The complainant namely Abdul Kader on 19.04.2018 lodged the complaint u/s.12 of the Consumer Protection Act 1986 against the O.P.Nos.1,2 & 3.
The case of the complainant in brief is that the complainant deals in a fertilizer business and insured his business stock of fertilizer amounting to Rs.15,000/.. On 11.08.17 one SME package Insurance Policy issued by O.P/Ins. Co. in favour of him after receiving proper fees. His all business transaction are done through his bank account at SBI, Raiganj Branch, Uttar Dinajpur. His policy number was 0000000006903644 and customer ID No.0000000010195772 received from O.P.No.3 which was issued by O.P/Ins. Co. In the month of August 2017 a severe flood effected Uttar Dinajpur and his business place Gorahar was also effected by flood and the godown under water in the mid night of 14th August 2017 and total business stock amounting to Rs.17,82,000/- became ruined. After recovery from flood effected situation he lodged insurance claim towards SBI General Insurance through O.P.No.3 and all documents regarding business stock and damage of his stock handed over to the O.Ps on 13.09.17. On 22.11.17 one mobile message came from O.P.No.3 by which he came to know that Rs.5,03,119 was credited in his bank account against his insurance claim. Thereafter, on 12.12.17 he sent a letter to the O.s asking whether O.P insurance Co. Paid Rs.5,03,119/- as reimbursement of first installment or paid the total insurance claim for loss of stock and if the O.P/Ins. Co. Settled the total claim by Rs.5,03,119/- then he will face irreparable loss as because he is entitled to get total claim of Rs.15,00,000/- which was insured. On 05.02.18 he sent an advocate’s letter to the O.P claiming Rs.9,96,881/- after deducting Rs.5,03,119/- from Rs.15,00,000/-. But the O.P did not send any reply.
Upon this back ground the complainant has filed this case praying for giving direction to the O.Ps to pay Rs.9,96,881/- to the petitioner and compensation of Rs.1,00,000/- along with Rs.25,000/- as litigation cost.
The O.P.Nos.1,2 & 3 have contested the case by filing written version denying all the material allegation contending inter alia that the complainant has no cause of action for the case and the case is barred by waiver, estoppels, acquiescence and law of limitation and that the complainant has to prove the case with documentary evidence strictly and that the case is false, fictitious, fabulous and only for wrongful gain.
The specific case of the O.P.Nos.1 &2 is that the claim of the complainant was fully and finally settled as per the final survey report of Kabi Das, surveyor and loss assessor appointed by O.P.Nos.1 & 2 as per the Insurance Act 1938 and loss was verified and assessed by the independent surveyor based in his joint physical verification loss. At the time of survey on 22.08.17 the complainant failed to produce the stock register. The surveyor submitted his report before O.P.Nos.1 and 2 on 07.11.17 and as per the final settlement and assessment of loss was duly carried out as per policy terms and condition and more importantly to the extent of his documentary compliances establishing his loss and insurable interest and in para 15 of W.V the O.P.Nos.1 and 2 mentioned the calculation chart of the damage and claim.
Upon this back ground they prayed for dismissal of the case.
The O.P.No.3 further submitted in his W.V that the complainant has suppressed the material facts before the Hon’ble Forum and did not come to the Forum with clean hands.
Decision with reasons
Perused the case record including the complaint, W.Vs, written deposition of P.W.1 and documentary evidence filed by the complainant. We also perused the written argument submitted by both sides. It appears that the complainant has deposed for two times as P.W.1. It is admitted fact that in the month of August 1017 the various places of District Uttar Dinajpur including the place Gorahar, Itahar were affected by flood and the godown of the complainant was also affected by the said flood. The complainant suffered the business loss of the stock amounting to Rs.17,82,000/-, but he claim the insurance of Rs.15,00.000/- which was inured under the O.Ps.
The dispute arose as to whether the complainant is entitled to get the total claim of Rs.15,00,000/- as claimed by him or the O.P/Ins. Co has rightly give the claim amount of Rs.5,03,119/- after verifying , surveying and measurement of the actual loss sustained by the complainant ?
In the cross examination of P.W.1 admitted that at the time of visit by the surveyor of the Insurance Co. he did not submit of the relevant documents for assessing the loss. The Ins. Co. after surveying the place of occurrence and verifying the documents submitted by the P.W.1 calculating the loss came to conclusion that the complainant is entitled to get Rs.5,31,292/- as damage of the property ( stock of business) as insurance claim and after deduction of policy cases Rs.26,565/- i.e. Rs.5,04,728/- as per policy agreement. In his chief the P.W.1 admitted that the O.P/Ins. Co. has paid Rs.5.04.728/- to him which has been received by him through O.P.No.3/bank. The complainant did not file any separate surveyor report or calculation report done by any 3rd party authority and we only perused the surveyor and verifying report of the Ins. Co. The complainant admitted in his evidence that he received the amount of Rs.5,04,728/- and till now he did not return the same to the O.P/Ins. Co stating that his claim was not finally settled down by the company otherwise he accepted the said amount of claim from the company. Once he accepted the amount without returning the same it can be said that he accepted the same as final settlement. On the other hand Ld. Advocate by the O.P/Ins. Co. in his written argument submitted that the complainant has been taken SME package Insurance Policy with effect from mid night of 11.08.17 during the period of flood and in that situation he insured intentionally stock fertilizer after 11.08.17 and inspite of that the O.P./Ins. Co. Ltd. paid permissible claim amount to the complainant. Admittedly the several places of the district Uttar Dinajpur were affected in the month of August 2017. Therefore, this submission has a greater value to come to a conclusion that intentionally the complainant had taken package insurance policy with effect from mid night of 11.08.17. The O.P./Ins. Co. rightly surveyed and calculated the claim amount as Rs.5,04,728/- which has been paid to the complainant and the complainant received the same through his bank account and did not return the same by refusing the final settlement of the Ins. Co.
Under the above facts and circumstances and foregoing materials on record we are of opinion that the complainant is not entitled to get any claim amount along with compensation and litigation cost from the O.Ps and we did not find any deficiency in service on the part of the O.Ps.
Fees paid is correct.
Hence, it is
ORDERED
That this complaint case be and the same is dismissed on contest against the O.Ps but without any cost.
Let the certified copy of this order be given to the parties free of cost.
