Orissa

Cuttak

CC/27/2021

Gagan Bihari Mantry - Complainant(s)

Versus

Divisional Manager,National Insurance Co Ltd - Opp.Party(s)

D Nayak & associates

23 Nov 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C.No.27/2021

Gagan Bihari Mantry,

S/O:Bhaskar Mantry,

At:Nuagaon Gram,PO:Sailo Govindpur,

P.S:Govbindpur,Dist:Cuttack,Pin-754003.                             ... Complainant.

 

                                                                Vrs.

                     1.The Divisional Manager,

National Insurance Co. Ltd.,

           Cuttack Division,At:Cantonment Road(Opp. Howrah Motors),

           P.O:Buxibazar,P.S:Cantonment,

           Dist:Cuttack-753001.

                               

2.       Mr. S.K.Dhal,

          Ombudsman of National Insurance Co. Ltd.,

          At:62,Forest Park,Bhubaneswar,

          Dist:Khurda-751009.                                                                    ... Opp. Parties.

 

 

Present:               Sri Debasish Nayak,President.

                                                Sri Sibananda Mohanty,Member.

 

               Date of filing:     10.02.2021

Date of Order:    23.11.2022

 

For the complainants:          Mr. D.Nayak,Adv. & Associates.

For the O.P. No.1       :          Mr. S.K.Mishra,Adv. & Associates.

For the O.P no.2:                       In person.

 

Sri Sibananda Mohanty,Member.                                               

               Case of the complainant in short is that he is the owner of a shop who sales pesticides, fertilizers and seeds since last twenty years.  He had taken a shopkeeper’s Insurance Policy bearing No.163000591810000322 from the O.P No.1.  The said policy was valid from 27.11.18 to midnight of 26.11.19.  The further case of the complainant is that during the cyclone “Funi” on 3.5.2019 his shop as well as stocks were totally damaged due to heavy storm and rain.  It is the case of the complainant that he intimated the Insurance Company, the O.P no.1 about the damage of his shop room as well as of the stocks.  The O.P no.1 deputed Mr. S.R.Sarangi, the surveyor to assess the loss.  The said surveyor assessed the loss sustained by the complainant.  After survey was made by the surveyor, the O.P no.1 remained silent and did not take any action in settling the claim of the complainant for which he sent a legal notice on 1.2.20 through Regd. Post tothe O.P no.1 as well as to the O.P no.2.    As the O.Ps did not settle the claim of the complainant, he has filed the present case with a prayer for a direction to the O.Ps to pay a sum of Rs.1,00,000/- to the complainant  with the interest @ 12% per annum for the loss due to damage sustained by him and a sum of Rs.50,000/- as compensation for the mental agony and harassment caused to him alongwith cost of litigation.

               The complainant has filed certain documents in order to prove his case.

2.            The O.P no.1 has contested the case and has filed his written version.  It is admitted by the O.P no.1 that the Shopkeeper’s Insurance policy of the complainant was valid from 27.11.18 to midnight of 26.11.19.  It is stated by them that they had deputed a surveyor namely,Er. S.R.Sarangi to survey and assess the loss of the complainant.  The said surveyor assessed the loss at Rs.29,000/- but the surveyor in his remark column had stated that there is no proof of theft.  It is further stated by the O.P no.1 that the surveyor as well as he had asked the complainant to produce some documents but the complainant intimated the O.P no.1 that all the documents were destroyed in the cyclone.  It is stated by the O.P no.1 that as the complainant did not file the required documents, he  closed the claim of the complainant as ‘No claim” vide his letter dt.16.7.19.  Hence, it is prayed by the O.P no.1 for dismissal of the complaint case.

               O.P no.1 has also filed some documents in order to support his stand.

               The O.P no.2 has filed his written version wherein it is stated that he is neither a necessary party nor a proper party in this case and the present case against him is not maintainable.

3.         Keeping in mind the averments as made in the complaint petition and the contents of the written versions of O.Ps, this Commission thinks it proper to settle the following issues in order to arrive at a proper conclusion.

i.          Whether the case of the complainant is maintainable ?

ii.         Whether there was any deficiency in service on the part of the O.Ps ?

                        iii.        Whether the complainant is entitled to the reliefs as claimed ?

Issue No.ii.

Out of the three issues, Issue no.ii being the most pertinent issue is taken up first for consideration here in this case.

It is the undisputed fact that there was a cyclone namely “Funny” on 3.9.19 in the area where the complainant’s shop is situated.  In the said cyclone the complainant’s shop as well as stocks were destroyed.  The complainant had a valid Shopkeeper’s Insurance Policy which was effective from 27.11.18 to midnight of 26.11.19.  The complainant intimated about the incident of damage and loss of his shop as well as of his stocks to the O.P no.1.  It is specifically stated by the complainant that due to the cyclone his shop as well as stocks were damaged.  The O.P no.1 also admitted the damage sustained by the complainant in the said cyclone.  But interestingly it reveals from the letter dt.5.6.19 of the surveyor to the complainant that there was a theft inside the shop room of the complainant and had asked the complainant to submit the police investigation report as well as the  documents to establish the stocks held by him in the shop.  The surveyor’s report reveals that the complainant had filed FIR about theft before the police station but no document has been referred to that effect.  Further the surveyor while assessing the loss had deducted Rs.39,210/-, which is 50% of the assessed amounts, as the complainant had not submitted the required documents and had not taken proper care of his stock.  This ground of deduction by the surveyor is a flimsy ground  as the complainant’s plea is that due to cyclone “Funny” his shop as well as stocks were damaged.  Hence, the report of the surveyor is a faulty one which is notreliable in toto.  The O.P no.1 also had asked the complainant to furnish some documents, which were already damaged in the cyclone.  In this score, it would be worthwhile to quote the pertinent decision of our Apex Court settled in the case of Mr. Gurmel Singh Vrs. Branch Mananger,National Insurance Co. Ltd., wherein their lordships have held that “Insurance companies refusing claim on flimsy grounds and/or technical grounds- While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control”.   Hence, there is clear deficiency in service on the part of the O.P no.1 and the complainant is entitled to the cost of the damaged fertilizers and pesticides to the tune of Rs.78,420/- as assessed by the surveyor before deduction.    The O.P no.2 has no role to play in the present case.

            Issues No.i&iii.

When the claim of the complainant was closed without being settled, he had definite cause to file this case and the case is undoubtedly maintainable.  The discussions made above makes it clear that the complainant is entitled to the reliefs as claimed by him.  The complainant is entitled to get Rs.68,210/- towards the claim amount after deductionof the salvage and policy excess amount.  Hence it is so ordered;

                                                ORDER.

The case is decreed on contest against the O.P no.1.  The O.P no.1 is hereby directed to pay the complainant claim amount to the tune of Rs.68,210/- towards his loss as well as interest @ 12% interest per annum from 3.5.2019 till the final payment is made.  The O.P no.1 is further directed to pay a sum of Rs.50,000/- towards the compensation to the complainant for mental agony and harassment caused by him to the complainant by closing his bonafide claim as well as Rs.10,000/- towards the litigation expenses.  This order is to be carried out within a period of 30 days from the date of receipt of copy of this order.

Order pronounced in the open court on the 23^rd day of November,2022 under the seal and signature of this Commission.

                           Sri Sibananda Mohanty

                                                                                                                                   Member

                                                                                                                                                                                               

                                                                                                                                Sri Debasish Nayak

                                                                                                                                            President