IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/3/2019.
Date of Filing: Date of Admission: Date of Disposal:
02.01.19 24.01.19 15.12.22
Complainant: Malear Hossain
S/O Late Mir Hossain Vill. Jamidari,
Gorabazar, PO&PS-Berhampore, Pin-742101
-Vs-
Opposite Party: 1. Divisional Manager, National Insurance Co. Ltd.
26/23/1, S.S.Sen Road,
PO&PS-Berhampore, Pin-742101
2. Branch Manager, Bank Of India,
Berhampore Branch
14, Bimal Singha Sarani,
PO&PS-Berhampore, Pin-742101
Agent/Advocate for the Complainant : Sadhan Kumar Saha.
Agent/Advocate for the Opposite Party No. 1 : Gopen Prasad Sinha.
Agent/Advocate for the Opposite Party No. 2 : Rajdip Goswami .
Present: Sri Ajay Kumar Das………………………….......President.
Sri. Subir Sinha Roy……………………………….Member.
FINAL ORDER
Sri. Ajay Kumar Das, Presiding Member.
This is a complaint under section 12 of the CP Act, 1986.
One Malear Hossain (here in after referred to as the Complainant) filed the case against Divisional Manager, National Insurance Co. Ltd. & Anr. (here in after referred to as the OPs) praying for compensation alleging deficiency in service.
The material facts giving rise to file the complaint are that:-
The Complainant is residing at Village Jamidari, Gorabazar, PO&PS-Berhampore, Dist-Murshidabad within the jurisdiction of this court.
The Complainant was dealing in cycle business along with its parts and accessories under the name and style M/S, M.H. Cycle at stall No. 79,K.N. Road, PO&PS-Berhampore, Dist-Murshidabad since seventeen years ago. The Complainants business was gradually increasing and the shop room was packed up with business materials. In the said rolling business somehow the goods caught fire at 1.00 am on 28.11.17 and as a result the rubber materials and cartoons and other combustible item were rapidly burnt and through such burning the other hand materials in the said business were deformed causing a loss amounting to Rs.12,89,649/- only at least. This has been ascertained on the basis of stock register, sale register, purchase invoices and Bank transactions indusive of sale proceeds. The Complainant lodged diary at Berhampore Police Station informing the mishap which caused damaged of the shop room and the serious business goods. The G.D.E. No. is 1947 dt. 27.11.17. The room gutted with fire was inspected from electricity department and the fire and emergency services department. The Complainant earlier insured the business goods on 14.02.17 and the policy No. is 154000/48/16/98/00001910 and also insured the shop room on 07.02.17 and the insurance Policy No. is 154000/11/16/310000771 and both the Insurances were started with the OP No.1. During the continuance of the policy the shop room and the business goods were damaged by fire causing a huge loss. For the said reason the Complainant submitted fire claim form to the OP No.1 on 29.11.17 and process was started by the OP No.1 by its surveyor Mr. Ajit Kr. Chandra, who received all the copy of material documents from the Complainant to finalize the claim matters by the OP No.1. The Complainant served a letter through his Ld. Advocate Mr. Kapil Dev Ghosh at Berhampore on 17.01.18 to Mr. Ajit Kr. Chandra surveyor and loss assessor of the OP company narrating all the details of the fact of fire loss and about the policy of the said company where he demanded to settle all claims, but no responses had been made from his end. Until now and for which the Complainant has been compelled to file this case on the ground that the non action on the part of the OP No.1 tantamount to deficiency of service which has caused much mental agony to the Complainant. He is financially suffering for long one year.
OP No. 2 is contesting the case by filing written version stating inter alia that the case is barred by limitation and the case is also barred by ostoppel, waiver and acquiescence. The specific case of OP No.2 is that there is no whisper or any allegation against the OP No.2 and the name of OP No.2 is required to be expunged.
On the basis of the complaint and the written versions the following points are framed for proper adjudication of the case :
Points for decision
1. Is the Complainant a consumer under the provision of the CP Act, 1986?
2. Has the OP any deficiency in service, as alleged?
3. Is the Complainant entitled to get any relief, as prayed for?
Decision with Reasons:
Point no.1
It is submitted by the Ld. Adv. for the Complainant that the Complainant is a consumer under the Consumer Protection Act. This fact is not challenged by the Ld. Adv. for the OP No.1&2. However, we perused the materials on record. We find that the Complainant is a consumer under the Consumer Protection Act. The point No.1 is thus decided in favour of the Complainant.
Point no.2&3
Both the points are taken up together for the sake of convenience and brevity of discussion.
It is the case of the Complainant that he insured the business goods on 14.02.17 and the Policy No. is 154000/48/16/98/00001910 and also insured the shop room on 07.02.17 and the insurance Policy No. is 154000/11/16/3100000771 and both the insurance were started with the OP No.1.
We peruse the photocopy of insurance police of business goods. Policy remains valid for the period from 10.02.17 to 09.02.18. The sum assured is Rs. 11,27,000/-. The business goods were damaged on fire on 27.11.17.
We perused the photocopy of insurance policy of shop room. Policy remains valid for the period from 17.02.17 to 16.02.19. The sum assured is Rs.2,19,000/-. The shop room was damaged on fire on 27.11.17.
We see the photocopy of documents filed by the Complainant. From the documents, we find that Officer of WBSEDCL, Gorabazar, Custom Care Centre, inspected the Cycle Shop ‘’M.H. Cycle’’ at Block-B, Stall No. 79, K.N. Road, PO-Berhampore, Murshidabad and reported that the cause of said fire could not be ascertained.
We also see the report of fire (photocopy) Sub Divisional Fire Officer, Murshidabad Division. He has stated in his report that the cycle parts shop named M.H. Cycle was partially damaged by fire. In view of the documents discussed above and considering the available materials on record, we hold that the cycle hop of the Complainant was partially damaged by fire particularly when we find that this fact is not challenged either by OP No.1 or 2 and there is a copy of GD entry No. 1947 dated 27.11.17 to that effect.
It is the case of the Complainant that he submitted fire claim form to the OP No.1 on 29.11.147. Process was started by the OP No.1 by its surveyor Mr. Ajit Kr. Chandra who received all the copies of materials documents from the Complainant to finalize the claim matters. The Complainant served a letter through his Ld. Advocate Mr. Kapil Deb Ghosh at Berhampore on 17.01.18 to Mr. Ajit Kr. Chandra, Surveyor and loss assessor of the OP Company narrating the facts of fire in detail with the requests to settle the claim but no response had been given from his end and as such the Complainant has been compelled to file this case on the ground of non action on the part of the OP No.1. This fact tantamounts to deficiency of service. The Complainant has filed the relevant documents in support of his contention. We peruse the Advocate’s letter, fire claim form and other relevant documents. The contents of the Advocate’s letter and other documents corroborate the above fact stated by the Complainant. We also find that OP No.1 insurance company is not contesting the case by filing W/V. So, the allegation of deficiency of service on the part of OP No.1 is clearly established.
Ld. Advocate for the Complainant prays for compensation amounting to Rs.12,89,649/- for the burnt shop room along with all business materials and Rs.10,000/- for harassment and he also prays for interest @ 12% PA for the awarded amount.
In support of his claim, the Complainant examined the sale register, purchased statement and stock register through a CA, Subhasish Sarkar who assess the loss amounting to Rs.12,89,649/-.
Here we find from the stock register that the Cycle/Cycle parts amounting to Rs. 12,89,649/- were in the cycle shop when the cycle shop caught fire. But there is no whisper regarding the damage of the cycle/cycle parts which were in the cycle shop when the cycle shop caught fire. The cycle/ cycle parts are of such nature which could not be totally damaged and turned into assess. Moreover, the CA was appointed by the Complainant, so it cannot be said that the statements regarding loss of the Complainant prepared by the CA is free from bias particularly when it was prepared ex-parte i.e. in the absence of the insurance company.
In view of the matter discussed above and considering the facts and circumstances of the case, we would like to assess the damage amounting to Rs. 12,89,649/- divided by 2 = 6,44,825/-.
The interesting point to be noted is that OP No.1 National Insurance Company Ltd. was not contesting the case from very beginning in spite of receiving notice to that effect. At the time of argument Ld. Advocate Shri. Gopen Prasad Sinha, appeared in this case without V/nama and submitted the report of Ajit Kr. Chandra (Surveyor and loss assessor). He further submits that OP No.1 i.e. Insurance Company is ready to pay Rs. 3,17,560/- as per report of Ajit Kr. Chandra (surveyor and loss assessor). We peruse the report. The concluding part of the report may be quoted here “ as the loss is genuine in nature, the loss of Rs.3,17,560=00 (excluding pol Excess) is admissible fully, due to fire occurred to insured’s shop on 27.11.17 at about night 1 a.m. as per terms and condition of the policy.
Conclusion:- The report is being issued without prejudiced, subject to the terms and condition of the policy and final approval of the Insurer.”
There are materials on record, where from we find that the instant case was filed on 02.01.19 and since that time the Complainant has been suffering from mental pain and agony for getting the compensation from the OP No.1. We have already observed that the allegation of deficiency of service on the part of OP No.1 is clearly established.
The conduct of OP No.1 indicates that he kept the report of Ajit Kr. Chandra (surveyor and loss assessor) in his custody to drag the claim made by the Complainant. Moreover, we find that the said surveyor and loss assessor was appointed by the OP No.1 and his report was kept under the custody of OP No.1 for long period. Such being the position, the report of surveyor and loss assessor cannot be said that it is free from bias. For argument’s sake, the report of the surveyor and loss assessor is correct then the OP No. 1 must pay Rs. 3,27,265/- for mental pain and agony.
In view of the matter discussed above, we are of the view that the Complainant is entitled to get Rs.3,17,560/- as loss of damages and Rs. 3,27,265/- for mental pain and agony, totaling Rs. 6,44,825/-.
Reasons for delay
The Case was filed on 02.01.19 and admitted on 24.01.19. This Commission 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 is allowed in part.
Fees paid are correct. Hence, it is
Ordered
that the Complaint Case being No. CC/3/2019 be and the same is allowed in part against the OP No.1 and dismissed against OP No.2.
The Complainant is entitled to get Rs. 3,17,560/- as damages and Rs.3,27,265/- for mental pain and agony in total Rs.6,44,825/-.
OP No. 1, National Insurance Co. Ltd. is directed to pay Rs. 6,44,825/- (Rs. Six Lakh Forty Four Thousand Eight Hundred and Twenty Five) to the Complainant within 60 days from the date of this order in default, the OP No.1 shall pay Rs. 6,44,825/- (Rs. Six Lakh Forty Four Thousand Eight Hundred and Twenty Five) along with 6% interest P.a. for the period from the date of this order till the date of payment.
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.
