Sri. Apurba Kr. Ghosh.........President.

The complainant has filed this application U/S 12 of Consumer Protection Act 1986 and praying for the following relief/order:

1. Direction against the OPs to pay a sum of Rs. 5,00,0000/- to the complainant towards the claim of the complainant being the insured value of the damaged goods.
2. Direction against the OPs to pay a sum of Rs. 50,000/- to the complainant towards compensation for harassment and mental agony.
3. Direction against the OPs to pay a sum of Rs. 10,000/- towards cost of legal proceedings and interest @ 9% per annum from the date of filing of the case till realization.
4. Any other orders which the complainant is entitled as per law.

BRIEF FACT OF THE COMPLAINT

1. The complainant is proprietor of M/S Pushpa Stores having his shop measuring about 500 sq feet and the Complainant used to keep readymade garments for business purpose which is enlisted in Siliguri Municipal Corporation who issued trade license and the said shop is situated on the land of SJDA, the name of the complainant is reflected in the rent receipt of SMC/ after mutation the complainant used to pay license fee on regular basis/ the paper of SJDA dated 01.06.1994 vide memo no. 78/BM/SJDA and mutation fees of SMC vide receipt no. 2942 dated 22.08.1994/ The complainant also installed electric connection for running of his shop room from WBSEDCL vide consumer id 412052904 / the complainant used to pay tax in the name of his farm as M/S Pushpa Stores as per GST.
2. That the complainant insured his shop and all business material like readymade garment with the OPs being insurance policy no. 51230148180600000051 (Annexure 5) which was valid from 25.06.2018 to 24.06.2019 and the insured declared value for risk covered of Rs. 5000000/- for shop and goods / the complainant purchased the said insurance policy from the OP’s by paying a sum of Rs. 26038/- per year for the risk cover under the said policy of insurance which includes cover against loss or damage due to fire beside other. / The complainant since his business used to purchase insurance policy from the OPs and on 02.12.2018 at about 7 AM the people of Bidhan Market informed the complainant that his shop was burned out in vagarious fire with all the goods present in it and hearing the said information the complainant went to his shop and find that Six fire brigades, local people , firemen and people of Byabasayee Samiti fighting against the fire and after tough fight, fire came in control but all of the goods were burnt down to ashes due to the said fire and the complainant intimated the matter to The O.C, Panitanki TOP, Siliguri on 02.12.2018 (Annexure 6) / The complainant also intimated the entire incident to the OP No. 1 through a letter on 03.12.2018 (Annexure 7) / The complainant also intimated to the Hon’ble Mayor of SMC on 03.12.2018 (Annexure 8) / On 05.01.2019 the sanitary inspector borough II , SMC, issued an information in respect of the said fire to the complainant ( Annexure 9 ) / the complainant also informed the said fire to the Station Manager of WBSEDCL on 06.12.2018 (Annexure 10) / One Keshav Kumar Kharga B.E. FIV, MIE, FILSA, Surveyor and loss assessor issued a letter to the complainant and asked some documents to the complainant mentioned in the said letter dated 07.12.2018 on his visit on behalf of the OPs(Annexure 11)/ The complainant handed over the said documents in the hands of the said surveyor / the complainant on 17.12.2018 again files an application before the officer of the Divisional Fire Office , West Bengal Fire and Emergency Service , SF Road Siliguri for clearance certificate and support of West Bengal Fire and Emergency Services , SF road Siliguri (annexure 12) / The Siliguri Bidhan Market Byasbsayi Samiti filed an application before the Commissioner of the SMC on 17.12.2018 for clearance certificate ( Annexure 13)/ On 10.01.2019 the Councilor of Ward No. 11 of SMC issued a certificate in the name of M/S Pushpa Stores in respect of the said fire ( Annexure 14)./ the FOCIN bearing registration no. S/30631 also issued a letter in respect of Loss of M/S Pushpa Stores due to said fire ( Annexure 15)/ The Officer in charge of Siliguri Fire Station also issued the letter to the DM Darjeeling dated 01.03.2019 for information as to the origin and cause of fire ( Annexure 16) / Before the intimation by the complainant to the OPs on 03.12.2018 a preliminary survey was claim to have been made on behalf of the OP by surveyor Sandeep Sarkar who told to have inspected the place of occurrence and found the damage due to such fire on 02.12.2018  and thereafter as the burnt out garments and other materials were removed from the shop and heaped beside the shop on road but after facing inconvenience by the public it was directed to be cleared/shifted by the SMC. The said surveyor however took the photography of the damaged and loss on 02.12.2018 and 03.12.2018 assuring the complainant that he completed his inspection/ survey fully. After that, the Complainant received a letter of the O.Ps on 17.07.2019 (Annexure 17) disclosing that the said surveyor advised verbally anything to segregate the total damaged, semi damaged and sound stock on 02.12.2018, which he could not be produced on 03.12.2018 and to clarify the same. It is absolutely a preposterous one and figment of lies. / That Siliguri Bidhan Market Byabasayee Samiti informed the O.P. No. 3 that all readymade garments of M/S Pushpa Stores turned into ashes due to fire on 02.12.2018. The fire brigade shifted all ashes of garments of M/S Pushpa Stores on the public road, as a result public  were facing trouble and after that Siliguri Bidhan Market Byabasayee Samiti requested SMC to clear the road and that’s why SMC cleared the road on 03.12.2018 at about 12 noon/ however the complainant earlier kept the entire damaged stock on the road and the same was checked by the Surveyor Mr. Sandip Sarkar on 02.12.2018 at about 9 AM , took photographs, which is appearing in the said letter dated 17.07.2019 and on 29.07.2019 the complainant clarified the reason for the same (Annexure 19)/ on 20.11.2019 the O.P. No. 3 send a purported letter in the name of M/S Pushpa Stores wherein they informed the complainant that his claim is repudiated (Annexure 20) / After receiving the said letter, the complainant again issued a letter (being postal receipt no. RW747465814IN) to the O.P No. 3 on 30.11.2019 to reconsider his genuine claim (Annexure 21)/ That the OP ultimately repudiated the genuine claim of the complainant and again informed to the complainant on 20.12.2019 (Annexure 22)/ Such repudiation of claim is illegal, unilateral, arbitrary decision of the OPs and that shifting of the damaged goods was directed by the SMC and also beyond the control of the complainant which was well known by the Surveyor of the OPs., even the report of the surveyor had not supplied to the Complainant, in spite of the letter of the complainant dated 30.11. 2019.
3. That in spite of complying all the formalities relating to the valid/genuine claim of the complainant the OPs are continued to issue different letters to the complainant only deferring, delaying and/or avoiding to settle the claim of the complainant which causes harassment, worries and anxiety to the Complainant/ it is submitted that the fact of fire of the shop and the materials causing loss and damage remains a undisputed fact.
4. The complainant has also stated that the claim of the complainant is genuine and for the said shop of the complainant was under a valid policy of the insurance covering for the risk of the loss even after complying all the formalities with the relevant documents available with him the OPs are willfully and deliberately avoided to disburse the bona fide claim of the complainant which is practically unfair trade practice as well as deficiency in service on the part of the OPs/ The complainant although suffered an estimated loss due to damage by fire amounting to Rs. 55,00,000/- but he restrict his claim of Rs. 50,00,000/- being the insured value.
5. The cause of action of this case arose on 25.06.2018 being the date of insurance of the policy and thereafter on 02.12.2018 when the fire broken out in the shop of the complainant and on 20.11.2019 & 20.12.2019 when the OPs repudiate the genuine claim of the complainant and the cause of action is still continuing within the jurisdiction of this commission.

In support of the complaint the complainant has annexed documents which are already stated above and marked as Annexure 1 to 23.

Notice was issued from this Commission for the O.Ps which was duly served.

On receipt of notice the OP No. 1 and 2 appears before this Commission through Vokalatnama, filed written version, denied all the material allegation of the complainant. In the written version the OPs have stated that the case is not maintainable in law or fact, the application of the complainant is mala fide, illegal and unlawful/ the application filed by the complainant is vague, baseless and complainant has no locus standi to file this case/ the complainant has filed this case against the OPs on some false allegation to harass them / the complaint is barred by the law of limitation/ the complainant has no cause of action for bringing the claim against the OPs and the claim is vexatious , fanciful, and is being brought without any legal or logical basis and there was no deficiency in service from the ends of the OPs in terms of the Consumer Protection Act. In the W/V the OPs have admit that the complainant is a policy holder issued by the OP insurance company in the name of the complainant’s business / shop namely M/S Pushpa Stores being Policy No. 51230148180600000051 “specified to be policy of shop keeper’s insurance” with risk coverage for fire and allied perils in respect of stock in trade of the complainant’s said shop to the limit of Rs. 50,00,000/- for the period of 1 year commencing from 25.06.2018 to 24.06.2019 subject to the terms and condition of the said policy. The OPs have also stated that the present claim of the complainant referred as many as 23 sets of documents as annexure most of which either in the nature of application or information put forward in his own suitable language before different authorities and some of those contain certificate by those or other authorities which the OPs are conflicting with the actual state of affairs and that will not justify the case of the claim of the complainant. The OPs have also stated in their W/V that Sandeep Sarkar , Surveyor and loss assessor of the OP Insurance company on being instructed by the OP no. 3 rushed to the above stated spot of fire at Siliguri Bidhan Market on very date and at relevant hours for undertaking preliminary survey of the incident when the fire service personnel were engaged in fighting with fire amongst other persons assembled and after the fire was come under control the surveyor Sandeep Sarkar visited the insured shop premises M/s Pushpa Stores took number of photograph in and around the place to ascertained from those photographs that only part of the insured shop premises out of 500 sq ft was affected by fire and substantial quantity of goods found to have lying there in racks and on the floor in good condition and since the complete stock of goods have thrown away in spite of the fact that the preliminary surveyor had specifically instructed the insured (complainant) could segregate the total damaged, semi damaged, and sound stock and due to the fact that the entire stock of goods were thrown away from the spot of incident it was not possible on the part of the final surveyor to verify the same physically and the insured had failed and neglected to perform his part of obligation under the contract of insurance policy and also failed and neglected to furnish all proofs and information with respect to the claim and caused disappearance of the actual state of condition of the stock of goods being subject matter of the policy of the insurance and that’s why the OPs have repudiated the claim of the complainant rightly. By filing the W/V the OPs have prayed for dismissal of the complaint.

Having heard the Ld. Advocate of the complainant and on perusal of the Complaint, as well as documents filed by the complainant, written version of the OPs the following points are to be decided by this Commission.

          Points for consideration                 

1. Whether the complainant is a consumer?
2. Whether the case is maintainable under the C.P. Act ?
3. Whether there is any deficiency in service on the part of the O.Ps. as alleged by the Complainant?
4. Is the Complainant entitled to get any award and relief as prayed for as per the prayer of his Complaint?

Decision with Reasons

All the points are taken up together for discussion to avoid unnecessary repetition and for sake of convenience and brevity of this case.

In order to prove the case the Complainant has filed Written Deposition in Chief in the form an Affidavit wherein the Complainant has categorically stated and corroborated the contents of the Complaint. In the written deposition the complainant has specifically corroborated the contents of the complaint and he specifically stated the date on which he purchased the insurance policy from the OPs and the amount of premium and also stated the value for risk  covered of Rs. 50 lacs for shop and goods. The complainant has also specifically corroborated the contents of the complaint regarding validity period of policy in question with effect from 25.06.2018 to 24.06.2019. The complainant has also corroborated the incident of fire in his shop which was broken out on 02.12.2018 and also stated in his deposition regarding the application made by the complainant to several administrative authorities and also annexed the copy of those documents. By filing the written deposition the complainant has stated that he has been able to prove the case against the OPs and is entitled to get the relied as prayed for.

Ld. Advocate of the Complainant during argument submits that, the Complainant has been able to prove the case against the OP’s through filling of evidence in the form of an affidavit and also produced documents which are annexed as annexure –1 to Annexure 23. He also argued that, Complainant has filed the Insurance Policy Certificate as Annexure – 5 and he insured not only for his shop but also for his business materials with the OPs and the same was valid from 25/06/2018 to 24/06/2019 and the Insured declared value of risk cover Rs. 50,00,000/- for his shop and goods. He further agreed that, he purchased the said Insurance Policy by paying yearly Premium of Rs. 26,038/- for risk covered under the policy of Insurance for the said period which includes the cover against the loss of damage due to fire. Ld. Advocate of the Complainant further argued that on 02/12/2018 the complainant got an information in the morning at 7.00 a.m. that his shop was burnt out in fire including all goods and getting such information the Complainant went to the shop and found that, the local people, fire brigade men were fighting against the fire and when they control the fire the Complainant saw that the goods of his shop turned into ashes due to the said fire. It is further argument of the Complainant that, the Complainant informed the matter not only to the Police of Panitanki TOP, Siliguri but also to the OP Insurance Company, Siliguri Municipal Corporation, WBSEDCL, Hill Cart Road Siliguri, Fire office in writing and getting the claim form along with relevant documents from the complainant the OP engaged its own surveyor, took various photographs from the damaged shop on 02/12/2018 & 3/12/2018 and completed his survey work but he did not supply the report to the Complainant and without disbursing the bona fide claim of the Complainant the OP’s have repudiated the claim without assigning proper/valid reasons. It is further argument of the Ld. Advocate of the Complainant that, the Complainant suffered loss of Rs. 55,00,000/- due to damage by fire but he claims a sum of Rs. 50,00,000/- which is the insured value. It is also the argument of the Complainant that, the OP’s are willfully and deliberately avoided to disburse the claim of the Complainant which is nothing but the unfair trade practice of the OP’s as well as deficiency in service. He also argued that the preliminary surveyor report clearly admits that, the happening loss is confirmed one and also stated in his report that, the stock was affected as the adjoining shop was completely gutted and the heat developed in that adjoining shop radiates and affected the stock, the roof area was also under fire. Further argument of the Complainant is that, the final surveyor in his report page No. 4 has supported the case of the Complainant by stating in his report that, “ it was evident during the course of inspection the complete stock of goods had been thrown away”. He also argued that, from the photographs submitted by the preliminary surveyor  it is evident that, the entire stock of goods were gutted down by the fire or badly affected marked or water affected or strained and reduced to an unsellable condition and the Complainant submitted all papers relating to business in the hands of the final surveyor including income tax return for past three years, sale or purchase registers, purchase record, bills, trade license, copy of FIR, final fire brigade report, newspaper report, insurance papers, audit reports and the final surveyor assured the loss of the Complainant of the said fire was of Rs. 40,27,974/-.

Ld advocate of the OP’s in their written Notes of argument as well as during oral argument submits that, the complainant has failed to prove its case against the OP’s and he filed this case by suppressing the actual fact. He also argued that, the Complainant has no cause of action for bringing the instant case and there was no deficiency in service on the side of the OP’s and by suppressing the actual fact the complainant has filed this case on some false allegations. It is further argument of the OP’s that, the preliminary surveyor Sandip Sarkar was the eye witness who collected some photographs after fire was extinguished by the fire service personnel which the OP’s have filed with their Written Version (Annexure A 1 to A 2) and those photograph clearly shows that, there were several sound stocks and also opposes the statement of the Complainant. The further argument of the OP’s that, at the time of the preliminary survey the surveyor asked the Complainant to segregate the total damaged, Semi damaged and sound stock for undertaking proper steps of loss minimization process but during his pre-informed visit on the following day preliminary surveyor noticed that the entire stock of goods were shifted by the insured elsewhere without intimation to the preliminary surveyor or to his insurer and the insured has/had failed and neglected to perform his part of obligation under contract of insurance policy and also failed  and  neglected to furnish all proofs and information with respect to the claim rather caused disappearance of the actual state of condition of the stock  being the subject matter of Policy of insurance without prior intimation to his insurer and as a consequence the OP Insurance Company left no option but to repudiate the claim and intimate the insured Vide Letter dated 20/11/2019.

Having heard the Ld advocate of both the side and on perusal of the complaint, Written Version, Documents filed by the Parties, evidence of the Complainant, evidence of the OP’s, Written Notes of argument of the parties we find the following facts which are admitted by both the parties. Viz:-

1. The Complainant is a consumer under the Provision of the Consumer Protection Act.
2. The Complainant purchased/ insured his shop as well as all business materials with the OP’s being Insurance Policy No 512301418106 – 00000051(Annexure – 5).
3. That the Insurance Policy of the Complainant was valid from 25/06/2018 to 24/06/2019.
4. It is also admitted by both the parties that, the value for risk covered of Rs 50 Lakhs for shop and goods.
5. That, yearly Premium was of Rs. 26,038/- for the risk covered under the Policy of Insurance which includes Cover against loss or damage due to fire besides other.
6. It is also admitted by the parties that, on 02/12/2018 at 7 a.m. fire was broken out in the shop of the Complainant at Siliguri Bidhan Market.
7. It is also admitted fact that, till today the OP’s did not disburse any Claim of the Complainant.
8. It is also admitted fact that the final surveyor who was deputed by the OP’s assessed the loss of the Complainant due to fire was of Rs. 40,27,974/-.                                                                                                                                            

  From the above mentioned admitted fact of the parties, we find that the Complainant has been able to prove his case to the effect that, he insured his shop as well as business materials with the OP’s by purchasing Insurance Policy.

From the entire record we also find that, the Complainant has been able to prove the fact that within the effective Policy period fire was broken out in the shop of the Complainant and thereby the Complainant suffered loss due to damage of shop as well as business materials.

From the final surveyor report it is also proves that, the Complainant sustained loss of Rs. 40,27,974/- which has also been proved from the report of the preliminary surveyor who remarks in his report that, “The happening of loss is a confirmed one”.

Considering all we are of the view that, the grounds assigned by the OP’s for repudiation of claim of the Complainant are not convincing and non disbursement of legitimate claim of the Complainant is nothing but the unfair trade practice on the part of the OP’s as well as deficiency in service who deliberately did not obey the terms and conditions of the Insurance Policy. Accordingly we are also of the view that, the Complainant has been able to prove the case against the OP’s and he is entitled get the awarded amount.

Hence,

                                       O R D E R E D

That, the instant Consumer case being in No 30/2020 is hereby allowed on contest against the OP’s but in part. All the OP’s are jointly and severally liable to pay the awarded amount.

The OP’s are directed to pay a sum of Rs. 40,27,974/- (Rupees Forty Lakh Twenty Seven Thousand Nine Hundred Seventy Four) only towards the claim of the complainant for the insured value of the damaged goods.

The OPs are also directed to pay a sum of Rs. 20,000/- (Rupees Twenty thousand) only to the complainant for harassment and mental agony.

The OPs are also directed to pay a sum of Rs. 5,000/- (Rupees Five thousand) only to the complainant towards cost of legal proceedings.

The OPs are also directed to pay a sum of Rs. 10,000/-(Rupees Ten thousand) only in the Consumer Legal Aid account of this Commission.

The OPs are further directed to pay interest @ 7 % per annum with effect from the date of filing of this case to the complainant till making payment of the entire amount.

The OPs are also directed to pay the awarded amount within 45 days from this day failing which the complainant will have the liberty to take proper steps against the OPs for non compliance of this order passed by this commission.

Let a copy of this order be give to the parties free of cost.