IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
MURSHIDABAD AT BERHAMPORE.
CASE No. CC /12/2013.
Date of Filing: 11.02.2013. Date of Final Order: 20.01.2016
Complainant: Iralata Mondal, W/O Misith Mondal, Pro. of Mondal & Co.having its
office at Keshabnagar, P.O. Cossimbazar Raj, Dist. Murshidabad.
-Vs-
Opposite Party: Branch Manager, National Insurance Co. Ltd, Berhampore Branch,
26/23/1, Sahid Surya Sen 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 C.P. Act, 1986 of the C. P. Act, 1986 praying for payment of Rs.14,07,388/- towards damages of the insured foreign liquors due to inundation and for compensation of Rs.1,00,000/- and cost of Rs.10,000/-.
The complaint’s case, in brief, is that the complainant being a dealer of foreign liquor, took loan from Allahabad Bank hypothecating the entire stock of foreign liquors which was insured with OP-Insurance Co. Ltd and the same valued Rs.14, 07,388/- stood in the ground floor godown was damaged due to heavy rainfall in the last part of July, 2007 causing damage by seepage due to inundation . The complainant forthwith informed the incident to the Superintendent of Excise to inspect the godown and the same was inspected by them and the cause of such loss and the amount of such loss was assessed. Then the complaint informed the same and requested for reimbursement of that loss as per terms of the policy. The OP-Insurance Co. has neither settled the claim nor repudiated the claim nor informed the complainant about the fate of the claim. Then, they have filed this complainant. Hence, the instant complaint case.
The written version filed by the OP-Insurance Co. Ltd , in brief, is that on the very day the OP appointed one independent surveyor namely Sri M.N. Zutsi to survey the reported loss and the surveyor visited the alleged godown of the complainant on 14.09.2007 and it clearly shows that there was no deficiency of service on the part of the Opposite Party. The warehouse was at least 11 ft down from the main Road lever. The alleged godown was inundated due to seepage flow of rain water which is not covered by the policy of Insurance and for that the complainant is not entitled to get any relied . The complaint is liable to be rejected. Hence, the instant written version.
Considering the pleadings of both parties the following points have been famed for the disposal of the case.
Points of consideration:-
- Whether the case is maintainable in its present form and law?
- Whether the complainant has locus standi to file the present complaint?
- Whether the case is barred by law of limitation?
- Whether the case is bad for non-joinder of parties?
- Whether the complainant is entitled to get the relief as prayed for?
- To what other relief/reliefs the complainant is entitled?
Decision with Reasons.
Point Nos. 1 to 6.
All the points are taken up together for the sake of convenience.
The complaint is for payment of payment of Rs.14,07,388/- towards damages insured of foreign liquors due to inundation and for compensation of Rs.1,00,000/- and cost of Rs.10,000/-.
The complainant’s main case is that the complainant being a dealer of foreign liquor , took loan from Allahabad Bank hypothetic ting the entire stock of foreign liquors which was insured with OP-Insurance Co. Ltd and the same valued Rs.14,07,388/- stood in the ground floor godown was damaged due to heavy rainfall in the last part of July,2007 causing damages by seeoage dye ti inundation . The complainant forthwith informed the incident to the Superintendent of Excise to inspect the godown and the same was inspected by them to ascertain the cause of such loss and the amount of such loss. Then the complaint informed the same and requested for reimbursement of that loss as per terms of the policy. The OP-Insurance Co. has neither settled the claim nor repudiated the claim nor informed the complainant about the fate of the claim.
To prove the case the complaint has filed the original Insurance policy.
On the other hand the OP-Insurance Co. has filed the Surveyor report and Insurance Policy and terms of policy for material damages and also they have filed the evidence-on-affidavit of the one Surveyor M.N. Zutshi on behalf of the OP Insurance Co. Ltd and written argument.
The Ld. Lawyer for the OP-Insurance Co. has strongly advanced argument against the complaint relying upon the Surveyor report that the damages caused due to seepage during heavy rainfall and seepage being not covered under the policy, the complaint is not entitled to get any relief.
The report of the Surveyor Mr. M.N. Zutshi dt. 24.09.07 appointed by the OP-Insurance Co. as to the cause of damages and his opinion is as under:
“ Cause: As mentioned hereinabove the water had
accumulated in the warehouse due to seepage probably
due to rise in the underground water table following
heavy rains on the 8th & 9th September, 2007. A joint
recording made with Sri Nishith Mandal, authorized
signatory, confirming water accumulation in the
warehouse due to Seepage is attached to this report.
The perils named in the Policy do not include Seepage. As such damage due to Seepage would appear to be an excluded Peril and the loss not covered under the Policy conditions.”
The ld. lawyer for OP-Insurance Co. has advanced argument strongly as to settled law relying upon decision of National Commission that for settling the claim for damages the surveyor report appointed by OP Insurance Co. is to be relied upon and seepage being not covered under the policy the complaint is not entitled to get any relief from the OP-Insurance Co. for the policy.
From the above report of the surveyor it appears that the loss for damages was assessed by the surveyor is Rs.5, 22,172.72.
But, the said surveyor opined in the report that the damage was caused due to seepage which does not cover in the policy.
Regarding this opinion of the surveyor the ld. lawyer for the complainant has advanced argument that the surveyor cannot pass any opinion and his duty is to assess the loss for the alleged damage and for that the opinion of the surveyor cannot be relied upon.
Also, he has advanced argument relying upon the settled principle is that the impugned seepage is admittedly due to inundation and the godown wall was obviously inspected at the time of introduction of the policy and the complainant at the relevant time tried to save damage by pumping.
Relating to the damage covered by seepage in revision petition No. 34454 of 2007 in Oriental Insurance Co. Ltd Vs. M/s Sathyanarayana Setty & Sons, the Hon’ble National Commission has held that in the instant case the seepage which was caused directly by inundation due to heavy rains, is covered by the Insurance policy and the claim was wrongly repudiated by the Petitioner/Insurance Company.
On the basis of above discussions we find that all the points are disposed of in part and as such the complainant will get Rs.5,22,172/- for the loss and Rs.10,000/- for compensation.
In this connection in that case Hon’ble National Commission has observed as under:-
“It is not disputed, as per facts brought on record by the Counsel for the Petitioner, that on account of rain, the rainwater poured into the godown through the holes from the roof of the godown, thus, inundating the wetting the stock in the godown.”
Similarly, in this case it is not disputed that there was inundation for heavy rainfall and for that inundation there was seepage which caused damage to the foreign liquor.
In the written argument as well as in the surveyor report and during course of hearing argument it was argued that the impugned policy was for the Insurance of foreign liquor not IMFL.
In this case, there are no documents showing IMFL cannot be insured as foreign liquor. Rather, it is clear that IMFL is foreign liquor
Also, in this case there is no case of repudiation of the policy for the said reason.
Considering the above discussions as a whole we have no other alternative but to conclude
that the complainant is entitled to get relief as to payment of loss for the damages of foreign liquor of Rs.5,22,172/- as per surveyor’s report and Rs.10,000/- towards compensation for harassment .
On the basis of above discussions we find that all the points are disposed of in part and as such the complainant will get Rs.5,22,172/- for the loss and Rs.10,000/- for compensation.
Hence,
Ordered
that the Consumer Complaint No. 12/2013 be and the same is hereby allowed on contest in part and the complainant will get Rs.5,22,172/- for the loss and Rs.10,000/- for compensation.
The OP is directed to pay Rs.5,22,172/- to the complainant for loss and Rs.10,000/- as compensation within 2 months from the date of this order, failing which the OP is to pay Rs.50/- as fine for day’s delay and the amount so accumulated shall be deposited in the Consumer Legal Aid account.
There will be no order as to cost.
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.
