This case has been arising out of the complaint filed by the complainant against the O.Ps named above u/s. 12 of the Consumer Protection Act, 1986. The case of the complainant is that he is a business man having a shop premises. On 2/7/2014 he got this shop from his father through a notarial deed of gift. The complainant after obtaining the shop applied for electric meter in his name and the electric supply Department sanctioned the meter in his name and installed the same. The local Gram Panchayat issued the trade license in favour of the complainant on 20/07/2016. The O.Ps being the insurance company contract with the complainant through O.P No. 3 and proposed him to take a policy under the O.Ps and accordingly the complainant agreed and insure his shop premises under a policy Vide Policy No. 153901811910002098 Dated - 24/07/2019 and that policy effected on 26/07/2019 to midnight of 25/07/2020. That on 15/10/2019 at around 02:00 or 03:00 A.M. a fire accident occurred at his shop premises and in that incident the goods like Xerox machine, Computer UPS, Printers, Furniture etc. along with the building were totally damaged due to burning on 16/10/2019. The complainant informed the facts to the Alipurduar Police Station and also to the O.Ps. That on 18/10/2019 the Alipurduar Fire Station informed the fire accident to the District Magistrate of Alipurduar Vide Memo No. W.B.F.E.S/APD-DIV/138/19. In the report it is also clearly mentioned that the shop premises is belong to the complainant. That on 28/02/2020 the O.Ps issued a letter to the complainant requesting to him to submit the relevant documents of shop premises and stated that without such documents the claim can not be proceeded . That thereafter the complainant submits all relevant documents to the O.Ps and the O.Ps investigate the above incident through his investigator and the complainant submitted all relevant documents including the ownership paper of the shop premises to the investigator. That on 16/03/2020 the O.Ps issued pre-repudiation letter in favour of the complainant stating that there is no conclusive evidence regarding the legal ownership of the complainant as mentioned in the policy and the O.Ps repudiated the genuine claim of the complainant which is totally whimsical. That on 17/03/2020 the complainant replied the repudiation letter and again disclose all relevant facts regarding the legal ownership of the said insured shop premises of the complainant but no result has yet been come out. The complainant visited the office of the O.Ps on several occasions but all are in vain. That non-payment of genuine claim is a deficiency in service from the part of the O.Ps due to the whimsical act of the O.Ps. The complainant passing his days with mental agony and harassment and also suffering monitory loss. That the complainant has claimed Rs. 5,08,050/- from the realization of the claim amount of the O.Ps along with interest and also claim Rs. 60,000/- for compensation for his mental agony and harassment and Rs. 10,000/-for his litigation costs.
O.P Nos. 1 and 2 has contested this case by filing Written Version. O.P No. 3 did not turn up. According to the Written Version of the O.P Nos. 1 and 2 they have denied the all allegations made by the complainant. They have specifically stated that the ownership of the shop premises has not been transferred legally as because no stamp duty paid, no registration was done but only a notarial certificate is there on 02/07/2004 which is not according to law. They have stated that installation of electric connection and obtaining trade license does not make person of lawful owner in respect of the property. Regarding the policy they are admitted that the policy was issued in favour of the complainant in respect of the shop rule. It is further stated that after investigation it has come to their knowledge that there is no legal documents regarding ownership of the shop premises for that reason the claim was not proceeded and they have informed the matter to the complainant by issuing pre-repudiation letter according to him. The claim of the complainant is baseless.
We have perused the materials on record meticulously. Considering the above pleadings the following issues are necessarily come out to consideration to reach just decision of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s.12 (1)(d)(ii) of Consumer Protection Act, 1986 ?
- Has this Forum jurisdiction to entertain the instant case?
- Have the O.Ps any deficiency in service as alleged by the complainant?
- Is the complainant entitled to get any relief/reliefs as he prayed for?
As the O.P No. 3 did not turn up and the case is heard ex-parte against him. The complainant filed his written argument but the O.P Nos. 1 and 2 did not file any written argument separately but they have filed a petition on 23/02/2022 and stating that the written version is also there written argument. Both the parties did not make any oral argument before this commission.
DECISION WITH REASONS
Considering the nature and character of the case all the points are taken up together for consideration for the sake of brevity and convenience.
Point No. 1 and 2 :- It is an admitted position that the complainant obtain an insurance Policy from the O.Ps for his shop premises and other business materials by making payment of premium and the policy was effective from midnight 26/07/2019 to midnight 25/07/2020. So, according to the provision of law the complainant is a consumer under Consumer Protection Act and the allegation of the complainant is that there is deficiency in service from the part of the O.Ps as because the O.Ps did not issue the insurance claim of the complainant for his shop premises and other goods which was burn due to fire in between the validity of the insurance. So, the complainant is entitled to get the relief if it is found in his favour and the case is maintainable. We also find that it has the jurisdiction of this commission to try the case.
Point Nos. 3 and 4 :- According to the complainant his father transferred the shop premises in favour of the complainant in the year 2014 and the said documents was prepared in a non-judicial stamp of Rs. 10/- authenticated by the notary (Annexure – A). It appears that electric meter was installed in the said shop premises in the name of his father Tapan Bagchi (Annexure – B1). The Gram Panchayat issued the trade license (Annexure – B2) in favour of this complainant in the year 2016 and thereafter. It also appears that Insurance Policy was initiated in favour of this complainant in respect of this shop M/S Colours wherein the accidental benefits are there and the said policy was issued in the year 2019 that is on 24/07/2019 the said policy effective from midnight 26/07/2019 to midnight of 25/07/2020 (Annexure – C). It also appears that the fire was set at his shop in the night of 15/10/2019 and in that respect the fire brigade came to extinguished the fire. The complainant lodged the diary at the local Police Station (Annexure –D). The fire brigade submitted the report to the District Magistrate, Alipurduar (Annexure – E) and the O.Ps were informed. The O.Ps sent his investigator, the investigator came and the complainant submitted all his documents. But as the deed of ownership was not done properly accordingly the claim was repudiated. We have also perused written version of the O.Ps from which it appears that as the shop premises was not transfer according to law they have repudiated the claim of the complainant.
Considering all these documents that is Annexure - A to H, we find that the shop premises was transferred to the complainant by his father in the year 2014. It is fact that the said transfer was not done according to law. As because on the basis of notarial authorization no deed of gift can be done and in that case ownership can not be transferred legally. But when the policy was initiated in respect of the said shop room and business why the insurance Company did not raise this point regarding ownership of the shop whether it is legal or illegal. The proposal of the insurance company to insure in respect of the shop room as well as the business of the complainant was made by the authorized agent of the O.P Nos. 1 and 2 and i.e. O.P No. 3. Why the insurance company did not bother to verify of the ownership of the shop premises and business. Why this documents were submitted to the O.Ps at the time of proposal of the insurance, the insurance company has received the premium from the complainant and issued a policy without verifying the ownership of the complainant and when the question of claim is there they have raised the point of regarding ownership of the premises and refused the claim on that ground. When the policy was issued it is presumed that all the relevant documents regarding property as well as shop premises was verified by the O.Ps and satisfied the documents they had issued the policy. Now, they can not raise the point of disputed ownership. It is not the fair deal from the side of the O.Ps that why they have received the premium and issued the policy which presumed that they have verified all the documents including the ownership of the property and satisfied of the same. But when the claim is here they raise this point which is not justified. We find that after satisfying the documents of the complainant the insurance company issued the policy and received the premium. Only to avoid the payment of claim amount now they have raised this point regarding the ownership of the property. There is no allegation that at the time of insurance the complainant did not produce any documents regarding his ownership. When the O.Ps received the premium for policy and issued the policy in favour of the complainant then he is bound to pay the claim amount if the policy is valid. We find that the policy was valid at the time of the incident. It also appears that the fire was set at the shop premises of the complainant and the fire brigade submitted the report in this regard. Regarding the incident of fire there is no doubt about it. It appears from Annexure - G that the O.Ps pre-repudiated the claim only on the ground of legal ownership of the property. They did not raise any other point regarding the claim but we have already discussed that when the policy was issued and the premium was received we presumed that all the documents were verified including ownership premises and satisfied by the O.Ps. So, at present the ground of repudiation of the claim by the O.Ps is not justified and tenable at all only on the ground of legal ownership. We find that there is definitely deficiency in service from the part of the O.Ps for refusal of the claim which the complainant is entitled to get benefit as because his shop premises were burn including all materials inside the shop. There is laches from the part of the O.Ps and they intentionally avoid the claim and raised the objection which is not tenable at this stage. We also find that the complainant has suffered mental agony and harassment and he is also entitled to get the compensation for that and also entitled get the ligation costs. The complainant is entitled to get the claim amount from the O.Ps from the date of his claim and till the realization of that amount.
Thus all the points are disposed of accordingly.
Hence, for ends of justice; it is;-
ORDERED
that the instant case be and same is allowed on contest against the O.P Nos. 1 and 2 and ex-parte against O.P No. 3. The complainant do get the award of Rs. 5, 08,050/- as the insurance claim of O.P Nos. 1 and 2 along with interest @ 6% per annum from his claim till the realization of that amount and he also do get an award amounting to Rs. 50,000/- as compensation for his mental agony and sufferings and also Rs. 10,000/- as his litigation costs; total decreetal amount of Rs. 5, 68,050/- excluding interest. The O.P Nos. 1 and 2 is hereby directed to pay the decreetal amount along with interest @ 6% per annum on the insurance amount till the payment is made to the complainant within 30 days from this day, failing which legal action will be taken against him.
Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.
Dictated & Corrected by me
