Consumer Complaint No. 141 of 2016

Date of filing: 12.8.2016                                                                       Date of disposal: 28.6.2017

Complainant:               Ramkrishna Das, S/o. Prabhat Ch. Das, Village: Nimdaha, Post Office: Belerhat, Police Station: Purbasthali, District: Burdwan, PIN – 713 512.

-V E R S U S-

Opposite Party:    1.     SBI General Insurance Company Limited, Durgapur Branch, represented by Branch Manager, having its office at: Plot No. 821 (P), JL No. 74, Gandhi More, city Centre, Near Junction Mall, Durgapur, W.B. – 713 216.

2.      SBI Chatni Branch, Branch Code – 08197, represented by Branch Manager, having its office at Village & Post Office: Chatni, Purbasthali, District: Burdwan, PIN – 713 512.

Present:      Hon’ble Member: Smt. Silpi Majumder.

           Hon’ble Member:  Sri Pankaj Kumar Sinha.

Appeared for the Complainant:                Ld. Advocate, Chayan Bhattacharyay.

Appeared for the Opposite Party No. 1:  Ld. Advocate, Shyamal Kr. Ganguli.

Appeared for the Opposite Party No. 2:  Ld. Advocate, Soham Som & Nirmal Kr. Chakraborty.

J U D G E M E N T

This complaint is filed by the complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OPs as the OP-1 has repudiated his legitimate insurance claim illegally and arbitrarily.

The brief fact of the case of the Complainant is that being an unemployed youth he thought to start a poultry farm at his residential place for which he obtained some amount of BSKP loan from the OP-2 on 03.04.2014 and in this respect an account was opened. Since 2014 after taking the loan from the OP-2 he started the business of poultry farm and for this reason he used to purchase chicks and chicken feeds from dealer and also used to provide proper nourishment, maintenance and providing better food to the chicks till the same are not ready to supply to the dealer, who was engaged in selling the chicken to the meat shop. Being a village folk and simple person he had no idea about any insurance. When he met with the OP-2 to repay his EMI towards loan amount on 01.07.2014, he requested the OP-2 for deduction of some amount towards interest component of the said loan account due to death of some chickens attacked by viral. The OP-2 told him that if the complainant obtains an insurance policy covering his poultry farm then the Complainant could not be paid the premium of the loan amount only, rather the Insurance Company will be liable to pay the same. For the first time the Complainant came to know about the SBI General Insurance Company Limited and Small and Medium Enterprise (SME) package insurance policy from the OP-2. The Branch Manager of the OP-2 introduced him with Mr. Rahul Agarwal, the Field Officer of insurance, loan etc. and Mr. Agarwal and the Branch Manager of the OP-2 told him that if any kind of consequence will arise and for that effect if the chicken (poultry) feeds or other accessories will destroy or damage due to fire, flood, earthquake etc. the Complainant will not be liable to pay any amount to the OP-2, only the OP-1 will be liable to pay the same. The Complainant was also told by the said persons that he can rely upon the SBI General Insurance Co. Ltd. because it is recognized by SBI. He was further told that being a registered company there is privity of contract by and between the OP-1 & OP-2 and if the Complainant is interested to obtain the insurance policy then they can arrange everything from his Branch–OP-2. The Branch Manager of the OP-2 informed the OP-1 over telephone to prepare the SME insurance policy in the name of the Complainant. On 03.07.2014 the Complainant submitted all the documents for obtaining the insurance policy to the OP-1 at the office of the OP-2.  On 03.07.2014 the complainant along with some friends and well-wishers met with an agent who introduced himself as the agent of OP-1 and in presence of the Branch Manager of the OP-2 and Mr. Agarwal entire formalities was completed. The agent of the OP-1 told the Complainant that henceforth he will not pay the premium of the insurance and the same will be automatically deducted from the loan account of the Complainant in favour of the OP-1. The Complainant did not understand English except only he put his signature in English and in good faith he relied upon the Branch Manager of the OP-2 and Mr. Agarwal. On 04.07.2014 a sum of Rs. 610/- was debited towards the premium of SME insurance policy (stock insurance premium) in favour of the OP-1. On 23.03.2015 a sum of Rs. 800/- was debited in such manner. The total insured amount was declared in the policy for Rs.2, 00,000=00 and the policy was valid for the period from 24.03.2015 to 23.03.2016. The description of the property proposed is as mentioned in the form is stock (poultry farm). In the year 2015 the Complainant purchased some chicks and chicken feed for his farm from Ma Tara Poultry Feed Centre on several occasions i.e. 10.7.2015, 15,7.2015, 20.7.2015 & also on 25.7.2015. Due to flood on 30.07.2015, 1300 pieces of chicks out of 1500 pieces were dead; approximately 35 bags poultry feed (medium and big), medicine, vaccine and also accessories got damage. As per the terms and the conditions of the insurance policy within 5 days from the date of occurrence the Complainant submitted written information in this regard to the OP-1&2 for insurance claim. Upon getting the intimation one Surveyor namely, Ashish Kr. Paul, Durgapur was appointed, who inspected the premises i.e. the poultry firm of the Complainant on 11.08.2015 but the Surveyor made some delay to inspect the site. As due to death of 3200 chicks foul smell occurred in the surrounding and due to pressure of the local people the Complainant compelled to buried the said dead body of the chicks and destroy damaged feed in presence of Pradhan and Member of local Gram Panchayat, Nimdaha. Subsequently the Pradhan also issued a certificate in favour of the Complainant. At the time of inspection the Complainant furnished all the original documents along with the original receipt copy of the intimation letter to the Surveyor and the Surveyor was also informed by the Complainant that all the damaged and spoiled feed and the dead bodies of the chicks has been destroyed by him due to pressure of the locality and at the consent of Pradhan of the local Gram Panchayat. On 05.04.2016 the Complainant received a letter on behalf of the OP-1 whereby he was informed that the Insurance Company is unable to fulfill the claim due to non-compliance of the terms and the conditions of the SME insurance policy. It was also stated by the OP-1 that the policy did not cover the live bird and only the feed or the similar items was covered under the insurance policy. But during the time of taking out the policy after putting signature of the Complainant, the agent of the OP-1, Mr. Agarwal and the Branch Manager of the OP-2 told the Complainant that the live bird, feeds and other accessories were covered under the said insurance policy. Upon receipt of the above-mentioned letter the Complainant went to the office of the OP-2 and met Mr. Agarwal informing the entire matter on 07.04.2016. Upon getting such information Mr. Agarwal assured him that he will extend his help to him and discuss the matter with the higher authority of the Insurance Company. The Complainant again went to the office of the OP-2 on 24.06.2016 and at that point of time Mr. Agarwal suggested the Complainant to meet with the Branch Manager of the OP-2, but the Branch Manger had stated that he has no authority to do anything in this regard. Thereafter, the Complainant went to the office of the OP-1 on 27.6.2016 wherein, the Branch Manager of the OP-1 had clearly stated that he is not empowered to act further in this matter and suggestion was given to the Complainant to take up the matter with the Head Office, Kolkata. On 22.07.2016 the Complainant again met with the Branch Manager, but to no effect. Having no other alternative and being compelled the Complainant has approached before this ld. Forum by filing this complaint praying for direction upon the OPs to return all the original documents in the name of the Complainant lying within the custody of the OPs, to direct the OP-1 for making payment for a sum  of Rs. 1,56,000=00 due to death of 1300 chicks (average weight 2 kg per chick) (Rs. 60/- per kg X 2600 kg) from which the OPs have to pay Rs. 40,000=00, Rs. 76,125=00 towards the damage of 35 poultry feeds (medium and big), Rs. 6,500=000 for medicine and vaccine, Rs. 6,000=00 for accessories, compensation to the tune of Rs. 10,000=00, legal expenses and interest @9% per annum on the said amount to him.

The petition of complaint has been contested by the OP-1 by filing written version contending that one SME package insurance policy was issued on 29.03.2015 in favour of the Complainant covering the poultry farm, feed and other accessories on the basis of an application made by the Complainant. As per policy condition the coverage for stock valued up to Rs.2,00,000=00 for poultry farm, against which premium was received for Rs. 610=00 & Rs. 800=00.The policy was in force for the period from 24.03.2015 to 23.03.2016. Upon receipt of the intimation from the Complainant the OP-1 deputed an authorized Surveyor, namely, Mr. A. K. Paul who inspected the site on 11.08.2015 and submitted his report before the Insurance Company on 20.12.2015. During survey the Surveyor requested the Complainant to provide documents for establishment of the claim i.e. death certificate of the chicks from a qualified Veterinary Doctor for quantification of the number of effected chicks, the cause of death etc. The Surveyor also wanted to know why there was delay in giving intimation by the Complainant because for this reason it was not possible for him to assess the magnitude of the damage. The Surveyor did not have the opportunity to verify or quantify the claim.  It is stated by the OP-1 that on careful perusal of the final survey report and the policy it appears that the chicks or live bird were not covered under the SME insurance policy for which claim was preferred, only feed and similar items were only covered by the said policy and there was inordinate delay to give intimation of the incident and thus the Surveyor was not able to assess the damage due to effect of the flood, which is clearly a violation of the policy condition. In the general terms and condition it is mentioned that every notice and other communication to the Company under the policy must be in writing or printed and the insured shall give notice to the Company within five days from the date of loss or damage of the insured article. The OP-1 by issuing a letter dated 05.04.2016 intimated the above fact to the Complainant stating that no claim under this policy can be paid unless the terms and condition are complied with. Request was made by the Complainant for modification of the said decision but no modification was made as the Complainant himself had breached the terms and the conditions of the policy.  According to the OP-1 the claim of the Complainant had been rightly repudiated as it did not cover the terms and the condition of the SME package insurance policy. As the information of repudiation had duly been informed to the Complainant by issuing letter, hence there is no deficiency in service as well as unfair trade practice on behalf of the OP-1. According to the OP-1 the complaint is liable to be dismissed.

The petition of complaint has been contested by the OP-2 by filing written version stating that all the statements as made out by the Complainant is totally false and fabricated. It is submitted by the OP-2 that the Complainant’s claim is connected with the OP-1 and there is no connection with the OP-2, so the OP-2 has been made party in this proceeding unnecessarily. The averment of the Complainant regarding flood, loss and damage of the insured article, chicks etc. all are related with the OP-1, so there is no role of the OP-2 either in settlement of the claim or its repudiation. It is further stated by the OP-2 that as the Complainant wanted to insure his farm to secure the same from any accident, for that reason the OP-2 only intermediated the said matter with the OP-1 and after discussion with the OP-1 the Complainant being fully satisfied obtained the insurance policy from the OP-1. The OP-2 had deposited the premium amount for the insurance policy from his loan account, so there is no deficiency in service on the part of the OP-2. No case has been made out by the Complainant that neither during occurrence of the incident nor at the time of preferring the claim with the OP-1 the policy became lapse. Therefore it is proved that at the time of incident as well as lodgment of the claim the policy was in force and as the OP-2 paid the due premium within due period to the OP-1, the policy was in force. It is stated by the OP-2 that within the four corners of the complaint no specific allegation has been made out by the Complainant from where it will be proved that there is deficiency in service or negligence or laches on the part of the OP-2. The OP-2 did not create any pressure or instigate the Complainant to obtain the insurance policy from the OP-1 because in this respect there is no interest of the OP-2. As the OP-2 has been made party by the Complainant for getting illegal gain by misguiding this ld. Forum, hence prayer is made by the OP-2 for dismissal of the complaint with exemplary cost.

The Complainant has adduced evidence on affidavit along with several papers and documents. The OP-1 and 2 have prayed to treat their written versions as their evidences on affidavit by making separate applications. The prayer was allowed accordingly. The OP-2 has filed written notes of argument with a copy to the other side. All the contesting parties have filed several documents in support of their contentions. Surveyor’s report has been filed.

We have carefully perused the complaint; papers and documents filed by the parties, written notes of argument of the OP-2 and heard argument at length advanced by the ld. Counsel for the parties. It is seen by us that there are some admitted facts in the case in hand i.e. the Complainant being an unemployed youth for earning his livelihood by means of self employment and to maintain his family started poultry farm, for this purpose he obtained BSKP loan from the OP-2, he purchased an insurance policy from the OP-1 covering the stocks of the poultry farm to the tune of Rs.2,00,000=00, due premium was paid to the OP-1 by the OP-2 from the loan account of the Complainant, during validity of the insurance policy due to flood the poultry farm of the Complainant along with chicks, chicken, feed and other accessories got damage, intimation was given by the Complainant in writing to the OP-1 and 2 within due period, the OP-1 deputed Surveyor, the Surveyor inspected the site to assess the loss and damage of the insured article, before survey the damaged goods and dead chicks and chickens were buried due to foul smell and pressure of the locality in presence of the Pradhan of Gram Panchayat, report was submitted to the OP-1 by the surveyor, in the report the surveyor has assessed the loss to the tune of Rs.89,399=00, the OP-1 by issuing a letter on 05.04.2016 to the Complainant had repudiated the insurance claim of the Complainant on several grounds, the Complainant thereafter prayed to the OP-1 for consideration of his claim, the OP-1 did not consider the same and hence by filing this complaint the Complainant has prayed for direction upon the OP-1 for allowing his claim along with other reliefs. The allegation of the Complainant is that the OP-1 has repudiated his insurance claim on flimsy pretext which can be termed as illegal, arbitrary.

The contention of the OP-1 is that the claim of the Complainant was repudiated in a proper manner as the Complainant had breached the terms and conditions of the SME package policy and moreover the live birds were not under the coverage of the said policy. During argument the ld. Counsel for the OP-1 has argued that the Complainant has miserably failed to quantify the damage of the feed by producing cogent receipts and voucher before the Surveyor, which is evident from the report of the Surveyor. The Op-1 has further mentioned that the Complainant did not give intimation about the loss and damage of the insured goods and article due to flood within the stipulated period as mentioned in the concerned policy and the OP-1 is not under obligation to abide by the report of the Surveyor. According to the OP-1 the repudiation was made correctly and hence there is no deficiency in service on its part.

 The Ld. Counsel for the OP-2 has argued that as no allegation is assigned in the petition of complaint by the Complainant against it, the complaint is liable to be dismissed with cost because the OP-2 has been made party in this proceeding unnecessarily.

We have carefully perused the report of the Surveyor, from where it is evident that the insured gave intimation on 22.08.2015 and the date of loss of the insured items is mentioned as 30.07.2015. Therefore it was evident from the Surveyor’s report that the complainant had failed to intimate the Insurance Company within due period as per the terms and conditions of the policy about the occurrence of flood and damage of the insured articles due to said occurrence. The ld.  Counsel for the OP-1 has submitted that as the complainant has breached the terms and conditions of the policy, due to such failure, hence the claim form of the complainant cannot be entertained and on this score this complaint should go. In this respect we are to say that admittedly the complainant did not inform the insurance company about the occurrence due to which his insured article got damage within the specified period as per the terms and the conditions of the policy. It is also an admitted fact that upon receipt of the intimation and claim form on behalf of the complainant, the OP-1 appointed a Surveyor for inspection to assess the loss and damage. It was the duty of the OP-1 to reject the claim form on that date on which it was received by it on the ground that as the complainant has failed to comply with the terms and the conditions the claim form cannot be entertained. But without doing so the OP-1 has deputed on licensed Surveyor for inspection. In our view as and when the OP-1 deputed Surveyor at that juncture the OP-1 has condoned the delay in intimation or the information to it by the complainant. Hence during argument the OP-1 cannot raise the said point that as the complainant has breached the terms and conditions of the policy, on this score alone the complaint should go. Once as the OP-1 has allowed the claim form and intimation of the complainant, now it is estopped to raise the point again at the time of hearing. So such plea as taken by the OP-1 does not stand. The Surveyor in his report has admitted that due to flood the insured items of the poultry farm got damage, but due to non-maintenance of the stock register the Surveyor could not assess the loss properly, but mentioned in the report that the Complainant is entitled to get some amount after deduction 25% due to breach of the conditions, under insurance, salvage, less policy excess etc. It is true that as per the SME policy the sum insured was for Rs.2, 00,000=00, so the Complainant cannot be entitled either to claim or to get more amount than the sum insured. But the Complainant claimed a sum of Rs.2, 00,000=00. It is an admitted fact that as per the policy condition and the loan agreement with the OP-2, the Complainant was under the obligation to maintain a stock register of the purchased items, not only that the said register will also help the investigating person to assess that on the date of occurrence how much stock was there. But in the case in hand due to non-availability of any stock register the Surveyor could not come to a conclusive conclusion. We have noticed that the live birds were not under the coverage of the said insurance policy, so in our view the Complainant is not entitle to get any amount towards the loss of live birds as sought for. During hearing argument the Ld. Counsel for the OP-1 has mentioned that the letter/report of the Pradhan of Nimdiha Gram Panchayat does not bear any value based on which the Surveyor has assessed the loss. In this respect we are to say that the OP-1 did not take any step to challenge the letter of the said Prodhan by filing any questionnaire, so as the letter of the Prodhan has got its finality, now there is no scope to challenge the sanctity of the same by any party. Regarding acceptance of the Surveyor’s report as argued by the OP-1, we are of the view that as the OP-1 did no appoint any second surveyor after setting aside the report of the present surveyor as per the IRDA guideline; hence the OP-1 is under the obligation to abide by the report of the present Surveyor. Moreover no step was taken by the OP-1 to cross-examine the report of the present Surveyor by filing questionnaire. Therefore the Surveyor’s report has also reached in its finality. There are several judgments passed by the Hon’ble Supreme Court as well as the Hon’ble NCDRC, wherein it has been held that the Surveyor’s report is an important evidence which cannot be brushed aside without assigning any cogent reason and it should be given due weightage. The Complainant has sought for compensation due to unnecessary harassment and deficiency in service from the OPs. In this respect we are to say that as there no connection by and between the claim of the Complainant and the OP-2, the OP-2 has no liability to pay to the Complainant any amount towards compensation. In our opinion the OP-1 is under the obligation to pay the same as inspite of Surveyor’s report the OP-1 had repudiated the claim of the Complainant illegally for which he had to run from pillar to post for a considerable period. It is also true that by filing this complaint the Complainant has to incur some expenses, so he is also entitled to get some amount as litigation cost.

Going by the foregoing discussion, hence it is

O r d e r e d

 that the complaint is allowed in part on contest with cost against the OP-1 and dismissed without any cost on contest against the OP-2. The OP-1 is directed to pay a sum of Rs.45, 413=00 to the Complainant towards the loss of the insured item within 45 days from the date of passing of this judgment, in default the said amount shall carry interest @8% p.a. for the default period. The OP-1 is also further directed to pay a sum of Rs.2, 000=00 as compensation due to harassment, mental pain and agony and litigation cost of Rs.1, 000=00 to the Complainant within 45 days from the date of passing of this judgment, in default the Complainant will be at liberty to put the entire order in execution as per provision of law.

Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.

Dictated and corrected by me.                                                               

                  (Silpi Majumder)

                         Member

                DCDRF, Burdwan

                                                      (Pankaj Kumar Sinha)                        (Silpi Majumder)

                                                                 Member                                          Member   

                                                          DCDRF, Burdwan                          DCDRF, Burdwan