Date of Filing:-20/07/2012
Order No. -35 Dt.- 18/03/2016
Shri Asoke Kumar Das,President
F I N A L O R D E R
Complainant’s case in a nutshell is that he took one policy bearing no. 153900/48/11/3500001200 from O.P.1 National Insurance Co.Ltd. and that policy was valid from 05/08/2011 to 04/08/2012 covering his residential building against fire , allied perils and earthquake. His residential building was substantially damaged due to earthquake on 18/09/2011 at about 6.10pm. He intimated this fact to O.P.1 on 19/09/2011 in writing. He also submitted claim form duly filled in to O.P.1. The O.P.2 Indranil Bhattacharya was appointed as surveyor and loss assessor by O.P.1. The complainant sent to O.P.2 his required documents to assess the loss but the O.Ps. have passed Rs.28,188/- in total against his claim of Rs.3,43,119 /-. Complainant refused to accept the said amount of Rs.28,188/- . He served legal notice to O.P.1 on 04/04/2012 requesting payment of Rs.3,41,119/- but O.P.1 refused to enhance the amount. Hence, this case.
The O.P.1 has contested this case by filing one Written Version wherein O.P.1 has denied and disputed the claims and contentions of the complainant with prayer for dismissal of the case with cost.
The specific stand of O.P.1 is that after receiving the claim of the complainant, they engaged Mr.Indranil Bhattacharya, an experienced and competent licensed surveyor and loss assessor to assess the damage of the structure of the complainant due to earthquake and he has submitted detailed and exhaustive investigation report and assessed the loss at Rs.28,188/- and O.P.1 by its letter dt. 24/02/2012 intimated this matter to the complainant and sent him loss voucher of Rs.28,188/- but the complainant has refused to accept the same and that the claim made by the complainant is highly excessive, abnormal and without any legal and equitable basis and that the damaged report submitted by the complainant is not at all a damage report and it can be treated as an estimate for renovation of the entire building.
POINTS FOR CONSIDERATION
- Is the case maintainable ?
- Is the complainant a consumer?
- Are the O.Ps. guilty for deficiency in service as alleged?
- Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
All points are taken up together for consideration and decision for the sake of convenience.
Seen and perused the materials on record i.e. the petition of complaint, the Written Version(both are supported by affidavits), the documents and written arguments filed by both the parties, and other relevant materials on record.
We have heard arguments advanced by the Ld. Lawyers of both sides in full.
Now we find that this case was heard and decreed on contest by my predecessor-in-office vide judgement and order dt.06/12/2012. O.Ps. preferred First Appeal no. FA/125/2013 before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal challenging the said judgement and order dt.06/12/2012. On 13/11/2014 the State Consumer Disputes Redressal Commission heard and allowed that appeal on contest and set aside the impugned order with direction to this Forum to take evidence of the parties after giving a reasonable opportunity and thereafter to pass a reasoned order. After receiving the copy of the said order dt. 13/11/2014 , the case was heard afresh after giving reasonable opportunities to both the parties as per direction of the Hon’ble State Consumer Disputes Redressal Commission, West Bengal. The complainant has examined himself only as PW1 and he was cross examined by the O.P.1 by way of interrogatory. O.P.1 adduced no evidence .Now after due consideration of argument advanced by the Ld. Lawyers, aforesaid materials on record and the evidence of complainant(PW1) we find that the case is well maintainable and that the complainant is a consumer of O.Ps. We further find that the complainant as PW1 has only reiterated what he asserted in his petition of complaint . No evidence has been adduced by the complainant to justify his claim of Rs.3,43,119/- for the purpose of repairing of his damaged building caused by the earthquake. The complainant has not called Manika Karmakar, consultant Civil Engineering who, according to him finally estimated the amount of damage to the tune of Rs.3,42,119/-, as witness to this case to prove the alleged estimate dt.nil, for repairing works as well as the claim of the complainant of Rs.3,42,119/-, although the complainant has given much importance in that estimate to prove his above claim. Seen this document (estimate, dt. nil) filed by the complainant. In our considered opinion this paper is nothing but mere estimate as per PWD schedule and it carries no weight in proving the above claim of the complainant, in absence of cash memos of materials like cement, sand, iron, stone chips etc which are essential for repairing/renovation works of his damaged building. Complainant has not filed any cash memos of aforesaid materials and examined any mason or labour to prove/justify his above claim of Rs.3,42,119/-. The complainant has not mentioned the date of starting and ending of his alleged repairing works in his petition of complainant or in his evidence. Now on perusal of the report of the surveyor cum loss assessor Sri Indranil Bhattacharya dt. 12/02/2012, filed by O.Ps., We find that Sri Bhattacharya was engaged by the O.P.1 to survey and to assess the damage and loss suffered by the complainant due to earthquake and that he submitted his detailed report after proper investigation of the building in question and he has assessed the loss at Rs.28,188/- in his said report explaining therein as to how he assessed the loss at Rs.28,1088/-. The O.P.1 has stated in its W/V that they are ready and willing to pay Rs.28,188/- to the complainant.
In this view of the matter we find sufficient reason to hold that the complainant has hopelessly failed to prove his case and the claim by adducing sufficient evidence. Hence this case is liable to be dismissed. As O.P.1 is ready and willing to pay to the complainant Rs.28,188/- as per assessment made by the surveyor cum loss assessor and as O.P.1 also offered the same to the complainant prior to filing of this case (complainant refused to accept that money), so the O.P.1 is not guilty for deficiency in service as alleged by the complainant.
All points are disposed of.
In the result the case fails.
Hence, it is
O R D E R E D
that the case/application is dismissed on contest against O.P.1 and ex-parte against rest O.Ps. but without cost.
The O.P.1 is requested to pay to the complainant Rs.28,188/- as assessed by their surveyor cum loss assessor in his report dt. 12/02/2012, to the complainant within 30days from this day on proper receipt of acknowledgement.
Let copy of this final order be supplied free of cost forthwith to the parties/ their Ld. Advocates/agents on record by hand under proper acknowledgement/sent by ordinary post, in terms of Rule 5(10) of West Bengal Consumer Protection Rules 1987.
