Orissa

Cuttak

CC/111/2013

Ramesh Chandra Barik - Complainant(s)

Versus

Regional Manager,Oriental Insurance Co Ltd - Opp.Party(s)

S Mohanty

28 Feb 2017

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

                                                                                    C.C. No.111/2013

 

                                M/s. Santoshi Pharmaceutical,Propreitor,Mr. Ramesh

                                Chandra Barik,At/PO:Tala Telengabazar,Cauttack.                            … Complainant.

 

                                                                Vrs.

1.         Regional Manager,

Oriental Insurance Co. Ltd.,

4^th Floor,Alok Bharati Towers,

Sahid Nagar,Bhubaneswar.

 

2.       Branch Manager,Oriental Insurance Co. Ltd.,

     Mission Road,Buxi Bazar,Cuttack.                                                        … Opp. Parties.

 

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

                                Sri Bichitrananda Tripathy, Member.

                                Smt. Sarmistha Nath,Member(W).

 

Date of filing:   29.04.2013

Date of Order: 28.02.2017.

 

For the complainant:                             Sri S.Mohanty,Adv. & Associates.

For the Opp.Party No.1&2 :                   Sri S.Ray,Adv. & Associates.

 

Sri Dhruba Charan Barik,President.

The complainant has filed this case alleging therein deficiency in service against the O.Ps and seeking appropriate relief against them in terms of his prayer in the complaint.

1. Facts of the complaint stated in brief are that the complainant is a medicine whole seller and having agency with the name and style M/s. Santoshi Pharmaceuticals situated at Tala Telenga Bazar under Purighat Police Station in the district of Cuttack. It was insured with the O.P.2 vide Policy No. 345101/48/2011/948 in respect of the period from 30.9.10 to 20.9.11 with insurance coverage of Rs.6.00 lakhs for any type of loss.  He had also availed himself of cash credit loan vide No.374 of 2005 from the Urban Credit Co-op. Bank Ltd.,Cuttack for the purpose.
2. In the fateful night intervening 28/29.11.2010 at about 12.30 A.M the complainant came to know from his neighboring shop keepers that his medicine store was on fire.  He rushed to the spot and intimated this fact to the nearest fire station.  The officer of the fire station came and extinguished fire and a certificate to this effect was issued by such fire station officer that the fire accident took place due to electrical short circuit.  Annex-2 is the copy of the said certificate dt.18.12.10 issued by the concerned fire station officer.  He also intimated this fact to the O.P.2 vide his letter dt.29.11.10 and claimed insurance coverage.  The copy of the said letter has been marked as Annex-1.  The O.P, Insurance Company thereafter deputed a surveyor to the spot for assessment of the loss and it is alleged by the complainant that the said surveyor asked him to claim insurance in the proper format to the tune of Rs.2,50,000/- at the preliminary stage and the complainant in good faith put his signature on the said claim form without proper verification of the relevant documents.  Annex-3 is the copy of the said claim form signed by the complainant.  It is further stated that the said surveyor did not verify the stock register, statement of sale- purchase etc. produced before him by the complainant and prepared a report with ulterior motive without making assessment of the actual loss caused to him.
3. The claim of the complainant could not be settled by O.P.1 even after lapse of 1 ½ years for which he could not repay the outstanding dues of the Urban Co-op. Bank, Cuttack.  Copies of letters dt.24.10.11 and 27.12.11 issued by the said Cooperative Bank to O.P.1 to this effect have been filed and marked as Annexure-4 series.
4. The actual loss sustained by the complainant would be more than Rs.4,50,000/- but the O.P.2 delayed the settlement of his claim on the ground that surveyor’s report has not been received .  The concerned surveyor therefore got angry with the complainant and submitted his report to O.P.2 without making proper assessment of the actual loss caused to him.  The complainant has then sent a reminder to O.P.2 for early settlement of his claim lest he would be liable to pay the claim amount with interest @ 18% per annum.  The copy of the reminder dt.15.5.12 has been filed and marked as Annex-5.  The O.P.2 issued a letter dt.13.6.12 to the complainant stating therein that the claim of Rs.37,300/- has been approved towards full land final settlement of his claim and he was asked to sign the discharge voucher enclosed with such letter and return the same to O.P.2.  The complainant did not put his signature on the said discharge voucher.  Copy of the letter dt.13.6.12 has been filed and marked as Annex-6.  The complainant thereafter sent a reply to O.P.2 vide his letter dt.3.7.12 stating therein his objection to the claim amount settled by him  and also requested him to supply the copy of the surveyor’s report and calculation details made by the surveyor.  Annex-7 is the copy of the objection letter dt.3.7.12 of the complainant.  The O.P.2 did not agree to comply with the request of the complainant since the surveyor report is a confidential document and it was intimated to the complainant vide letter dt.24.7.12 of the O.P.2.  Copy of it has been filed and marked as Annex-8.  Subsequently the complainant obtained the copy of such surveyor’s report etc. under R.T.I Act and Annex-9 is the copy of the letter dt.17.9.12 of the Regional office of O.P.2 to this effect.  On 21.12.12 the complainant received a letter dt.17.2.12 of O.P.2 wherein he was asked to receive the claim amount already settled earlier failing which the matter would be closed without any further correspondence.  Annex-10 is the copy of the letter dt.17.12.12 of O.P.2.  The complainant thereafter sent a letter dt.29.12.12 to the O.P.2 stating the grounds of his non-acceptance of the claim amount and also requested to depute another surveyor for assessment of the loss.  Annex-11 series are the correspondence made by the complainant in this regard.  Lastly he had also approached the Insurance OMBUDSMEN, Bhubaneswar for settlement of his claim but the said authority vide its letter dt.25.3.13 refused to entertain the request of the complainant on the pretext that the complainant is a firm and not an individual.  The copy of the said letter dt.25.3.13 has been marked as Annex-12.  It is stated that the O.Ps are not willing to make proper assessment of the actual loss caused to him and as such he has been put to heavy financial loss because of the undue delay caused by the O.Ps in settling his claim and also  for inadequate claim settled arbitrarily.  The O.Ps are therefore held liable for deficiency in service on their part in settling the claim of the complainant.  As such it is prayed that they be directed to pay Rs.4,50,000/- towards the actual loss caused to his medicine store, Rs.40,000/- towards compensation and Rs.8000/- towards litigation expenses, all total Rs.4,98,000/- together with interest @ 18% per annum from the date of lodging claim till the date of its realization in the interest of justice.
5. Both the O.Ps entered appearance and filed joint written version of their case. At the outset it is stated that the complainant is not a consumer since he is a medicine whole seller and running a business firm and as such he never comes within the purview of Consumer Protection Act,1986.  Claim made by the complainant is also barred by limitation and the case is therefore liable to be dismissed.  Other material averments of the complaint petition are denied by the O.Ps.  Annex-A is the true copy of the policy along with the conditions issued in favour of the complainant.  Annex-B is the true copy of the claim form lodged by the complainant.  It is specifically stated that though the surveyor deputed to the spot repeatedly issued letters on 14.11.11, 30.11.11 and 28.12.11 by registered post to the complainant to produce the stock register, VAT return copies, monthly stock statements to the fancier bank etc yet, the complainant could not comply with such requirements.  Annex-C,D & E are copies of letters of the surveyor sent to the complainant to this effect.  Annex-F is the copy of the letter dt.16.11.11 to the concerned authority of Urban Co-op. Bank,Cuttack in reply to their queries.  The O.P.2 has also sent a letter dt.14.3.12 to the complainant requesting him to cooperate with the surveyor.  Annex-G is the copy of the said letter issued to the complainant.  Annex-H is the copy of the surveyor’s report filed in this case.  The O.P.,Insurance Company has also sent the letter dt.13.6.12 to the complainant along with the discharge voucher.  Copy of such letter has been filed and marked as Annex-I.
6. It is specifically stated that the surveyor has rightly considered the actual loss caused to the complainant due to fire accident which took place in his medicine store after due consideration of the documents produced before him without any bias or malafide and then submitted his report to the O.P.,Insurance Company.  It is therefore prayed that there was no deficiency in service on the part of the O.Ps and the complaint petition filed against them is devoid of merit and may be dismissed with cost.
7. We have heard the learned counsel from both the sides and gone through the Annexures produced in the court in support of their respective claims.
8. The short question that falls for consideration is the report of the surveyor which has been marked as Annexure-H.  While the complainant has assailed the surveyor report on the ground that all material documents produced before the surveyor have not been taken into consideration while preparing such report, the O.Ps on the other hand have argued that such report has been prepared by the surveyor after due application of mind taking into consideration all the relevant documents.  In this back drop, the acceptability of the surveyor’s report Annex-H is to be considered in the light of the evidence on record.  The learned advocate for the complainant has advanced his argument that the said surveyor has not taken into consideration, the actual damage of goods and loss caused thereby to the complainant as well as all the relevant documents as called for by the said surveyor before preparation of his report.  In this connection reference may be made to Annex-H i.e. surveyor’s report.  It has been categorically stated by the said surveyor that the complainant has provided the sale and purchase registers but no stock register has been produced before him.  Though the insured’s firm book, books of account have been claimed to have been audited under the Income Tax and Sales Tax Act, yet the complainant failed to submit the stock record which raises questions about the fairness and honesty of the complainant in put forthing his claim.  Consequently the declared stock of Rs.6,50,200/- as per balance sheet as on 31.3.2010 could not be confirmed or identified against which category the items belong to.  It has been further held that on scrutiny of the audited balance sheet for the financial year 2008-09 the value of the closing stock as on 31.3.2009 was Rs.4,71,500/- but on scrutiny of the copies of Vat return for the month of April,2009 and May,2009 it is found that no purchase of medicines was made although for the same period the sale figure as per Vat return copies was Rs.7,54,337.84 which is nearly double the closing stock as on 31.3.2009.  It is an admitted fact that sale cannot be affected if there is no sufficient opening stock or subsequent purchase.  This anomaly raises question about the authenticity of books of accounts being provided and maintained by the complainant.
9. The learned advocate for the O.P has further argued that complainant has failed to produce list of register and other relevant documents for the purpose of investigation by the surveyor despite a series of letters issued to him under Annex-C,D,E & G.
10. In view of the above, no infirmity is noticed in the report of the surveyor in calculating the loss caused to the complainant in the fire accident.  The law is well settled that the report of the surveyor cannot be lightly brushed aside in absence of any cogent and convincing reasons.  Therefore the assessment of loss or damage amounting to Rs.37,300/- made by the surveyor is accepted.  The complainant has failed to prove deficiency in service on the part of the O.Ps as prayed by him.  Hence ordered;

 

ORDER

                                The case of the complainant is dismissed on contest against the O.Ps.

Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 28^th day of February,,2017 under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                       President.

                                                             

                                                                                                                   (Sri B.N.Tripathy )

                                                                                                                              Member.

                                                                                                                    (Smt. Sarmistha Nath)

                           Member(W)