loss by that fire amounting to Rs.50,000/- i.e. totaling Rs.3,35,000/- (Annexure-9). The complainant claimed in this perspective that he is entitled to get the entire money of the said insurance policy as he made fire insurance of his shop. The complainant has prayed for a further amount of money for mental pain and agony and for business loss as well as towards litigation cost. The complainant has filed the insurance policy of his shop, the Photocopy of a certificate Babasayee Samity, a certificate of Gram Panchayet Prodhan of Putimari, tax receipt of Gram Panchayet of his shop, miscellaneous receipts, trade license, a certificate in favour of the Complainant dated 21.03.2013 and a statement of stock as per hypothecation agreement in between the complainant and O.P.No.2/Bank which marked as Annexure 1,2,3,4,5,6,7 and 8 respectively. The Photocopies of Annexure 9 and 10 go to show that the complainant had made an F.I.R to that effect where the shop of the complainant was completely destroyed with reference to Kotwali P.SGDE No.1335 dated 20.3.13 and the said information was also sent to O.P No.1. Surveyor reported to repudiate the claim Rs.60,000/- but the O.P No.1/Insurance Company allowed to pay Rs.25,000/- and the complainant ignored to receive the same.
Though the O.P. No.2/Central Bank of India has filed W/V in the case but their version is that the Complainant is entitled to get the total money of insurance as insurance policy was purchased to that effect. On the other hand the contention of the O.P No.1 is that the complainant has violated the terms and condition of insurance policy which shows from the documents of the complainant i.e. Annexure 1, 2 and 3. So, this O.P has no liability to indemnify the claim and as such they have prayed for dismissal of the case. They alleged that on receiving the complainant’s claim, they appointed one Surveyor and loss assessor viz Soumendra Chakraborty for survey about loss of goods as per rule of Insurance and norms of IRDA. The said Surveyor sent a letter to the complainant and O.P. No.2 for supply relevant documents which described in the letter in Para 1 to 17 and the said Surveyor and loss assessor offered the settlement of the claim to an amount of Rs.25,000/- as ex-gratia on humanitarian ground as no proper documents have been submitted by the complainant to settle the matter.
One Debashish Bhowmik, Legal Manager of O.P.No.1 adduced evidence on affidavit in counter of the case of the complainant. It appears there from in Para- 9 of the said evidence that the insurance company intended to settle the claim on the basis of stock and godown statement made on 02.01.2013 wherein total goods valued Rs.29,800/- and on that eye the Insurance Company intended to settle the case amounting to Rs.25,000/-. If we go through the photocopy of the report of surveyor and loss assessor viz. Soumendra Chakraborty which held on 24.03.13 wherein he appointed on 21.3.13, it goes to show it was confirmed that the incident was genuine. The shop and the contents were badly gutted. He found no debries on inspection i.e. like half burnt items. According to him, it was presumed that the stock might be misplaced during extinguishing fire. As the fire took place genuinely in the shop premises and loss to the amount insured, so on humanitarian ground a lump sum amount i.e. 20% of Rs/- 3,00,000/- i.e. Rs.60,000/- may be considered which is fair and reasonable though final discretion lies with insurer. The Surveyor and loss assessor shows some documents in his report with enclosure. In written argument the O.P. No.1 urged that it is to be decided how many amount of goods of complainant were kept in his shop at the time of incident. According to O.P. No.1 the complainant could not supply the relevant documents at the time of survey, but fact remains that some documents have been shown by complainant at the time of survey which mentioned in enclosure of the report. It has also been further argued that as per bank stock statement in godown and compound dated 02.01.2013, the Complainant’s shop has total goods valued Rs.29,800/-, and that’s why the claim amount was settled Rs.25,000/-.
Now, we find on close scrutiny of Annexure-8 which filed by complainant that at the time of hypothecation the goods of Complainant’s stock was made with the bank/O.P. No.2 on 02.01,2013 amounting to Rs.2,98,001/- instead of Rs.29,800/- (wrongly stated) which agitated by O.P.No.1. So, it is not understandable to us firstly, how the Surveyor and loss assessor assessed a lump sum amount i.e. Rs.60,000/- which has no basis at all and secondly how the O.P. No.1/Insurance Co. argued that as Annexure-8 reflects Rs.29,800/- (the stock) that’s why they intended to settle the insurance by giving an amount of Rs.25,000/-. But their such type of argument is vague and not in consonance with the documents. Therefore, we do not find any reasonable explanation about the argument as advanced by O.P. No.1/Insurance Company.
Therefore, having heard the Ld. Agents and on meticulous scrutiny of the materials on record, we hold that as and when the O.P. No.1 intends to settle the dispute by giving the stock of the Complainant’s shop as mentioned on 02.01.2013, so the insurance claim should be fixed Rs.2,98,001/-. If we calculate the stock as mentioned in Annexure-8 we will find that the amount of stock exists at that time Rs.3,70,254/- initials and thereafter the amount of stock received Rs.41,472/- and out of them delivered (-) Rs.1,13,725/-. So, the balance stock exists amounting to Rs.2,98,001/-. It is pertinent to mention here that actually on what basis the O.P. No.1/Cholamandalam MS General Insurance Co. Ltd offered Rs.25,000/- to the complainant in respect of the said insurance policy. It is obscure to us why the O.P. No.1 did not follow the report of the Surveyor and loss assessor which suggested to pay Rs.60,000/-. In that perspective, it can obviously be said that the O.P has clearly made deficiency in service and as such they are liable to pay the compensation due to deficiency in service and mental pain and agony. So, on considering the materials on record and anxious consideration of the facts and circumstances, we are in view that the Complainant’s case is genuine and he is entitled to get relief as sought for.
Thus, the points are decided in favour of the Complainant.
Hence,
it is ORDERED that,
the Case No. CC/33/2015 be and the same is allowed on contest in part against O.P. No.1 and Ex-parte against the O.P. No.2 with litigation cost of Rs.10,000/- which is payable by the O.P. No.1 to the Complainant.
The O.P. No.1 is directed to pay a sum of Rs.2, 98,001/- to the O.P. No.2/Central Bank of India to liquidate the Complainant’s loan in respect of Insurance policy of Complainant’s shop.
The O.P. No.1 is also directed to pay a sum of Rs.50,000/- as compensation for mental pain and agony due to deficiency of service to the Complainant.
The aforesaid amount shall be paid to the Complainant and the O.P. No.2 within 45 days from the passing of this order, in default, the O.P. No.2 shall pay Rs.100/- for each day’s delay and the amount to be accumulated shall be deposited to the State Consumer Welfare Fund, West Bengal.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.
