IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/163/2016.
Date of Filing: Date of Admission: Date of Disposal:
16.11.16 23.02.17 27.06.19
Complainant: Md. Siadutulla Sk
S/o Lt. Ehasan Ali
Vill-Srikanthapur
PO-Natungram
PS-Kandi
Dist-Murshidabad
Pin-742137
-Vs-
Opposite Party: Branch Manager
United India Insurance Co. Ltd.
3/20/A K.K. Banerjee Road
PS&PS-Berhampore, Dist-Murshidabad
Pin-742101
Agent/Advocate for the Complainant : Sri. Rajib L. Roy.
Agent/Advocate for the Opposite Party : Sri. Siddhartha Sankar Dhar.
Present: Sri Asish Kumar Senapati………………….......President.
Smt. Aloka Bandyopadhyay……………………..Member.
FINAL ORDER
Asish Kumar Senapati, Presiding Member.
This is a complaint under section 12 of the CP Act, 1986.
One Md. Siadutulla Sk. (here in after referred to as the Complainant) filed the case against the Branch Manager, United India Insurance Co. Ltd. (here in after referred to as the OP) praying for compensation alleging deficiency in service.
The sum and substance of the complaint case is as follows:-
The Complainant is a fertilizer processor and he had an insurance policy No. 031405261E103432608 in 2015. In August 2015, the whole area of Srikanthapur, Natungram, Gopalnagar and Hizole was affected by flood and the godown of the Complainant under sunk 4 ft. deep water and all fertilizers were damaged after flood, Applicant claimed for loss amounting to Rs.17,00,000/- towards damage. The OP caused a survey by his own surveyor who submitted a report recommending for damage amounting to 20% of the claim. The report was challenged by the Complainant and prayed for re survey on 09.08.16 but of no result. Hence, the case is filed praying for a direction upon the OP to pay Rs.17,00,000/- as insurance claim with interest.
The OP contested the case by filing written version on 12.09.17 contending that the case is not maintainable. The OP denied the fact of alleged loss of Rs.17,00,000/-. The OP admitted the fact that a sum of Rs.18,00.000/- on stock of fertilizers and similar nature of goods was insured with the insurance company having policy No. 0314052615E103432608 valid from 25.06.15-24.06.16 . That as per statement of the Complainant the flood came on 04.08.15 but the intimation was given on 12.08.15 . That after getting information the OP appointed surveyor for inspection and to assess the loss on 14.08.15. The surveyor visited the place on 16.08.15 and 24.08.15 and observed that no reasonable care had been taken by the Complainant to protect the fertilizer bags.That after first visit the surveyor found that two layer from bottom was directly affected by flood water and he requested the insured to shift the said un-affected fertilizers bags from the go-down but on the next visit the insured produced huge quantity to empty bags reporting that all the fertilizers products had been damaged. According to the surveyor 20% of stock was found affected moreover, the Complainant had different godowns to stock his fertilizer products. If the entire stock of the fertilizers was diluted in water then there must be damage of the diluting but the surveyor found no sign of damage of the building/diluting of chemical reaction of fertilisers in wall and floor. So, the claim is fabricated. So, the Insurance Company was requested by the surveyor to consider the claim as non-standard and as the loss of Rs.3,24,598/-. The Insurance Company is ready to settle the claim to the tune of Rs.3,24,598/- subject to production of original bills, invoices and cash memos and complete KYC details. There is no unfair trade practice and deficiency in service on the part of the OP. The OP has prayed for dismissal of the complaint.
On the basis of the above versions following points are framed for proper adjudication of the case :
Points for decision
- Is the Complainant a consumer under the provision of the CP Act, 1986?
- Has this Forum jurisdiction to entertain the complaint?
- Is there any deficiency in service on the part of the OP, as alleged ?
- Is the Complainant entitled to get any relief, as prayed for?
Point no.1
The Ld. Advocate for the Complainant submits that the complainant is a consumer of the OP as he hired the services of the OP.
The Ld. Advocate for the OP submits that the Complainant is not a consumer.
On going through the written complaint, written version, evidence and documents filed by both sides, we find that the Complainant is a consumer as he hired the services of the OP for consideration.
Point No.2
The Ld. Advocate for the Complainant submits that this Forum has both territorial and pecuniary jurisdiction to entertain the case.
The Ld. Advocate for the OP has submitted nothing on this point.
On perusal of materials on record, we find that this Forum has both territorial and pecuniary jurisdiction to entertain the complaint.
Point Nos.3&4
The Ld. Advocate for the Complainant submits that the Complainant sustained a loss of Rs.16,94,170/- but the OP intended to settle the claim at Rs.3,24,598/-. It is urged that the so called survey report has no basis and the OP has deficiency in service. He argues that the fertilizer products were totally damaged in the godown due to flood but the OP has assed the damage @20% without any basis. He prays for a direction to settle the claim at Rs.17,00,000/-.
In reply, the Ld. Advocate for the OP submits that the Complainant lodged the claim after eight days from the date of the alleged damage and surveyor was appointed for investigation and to assess the damage. It is argued that the surveyor, namely, Subhra Kumar Kundu has submitted a detailed report along with relevant photographs and copies of documents received from the Complainant. It is urged that the report of the surveyor is on the basis of investigation of the case. It is argued that the surveyor has rightly assessed the loss @ 20% of the total claim. He further argues that the surveyor has stated in his report that he advised the Complainant to shift the un-affected fertilizer bags to some safe place as the water mark was upto two layers on the first day of his visit but on the next day of visit, the Complainant showed the surveyor some empty fertilizer bags and reported that all fertilizers were diluted. He submits that the surveyor has strong reason to believe that the statement of the Complainant regarding total damage of fertilizers is false. It is contended that the surveyor has calculated the loss in his survey report. It is urged that the OP has no deficiency in service and the OP is ready and willing to settle the claim at Rs.3,24,598/- as per surveyor report.
We have gone through the written complaint, written version, evidence and documents submitted by both sides including the survey report dated 22.12.15. Admittedly, the fertilizer godown of the Complainant was covered under a valid Insurance Policy on the date of the flood in 2015 under the OP. The Complainant filed application to the OP on 12.08.15 alleging that fertilizers products worth Rs.17,00,000/- had been damaged in his godown Nos. 1 and 2 due to flood on 04.08.15. One Subhra Kumar Kundu was appointed as surveyor and he inspected the premises of the godown on 16.08.15 and 24.08.15.
We have gone through the surveyor report and the basis of calculation to assess the damage. On a careful consideration we find no material irregularity or illegality in the surveyor report dated 22.12.15. The OP is agreeable to settle the claim at Rs.3,24,598/- as per report of the surveyor. The Policy of Insurance provides for referring the matter to arbitration. As against low assessment of loss, the Insurer lodged the complainant before this Forum without taking recourse to arbitration in termes of the policy. In such a case the Hon’ble National observed in Sri ganesh Spinners Vs United India Insurance Co. Ltd reported in (1996) 3 CPJ 183 (NC) “ In asmuch as the Insurance Co. has taken its decision on the claim after due application of mind to the facts and circumstances of the case and the said decision cannot be said to have taken otherwise in good faith, it is not possible to hold that there was any deficiency in service on the part of the Insurer in determining the claim at only on a lower figure than the amount claimed by the complainant. Since the grievance of the complainant is that the amount assessed by the Insurance Co. as compensation due and payable to the Complainant is grossly inadequate, the remedy of the complainant , in our opinion, is to take resort to the provision for arbitration clause of the policy”.
We find nothing to hold that the OP has deficiency in service. It is expected that the OP will settle the claim at Rs.3,24,598/- on the basis of surveyor report as per rules. We find nothing to direct the OP to re-survey the claim of the complainant for assessment of loss of the Complainant. In our considered opinion, the complainant is not entitled to get any relief in this case.
Reasons for delay
The Case was filed on 16.11.16 and admitted on 23.02.17 . This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.
In the result, the Consumer case fails
Fees paid are correct. Hence, it is
Ordered
that the consumer case No. CC/163/2016 be and the same is hereby dismissed on contest against the OP without Cost.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
President
Member President.
