IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/10/2012 .
Date of Filing: 16.02.2012. Date of Final Order: 08.05.2015.
Complainant: Habib Ali, S/O Md. Ali, Vill. Pradipdanga, P.O. Jagannathpur, P.S. Hariharpara,
Dist. Murshidabad.
-Vs-
Opposite Party: (1) Branch Manager, Bajaj Allianz General Insurance Company Ltd.,
Berhampore Branch, 3/20B, K.K. Banerjee Road, P.O.& P. Berhampore,
Dist. Murshidabad. Pin-742101.
(2) Branch Manager, United Bank of India, Kumardahaghat Branch, P.S.
Hariharpara, P.O. Baruipara, Dist. Murshidabad , Pin-742149.
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 u/S 12 of C.P.Act,1986 praying for payment of damages for Rs.1,29,325/- plus compensation of Rs.50,000/- and litigation cost of Rs.5,000/-.
The complainant’s case, in brief, is that the complainant took cash credit loan of Rs.5, 00,000/- from O.P No. 2 Bank on 18.06.12 . The complainant used to preserve the goods of his business in a rented Godown of Chand Ali Mondal at Nishchintapur more of Vill Baran under Hariharpara P.S at a monthly rent of Rs.35,000/- . OP No.2 Bank insured one goods of the complainant lying in that Godown with OP No.1 and Insurance Co and the complainant used to pay the insurance premium to OP No.1 Insurance Co. On 19.6.11 1495 kg Jute of the complainant lying in that Godown was damaged and the complainant informed the same immediately to Op No.1 and on investigation by appointed surveyor of OpNo.1 the value of that damage was determined at Rs.35, 880/- out of which the jute valued Rs.16, 445/- was unusable. On 17.8.11 the Op No.1 informed the complainant that he will not get any compensation from Op No.1 on the ground that the Jute of the complainant lying with go-down No.2 situated at Nishchintapur was damaged but the jute of the complainant lying with his go-down No.1 which is insured with OPNo.1 was not damaged. Actually the complainant has only one go-down situated at Nishchintapur. On 1.12.11 the complainant noticed that damage quantity of jute was damaged due to seepage from wall and floor and as per intimation on investigation the amount of loss was ascertained at Rs.1,09,880/- . On 21.12.11 the Opno.1 informed the complainant that he will not get any compensation. Thereafter, the complainant repeatedly requested the op No.1 but no result. Then, the complainant has filed this complainant. Hence, the instant complaint.
The Written Version filed by the OP No.1 Insurance Company, in brief, is that the jute of the complainant’s Godown was damaged during rainy season with the water due to seepage and the same is clear violation of agreement between the parties and has not covered with the terms and conditions of the policy. The surveyor being appointed by the OP No.1 on investigation assessed the loss for Rs.26, 738/- subject to terms and conditions of the policy. The cause of loss is due to seepage is not covered under the policy, also the place of Godown at Nishchintipur is clearly a mis-match of the policy and for that the claim was rightly repudiated and there is no deficiency in service and for that the claim is liable to be dismissed. Hence, the instant written Version.
The Written Version filed by the OP No.2-Bank, in brief, is that the entire allegation of the complainant is not true. This OP No.2-Bank never insured any alleged stock in favour of the complainant and as this OP is not in any way connected with the alleged Insurance then in that even it is not in any way liable for such alleged damages or loss. The OP is only entitled to get the loan amount so taken by the complainant together with time to time accrued interest thereon. As there is no laches and/or deficiency in service on the part of this OP accordingly the complaint is not entitled go get any amount from this OP and only to harass the OP No.2, the complainant has made OP No.2 Bank as a party to this case and for that this case is liable to the dismissed against this OP. Hence, the instant written version of OP No.2.
Considering the pleadings of the respective parties the following points have been framed for disposal of this case.
- Whether the case is maintainable in law and facts?
- Whether there is any cause of action to file the present case?
- Whether the case is barred by law of limitation?
- Whether the case is barred by principle of waiver, estoppels and acquiescence?
- Whether the case is bad for defect of parties?
- Whether the complainant is entitled to get any award as prayed for?
- To what other relief/reliefs the complainant is entitled to?
DECISION WITH REASONS.
Point Nos. 1 to 7
All the points are taken up together for discussion for our convenience.
This is a case for realization of damages of the insured goods and compensation.
The complainant’s case is that his insured jute in his rented go-down at Nishchintipur was damaged and the same was investigated by Sri Kalyan Chakraborty physically, the appointed surveyor of the OP No.1.
The Op No. 1 –Insurance Company’s case is that the go-down of the complainant at Pradip Danga was insured and the go-down at Nischintipur was not insured.
The complainant has denied the same.
On the other hand, the complainant’s case is that he has only one go-down at Nischintapur in a rented go-down of Chand Ali Mondal at an amount of rent of Rs.35,000/-. His residence is at Pradipdanaga and he has no go-down there. He has categorically stated that he has no go-down at Pradipdanaga in his residence.
There is no case of OP No.1 that the complainant has another go-down at Pradipdanga, not in his residence, or in his residence at Pradipdanga.
The surveyor Kalyan Chakraborty appointed by the OP No.1 in his final report dt. 8.11.11 has reported about mismatch regarding the place of go-down mentioned in the policy and the actual rented go-down at Nischintapur where he inspected physically but he has not inspected the residence of the complainant at Pradipdannga though he met the complainant at his residence at Pradipdanga and there is no reflection in his report to the effect that OP No.1 is claiming that the complainant has go-down both at Pradipdanga and Nischintipur and the goods in the go-down at Pradipdanaga as mentioned in the Policy was not damaged and the goods damaged in this Go-down at Nischintiapur which is not covered by the policy being the place of go-down at Nischintapur is not mentioned in the policy.
The surveyor report is silent on that point.
Further, there is no evidence from the side of OP No.1 to prove its case that the complainant has go-down in his residence at Padipdanaga, where the goods are not damaged.
On the other hand, from the letter of the complainant dt. 24.12.11 address to the Branch Manager, OP No.2 Bank it is clear that mistakenly the address of the house of the complainant was written in the policy schedule instead of the actual address of his go-down at Nischintipur and requested for correction of the same in his policy.
Also, the complainant has filed a certificate dt. 12.2.12 by Secretary , Baharam Bazar Kalyan Samity, Nischntipurmore, P.S. Hariharpara, Murshidabad to the effect that the complainant is a member of this Society and he carries on grocery articles loading business and he has only one rented go-down of Chand Ali Mandal at Nischintipurmore. His dwelling house is at Pradipdanga and he has no go-down there.
Another objection raised by the OPNo.1-Insurance Co. is that seepage loss is not covered under the policy.
From the report dt. 8.11.11 of Sri Kalyan Chakraborty, Surveyor appointed by OP No;1 , it appears from Inspection Findings and Observation at para -6 of the report that during the course of physical inspection carried out outside the go-down the surveyor found dampness outside the wall and jute goods were damage due to seepage loss. From the policy schedule it appears that risk covered is standard Fire and Special Perils and Addons as detailed under Annexure-I.
Regarding special perils it appears from the letter dated 16.12.11 of the OP No.1 Insurance Co the Special Perils covers the risk is Flood + inundation which is event (vi) out of (xii) events.
Considering this letter dt. 16.12.11 of the OP No.1, we can safely conclude that in this policy risk covered for Flood and Inundation.
It is true that actual loss has been covered in this case for seepage.
But, it is to be ascertained as to the cause of such seepage which is clearly shows from the Investigation report of the Surveyor Kalyan Chakraborty appointed by OP No.1 from Item No.6 –Inspection finding and Observation that he found dampness outside the wall and just goods were damaged due to seepage.
In this connection from item No.2 of this Investigation report as to cause of loss reported by the insurer it appears that during rainy season water accumulated in and around the warehouse resulting in damaging jute bales and the rain water penetrated through the wall of the go-down covering damage to raw jute.
Thus, it is clear that seepage was in the go-down for accumulation of water during rainy season in and around the go-down. Accordingly, this loss will come under the risk of policy for Flood and Inundation.
Regarding damage of insured jute in the go-down during rainy season the complainant has claimed loss for damage of 14l95 kg jute on 19.6.2911 for Rs.19, 435/- as per report of Surveyor(value of damaged jute Rs.35,880/- Rs.16445/- value of damped jute which can be used and for another loss noticed on 1.12.11 is for Rs.1,09,880/- . Total claim of the complaint for damages of jute is Rs.1,29,326/-.
For the damage of 1495 kg jute caused on 19.6.11, it appears from the letter dt. 13.8.11 of the Op no.1 addressed to the complainant relying upon the report of the Surveyor Mr. Kalyan Chakraborty appointed by them, it appears that the loss is within policy excess. The details are as under:-
Your claim for 1495 kg of jute Bales @Rs.24/- per kg Rs. 35880.00
Less under Insurance Rs. 11508.00
Rs. 24372.00
Less Salvage as agreed by you @ Rs.11/- per kg. Rs. 16445.00
Rs. 7927.00
Less Policy Excess Rs. 10000.00
Net Amount Payable N I L
Relying upon this report of Surveyor as to entitlement of loss covered under this policy for the damage of 1495 Kg. jute caused on 19.6.11 it is clear that the complainant is not entitled to get any amount from OP No.1.
Regarding the damages of jute noticed on 1.12.11 for 56 Bales, 72 Bales and 58 bales claiming loss for Rs.1, 09,880/- it appears from the report of the Surveyor dt. 8.11.2011 in the para-7 as to computation of loss that net payable amount is Rs.26, 738/-.
There is no iota of evidence from the side of the complainant challenging this report of the Surveyor as to computation of loss.
Regarding entitlement challenging the repudiation of claim by the OP No.1 Insurance Co. ltd, the Ld. lawyer for the complainant has referred the reported decision in 2000 WBLR (CP)(NC) 55 M/s National Insurance V. Marthi Crystal Salt Co Ltd where insurance claim was raised for damages of salt caused by storm, cyclone, typhoon, etc. and also unseasonal rainfall comes under the insurance cover. There is nothing in the wording of the insurance policy to suggest that storm, cyclone, etc. will be outside the insurance cover. The loss exceeds 10% of the sum insured and it has been held that in such situation the Insurance Company is not entitled to deduct any amount on account of policy excess and pay the balance to the claimant.
In that case the Insurance Company repudiated the claim on the ground that the rainfall which occurred on 4/5.06.1991 could not be said to be unseasonable.
In this case the OP No.1-Insurance Company has repudiated the claim of the complainant not on the ground of unseasonable rainfall but for mismatch of place of go-down and cause of loss of seepage is not covered under the policy.
The letter of OP No.1 Insurance Co. Ltd. 13.8.11 and 16.12.11 repudiating the claim of the complainant were written on the basis of the report of the Surveyor , Mr. Kalyan Chakraborty, appointed by OP No.1 where net payable amount was recommended as ‘nil’ and Rs.26,738.29 respectively.
The complainant has filed this complaint after aforesaid repudiation by the OP no.1 on 13.8.11 and 16.12.11 but he has not challenged this amount of claim recommended by the Surveyor. Also, the complaint has not adduced any cogent evidence to justify his claim amount for Rs.1, 29,316/-.
The Ld. lawyer for the complainant has referred to another decision reported in (2007)I WBLR(SC) 481, United India Insurance Co. Ltd. Vs. M/S Kiran Combers & Spinners where claim was repudiated on the ground that the building was collapsed due to structural defect and no such defect was pointed out when the policy was issued. Exclusion clause in the policy does not include subsidence and it has been held that repudiation on the ground of structural defect caused by subsidence was not justified.
In this case the cause of loss has been reported by the Surveyor after investigation that seepage loss where it has already been discussed and this Forum has come to conclusion that the loss was actually caused due to flood and inundation. From the report it appears that during investigation the surveyor investigated the outside of the go-down and found dampness outside the wall and jute goods were damaged due to seepage.
In this case at the time of issuing the policy, there was nothing mentioned as to the effect that the go-down was damaged due to damp.
That being so, relying upon the reported decision (2007) I WBLR(SC)481 we can safely conclude that the OP cannot repudiate the policy on the ground that wall of the go-down were damaged previously . So, there cannot be any damage by flood causing loss of seepage.
We have already discussed that the loss of seepage is to be interpreted in the fashion that due to flood/inundation water was admittedly stored in and around the go-down and that caused seepage by oozing water through the walls.
Accordingly, we find that the OP-Insurance Company cannot repudiate the claim on the ground that seepage of loss being not covered in the policy, the complainant is not entitled to get any damages. But we find that his loss was caused due to flood/inundation causing seepage of loss and specifically the term “Seepage Loss” is not mentioned at the time of issuing the policy.
Considering the above discussion as a whole and also considering the aforesaid reported two decisions and also relying upon the report of the Surveyor appointed by the OP-Insurance Company, we can safely conclude that the complainant is entitled to get Rs.26,738/- for loss of damaged insured goods and Rs.5,000/- as compensation for mental pain and agony.
Regarding the claim against the OP no.2, the complainant’s case is that the OP no.2 Bank insured the hypothecated goods of the complainant with the Op no.1 but the same has been denied by the OP No.2 Bank in his written version.
From the written version filed by the OP No.2 bank, it appears that the OP No.2 never insured any alleged stock-in-trade of the complainant with the OP No.1 Insurance Company and for that the OP No.2 is not in any way connected with the Insured goods and is not liable for any los sustained by the complainant. From the documents filed by the complainant in support of his case there is no such document to show that the OP No.2 Bank insured the hypothecated goods of the complaint with the OP No.1 Insurance Company.
Admittedly, the complainant hypothecated the goods with the OP No.2 Bank against cash-credit loan of Rs.5, 00,000/- . From the sanction-letter filed by the complainant it appears that the OP no.2 Bank sanctioned cash credit loan of Rs.5,00,000/- in favour of the complainant.
Considering the above discussion , it is clear that the OP No.2 Bank is not liable for the loss sustained by the complainant in this case and as such the case against the OP No.2 be dismissed.
On the basis of above discussion, we find that all these points are disposed of in favour of the complainant in part and as such the complainant will get Rs.26,738/- for loss of insured damaged jute and Rs.5000/- as compensation for harassment from the OP No.1 Insurance Company and the case against the OP No.2 be dismissed.
Hence,
Ordered
that the Consumer Complaint No. 10/2012 be and the same is hereby allowed on contest in part against the OP No.1 Insurance Company and be dismissed against the OP No.2.
The Complainant is entitled to get Rs.26,738/- for loss of insured damaged jute and Rs.5, 000/- as compensation for harassment from the OP No.1 Insurance Company.
The OP No.1 Insurance Company is directed to pay Rs.26,738/- and Rs.5,000/- to the complainant within 45 days from the date of this order, failing which the OP No.1 Insurance Company is to pay Rs.50/- as fine for each 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.
Member Member President
District Consumer Disputes District Consumer Disputes District Consumer Disputes
Redressal Forum. Redressal Forum. Redressal Forum.
Murshidabad. Murshidabad. Murshidabad.
