In the District Consumer Disputes Redressal Forum, Murshidabad
Berhampore, Murshidabad.
Case No. CC/37 /2014
Date of filing: 07/03/2014 Date of Final Order: 15/06/2016
Bidhan Chandra Mondal.
S/O.- Lt. Narayan Chandra Mondal.
Vill.& P.O.- Rasorah.
P.S.-Kandi.Dist- Murshidabad.……………………………...Complainant
- Vs-
Branch Manager,
The New India Assurance Company Limited,
37A, R.N. Tagore Road. P.O.& P.S.- Berhampore.
Dist.- Murshidabad.PIN.-742101. …………….………. Opposite Party
Before: Hon’ble President, Anupam Bhattacharyya.
Hon’ble Member, Samaresh Kumar Mitra.
Hon’ble Member, Pranati Ali.
FINAL ORDER
Samaresh KumarMitra,Member.
This complaint has been filed by the complainant u/s 12 of the C.P.Act, 1986 praying for a direction upon the OP to pay the entire cost which the complainant had to suffer loss due to sudden fish mortality amounting to Rs.1,98,000/- and compensation of Rs.50,000/- .
The case of the complainant, in brief, is that he is a businessman from where he earns his livelihood. The complainant is a beneficiary of a water body under Thana-Kandi, Mouja-Rasorach, JL No.89, Khatian No. 21,58& 1538. The complainant was duly insured with the OP under Inland Fish Insurance Policy No. 51290047112200000001 with effect from 20.05.2011 to 19.05.2012 and the said policy was successively renewed on 11.06.2012 to 10.06.2013. On 02.06.2013 in the morning fish mortality started in the aforesaid water body. Immediately the matter was informed to the Fishery Extension Officer, Kandi Block . The Officer visited to the waterbody on the same day. Necessary measures weretaken but mortality continued for the next two days. On 03.06.2013 the beneficiaries informed the matter to the OP through the Branch Manager, united Bank of India, KandiBranch. The matter was also informed to Chief Executive Officer, Fish Farmers’ Development Agency. The matter was forwarded to the OP under Memo No. 237/Ins dt. 20.11.2013 with a request to do the needful but in vain. The OP is not entertaining the claim of the complainant. The act of the OP is illegal and deficient. The OP has deficiency in service. Hence, the instant complaint case.
The Opposite Party denies all the allegations and statements made by the complainants in different paragraphs of their written complaint. The positive case of the Opposite Party is that they issued a policy as per terms and conditions of Inland Fish Insurance Scheme, where Sri Lakshmi Mondal and three others were policy holders. But only Bidhan Chandra Mondal filed this complaint. The Opposite Party got information of the incident on 04.06.13 through United Bank of India, Kandi Branch and one Investigator namely Ratan Kumar Dey was appointed to report. On 04.06.13 the Investigator visited the said pond and observed that the water is transparent and not a single fish either was floating on the water or living fish on the banks. So, after physical verification confirmation of the insured and verbal statements of eye witnesses, depending on documentary and circumstantial evidence opined that “fish loss due to fish mortality appears to be a fake and not otherwise”. So, the claim is not payable. Thereafter, the Opposite Party appointed a Surveyor Sri BiswajitBasu on 05.06.13 to survey the alleged Fish Mortality claimed by the claimant. He surveys the matter on 06.06.13 and 07.06.13. After survey, the surveyor found that the insured naturally admitted in their intimation they sustained partial loss ofmortality of fishes. So, the Surveyor opinion “Partial loss is proved and claim of partial loss of fishes is not covered under Indian Fish Insurance Policy and the same is excluded as per Clause 9(iv) of the Inland Fish Insurance Scheme. So, it is clearly proved that the Opposite Party has /had no deficiency of service. The case against the Opposite Party should be dismissed with cost. Hence, the written version.
The Complainant filed evidence on affidavit in which he stated that on 02.06.2013 in the morning suddenly fish mortality started in the aforesaid water body. He and other beneficiaries informed the matter to the Fishery Extension Officer, Kandi Development Block, Murshidabad, who in his turn visited the aforesaid water body on the same day and it was detected that a considerable damage had occurred due considerable fall of dissolved oxygen in the aforesaid water body or due to fungal infection in the gill of the fishes. He further assailed that necessary measures taken but mortality continued for the next two days then he informed the matter to the Opposite party on 03.06.2013 through the branch Manager, United Bank of India, Kandi Branch. The Fishery Extension Officer, Kandi development block, Murshidabad who gave a note about the truth of the incident and was confirmed. The matter was also informed to the Chief Executive officer, Fish FarmersDevelopment Agency, MeenBhavan, Berhampore through the Fishery Extension Officer, Kandi Development Block. The Fishery Extension Officer,Kandi Development Block informed the incident to the Chief Executive Officer,Fish Farmers Development Agency, MeenBhavan, Berhampore and a copy of report was forwarded to the OP. But the OP could not entertain the claim.
The OP filed Evidence on Affidavit by its Administrative Officer and stated that the OP got information regarding the alleged incidence on 04.06.2013 through United Bank of India, Kandi Branch and then appointed one independent investigator to investigate the matter who in his turn visited the pond and observed that the water was transparent and not a single Fish either was floating on the water or living Fish bone on the banks. So after physical verification, confirmation of the insured and verbal statements of eye witness and depending upon documentary and circumstantial evidence opined that “fish loss due to fish mortality is appearing a fake and not otherwise”. He assailed that the Ld. Independent Surveyor after thoroughly survey the entire matter and after verification of all the documents of Bank, Register kept with the OP and found that the insured naturally admitted in their intimation letter that they sustained partial loss of mortality of fishes which is not covered under Inland Fish Insurance Policy. As the loss was partial and as per exclusion clause 9(iv) of the Inland Fish Insurance scheme it is not payable.
Both the agents advanced arguments in their favour. The agent on behalf of the OP assailed that the loss of fish is partial so the complainant is not entitled to get any claim from the insurance company. He also relied the reports of investigator & surveyor.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainant Bidhan Chandra Mondal is a ‘Consumer’ of the Opposite Party?
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3).Whether the OPs carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
- Whether the Complainant Bidhan Chandra Mondal is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainant herein insured fish in his pond before the OP and the said fish died due to reason stated in the report of fishery officers.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite party are residents/carrying on business within the district of Murshidabad.The complaint valued within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
It is the case of the complainant that he alongwith others cultivated fish by taking loan sponsored under the Short Term Credit Project from United Bank of India, Kandi Branch at a pond of Rasorah Mouza, P.S.- Kandi. Dist.- Murshidabad and the said cultivated fishes were insured by Inland FishInsurance Policy of the New India Assurance Co. Ltd. being Policy No.51290047122200000001 valid from 11.06.2012 to 10.06.2013 night. He used to pay premium regularly. During the period of Insurance on 02.06.2013 in the morning the fish mortality started. He informed the matter to the Fishery Extension Officer, Kandi Development Block, who visited the aforesaid water body on that date and detected that considerable damage occurred. Necessary measures taken to prevent mortality continued upto 4.06.2013. The complainant informed the matter to the OP through Branch Manager, UBI Kandi Br. that was forwarded and recommended by the manager, with a note of Fishery Extension Officer, Kandi Development Block to the OP to do the needful. But the OP did not entertain the claim of the complainant for which the complainant knocked the door of this Forum for redress of deficiency of service of the OP.
The sole OP in his w/v assailed that getting information on 04.06.2013 through UBI, Kandi Br. they appointed investigator who visited the said pond and observed that the water is transparent and not a single fish either was floating on the water or living fish bone on the banks and made a report which depicts that “Fish loss due to fish mortality is appearing a fake not otherwise”; so the claim is not tenable. The independent surveyor appointed by OP surveyed the mater on 06.06.2013 & 07.06.2013 and opined that ‘partial loss is proved and claim of partial loss of fishes is not covered underInland Fish Insurance Policy.’ So according to policy partial loss is in exclusions under 9(iv) of the scheme of Inland Fish Insurance.
After perusing the documents, complaint petition, written version, evidence on affidavit and hearing the arguments it is clear from the report of Fishery Extension Officer, Kandi Development Block, Murshidabad that considerable damage occurred in the pond of the complainant and the fish mortality took place due to considerable fall in dissolved oxygen level as usually occurs at late night hours or at dawn particularly in cloudy weather or fungal infection in the gills of fishes. The Fishery Extension Officer Kandi Development Block, Msd also gave a side note in the petition of the complainant that assessment certificate as to damage of fish from the district authority will be required for settle his claim. So he forwarded the petition before the Chief Executive Officer,Fish Farmers Development Agency,Murshidabad for kind information & taking necessary action. And said petition was accepted by the Office of the Chief Executive Officer, Murshidabad on 16.9.2013. The said Fishery Extension Officer Kandi Dev. Block, Murshidabad wrote a letter dated 05.10.2013 to the Chief Executive Officer, Murshidabad District Fish Farmers Dev. Agency, Meen Bhavan, Berhampore regarding report of Fish mortality in a water body under STCP in which he stated that he visited the water body after some hours on the same date and came to know that a considerable damage had occurred and he predicted two causes behind the fish mortality in that water body, one cause could be considerable fall in dissolved Oxygen level as usually occurs at late night hours or at dawn particularly in cloudy weather and other cause may be fungal infection in the gill of fishes. He was also in the opinion to take necessary action so that the beneficiaries may get insurance claim from the insurer of the water body. This letter also forwarded by the Chief Executive Officer, Murshidabad District Fish Farmers Dev. Agency to the Divisional Manager,New India Assurance Co. Ltd. Berhampore , Murshidabad for doing needful.
The OP Branch Manager after receiving the information from the United Bank of India Kandi Branch on 04.06.2013 appointed one independent investigator Sri Ratan Kumar Dey who investigated the matter and observed that the water of the pond was transparent and not a single fish either was floating on the water or living fish bone on the banks and after physical verification, confirmation of the insured and verbal statements of eye witness and depending upon documentary and circumstantial evidence opined that “fish loss due to fish mortality is appearing a fake and not otherwise.” So the claim is not payable. The independent surveyor was appointed by the OP who surveyed the fish mortality as alleged by the complainant and opined that “partial loss is proved and claim of partial loss of fishes is not covered under Inland Fish Insurance Policy”. After perusing the Surveyors report it appears that the total quantity & value of stock of table fishes before the reported loss as on 04.06.2013 was 6615 kg and value is Rs.6,81,300.00. But nowhere in the complaint petition as well as in the written version of the OP it is stated the quantum of fish in the pond before 02.06.2013. The loss of 2200 kg of fishes is assailed by the complainant and it is also admitted by the surveyor. But the surveyor showed the partial loss by enhancing the quantum of fishes before 04.06.2013 comparing the Fish cultivation Register of the insured. He showed the percentage of loss is 33.25% and it is not covered by the said policy asit is partial loss. Banking upon the surveyors report the OP did not settle the claim of the complainant. According to the report of surveyor there was 4415 kg fish remained after the mortality of fishes for 3 days.
This Forum perusing the documents as produced by the parties is in a considered opinion that the mortality of Fishes took place in the pond of the complainant and it is reported by the Fishery Extension Officer of Kandi Development Block who physically visited the pond on the date of incidence and his report was also recognized by the Chief Executive Officer, Murshidabad District Fish Farmers Dev. Agency and forwarded the report of the Fishery Extension Officer before the Divisional Manager, New India Assurance Co. Ltd, Berhampore, Mursahidabad for necessary action. So the full reliance should be given to the report of the Fishery Extension Officer, Kandi Development Block, Murshidabad that considerable damage had occurred. So the complainant suffered a considerable loss for the mortality of fishes as a consequence he is entitled to get insurance coverage from the OP.
Hence we are in a considered opinion to allow the claim of the complainant in part as the quantum of fish damaged is not ascertained by the government official except stating the considerable damage.
4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the complainant couldprove his case. So the Opposite Party has liability to pay insurance coverage for loss of fish. In the result we pass the following order.
ORDER
It is ordered that the Complaint Case No.37/2014 be and the same is allowed in part on contest against the Opposite Party with no order as to cost.
The whole gamut of the facts and circumstances leans in favour of the complainant. We, therefore, allow the complaint and Opposite Party is directed to pay a sum of Rs.80,000/- to this complainant as insurance coverage of his fish that died in the insured pond within 45 days from the date of receiving this order.
No other reliefs are awarded to the complainant for harassment and mental agony.
At the event of failure to comply with the order the Opposite Party shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer legal Aid Account.
Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.
Dictated and corrected by me.
Member, Member, President.
