JUDGEMENT

          Complainant Shree Triupati Hosiery (P) Ltd. by filing this complaint has alleged that complainant is a private limited company and is doing business of stock of hosiery goods, yarn and knitting favrics and production of embroidery, laces etc. in the premises at 220A, Naskar Para Road, Ghusuri, Howrah-711102 which is outside the jurisdiction of this Forum.  But the op is the policy issuing authority whose office is situated at R.N. Mukherjee Road, Kolkata – 700001 under P.S. Hare Street which is well under the jurisdiction of this Forum and complainant purchased one Standard Fire and Special Perils Policy for complainant’s factory being No.101100/11/12/3100000143 for the period of insurance from 27.06.2012 to 26.06.2013 and op issued this policy considering the entire matter.

          Fact remains that on the night shift which starts at 9 PM in between the date of 10.07.2012 and 11.07.2012 a worker was working with a machine and he noticed at about 01:00 AM on 11.07.2012 that smoke was coming out under the panel board and suddenly a fire broke out from the panel board of the machine and the said worker immediately started to extinguishing the fire with the help of Fire Extinguishers within 20 minutes and reported to the concerned official of the factory or manufacturing unit and since the fire was controlled and extinguished with a very short time so the complainant company did not inform it to the police station and also to the fire brigade authority.

          Thereafter insurance company was reported the loss on 11.07.2012 for assessing the said loss by appointing a surveyor for inspection and assess the loss and the op appointed a surveyor named Shri Saradindu Patranabis on 13.07.2012 and the said surveyor visited the spot of accident site on 17.07.2012 and enquired and investigated the cause of loss and submitted in turn his survey report dated 21.09.2012.  Surveyor or the complainant and their Board of Directors and the witnesses failed to search out the actual cause of said fire incident but it was presumed that it was for short circuit and the fire with the help of worker was controlled  using fire fighter within a very short time and as such it was found accidental in nature and beyond the control of the insured.

          It is further submitted that after assessment and being satisfied assess or assessed the loss in his report on 21.09.2012 to the extent of Rs.1,36,389/- and thereafter complainant submitted a letter to the op for settlement of claim vide letter dated 05.12.2012 and 12.12.2012 against that the insurance company issued a letter dated 13.12.2012 stating that the cause of loss is not covered under the policy i.e. excluded under the Genral Exclusion Clause No.7 of Standard Fire and Special Perils Policy (Material Damage) enclosing a clause of one page etc.

          Fact remains on accepting the said letter of no claim from the insurer the complainant wrote a letter on 14.01.2013 to the insurance company under RTI Act to furnish copy of the survey report followed by two reminders dated 04.02.2013 and insurance company sent the copy of the  said survey report dated 21.09.2012 to the insured vide their letter dated 04.03.2013 along with a letter of the surveyor dated 06.12.2012 to the insurance company stating that the claim is under exclusion clause No.7 so there is no liability of the insurer.

          Complainant further submitted that on perusal of the said survey report dated 21.09.2012 it is crystal clear that the surveyor deviated from his own opinion and set up in the conclusion part of his report on being intervention by the insurance company to decline the claim anyhow.  So, it was apparent from the survey report in page-3 that the cause of fire was the electrical short circuit might have been caused and in conclusion of page 4 – it is submitted that in terms of circumstantial evidences, he was convinced that the insured had suffered a genuine loss covered under insured peril, that means, the loss has caused due to operation of the fire peril which is insured by the comnplainant.  But the letter issued to insurance company dated 06.12.2012 by the said surveyor before declining the claim was after thought and being pressurized by the insurance company most probably the surveyor was forced to issue such letter.

          So, considering that factor including the Addendum to the Survey Report, it is clear that it was malpractice on the part of the op.  In the above circumstances complainant has submitted that the op adopted unfair trade practice and willfully repudiated the claim for which the complainant is entitled to get this relief and for which this complaint is filed for redressal for a claim of Rs. 1,36,389/- including compensation etc.

          On the contrary the Insurance Company by filing written statement submitted that the complainant is confused to indentify and mention the exact fault and negligence in specific terms with reference to the expressed terms and conditions and exception clause of the policy, in question, so such an unfounded submission made by the complainant does not satisfy the op for releasing the claim for which it was repudiated.

          Further op submits that complainant candidly admitted before the Ld. Forum that they did not inform the incidence of fire and its consequences to the police station and to the fire brigade.  But as a matter of fact non-intimation of incident of fire to the police station and fire brigade authority is nothing but a complete violation of settled rules and hence complainant’s submission itself well proves the willful negligence to comply with settled norms and terms of the policy.

          It is further submitted that the decision in the matter of settlement of claim has been taken on the strength of survey is candid report of settlement of claim and also the conduct of the complainant for not informing the matter to the police station and fire brigade and practically complainant has tried to take undue advantage by presumptive fact.

          Op has further submitted that they have acted fairly in connection with policy Exclusion Clause No.7 and the surveyor has confirmed non-admissibility of the claim by the insurer with reference to the policy Exclusions Clause No.7 and all those matters are on record, nothing is hidden or suppressed and policy condition and Exclusion cannot be violated by any statutory authority and complainant’s allegations are so false and fabricated and in fact complainant violated the terms and conditions of the policy and he has not also produced necessary papers in respect of investigation held by any Fire Brigade authority about the cause of the accident.  So, the complaint should be dismissed.

                                                 Decision with reasons

          No doubt after considering the argument as advanced by the Ld. Lawyers by both the parties and also considering the complaint and written version, it is apparently proved that op repudiated the claim on the ground that Exclusion Clause No.7 is applicable in this case and further it is specific case of the op that op asked the complainant to submit the copy of FIR and report of fire brigade.  But complainant has admitted that they did not inform the fire brigade or the police after incident.

          Fact remains that at the time of taking any policy covering fire accidental damages, any company or factory must have to show that on the date of accident, they had or have their fire license issued by the fire brigade authority and in this case it is proved that complainant at the time of taking this policy or on the date of fire accident had no such fire license issued by the fire brigade authority.  But it is must for any factory to keep fire license if any factory is run by any authority and it is equally true that as per provision of law at the time of taking any policy covering any fire accidental loss of the property of any company, the company must have or shall have a valid fire license.  But in this case complainant has failed to produce it and complainant is silent in this regard in the complaint.

          Another factor is that if any incident of fire is caused in any factory in respect of which a fire insurance coverage is there in that case it is mandatory duty of the insured company to report the matter to the fire brigade and also the police station.  But complainant has not complied the matter.  So, it is clear that complainant was at fault and practically he has violated the terms and conditions of the policy for not reporting the matter to the police and fire brigade.

          At the same time on the date of accident the present company had no fire license which is completely against the provision of law and as per West Bengal Fire Act and Rules.  So, apparently it is clear that complainant has violated the terms and conditions of the policy.

          Another factor is that if any fire is caused in any factory it must be reported forthwith to the fire brigade and report of the fire brigade must be submitted before the insurance company for relying upon the report of the fire brigade including their observation.  But in this case there is no such report of the fire brigade and about the cause of the accident.  But it is claim of the complainant that due to short circuit said incident happened. But such a version of the complainant cannot be accepted by the insurance company in view of the fact that the complainant violated the terms and conditions of the policy.

          In this case the Ld. Lawyer for the complainant repeatedly relied upon the report of the surveyor, but surveyor was appointed only for the purpose of assessing the damage.  But fact remains that surveyor failed to search out any cause of such incident of fire and another factor is that the surveyor was not an expert in respect of electrical engineering.  So, his opinion cannot be relied. Only surveyor came to his conclusion that accident may be happened due to short circuit but the meaning of short circuit is otherwise and further Ld. Lawyer for the complainant submitted when damage was caused, loss has been assessed then the loss assessor also advised the op to release the said fund, then there is no other alternative but to release the said claim of the complainant within reasonable time, but that has not been done.  So, by that act op has committed breach of trust and for which complainant claim should be allowed.

          On overall evaluation of the entire materials including the above findings we are convinced that there are several faults on the part of the complainant and same are as follow – 1) complainant has no fire license, though complainant has been running a Hosiery factory, 2) complain and did not report the incident of catching fire in the factory to the police station, 3) complainant also did not report the matter to the fire brigade for assessing the cause of fire so considering that fact we have gathered and also are confirmed that complainant did not follow the rules and regulations in respect of running of factory and also has not complied the terms and conditions of the policy to report the matter to the police station and fire brigade authority.

          So, apparently it is proved that complainant has not complied and has not discharged his duties as per terms and condition of the policy when policy parties (insurer and insured) shall be guided strictly and governed by the terms of the policy, and there is not scope to give any exception and relaxation to the parties on the ground of equity.  So, apparently rejection of the claim by the op is found not baseless.

          But anyhow we have gathered that the policy was opened for the purpose of covering the risk of the property of the factory in case of fire and any other special perils.  Though the present incident does not come under the purview of special peril but it comes under the purview of Standard Fire Coverage and he has been paying some premiums yearly.  Op has been accepting it only relying upon the statement of the complainant.  But it must be kept in their mind that an insured must not be deceived from getting some relief when loss assessor assessed same loss to the extent of Rs.1,36,389/-.  Truth is that fire caused in the said factory  and some articles were damaged which is covered by the policy and in view of the judgement of the Hon’ble Supreme Court passed in the year 1996 and also another ruling passed by Hon’ble Justice T.K. Chakraborty and other very recently in the year 2009 we have gathered that for some technicalities, entire claim must not be dishonored and if technicalities are taken into consideration in respect of all the claims then invariably all the claims shall be repudiated by the insurance companies and in the above situation the view of the Hon’ble Supreme Court is followed to give some relief by deducting some amount for fault as found on the part of the insured which are technical in nature and sometimes it would be mandatory in nature and for such reason some amount may be deducted and certain amount may be allowed as compensation against final claim and in such a manner  any insurance claim is not decided by the Court of law in that case all the insured shall have to suffer loss in respect of any insurance policy.  Practically there is no moral approach in this regard and that must be in the mind of the insured also because Forum is here and there only to give relief to the consumer which are being deprived in toto by the insurance company even after payment of the premiums.  So, we are trying to minimize the entire matter relying upon the principle as laid down by the Hon’ble Supreme Court and also applying our moral approach for protecting the insured by giving social justice we are allowing a sum of Rs.75,000/- as final settlement of the claim of the complainant after deducting balance amount as assessed by the surveyor on the ground complainant is at a fault.

          But complainant must be cautious in future in running such factory in all respect and it is the duty of the insurance company to see at the time of issuing any policy that the policy holder has fire license for running such business and fire license is must in respect of any company who are running any business by operating electrical or mechanical goods with the help of electrical power.  But in this case op did not bother to collect the same at the time of taking the policy.

          So, laches is also on the part of the o.p.  but we are sure that at the time of filing application form for policy all the materials shall be supplied by the complainant.  In our present society factories are being run by capitalists who are not in a mood to follow all the regulations to run business only to avoid payment of fees against any license and for which several accidents and casualties are also being caused. In fact insurance company are not found very vigilant but insurance company shall not have to renew any insurance policy of covering fire and special peril if Fire License is not processed by the factory but insurance company has his casual approach to take premium and grant insurance policy because they are very much rigid to handle or dealt with the settlement claim and fact remains in most of the cases claim of the insured is repudiated by the op and that is their business.  But Insurance Act was enacted for protecting the status of the insured and it is social legislation.  So, insurance company ought to have been very social in their approach at the time of disposal of such claim but that has not been done but that cannot be treated negligence and deficient manner of service.  But truth is in so many cases that op ought have disposed the matter keeping in view of the observation and decision of the Supreme Court and may grant some amount.  So, in the above situation we are inclined to give a sum of Rs.75,000/- as compensation for loss or damages as caused due to said fire in the factory of the complainant and op shall have to release that fund after treating the entire claim of the complainant as disposed of finally and also treating their repudiation is not absolutely correct order which is decided by the Forum.

          So, in the result the complaint succeeds.

          Hence, it is

                                                          ORDERED

          That the complaint be and the same is allowed on contest without any cost against the op.

          Ops are hereby directed to release and pay a sum of Rs.75,000/- as final compensation in respect of the claim as made by the complainant to the op considering the entire claim application or claim matter as settled finally and no other claim shall be made by the complainant in respect of this claim in future.

          But it must be paid within one month from the date of this order failing which penal interest @ Rs.100/- shall be assessed till full satisfaction and implementation of the decree passed of this Forum and it must be complied by the op within one month from the date of this order otherwise all sorts of penal proceedings shall be started against the op for implementation of the order for which op shall be responsible.