| Final Order / Judgement | BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM CACHAR :: SILCHAR Con. Case No. 34 of 2013 Ali Ahmed, ………………..……………………………………………. Complainant. V/S - The New India Assurance Co.Ltd.
Represented by its Divisional Manager . Silchar Divisional Office – 530600 Club Road, Silchar – 788001 Cachar, Assam. ………………………………………………………… Opp. Party No.1. - The State Bank of India,
Represented by its Branch Manager I.E. Branch Badarpur, District – Karimganj, Assam. …………………………………………. Opp. Party No.2 Present: - Sri Bishnu Debnath, President, District Consumer Forum, Cachar, Silchar. Mrs. Chandana Purkayastha, Member, District Consumer Forum, Cachar, Silchar. Shri Kamal Kumar Sarda, Member, District Consumer Forum, Cachar, Silchar. Appeared :- Monowara B Laskar, Advocate for the complainant. Sri Shubrendu Sekhar Dutta, Advocate for the O.P.No.1 Sri Santanu Nandan Bhattacharjee, Advocate for the O.P.No.2 Date of Evidence……………………….. 19-02-2014, 26-03-2014, 05-06-2014 Date of written argument……………… 02-07-2015, 28-03-2016, 01-06-2017 Date of judgment………………………. 01-08-2017 JUDGMENT AND ORDER Sri Bishnu Dednath, - The Complaint brought against the New India Assurance Co. Ltd. Silchar Division and against the SBI, Badarpur Branch for damages under section 12 of the Consumer Protection Act 1986, because his Bamboo Cane Firm situated at Siddeswar Part- II, under Katigorah Police Station, Cachar has been gutted by fire at night on 04/02/2009.
- The Complainant, Ali Ahmed brought the case against the above 2(Two) O.Ps because his Bamboo cane firm started on finance by the O.P Bank and it was insured under O.P Insurance Co. for the period from 28/03/2008 to midnight of 27/03/2009. As the O.P Insurance Co. repudiated his claim for sum assured of Rs.6,10,000/-, so, he brought the complaint with the relief of award of Rs.6,10,000 and compensation of Rs.2,44,000/-.
- The O.P. Insurance Co. in the W/S stated inter alia that the surveyor of the O.P Insurance Co. was not Co-operated by the Complainant at time of survey. The Complainant failed to submit requisite documents required for assessment of loss, as such the surveyor had to assess the loss on non-standard basis. Hence, the Insurance Co. on the basis of survey report assessed loss of Rs.25,000/- only but the Complainant refused to receive the said amount rather issued pleader’s notice demanding payment of Rs.6,10,000/- without any justification.
- The O.P Bank in its W/S stated inter alia that it being the financer is entitled to receive entire compensation from the O.P No.1 for adjustment in the loan because the Complainant is defaulter for payment of loan amount.
- During hearing the Complainant deposed as P.W-1 and exhibited as many as 9 (Nine) documents including copy of FIR, photo copies of challans of purchase of raw-materials (Bamboo), the report of Director Fire Service dated 16/02/2009 etc. to establish the plea that the Firm was gutted by fire and he sustained loss accordingly. The O.P No.1 also examined Sri. Fakhar Uddin Ahmed, the Assistant Manager of the New India Assurance Co. Ltd. As D.W-1 and exhibited 3 (Three) documents including investigation report of surveyor, copy of Standard Fire and Special Perils Policy. The O.P No.2 the SBI, Badarpur, Branch also examined Sri. Nirmalendu Bhattacharjee, the Branch Manager and exhibited loan sanction letter dated 06/02/2006, statement of loan amount and 3 (three) more documents to establish the fact that outstanding loan amount is Rs.3,33,043/- as on 24/06/2009.
- After closing evidence, the Complainant’s advocate submitted written argument. The O.P.No.1 and O.P.No.2 also submitted written argument separately. We have perused the evidence on record and written argument.
- It is an unchallenged fact that the Complainant started his firm for manufacturing split bamboo made of Muli Bamboos by Bank finance and it was proprietary firm. So, evidence on record makes it clear that the Complainant started the above firm for earning livelihood by his self-employment. So, he is a consumer under Insurance Co. in view of Insurance policy 3 vide Ext.7 for the period from 28/03/2008 to midnight of 27/03/2009 the Insurance Policy No. 530600/11/07/11/00001327 sum assured was Rs.6,10,000. It is also unchallenged fact that his firm has been gutted by fire during the coverage of risk in view of above Insurance Policy on 04/02/2009. The fact of gutted by fire is supported by Director, Fire Service vide Ext. 6, but description of office room of the Complainant given in the Ext.6 report is not expressly supported by the Complainant in his deposition as well as in the complaint. He did not mention the description of the office room as wall of C.I sheet roofing, wooden structure measure about 40’x20’ ft. However, the DW-1 exhibited surveyor’s report vide Ext. B in that report the description of the Stock room/godown is mentioned as katcha roof split Bamboo made (Beti), wall split bamboo made Barah and area 9 fts X 6fts. Anyhow, baring the description of store room/godown or office room of the establishment, it is clear from evidence on record that the firm of the Complainant has been gutted by fire. So, he is entitle the amount of loss from the Insurance Co. subject to the limit of sum assured.
- In this case it is a fact that the Complainant could not submit any relevant stock register, purchase register of raw material, a sale register or any document of turnover of any previous period to assess the loss due to fire. The Complainant by adducing evidence stated that all the relevant record and papers have been destroyed by fire. Hence, during adducing evidence he exhibited some Xerox copy of challan, permit etc. for purchasing the raw material. But the above documents are not at all sufficient to assess loss caused by fire on the relevant date. Hence, the O.P No. 1 by exhibiting the B. Survey report tried to convince this District Forum that as per nonstandard assessment of loss the surveyor assessed total loss of Rs.60,000/-. Hence, the O.P offered 50% of the above assessed loss minus Rs.5000/- to avoid any error or excess payment.
- However, from the evidence on record it is not possible to assess the total loss caused due to fire on the relevant date and time. Hence, in this case it is more justifiable to accept the report of surveyor because the surveyor tried his best to give reasoning for his assessment of loss of Rs.60,000/-. However, the O.P.No.1 in the deposition of DW-1 exhibited copy of standard fire and Special Perils Policy with relevant entry vide Ext.C and CD. We have gone through the said provision. As per the said provision when there is any disputes or difference as to the quantum of liability to be paid by the Insurance Co., such difference shall independently of all other question be referred to the decision of sole arbitrator and at the case many be to 3 (three) arbitration. But evidence on record does not reflect any fact that the dispute has been referred to any arbitrator.
- As such, it is more justifiable to accept the amount assessed by the surveyor. So, the O.P.No.1 is liable to pay the above assessed amount of Rs.60,000/- without any more deduction. Of course, the O.P.No.2 by adducing evidence established the fact that there is outstanding amount of repayment of loan to the Complainant. So, the O.P.No.1 is directed to deposit the above amount of Rs.60,000/- to the O.P.No.2 directly. The payment of above awarded amount to be made within 45 days from today with pendente lite interest at rate of 8% per annum. If the O.P.No.1 fails to deposit the above awarded amount with pendente lite interest within 45 days, the O.P shall bear further interest at the rate of 10% per annum on calculated amount above till realization of full.
- With the above this case is disposed of on contest. Supply free certified copy of judgment to the parties.
Given under the hand of the President and Members of this District Forum and seal of the Office of the District Forum on this the 1st day of August, 2017. | |
