In  the  Court  of  the

Consumer Disputes Redressal Forum, Unit -I, Kolkata,

8B, Nelie Sengupta Sarani, Kolkata-700087.

CDF/Unit-I/Case No.111/2010

1)                   The Ethelbari Tea Company,

24, Rajendranath Mukherjee Road, Kolkata-700001.                                ---------- Complainant

---Versus---

1)                   National Insurance Company Limited,

9, Shakeapeare Sarani, Kolkata-700071, P.S. Shakespeare Sarani.

2)                   The Divisional Manager, National Insurance Co. Ltd.,

Divisional Office-VII, 9, Shakespeare Sarani, Kolkata-700071.                  ---------- Opposite Party

Present :           Sri Sankar Nath Das, President.

                        Dr. Subir Kumar Chaudhuri, Member

                        Smt. Sharmi Basu, Member

Order No.   26    Dated  20-12-2012.

Smt. Sharmi Basu, Member

            In a nutshell the case of the complainant in short is that complainant company has its two tea gardens viz. Ehelbari Tea Estate and Sarugaon Tea Estate. Both the gardens are situated at Birpara in the  District of Jalpaiguri, West Bengal. The average annual production of made tea of the said two gardens are 3,70,000 kgs  and 2,80,000 kgs respectively per year. It is pertinent to mention that th e leaf manufactured a Sarugaon Tea Estate are processed at Ethelbari Tea Estate.

            In or about March, 2009 o.p. no.1 insurance company approached the complain ant for making insurance in respect of its tea crop of the said two tea estate. On the basis of such request made by the National Insurance Co. Ltd., o.p. no.1 herein, the complainant agreed to make insurance in respect of its crops of Ethelbari Tea Estate and Sarugaon Tea Estate and made the following two policies : (A) Policy no.100700/21/09/4900000005 in the name of Sarugaon Tea Estate and (B) Policy no.100700/21/09/4900000006 in the name of Ethelbari Tea Estate.

            As per the said policies it was agreed by and between the complainant herein and the o.p. no.1 that in case of any damage would cause to the crop of the aforesaid two tea estate of the complainant, insurance company would make good to such loss suffered by the complainant company. The complainant accordingly paid premium to the o.p. no.1, which was calculated on the basis of annual production of made tea of the said two tea gardens i.e. 6,50,000 kgs of tea @ Rs.80/- per kg. The total amount covered under the said policy was of Rs.5,20,00,000/- Such calculation was made on the basis of the total amount product of the gardens i.e. 6,50,000 kgs @ Rs.60/- per kg and said amount included the annual production of both  Ehelbari Tea Estate and Sarugaon Tea Estate.

            The period of cove rage under the said insurance policy was from 1.4.09 till 31.3.10 which was subject to further renewal. The complainant duly paid a sum of Rs.2,86,780/- (Rs.2,21,212/-    Ethelbari Tea Estate and Rs.65,566.88 for Sarugaon Tea Estate) inclusive of 10.3% service tax to the o.p. no.1 through  a cheque dt.30.3.09 drawn on United Bank of India towards provisional premium under the said policy for the aforesaid period.

            The complainant further stated and submitted that on or about 8.4.09 at around 8-00 p.m. part of the tea bearing areas of Ethelbari Tea Estate was hit by a severe hailstorm. Such hailstorm caused huge loss and damages of tea crop in the said tea estate of the complainant. The complainant company immediately thereafter vide a letter dt.10.4.09 informed o.p. no.1 regarding the said hailstorm and requested them to make necessary arrangement for inspection of the loss and damage caused by the said hailstorm. The complainant also requested to register the claim of the complainant under the said policy and do the needful in the matter.

            By a letter dt.17.4.09 the o.p. no.1 informed the complainant that as per the condition of the said policy such claim for the said hailstorm made by the complain ant is not admissible. Thereafter the complainant requested time and again to the o.ps. to settle the claim but all in vain. Hence the case was filed by complainant with the prayer contained in the petition of complaint.

            All the O.ps. had entered their appearance in this case by filing w/v and denied all the material allegations labeled against them and prayed for dismissal of the case.

Decision with reasons:

            We have gone through the pleadings of the parties, evidence and documents in particular and it is observed by this Forum that admittedly complainant took two insurance policies from the o.ps. (insurer) and paid premium in scheduled time. The total coverage under the said policy was Rs.5,20,00,000/- and this calculation was made on the basis of the total product of the gardens i.e. Rs.6,50,000/- kgs @ Rs.80/- per kg and it is also admitted fact that on 8.4.09 around 8-00 p.m. the areas of Ethelbari Tea Estate was hit by a severe hailstorm causing huge loss and damages of tea trees in the said tea estate of the complainant which was informed immediately to the o.ps. (insurer) complainant by the complainant (insured). The crux of the case is that whether the claim of the complainant was justified or not. As per the ld. counsel of the o.ps. as terms and conditions of the policy was violated by the complainant (insure) is not entitled for insurance claim.

In this regard we are referring the landmark judgment of Hon’ble Supreme Court viz. Civil Appeal No.2703 of 2010 in the case of Amalendu Sahoo vs. Oriental Insurance Co. Ltd. (Judgment of double bench) delivered on 25.3.10., wherein Hon’ble Apex Court has been pleased to observe that even in case of insurance claim of non standard deduction one or more of the clauses of the terms and conditions be violated by insured even then insured is eligible to get part of his claim upot 75%. In the light of the above landmark judgment of Hon’ble Supreme Court we are of opinion that complainant is eligible to get 60% of the amount as he claimed from the o.ps. (insurer) and the complainant is entitled to relief.

            Hence, ordered,

            That the case is allowed on contest with cost against the o.ps. O.ps. are jointly and/or severally directed to pay to the complainant Rs.10,.62,000/- (Rupees ten lakhs sixty two thousand) only i.e. 60% of the claimed amount and are further directed to pay compensation of Rs.20,000/- (Rupees twenty thousand) only for harassment and mental agony and litigation  cost of Rs.7000/- (Rupees seven thousand) only within 45 days from the date of communication of this order, i.d. an interest @ 9% shall accrue over the entire sum due to the credit of the complainant till full realization.

            Complainant is at liberty to file execution case before this Forum as per provision of the COPRA, 1986 in case of non compliance of this order by o.ps.

            Supply certified copy of this order to the parties free of cost.