IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC /29/2014.
Date of Filing: 25.02.2014. Date of Final Order: 29.01.2016.
Complainant: Abdul Khalil, S/O Hazi Abu Bakkar, Pro. of M/S Abdul Khalil,
Vill Sealmare , Near Khagraghat Station Road, P.O. Radharghat,
P.S. Berhampore, Dist. Murshidabad. Pin 742225.
-Vs-
Opposite Party: 1. Branch Manager, Universal Sompo General Insurance Co. Ltd.,
C/O Indigo Hotel, Ground floor (Near Gahunathganj Bus Stand),
Vill & P.O. Raghunathganj, Dist. Murshidabad Pin-742225.
Branch Office Address
Branch Manager, U.S.G.I. Block ‘A’ Express Tower, (7th Floor),
42A, Shakespeare sarani, Kolkata-700017.
Corporate Office:
Unit No. 401(4th floor) Sangam Complex, 127 Andhari Kurla Road,
Andheri(E) , Mumbai-00059.
2. Branch Manager, Allaahabad Bank, Krishnath Road Branch,
35,36, Krishnath Road, P.O. & P.s. Berhampore, Dist. Murshidabad.
Present: Sri Anupam Bhattacharyya ………………….President.
Sri Samaresh Kumar Mitra ……………………..Member.
Smt. Pranati Ali ……….……………….……………. Member
FINAL ORDER
Sri Anupam Bhattacharyya, Presiding Member.
The instant complaint has been filed by the complainant u/s 12 of the C. P. Act, 1986 praying for payment of insurance claim of Rs.5,97,710/- along with interest @ 12.5 % till realization and compensation of Rs.50,000/-.
The complaint case, in brief, is that the complainant carrying on fertilizer, pesticides business taking loan from Op No.2 Bank mortgaging stock of goods and insured the same with Op no.1 paying all the necessary premiums. Suddenly, on 4.11.12 a devasted rain water washed out two Godown Nos. 4&5 and damaged fertilizer amounting to Rs.3, 69,710/- and Rs.2, 28,000/-respectively totallying to Rs.5,97,710/- . On 5.11.12 the complainant informed the same to Op no.2 Bank and to Op No.1 over phone. The complainant submitted documents for inspection to the Surveyor appointed by Op No.1 as per its instruction dt. 5.6.13. Thereafter, the complaint demanded for settlement of the claim but in vain. Then, the complainant has filed the complaint. Hence, the instant complaint case.
The written version filed by Op No.1-Insurance Co. Ltd, in brief, is that the OP No.1 has denied the entire allegations of the complainant. The complainant did not inform the matter to the OP No.1 in proper time and complainant fail to take minimum responsible and proper care and protection to prevent rain or natural calamities. From the stock register it was observed that only 23 Kg costliest items like MOP was shifted. The complainant willfully withheld to furnish all purchasing documents for the period from 01.04.12 to 04.11.12 in a comprehensive manner nor the purchase register in spite of requisitions. The complainant also has not filed stock register for the year 2011-12. There is a gross deficiency in maintaining the books of accounts. As per investigation report gross assessed loss is Rs.1, 92,830/- less deduction under insurance @ 8% i.e. Rs. 15,426/- and less policy excess lower of 5% i.e Rs.10,000/- , the net total assessed loss Rs.1,67,404, the complainant is only entitled to get Rs.1,67,404. There is no d efficiency of service on the part of this OP. The complainant is not entitled to get any compensation. Hence, the instance written version.
Considering the pleadings of both parties the following points have been framed for the disposal of the case.
Points for decision:
- Whether the case is maintainable in its present form and law?
- Whether the case is barred by the principles of estoppels, waiver and acquiescence?
- Whether the complainant is entitled to get relief as prayed for?
- To what other relief/reliefs the complainant is entitled?
Decision with reasons.
Point Nos. 1 to 4
All the points are taken up together for the sake of convenience.
The instant complainant is praying for payment of insurance claim of Rs.5, 97,710/- along with interest @ 12.5 % till realization and compensation of Rs.50, 000/-.
The complainant’s case, in brief, is that the complainant carrying on fertilizer, pesticides business taking loan from Op No.2 Bank mortgaging stock of goods and insured the same with Op no.1 paying all the necessary premiums. Suddenly, on 4.11.12 a devastated rain water washed out two Godown Nos. 4&5 and damaged fertilizer amounting to Rs.3, 69,710/- and Rs.2, 28,000/- respectively totallying to Rs.5, 97,710/- . On 5.11.12 the complainant informed the same to Op no.2 Bank and to Op No.1 over phone. The complainant submitted documents for inspection to the Surveyor appointed by Op No.1 as per its instruction dt. 5.6.13. Thereafter, the complainant demanded for settlement of the claim but in vain. Then, the complaint has filed the complaint.
On the other hand, the OP’s case is that the complainant did not supply the relevant documents as called for. The complaint as per Investigation Report is entitled to get only Rs.1, 67,404/-. The complainant has not supplied the relevant document as per requisition. The complainant is not entitled to get any compensation.
To prove the case, the complainant has filed Form-16A towards tax deduction amounting to Rs.2502/- for the period from 01.01.13 to 303.14 for the final year 2012-13.
He has filed several Ledger A/c . But, he has not filed any audit report as per requisition of the surveyor.
From the surveyor report filed by the OP-Insurance Co. it appears that the complainant did not supply the required documents as per their requisition.
Also, the same has not been filed before this Forum too. Though, he has filed Xerox copies of stock registers of fertilizers, pesticides, separately and sales registers for fertilizers and Pesticides separately.
In the Stock Register. there is reflection about purchase and sale. Also, there is reflection particularly on the date of incident i.e. 5.11.12 about sale of damage goods but there is no reflection about the amount realized on such sale, also, there is no reflection about price for purchase of fertilizer and pesticides and for that on the basis of the document supplied by the complainant there is no scope to ascertain the actual loss suffered by the complainant as well as to compare the amount of loss determined by the surveyor.
The complainant has filed two separate files in respect of Godown Nos. 4 & 5.
From the file in respect of Godown No.5 we find two carbon copies of documents printed in the name of the business where the amount of loss in respect of particular fertilizers and its total loss has been shown. There are no documents showing the basis of such figure.
During hearing argument Ld. Lawyer for the complainant has advanced argument that at the time of inspection the Surveyor appointed by the OP did not consider the documents filed by the complainant. He has also advanced argument that the complainant supplied the relevant documents as asked for by the Surveyor as per requisition.
In this regard from the requisition of the Surveyor appointed by the OP dt. 25.2.13 filed by the complainant, it appears that the following documents were asked for.
- Copy of audited Balance Sheet, audited profit & loss accounts including all the schedules to the balance sheet and profit & loss account for the financial year 2011-12, 2010-11 and 2009-10.
- Copies of tax audit report for the above three financial years.
- Copies of income tax returns for the above three financial years,.
- Item wise details of s tock as on 31.03.2012 showing quantity and value in respect of each item of stock.
- Copy of all purchase invoices up to 4th November, 2012.
- Item wise s tock register in respect of your go-down number 1 for the months of April 2012 to September 2012.
- Item wise stock register in respect of your go-down number 4&5 for the months of April 2012 to November 2012.
To justify the argument as advanced by the complaint as to the non-consideration of the documents filed by the complainant before the Surveyor during inspection, the Ld. Lawyer for the complainant has filed several Cover Files containing documents namely Stock Register of fertilizers and pesticides and other files in respect of Godown Nos. 4 & 5 and other files relating to Godown Nos. 1 & 2 which are not relevant to this case but filed as example. He has also filed different papers relating to income tax and bank account in separate files.
The impugned dispute is relating to consideration of records to ascertain the actual loss. The main case of the complainant is loss due to damage by inundation for heavy rain-fall on 4.11.12 and to determine the said loss, the stock filed as closing stock 04.11.12 to opening stock of 5.11.12 and thereafter the damage stock is to be ascertained.
From the Surveyor Report dt. 31.5.13 from the Paragraphs 17,18,20, 21 and 22 it appears that they have considered all the documents filed by the complainant before this Forum rather from the report of the Surveyor it appears that the purchase rates for the relevant items has not been filed . It is also clear from the documents filed in the Cover File that they have not filed any purchase Register and also it is clear from the concerned file relevant to bank’s statement, Audit Report. There is no such Audit Report relating to the relevant period has been filed befo5re this Forum.
From the documents filed by the complaint in the Cover File it is not established before this Forum that the Surveyor appointed by the OP has not considered the alleged documents filed by the complainant to show that they have actually suffered loss of damage goods as they have claimed for Rs.5, 97,710/-.
Considering the entire evidence from the side of the complainant as well as the Report of the Surveyor dt. 31.05.13 filed by the OP, we have no other alternative but to conclude that the complainant is entitled to Rs.1, 67,404/- as to loss of damaged of goods and he is entitled to get compensation of Rs.5, 000/- only.
On the basis of the above discussions as a whole we find that all the points are disposed of in favour of the complainant in part and the complainant is entitled to relief of Rs.1,67,400/- towards loss covered by the Insurance Policy and compensation of Rs.5000/-
Hence,
Ordered
that the Consumer Complaint No. 29/2014 be and the same is allowed on contest but in part.
The complainant is entitled to Rs.1, 67,400/- towards loss covered by the Insurance Policy and compensation of Rs.5000/-.
The OP is directed to pay Rs.1,67,400/- towards the loss covered by the Insurance Policy and Rs.Rs.5000/- as compensation to the Complainant within 45 days from the date of this order, failing which the OP is to pay Rs.100/- as fine for day’s delay and the amount so accumulated shall be deposited in the Consumer Legal Aid Account.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
