The complainant’s case in short is that he has a insurance policy along with two others(Sri Jayanta Sahoo and OP no. 3) for the purpose of his dwelling house over plot no. 1/232 appertaining to Khatian no. 95 of Mouza-Haridanga under P.S. – Patashpur, Dist. – Purba Medinipur, with OP no. 1. The policy no. is 150303/11/06/3100000304 with the coverage period from 25.08.2006 to 24.08.2016 for a sum insured of Rs.18,33000/- for which the net premium was Rs.8249/-. He took loan from OP no.3 for construction of his said dwelling house.
In the night of 17.06.2008/18.06.2008 flood had broken out from Kelighai river due to continuous heavy rainfall on those days, in the complainant’s locality, which resulted severe damage and loss to the complainant’s dwelling house. The complainant then gave information on 21.06.2008 to OP no.2 and other Authorities as also submitted claim of Rs.4,75000/- before the OP no.2 towards his loss for such damage caused to his dwelling house due to the said flood.
But the OP no.1 and 2 did not pay any heed to settle his said claim amount inspite of several request including his Lawyer’s letter dtd. 17.06.2009 even after inspection held by the Surveyor, Sri Bhaskar Sen, appointed by OP no.1 and 2 as also after receiving the said Surveyor’s report for recommendation of compensation of Rs.3,00000/- towards such loss and damage, hence the instant case.
The complainant produced the following Xeroxed documents in support of his contentions:
- Letter dtd. 15.02.2010 issued by the Branch Manager, NIC.
- Advocate’s letter dtd. 17.06.2009
- Documents of Pataspur Gram Panchayat
- letter dtd. 23.06.2008 issued by PNB to NIC.
- Letter to PNB, Pataspur Gram Panchayat, Patspur P.S. and BDO by the complainant
- Documents of National Insurance Co. Ltd.
- News Paper cuttings, etc.
The OP no.1 and 2 contested the case by filling a joint W/V denying all material allegations made against them by the complainant. The OPs stated interalia therein that the complainant had not supplied them with any copy of documents upon which he relied on. Hence, their prayer is for dismissal of the case.
The OP no.3 (Bank) contested the case by filing separate W/V with contention that the relation between them and the complainant is that of a Debtor and Creditor and that OP no.3 is not at all responsible over the claim as sought for by the complainant.
The OP no. 1 and 2 filed Xeroxed copy of Survey Report of Sri Partha Chowdhury dtd. 17.08.2000, Lease Agreement between the complainant and BSNL dtd. 19.01.2004, letter of NIC to PNB dtd. 03.02.2010 and letter dtd. 28.03.2011 in support of their contention.
Points for consideration
- Whether there is any deficiency in service on the part of the OP parties?
- Whether the complainant is entitled to get any relief as sought for?
Decisions with reasons
Issue nos. 1 and 2:
Both the issues are taken up collectively for the sake of brevity of discussion.
There is no dispute with regard to the policy issued by the OP no.1 in favour of the complainant and the others for the period from 25.08.2006 to 24.08.2016as also its validity in respect of the said dwelling house of the complainant.
It is also admitted position as regard to the damage of the dwelling house of the complainant caused and affected by the flood due to heavy rainfall on the night of 17.06.2008/18.06.2008.
The disputes relate to only the quantum of cost of loss and damage of the dwelling house of the complainant caused by the aforesaid flood.
We have carefully gone through the entire materials on record including the documents filed by the parties as also the WNA on record, considered the submission of ld. Advocate of both sides.
According to the complainant, he placed his claim of Rs.4,75000/- before the OP no.2 for cost towards loss and damage of their dwelling house. On the other hand, the OP no. 1 and 2 kept themselves confined with Rs.14,240/- only towards loss and damage of the complainant’s dwelling house as per report submitted by the alleged second Surveyor, Sri Partha Chowdhury, appointed by the OP no. 1 and 2. It is also important to note that the OP no.1 and 2 did not make any whisper in their W/V dtd. 15.06.2012 as to appointment of the said Surveyor.
The complainant earlier did not file any document regarding estimation of cost or cash memos upto 03.08.2012, while the date of hearing of the case had already been fixed. No explanation has been given in this regard by the complainant. On 06.08.2012, the complainant filed some Xerox copies of cash memos without any reason as to what prevented him from not filing original of the same. The Xerox copy of the Survey report of Sri Bhaskar Sen dtd. 18.09.2008 speaks that he was appointed by the OP no. 1 and 2 and held inspection to look into the claim of the complainant relating to the loss and damage of his dwelling house due to the flood. After verification and scrutiny of the documents (mentioned in the enclosure of his report) including repairing estimate he assessed loss for Rs.220417/- and recommended Rs.210417/- after less Policy Excess (Rs.10000/-). It appears from the Xerox copy of the letter dtd. 24.12.2008 of the OP no.2 that he asked for some clarification of the said report from the said Surveyor Sri Bhaskar Sen as according to the OP no. 2 there were some inadvertent inclusions.
It appears from the letter dtd. 04.03.2009 of the Surveyor, Sri Bhaskar Sen, and his report thereunder that he modified the report and reassessed the loss and damage for a sum of Rs.173826/- after deduction of salvage and policy excess. There is no whisper in the W/V or the W/N/A filed by the OP no. 1 and 2 as to whether they cancelled the modified report dtd. 04.03.2009 of the said Surveyor, Sri Bhaskar Sen, or as to why they appointed second Surveyor, Sri Partha Choudhury, as alleged.
On overall consideration of the entire material s on record including the modified report of the said Surveyor, Sri Bhaskar Sen, dtd. 04.03.2009 and in view of the discussions made above, we find no ground not to accept the recommendation as regard to loss to the tune of Rs.173826/- as per his modified report dtd. 04.03.02009 and accordingly we accept the said recommendation of reassessment of loss and damage of the said dwelling house to the tune of Rs.173826/- as per modified report/assessment dtd. 04.03.2009 of the said Surveyor, Sri Bhaskar Sen but not accepted report of the second Surveyor, Sri Partha Chowdhury. The materials on record squarely point out that there is/was deficiency in service on the part of the OP no. 1 and 2 for non payment of such aforesaid sum. In our considered view, therefore, the complainant is entitled to Rs.173826/- for loss and damage of his dwelling house, compensation of Rs.10000/- for his mental pain and agony along with litigation cost of Rs.4000/- from the OP no. 1 and 2, jointly and severally. In the facts and circumstances of the case, the complainant is not entitled to any relief from the OP no.3.
Hence, it is,
ORDERED
that the instant CC case being no. 16 of 2011 be and same is hereby allowed in part on contest against the OP no.1 and 2 with cost of Rs.4000/- but dismissed against the OP no.3 without any cost. The OP no. 1 and 2 are directed to pay jointly and severally Rs.1,73826/- to the complainant towards cost as to loss and damage of his dwelling house. The OP no.1 and 2 are further directed to pay Rs.10,000/- as compensation jointly and severally to the complainant for mental pain and agony along with litigation cost of Rs.4,000/-. All these above payments are to be made by the OP no. 1 and 2 jointly and severally to the complainant within 45 days from the date of communication of this order failing which an interest @ 8% will be imposed upon the entire sum of Rs. 1,87826/- (Rs.1,73826/- + Rs.10,000/-+ Rs.4,000/-) till realization from this date. In case the OPs do not comply with the aforesaid order/direction within the stipulated time framed, the complainant is at liberty to execute the order in accordance with law.
Dictated and corrected
by me
President
S.S. Ali A.K. Bhattacharyya
Member President
