This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that he is a man of social repute and a businessman, carrying his wholesale and retail business of potatoes, onions and gingers etc at the Hatibagan Market and at the material point of time insurance policy was being made for two shops and one godown with the complainant being no.100300/48/10/9800007809 and collection no. 100300/81/10/ 0000010240, dated 16-03-2011 through Bank of India, Shyambazar Branch from National Insurance Company Ltd. at National Insurance Building, Ground Floor, 8, India Exchange Place, Kolkata – 700 001 and the said policy period is from midnight of 28-03-2011 to midnight of 28-03-2012 and it was fire and allied policy. 

During subsisting period of policy at about 2:30 a.m. in the midnight on 22-03-2012 a devastating fire destroyed about 90 percent of the Hatibagan Market which included two shops of potatoes, onions etc. and one godown of the aforesaid complainant and that incident was published on all the Bengali and English Newspaper on the next date and that horrible destruction due to fire continued till the evening of 23-03-2012 and, thereafter, complainant intimated the said incident to the Bank on 24-03-2012 agent of the said Insurance Company for taking proper steps for immediate settlement of the claim under his above mentioned shopkeepers policy.  Thereafter, complainant met the bank on several times when he was directed to submit the estimate of damaged and destroyed amount due to fire on 22-03-2012 at midnight and accordingly, on 23-04-2012 the claimant submitted the estimate of loss of gross amount Rs.6,18,000/- including cash in hand that was in the iron chest in the shop room.  Subsequently, he further was directed by the surveyor to submit all documents and accordingly, he submitted on 10-07-2012 the estimate cost of Rs.6,80,000/- excluding cash in hand.  Again he was directed to submit the claim deducting the cash in hand and deducting the estimate of furniture.  Accordingly on 18-07-20123 the claimant submitted further the claim amount of Rs.4,78,000/- excluding the furniture estimate and cash in hand etc.  and complainant submitted three types of estimates as per direction of the authority but the complainant is entitled to Rs.6,18,000/- as insurance claim.  After that one surveyor on behalf of the National Insurance Company surveyed the insurance place and passed loss and subsequently, some information from the aforesaid complainant in the form of a “Letter of Requirement” dated 24-05-2012 was sent after that complainant went to the bank and office of the surveyor and requested them to settle the insurance as early as possible but the said surveyor issued three intimation letters consecutively to the aforesaid complainant to get the necessary documents as per letter dated 24-05-2012 dated 10-07-2012, 15-09-2012 and 25-12-2012 to make delay the proceeding for settlement of insurance policy but complainant became surprised and shocked that even after fulfilling all the enquiries of the surveyor and all the proceeding to settle the claim insurance company has been harassing him on the several pleas and lastly he has written a letter to the OPs dated 06-05-2014 through his Ld. Advocate to get the demand of justice.

It is specifically mentioned that complainant had no knowledge about the delay intimation given by the Bank to the National Insurance Company Ltd. and due to lack of knowledge about the procedure for intimation to the Bank or to the Insurance Company the complainant intimated later to the said Insurance Company and in the similar circumstances, some shop keepers of this Hatibagan Market got their estimated amount from the said National Insurance Company Ltd. after holding enquiry for the self same incident but the complainant is being deprived of on the various pleas.  The complainant collected some policy no. from the other businessman and from the aforesaid facts and circumstances, it is clear that the OP intentionally has been harassing the complainant and repudiated the claim on vexatious ground and harassed the complainant in such a manner which is painful to the complainant.

On the other hand, OP1 Insurance Company by filing written statement submitted on receipt of information of fire by letter dated 30-04-2012 complainant deputed Chandan Sen, an insurance surveyor cum loss assessor of the OP and the said surveyor submitted survey report on 02-06-2013 and for fire and allied peril policy total sum insured was Rs.7 lakhs but surveyor submitted report with such observation that note that due to fire the insured could not provide any documents, sales and purchase documents, register was not submitted on the plea that it is completely damaged.  Loss happened on 22-03-2012 but claim was submitted long after that and assessment made on the basis of the average stock submitted by the insured to his banker (before the loss the insured never submitted the stock statement to the banker) and the insured was not in a position to justify the delay in intimation but as per provision of law it is mandatory that the complainant is required to submit to the Bank regular stock statement with lists of insured articles duly verified and well settled principle of law that stock statement submitted to the bank after the incident of fire will not be considered for assessment loss of stock due to fire in earlier periods.  Further the delay over all stands for a period of 38 days but reasons of delay has not been submitted for which it was time barred.  Fact remains the insured after two days of the incident intimated the Banker on 24-03-2012 but the bank intimated about the matter vide a letter dated 03-04-2012 and insurance company received the letter on 30-04-2012 and bank did not even intimate the incident through any telephonic conversation or any e-mail, only the letter was sent by post and the delay for 38 days has not been explained and for not providing document of sale/purchase or documents/register of the stock during the fire occurrence, so the actual value of stock cannot be estimated and so, after considering the Surveyor’s report the OP decided the matter on merit and on good faith and after applying the judicial mind repudiated the claim so, there is no negligence and deficiency of service on the part of the Op Insurance for which the present complaint should be dismissed.

On the other hand, OP2, the Bank of India submitted that complainant Sadhan Sarkar has been enjoying cash credit facility since 23-06-2006 and the cash credit limit was granted on the basis of hypothecation of stock of vegetables like Potato, Onions etc.   Subsequently, the complainant approached the OP2 to recommend him any reputed insurance company who shall insure his stocks at his shop at Hatibagan Market and on recommendation of OP2 and after being satisfied personally complainant selected OP1 to insure his stock and stock was therefore insured by Op1 Insurance Company and fire broke out on 22-03-2012 at Hatibagan Market for which the shop of the complainant was purportedly damaged and the matter of loss of stocks due to fire was informed to OP2 through a letter addressed to the OP1 on 23-04-2012.  Thereafter, the OP2 Bank proactively reacted on the matter and informed OP1 through letter dated 24-04-2012 which was sent on 25-04-2012 through registered post with A/D.

          After a gap of near about two years without any interim communication with the OP2 after and before the appointment of surveyors the OP1 informed the OP2 dated 18-03-2013 requesting the OP2 to submit the document based on which the loan was sanctioned to the complainant and also reason for delay in sending the intimation of fire to them.  The OP2 replied through letter dated 19-03-2014 informing that the cash credit limit was granted on the basis of hypothecation of stock of vegetables and the said letter hereby annexed as Annexure-‘P-2’.  But in the month of occurrence of the incident the complainant has not submitted any stock statement and the last available record of the complainant submitted before the OP2 for the month of February, 2012.  The OP2 has not intimated the OP1 within two days from the knowledge of the incidence of fire from the complainant, through registered letter and if the letter reached to the OP1 at belated stage that entirely due to postal delay in which OP2 has nothing to do.  OP2 further submitted that complainant has never submitted the statements of furniture and fixtre of the complainant’s shop room to OP2 so the story of destruction of furniture and fixture by fire and cash in hand etc are categorically denied and disputed by OP2 and further OP2 submitted that other allegations afterthought and made in order to make OP2 as party in the instant case and therefore categorically denied and disputed entire allegations.

          It is further submitted that OP2 never influenced the complainant to get his stock insured by the OP1 so OP2 has no role to play in this case rather OP2 will be in a good financial shape that if OP1 settles the claim as that would be credited in complainant’s loan account lying with the OP2.  So, the OP2 will always encourage OP1 to settle the claim of course legitimate and practically in respect of the insurance matter OP2 has no liability and the claim of the complainant is regarding the complaint is completely baseless and without any foundation and if there is no laches on their part so the complaint should be dismissed.

Decision with Reasons

On proper consideration of the entire materials on record and further hearing the Ld. Lawyers of both the parties and also considering the survey report it is clear that Hatibagan Market is an old market of Kolkata and the incident of devastating fire took place on 22-03-2012 which published on all newspaper and TV Channels and after such fire the Fire and Relief Minister including Chief Minister visited the place but surveyor was appointed after receipt of the letter from the Bank in writing.  Surveyor visited the place and there were burnt materials at the side and many stall owners and businessmen suffered such loss due to such devastating fire and when the surveyor went to the place already it was found stall owners have already restarted their business after 14-04-2014.  The structure was also found to be a new one and after renewal the insured cannot provide any document to substitute the quantity of loss and he submitted that all his documents, purchase/sales register along with locker inside it is kept was completely gutted due to fire.

          Surveyor also went to the Bank and it is found stock on different months were also not available with the banker as also no stock statement were available for months together and bank also failed to hand over it because complainant did not file and insured cannot provide proper reasons for delay in intimation that was not explained and from the statement as supplied by the Bank it is found that complainant started to file monthly stock statement after starting new business after incident in the said place since 30-04-2012 prior to that he submitted last statement in the month of February, 2012 in the bank.  Thereafter, he did not submit any stock statement so, the value at risk at the time of taking loan cannot be ascertained due to unavailability of documents.  Not only that complainant failed to produce any yearly stock account duly verified by Bank or by any Chartered Accountant or his earlier income tax report etc. and fact remains OP Insurance Company repeatedly sent notice to the complainant but complainant did not respond and bank authority already reported that prior to date of incident for many months complainant did not submit registered stock verification statement etc. and in the present case complainant has already failed to produce the same for which there is any receipt of sale or verification of sale by the bank.  Though complainant has tried to show that all those documents were burnt by fire but banking authority specifically mentioned that monthly statement had not been submitted by the complainant for many months prior to incident so, it is not possible for the bank to supply it.  No doubt the insurer is not in a position to justify the delay in intimation but for the bank’s side it is found that bank reported the matter within 48 hours on receipt of the information from the complainant but anyhow it is impossible for Forum to assess the loss without surveyor’s report and fact remains in a judgment passed in Revision Petition No.1570 of 12 Hon’ble National Commission by passing a judgment on 29-10-2013 decided that where there is no deficiency of service on the part of the OP Insurance Company there is no question to give any relief and practically in the present case it was the duty of the complainant to submit monthly stock statement to the Bank and verification of the stock of the Bank but that has not been filed by the complainant which are vital documents but not produced by the complainant including income tax return etc. for which the surveyor could not assess the loss and in this regard it is the fault on the part of the complainant but deficiency of service on the part of the OP Bank or the OP Insurance Company is not proved, so, in the above circumstances, we find that matter should be sent to the OP1 the insurance company for proper redressal after directing the complainant and the OP2 the Bank to file necessary papers as required by the OP Insurance company for determination of loss and in this regard complainant shall have to submit last four years income tax return with statement of stock etc. verified by the Bank and if all these documents would be produced by the complainant in that case the OP Insurance Company shall condone the delay in filing the application for claim and shall decide the dispute for final settlement considering the devastating fire caused in the Hatibagan Market area and in this regard invariably insurance company shall have to give a moral approach so that the complainant may not be completely ousted from getting such relief.  In the result complaint is disposed of accordingly.

Hence,

Ordered

That the case be and the same is allowed on contest against the OPs but without any cost.

          Complainant is directed to submit Income Tax report along with monthly stock verification challan duly verified by the Bank for last four years to the OP1 and OP2 Bank shall have to produce all those documents if it is in their custody to the OP1 thereafter OP1 shall have to decide the claim because their repudiation is not accepted by this Forum but OP1 is directed to reopen the matter for settlement consider the present situation and devastating fire caused in Hatibagan Market and shall take such moral view in this regard condoning his delay by the OP1 and to decide the same within the two months from the date of this order.

          If OP1 does not settle the matter within two months from the date of receipt of those documents as would be supplied by the complainant and OP2 as per spirit of this order in that case OP1 shall have to pay a sum of Rs.2,50,000/- as compensation treating the said settlement claim as final.

          But if complainant and Bank fail to produce those documents as per spirit of this order in that case also OP1 shall have to dispose of the said claim of the complainant only by paying a sum of Rs.2,50,000/- as final compensation.

          Parties are directed to comply this order after lapse of two months.  Both the parties shall have to deposit their respect report to consider the compliance of the order by the parties.