The instant case was instituted on the basis of a written complaint filed by one Nurul Islam, S/O Late Ketab Ali, resident of Baluaghat, P.O Dhangara, under P.S. Chanchal, Dist. Malda u/s.12 of Consumer Protection Act, 1986 which was registered as Consumer Case No. 15/18 in this Forum.

The fact of the case as revealed from the petition of complaint as well as the evidence is that the complainant/petitioner is the owner of a godown premises which is situated within Kashimpur Mouja under plot No.57,58,59/1817. The petitioner purchased an Insurance policy bearing No.150701/11/15/3100000780 which was valid from 24.02.16 to 23.02.17. In the petition it has been stated that on 14.05.17 at about 11 p.m. to 11.30 p.m. one devastating fire took place to the godown of the complainant. As a result of which stock articles were fully damaged and about 250 to 300 people tried to level best to extinguish the fire. The petitioner informed the O.P. on 15.05.16 stating the incident that a fire took place on 14.05.16 at about 11 p.m. to 11.30 p.m. and also informed the matter to the I.C. Chanchal P.S on the next morning. The complainant submitted written intimation on 15.05.16 to the office of the O.P i.e National Ins. Co. Ltd., Raiganj Branch and same was duly acknowledged by the office. After receipt of the said intimation the O.P/Ins. Co. engaged a surveyor/loss assessor for inspection and to assess the actual damage cost due to the incident/fire. After receiving the written intimation Mr. Kaushik Gupta, loss assessor visited the complainant’s godown and issued a letter on 19.05.16 to the complainant Nurul Islam stating that some documents are required from the complainant. The complainant submitted all the documents to the company for early settlement of the claim but after a long time the Insurance Co. dt.17.07.17 intimated by way of letter that the claim of the complainant has been repudiated as due to the misrepresentation, misdescription and non discloser of particulars. The main ground of rejection of the claim was that in the proposal and policy the construction of the godown was pukka but the loss assessor found that the godown was made of bamboo having tin shed. The complainant has claimed Rs.9,93,450/- along with 9% interest and claimed Rs.50,000/- for compensation for deficiency in service and negligence on the part of the O.P and Rs.5,000/- as litigation cost.

The petition has been contested by the O.P./Insurance Co.by filing written version denying all the materials allegation as leveled against the Insurance Co.

The definite defence case is that in the Insurance policy it has been mentioned that the godown is pukka. But on perusal of investigation report it is found that the godown was made of bamboo having tin shed, so there was misrepresentation, misdescription and by suppression of real fact. As such the Ins. Co. repudiated the claim. The further defence case is that as per general condition No.1 of the policy the policy shall be voidable in the event of misrepresentation, misdescription and non disclosure of materials particulars. So, considering such facts and circumstances the instant case is liable to be dismissed with cost.

During trial the complainant himself was examined as P.W.1 and he was cross examined. No other witness was examined on behalf of the complainant. On behalf of the O.P Shri Samir Datta was examined as O.P.W.1 and cross examined and Mr. Koushik Gupta was examined as O.P.W.2. He was also cross examined. He proved the investigation report which was marked as exbt.B series. No other witness was examined on behalf of the O.P.

Now the point for determination whether the complainant/petitioner is entitled to get any compensation or not.

DECISION WITH REASONS:

At the time of argument the Learned Lawyer for the complainant argued that in the godown there was jute and that jute was destroyed by fire on 14.05.16. In the petition of complaint no where it is found that in the godown there was jute. It is admitted fact that the jute was not grown up in the godown. Either he purchased the jute from the public or he has stacked the jute which was grown up in his own land. In this case the complainant neither examined any witness nor stated the name of the persons from whom he purchased the jute. Though, in the written complaint before the Ins. Co. it has been stated that about 150 to 200 quintals of jute was lying on the date of incident. Documents have been filed to show that the complainant purchased the said quantity of jute. But mere filing the documents is not sufficient to prove that there was 150 to 200 quintals of jute in the godown. Complainant is required to prove those documents. Stock register has been filed. But the persons from whom the complainant purchased the jute on different dates which are lying in the godown but none of them has been examined before this Forum. So, how the Forum will come to a conclusion that the complainant purchased 150 to 200 quintals of jute from the persons. No evidence has come before this Forum that the said quantity of jute was grown up in his own landed property. In the petition of complaint it has been stated that the godown was situated on the plot No.57, 58, 59/1817. No document has been produced by the complainant to show that the complainant is the owner of that land. But on perusal of proposal for standard fire and perils policy in column No.6 it is found that location of risk to be covered – full postal address with PIN code is mouja Kashimpur, plot No.206, P.S.Kaliganj, P.S.Chanchal, name of the owner Sushil Mondal. But no document has been filed by the complainant in which manner the complainant became the owner of plot No.57, 58, 59/1817 and from which year the complainant purchased the land. It is clear that at the time of execution of proposal Form the complainant was not the owner of plot No.206 as because the name of the owner of plot No.206 is Sushil Mondal. Mere declaration that the complainant is the owner of plot No.57, 58, 59/1817 is not sufficient. The complainant is to prove his own case. The complainant has not come to the Forum in clean hand.

The next point is to be considered as to the argument raised by the Ld.lawyer of the Insurance Co. that there was suppression of facts. In the policy it has been clearly stated that in clause 9 of the Ins. Policy “Would you like to cover plinth & foundation along with your buildings’. Answer: No.” That indicates that there was no pukka building. The term katcha construction has been mention in the note of the policy means “Building having walls and/or roofs of wooden planks/thatched leaves and /or grass/hay of any kind/bamboo/plastic cloth/ asphalt cloth/canvas/tarpaulin and the like are treated as “Kutcha” construction”. On perusal of the investigation report it is found that the investigator found the bamboo having tin shed as roof and he also found the burnt bamboos. So the construction comes as per policy is Kutcha construction.

Ld. Lawyer of the complainant argued that the complainant is a village rustic person. Any how he can sign in Bengali. So, he did not understand the terms and condition of the policy. But such argument as raised by the Ld. Lawyer of the complainant is not at all believable as because the complainant has filed the stock of business for the accounting year 1016 – 17 and assessment year 2017 – 18. This accounting was prepared in English and the complainant put his signature in the accounting paper in Bengali. So, according to the argument as advanced by the Ld. Lawyer of the complainant that being a rustic person he did not understand the terms and condition of the policy, how the complainant without knowing put his signature in the accounting paper. So definitely he had no knowledge about the accounting documents. So the argument on behalf of the complainant that there was jute lying in the godown as appeared in the accounting paper is not at all believable and that was created for the purpose of creation of this case. Though the complainant has filed the receipt showing the purchase of jutes from the persons. But those persons have not been examined by the complainant. Mere filing the document is not sufficient to prove that the complainant purchased jute from the different persons. The complainant to prove such fact by adducing evidence to that effect. So from the above discussion it is found that the complainant has failed to prove that the complainant purchased the jute from different persons and that jute was stacked in the godown and in the policy he has suppressed the real fact that the godown was a kutcha one. So considering the facts and circumstances the complainant is not entitled to get any relief as prayed for.

It is further stated that the Insurance Co. should be more cautious in effecting the policy and they should not only rely upon the statement of policy holder but also enquire into the matter whether the policy holder is stating the real fact or not. In this regard the Insurance Co. should be more vigilant upon the agents who actually influence the public for making policy and the Insurance Co. should clearly state the terms and condition of the policy and the terms and condition of the policy should be in English as well as in Regional language.

Let a copy of this order be sent to the Branch Manager , Raiganj Branch with a request to communicate the findings of this Forum to his higher authority so that in the case of effecting the Insurance policy the terms and condition should be in English as well as in the Regional language so that any person even a rustic person can understand the terms and condition of the policy.

Considering such facts and circumstances the instant case is liable to be dismissed as the complainant has failed to prove that jute was stocked in the so called godown and failed to prove that he purchased the jute from the different persons.

Fees paid are correct,

Hence, it is

                                         ORDERED

That the complaint case being no. CC-15/18 be and the same is dismissed on contest against the O.P but without cost.

Let certified free copy of this order be supplied to the parties free of cost on proper application.