IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/12/2022
Date of Filing: Date of Admission: Date of Disposal:
22.02.2022 10.03.2022 16.01.2024
Complainant: Sk Ahamed Hossain
S/o- Abul Hossain,
R/at Vill- M.P. Road,
P.O.- Barua, P.S.- Beldanga
Dist- Murhsidabad
Pin-742189
-Vs-
Opposite Party1.Divisional Manager,
The New India Assurance Company Ltd.,
Berhampore Divisional Office,
37 A, R.N.Tagore Road (1st Floor), P.O. & P.S.-Berhampore, Dist- Murshidabad,
Pin-742101
2. Regional Manager,
The New India Assurance Company Ltd,
Kolkata Regional Office.
4 Mangoe Lane, Kolkata-700001,
Agent/Advocate for the Complainant : Dibendu Chatterjee
Agent/Advocate for the Opposite Parties : Kapid Dev Ghosh
Present: Sri Ajay Kumar Das…………………………..........President.
Sri. Nityananda Roy…………………………………….Member.
FINAL ORDER
Sri. ajay kumar das, presiding member.
This is a complaint under section 12 of the CP Act, 1986.
One Sk Ahamed Hossain (here in after referred to as the Complainant) filed the case against Divisional Manager, The New India Assurance Company Ltd. & Anr. (here in after referred to as the O.P.s) praying for compensation alleging deficiency in service.
The sum and substance of the complaint case is as follows:-
The Complainant did an insurance policy before the O.P. No. 1 for his shop/mill namely “M/S Bengal Spice Products” situated at Vill- Barua, M.P. Road, P.S.-Beldanga, Dist-Murshidabad dealing with Spice of chillies, haldi and spice of jeera and the said insurance policy Nos. are 51290011160100000669 & 51290046160100000446 for Standerd Fire & Speical Perils Policy and for Burglary Policy issued by the agent of the O.P. No. 1 namely Ashis Kr. Dey vide agent code no. NIA1d10774170.
In between 08.11.2016 to 09.11.2016 some antisocial had destroyed complainant’s unit and also stolen entire stocks of the said unit valued upto Rs. 7,000,00/- and also stolen Electric miters.
Thereafter, on very next date the Complainant duly informed the matter to the Beldanga Police Station and Beldanga Police Station lodged an F.I.R. vide No. 544/16 dated 12.11.2016 U/S 379/427/34 of I.P.C.
After police verification the Complainant informed to the O.P. No. 1 about that incident by an intimation letter dated 18.11.2016 and the Complainant having faith on the entire settlement procedure followed all by the instructions of the O.P. No. 1 and submitted all those documents demanded by the surveyors as well as the O.P. No. 1.
Subsequently, the O.P. No. 1 appointed surveyor for inspection and the said investigator submitted his report on 18.01.2017 vide Ref. No. RKD/NIA/BER/MAL-DMG/0122/16/17 dt. 10.12.2016 where he mentioned that the above incident was occurred on 03.11.2016 and also the Complainant informed the police after 4 days and also intimated the O.P. No. 1 10 after days about the incident.
After that the O.P. No. 1 rejected that claim of the Complainant and closed the file as “No Claim” with some illegal motive and only to illegal gain on the ground of UTMOST GOODFAITH by issuing a letter to the Complainant dated 02.02.2017 and had violated the terms and conditions of the agreement for that the Complainant was facing irreparable loss and problem.
After receiving such letter dated 02.02.2017 issued by the O.P. No. 1 the Complainant further approached to the O.P. No. 1 by letter dated 06.03.2017 and informed the mental/ physical harassment he has sustained from the O.P. No. 1.
There was obviously deficiency in service on the part of the O.P.s as such type of act and action beyond doubt harassed the Complainant who is entitled to get the said insurance claim and also compensation.
Thereafter, the Complainant sent a legal notice by an advocate on 07.03.2019 to the O.P. No. 1 and the said notice duly served upon the said O.P. No. 1.
On 14.08.2019 the O.P. No. 1 issued a reply notice and disclosed that the said matter beyond their policy coverage and that file was closed as no claim.
On account of declaration of duty and negligence on the part of the O.P. No. 1 & 2 the Complainant suffered loss and injury due to deprivation, harassment, mental agony and loss for which the Complainant is entitled to get compensation as well as total insurance claim amount.
Finding no other alternative the complainant filed the instant case before the District Commission praying for an order directing the Opposite Parties to pay the entire insurance claim which is settled on the basis of actual surveyor report in favour of the Complainant and to pay Rs.50,000/- towards harassment and mental agony to the complainant.
Defence Case
After due service of the notices O.P.s appeared by filing W/V contending inter alia that the case is not maintainable. They have specifically stated :
1. That the OP No. 1 has appeared and contested the case by filing its Written Version wherein the OP Ins. Co. has categorically challenged every material point of allegation as stated in the complaint petition of the Complainant.
2. That the instant Complaint Case of the Complainant is challenged for most frivolous, mischievous and baseless allegation also.
3. That the very subject matter in concern of this case to the effect that the Complainant has duly purchased a valid and effective Policy of Insurance from the office of the OP Ins. Co. for his business assets and the same is duly admitted by the contesting OP Ins. Co. but all material allegation and averments of the Complainant is baseless and misleading in nature as also the Complainant and has not approached before the Ld. Forum with clean hands and as such the instant complaint is subject to be rejected on this ground only.
4. That apart the instant complaint case is not maintainable in its present form and context as the Complainant underwent and executed an insurance policy for a commercial machinery on the pretext of a business entity and as such the Complainant could not avail the advantages of the Consumer Protection Act, 1986 by simply representing him a consumer of insurance policy and as such the instant complaint case is not maintainable and is liable to be rejected.
5. That first and foremost, the OP Ins. Co. strongly denies the factual averments of the Complainant and strongly denies any valid claim of the Complainant on the ground that in every cases the Complainant has to state and declare in terms of compliance of the insurance claim the Complainant should have disclosed all material information before purchasing a valid policy of insurance to which the Complainant has deliberately and intentionally failed by suppressing the material information to the point that there was a pre-existing legal dispute in relation to the subject matter of insurance. The Complainant has also failed to disclose that there was a landlord and tenancy dispute for long before vide R. C. Case No. 12/2014-15 u/s 21 of the West Bengal Premises Tenancy Act, 1997 as was pending before the ld. Rent Controller (S), at Berhampore, Msd. The Complainant has also misleaded the OP Ins. Co. by deliberately suppressing the material information that there was a long term dispute in relation to the business of the Complainant in the locality for hazardous nature of business materials and to which the local people has repeatedly and continuingly expressed their dis-satisfaction and agitation against the Complainant for far long before.
6. From the very Final report dt. 05/07/2018 as submitted by the concerned Beldanga Police Station in relation to the abovementioned Criminal Case it can easily be traced that the dispute was not in the nature of theft and rampant rather it was “originated for production of chili powder in the said Mill” challenging which the local residents as also the land-lord has severally raised objections and agitations against the Complainant and to that effect a mass petition has also been submitted. Furthermore, the incident occurred due to taking of forceful possession of the landlord of his rented premise by dispossessing the Complainant and the said incident was mis-represented as theft and rampant by initiating the instant criminal proceeding and the entire incident is malafidely kept in secrecy by the Complainant.
7. That first and foremost point of consideration herewith is that the Complainant has procured the policy of Insurance on 04/11/2016 whereas the unfortunate incident was occurred on 03/11/2016 and as such the Complainant has obtained the subject policy of insurance after occurrence of the incident and thereafter the Complainant initiated a Criminal Case by intimating the said incident pretending to be occurred on 08/11/2016 – 09/11/2016 and herefrom it is crystal clear that the Complainant adopted an unfair way for his personal gain.
8. That without a valid policy of insurance the Complainant is not entitled to get any relief under his policy of insurance and intimating the same the OP Ins. Co. has categorically informed the Complainant as to their decision of repudiation of the claim of the Complainant.
9. That the Complainant has deliberately concealed the material facts pertaining to the case of the Complainant and has not approached before the Ld. Forum with clean hands and as such the instant complaint case is subject to be rejected on this ground only.
10. That in view of the aforementioned facts and circumstances and in the interest of justice it is submitted that the Complainant is not entitled to get any relief as prayed for and the instant complaint case is liable to be dismissed with exemplary cost.
Points for decision
1. Is the Complainant a consumer under the provision of the CP Act, 1986?
2. Have the OPs any deficiency in service, as alleged?
3. Is the Complainant entitled to get any relief, as prayed for?
Decision with Reasons:
Point no.1, 2 & 3
All the points are taken up together for the sake of convenience and brevity of discussion.
It is alleged by the Ld. Adv. for the O.P.s that the instant complaint case is not maintainable in its present form and context as the Complainant underwent and executed an insurance policy for a commercial machinery on the pretext of a business entity and as such the Complainant could not avail the advantages of the Consumer Protection Act, 1986 by simply representing him a consumer of insurance policy and as such the instant complaint case is not maintainable and is liable to be rejected.
On this point Ld. Advocate for the O.P. drew our attention to letter dated 18/11/2016 written by the Complainant addressed to the O.P. Insurance Co. whereas it is mentioned that the name of the business of the Complainant is “M/S. Bengal Spice Products”.
On this point Ld. Adv to the Compliant submits that the case is maintainable.
Explanation of section 2(7) of the Consumer Protection Act 2019 reveals that the expression “commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self-employment.
In the instant case the Complainant did not buy any goods. Here the Complainant hired services of insurance of consideration for commercial purposes and as such the Complainant does not come within the definition of consumer.
Ld. Adv for the O.P.s has submitted that the contract of insurance is contract of utmost good faith in the instant case the landlord side demolished the mill of the Complainant for the purpose of occupying the site after evicting the Complainant. The Complainant suppress the materials fact at the time of taking insurance policy and as such the Complainant is not at all entitled to any claim.
After hearing the submission of the Ld. Advocate for the O.P. we peruse the relevant portion of the chargesheet wherein it is stated, “ Whatever the fact may be in this incident the O.P. men (land lord side) have played ghastly role by demolishing the ‘Mill’ and forcefully occupied the site evicting the possession the complainant, who had already filed a case before the Rent Controller (S), Berhampore Murshidabad vide R.C. Case No. 12/2014-15 u/s 21 WBPT Act, 1997 against the land M Abdul Motin, which is sub-judice.”
Facts and circumstances of the case suggest that there is long standing dispute in between the Complainant/tenant and the land lord. As a result land lord has forcibly occupied the position of the Complainant/tenant. Moreover, the adjacent inhabitant of locality have been raising objection against such production of “Chilly Power” and over the incident a mass petition has been submitted. Here we find that the Complainant had suppressed the materials fact before the O.P.s at the time of taking the insurance policy.
It would not be out of place to mention here that neither the Complainant nor the O.P.s have submitted any surveyor report regarding the loss or damage of the property in question of the Complainant.
In view of the matters discussed above we are of the view that the instant complaint case is liable to be dismissed on contest against the O.P.s without any order as to costs.
Reasons for delay
The Case was filed on 22.02.2022 and admitted on 10.03.2022. 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 fails.
Fees paid are correct. Hence, it is
Ordered
that the complaint Case No. CC/12/2022 be and the same is dismissed on contest against the O.P.s but under the circumstances without any order as to costs.
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.
