COMPLAINT CASE NO. 2 OF 2007
Shri Manik Dhar
S/o Late Dwaitya Ranjan Dhar
R/o Lakitori Building,
Keating Road, Shillong-793001
……… Complainant
Vs
1. General Manager Indian Overseas Bank,
763, Annasalai, Chennai-600002
2. Branch Manager,Indian Overseas Bank
Morellow Building, Shillong-793001
3. General Manager, United India Insurance Co Ltd
24, White Road, Chennai-600014
4. General Manager, United India Insurance Co Ltd
Kachari Road, Shillong-793001
.……..Opposite Parties
For the complainant : Mr S. P. Sharma &
Miss P. Bhattacharjee
Advocates
For opposite parties No 1 & 2 : Mrs T. Yangi Advocate
For opposite parties No 3 & 4 : Mrs P.D.B.Baruah Advocate
Date of hearing : 07.12.2013
Date of judgment : 11.01.2014
Whether to be reported : No
JUDGMENT & ORDER (CAV)
Per Mr. Justice P K Musahary (Retd.), President
Heard Miss P. Bhattacharjee, learned counsel for the complainant, Mrs T. Yangi learned counsel for opp. Parties no 1 & 2 and Mrs. P.D.B. Baruah learned counsel for opp. Parties no 3 & 4.
2. The complainant, as stated in this petition, is a manufacturer of bricks and an approved Class I government contractor and supplier of high standing and repute. He is carrying his business under the name and style of M/s Roma Enterprise, a sole proprietary firm having its head office at Lakitori Building, Keating Road, Shillong. He availed credit facilities from the opp. Party no 2 with varying limits and sub-limits for setting up a bricks kiln at Village Kameshwar, Dharmanagar, North Tripura District against hypothecation of all assets for which, his wife, Smt. Reba Dhar stood guarantor. The complainant claims that in the year 2002-03 he suffered huge loss to the tune of Rs. 75 lakhs due to flood and non-payment of compensation allegedly for want of coverage under ‘flood clause’ in the policy he bought from the opp. Party insurance company. In the year 2005 the complainant got his plant machinery and accessories and buildings insured with the opp. Part insurance company for a sum of Rs. 50 lakhs vide policy no.201000/11/04/3100290 and 201000/11/04/3100291 dated 02.03.2005 incorporating only Earthquake (fire and shock). During the year 2005, the complainant’s bricks industry was badly affected in flood and storm causing a heavy loss amounting to Rs. 20 lakhs against which an amount of Rs. 4,50,000/- was received on account of settlement of claim. The complainant also took two insurance policies bearing no 130801/11/06/ 11/00000020 and 130801/11/06/11/00000021 dated 10.04.2006 from the opp. Party no 4 for a total sum of Rs. 50 lakhs only valid from 10.04.2006 to 09.04.2007. Unfortunately, in April 2006, complainant’s entire brick field was damaged due to cyclone and storm causing heavy loss. He filed a claim with opp. Party no 4 but received no response for settlement. So, he has filed this complaint under Section 17 (1) (a) read with Section 12 of the Consumer Protection Act 1986 and rules made thereunder claiming Rs. 93,18,000/- as damage and compensation on account of loss sustained due to gross negligence and deficiency in service of the opp. Parties.
3. The opp. Parties no 3 & 4 filed a joint written statement on behalf of the insurance company raising the question of locus standi of the complainant to file the complaint, presence of cause of action, maintainability of complaint due to non-joinder and mis-joinder of recovery parties. In the said written statement they had denied that there was any cyclone during April 2006 causing damage to complainant’s brick field and causing loss to the tune of Rs. 20 lakhs. They have also denied that there was heavy rain and flood during last part of June, 2006 and complainant’s suffered loss to the tune of Rs. 30 lakhs. It is stated in the written statement, on receipt of the claim from the complainant, the opp. Party insurance company appointed a surveyor on 16.08.2006 and the said surveyor visited the work site at Dharmanagar on 22.08.2006 and submitted a report on 27.08.2007. As per the surveyor’s report no such damage due to cyclone was caused to the complainant’s brick field, raw materials etc as alleged by the complainant. There was, as reported by the surveyor very minor damage to the labour shed and chimney channel. The opp. Parties no 3 & 4 alleged that the insured was asked by the surveyor to submit necessary documents along with the estimate and claim form but the insured extended no cooperation and failed to submit the necessary documents. The surveyor finally vide his letter dated 09.11.2006 asked the insured to submit all the necessary documents within 15 days from the date of issue of the said letter failing which, the insured was informed that the claim would be closed as ‘no claim’. Inspite of such written intimation, the insured failed to furnish the necessary documents due to which the surveyor in his report recommended for treating the claim as ‘no claim’ and accordingly, based on the said report, the opp. Party insurance company closed the claim as ‘no claim’ and informed the complainant vide a letter dated 01.11.2007.
We have noted that the complainant filed no rejoinder to the written statements of the opp. Parties no 3 & 4 denying the averments particularly the averments that there was no cyclone, storm, heavy rain and flood and that no damage was caused to the complainant’s brick field and raw materials and no loss was caused to him. (The averments made by opp. Parties no 3 & 4 in their written statements, have remained uncontroverted and unchallenged).
4. A joint written statement was also filed by the opp. Parties no 1 & 2 on behalf of the Indian Overseas Bank. In the said written statement the opp. Parties no 1 & 2 stated, amongst others, that the complainant was carrying a business under the name and style of M/s Roma Enterprise and availed loan to the tune of Rs. 1,45,00,000/- from the opp. Party bank. They have no knowledge that the complainant was carrying on business under the name and style of M/s R. S. Industries. The credit facility was showed in the name of M/s Roma Enterprise. It is alleged that the complainant, from the beginning, was irregular in making the payments of overdues and as such, from time to time he was asked by the opp. Parties to regularize the loan accounts. The opp. Parties no 1 & 2 are not responsible for non-inclusion of flood claim in the insurance policy. It was the obligation on the part of the complainant to see whether flood or storm causes are included in the policy or not as he knew the expected risk better than anybody else. Further it was stated that the opp. Party bank is concerned with the firm ‘M/s Roma Enterprise’ only and not with M/s R. S. Industries.
5. The complainant has filed no rejoinder to the written statements of the opp. Parties no 1 & 2. (The averments made by opp. Parties no 1 & 2 in their written statements, have remained uncontroverted and unchallenged).
6. The grievance of the complainant against opp. Parties no 1 & 2, as found from the complaint, is basically in regard to non-sanction of more loan amount to run his business. As a Consumer Forum we do not want to enter into the domain of financial transactions between the complainant and the opp. Party bank. In our view it is the prerogative of the bank authority to extend or not to extend financial assistance to its party by way of sanctioning loan. Refusal to settle the insurance claim and providing loan by the bank authority are quite distinct and separate issues. The complainant is mainly concerned with insurance claim and in our view, the complainant has unnecessarily dragged the opp. Parties no 1 & 2 to unnecessary litigation. There is a mis-joinder of party in respect of the opp. Parties no 1 & 2 and no relief could be granted by this Commission to the complainant.
7. Coming to the grievance of the complainant on non-payment of insurance claim, it has come to our notice that the complainant in order to establish his claim that his brick field was damaged in the cyclone, storm, flood and heavy rain causing huge loss submitted the following documents-
(i) Certificate dated 16.04.2005 issued by Pradhan of Kameshwar Gram Panchayat, Panisagar R D Block, North Tripura certifying that the brick field of M/s R. S. Industries was badly affected four times by heavy shower, storm and cyclone in the month of February-March 2005 and finally on the 8th day of April, 2005 (Annexure VI).
(ii) Letter no. 893/(1)/SDM/DMN/GL/05 dated 03.09.2005 issued by the Sub-Divisional Magistrate, Dharmanagar, North Tripura stating that from “the inquiry report it reveals that some kutcha brick labour shed etc of M/s R. S. Bricks Industries has been damaged due to the cyclone and flood occurred during last April 2005 (Annexure VIII).
(iii) Another certificated dated 10.07.2006 issued by Pradhan of Kameshwar Gram Panchayat, Panisagar R D Block, North Tripura certifying that M/s R. S. Bricks Industries was badly damaged by the recent storm and flood in the month of June, 2006 (Annexure XXI).
(iv) Similar certificated letter dated 01.08.2006 issued by the Pradhan of Kameshwar Gram Panchayat, Panisagar R D Block, North Tripura certifying that Shri Maniklal Dhar, proprietor of M/s R. S. Bricks Industries was personally known to him and the said bricks industry was badly affected in recent flood and storm in June, 2006 (Annexure XXII).
(v) Letter no. 777/F.1 (1)/SDM/DMN/GL/05 dated 04.08.2006 stating that as per application submitted by M/s R. S. Bricks Industries the matter was duly inquired by the Tehsildar Kameshwar T.K. and from the said inquiry report it reveals that some kutcha bricks labour shed etc was badly damaged due to cyclone and flood occurred during last June, 2006 (Annexure XXIII).
The above documents have been annexed to the complaint petition.
8. We have noticed that the standard fire and special perils polices were issued by the United India Insurance Company Ltd in the name of M/s Roma Enterprise, proprietor Manik Dhar, Dharmanagar, District-Tripura North effective from 02.02.2005 to 01.03.2006 and from 10.4.2006 to 9.4.2007. Copies of the policies have been furnished as Annexures II, III, XVIII and XIX to the complaint petition. M/s R. S. Industries is not the insured party. The complainant has not furnished the policy showing the said M/s R. S. Industries as insured by the opp. Party insurance company whereas the complainant has furnished the above documents/certificates from the Gram Panchayat Pradhan and the Sub Divisional Magistrate as a proof of damage of the bricks field in cyclone, flood and heavy shower. The above documents, in our considered view have no relevance inasmuch as they are all in respect of M/s R. S. Industries. Even assuming that those documents/certificates have relevancy, the complainant has not furnished the details of damage caused to his bricks field and raw materials. He has produced no estimate of loss.
9. The certificates issued by the Sub Divisional Magistrate, as mentioned earlier, assumes importance in as much as there is a revelation that some kutcha brick labour shed etc of M/s R. S. Bricks Industries under the proprietorship of the complainant were damaged due to cyclone, flood and heavy shower during last June, 2006. From the above certificates on damage of bricks field, any reasonable man can guess that the damage, if at all caused, was not so extensive causing loss to the tune of Rs. 93,18,000/-. The claim of the complainant can easily be termed as inflated and baseless and there is no ground/reason for ordering payment of such a huge compensation to the complainant.
10. We have perused the surveyor’s report dated 27.08.2007 (Annexure I to showcause of opp. Parties no 3 & 4). As per the said report the risk (bricks field) is situated at Kameshwar on the main road, Dharmanagar. The surveyor recorded that the alleged loss was inspected on 22.08.2006. No sign of any damage to the machinery due to cyclone was noticed and the works manager had also agreed verbally that there were no damages due to cyclone. Due to flood in June, 2006, minor loss in the labour shed and chimney channel was noticed. The labour sheds are built of split bamboo wall, thatched roof and brick laid floor with mud stain which could be removed by washing. One side wall of the chimney channel had collapsed in few places. It was also recorded in the report that the insured was advised to submit necessary documents along with the estimate and claim form. But getting no reply a letter was finally issued on 06.11.2006 with a copy to the proprietor’s Shillong address. He was also intimated that if no reply is received within 15 days his claim will be closed. The surveyor observed that as the insured failed to submit the claim form and estimate, no assessment is felt necessary. Ultimately the surveyor recommended closing the claim by ‘no claim’. The opp. Party insurance company, based on the surveyor’s report closed the claim and the same was intimated to the complainant.
11. We have already discussed earlier that the complainant, for reasons best known to him only, opted not to controvert or challenge the allegation that he failed to furnish the necessary documents with estimated loss in support of his claim. For want of an affidavit controverting the said allegation of the surveyor and the opp. parties no 2 & 3, it must be accepted in law that the complainant has admitted the position that he failed to submit the estimate with claim form supported by necessary documents.
12. In the aforesaid facts and circumstances of the case we are unable to persuade ourselves to grant any relief towards damage and compensation to the complainant in as much as the claim is found to be inflated, baseless and imaginary. We have no option but to dismiss this petition as bereft of merit. Accordingly the complaint petition stands dismissed.
