Tripura

StateCommission

A/8/2017

The Divisional Manager, The Oriental Insurance Company Ltd. - Complainant(s)

Versus

Shri. Swapan Saha - Opp.Party(s)

Mr. P.K Debnath

09 Jun 2017

ORDER

State Consumer Disputes Redressal Commission, Tripura.

 

 

 

Case No.A.8.2017

 

 

 

1. Divisional Manager,

Oriental Insurance Company Ltd.,

Agartala Divisional Office,  

Central Road, Agartala,

District - West Tripura.

                                                            ….    ….    ….    ….    Appellant/Opposite Party.

                                                           

                   Vs

 

 

1. Sri Swapan Saha,

S/o Late Lal Mohan Saha,

Village: Chandigarh, Melaghar,

District - Sepahijala, Tripura.

….    ….    ….    ….    Respondent/Complainant.

 

 

Present

 

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Sharma,

Member,

State Commission, Tripura.

 

 

For the Appellant:                                     Mr. Prahlad Kumar Debnath, Adv.

For the Respondent:                                 Mr. Rupak Das, Adv.

Date of Hearing & Delivery of Judgment:   09.06.2017.

 

 

J U D G M E N T [O R A L]

 

 

U.B. Saha,J,

This instant appeal is filed by the appellant, Divisional Manager, Oriental Insurance Company Ltd., Agartala Division, Agartala (hereinafter referred to as opposite party/Insurance Company) under Section 15 of the Consumers Protection Act, 1986 against the judgment dated 02.02.2017 passed by the Ld. District Consumers Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No. C.C. 71 of 2016 whereby and whereunder the Ld. District Forum directed the opposite party-Insurance Company to pay an amount of Rs.1 Lac for the damage of building of the complainant, the respondent herein, (hereinafter referred to as complainant) and another Rs.1 lac for loss of damage of grocery goods, Rs.10,000/- for loss of furniture and Rs.5,000/- for deficiency of service. In total Rs.2,15,000/- only within one month. If the awarded amount is not paid, the same will carry interest @ 9% annum.  

1. Heard Mr. Prahlad Kumar Debnath, Ld. Counsel appearing for the opposite party, Insurance Company as well as Mr. Rupak Das, Ld. Counsel appearing for the complainant.
2. Brief facts of the case are that the respondent-complainant had a business premise, which was insured vide Policy No.322700/11/2015/509 with the Oriental Insurance Company Ltd. The date of commencement of the fire insurance policy was 29.10.2014 and the date of expiry of the policy was 28.10.2015. The aforesaid policy covered building, stock, furniture, fixtures and fittings. During the lifetime of the policy, on 15.02.2015, the shop premise of the complainant was completely gutted due to short-circuit including his dwelling house and the other particulars, stocks were damaged. The complainant informed regarding the aforesaid fire incident to the opposite party in writing and after receipt of the said information, the opposite party-Insurance Company visited the place and assured that he would get the claim as indemnified through the Standard Fire & Peril Policy No.322700/11/2015/509. Subsequently, the complainant went to the office of the opposite party-Insurance Company with some vouchers and other documents and requested for sanctioning his claim, but the Insurance Company did not receive the vouchers and the documents. However, after elapse of sometime, the opposite party supplied a claim form to the complainant with a direction to submit the same after inserting the necessary particulars and accordingly, the complainant after filled-in the claim form supplied by the Insurance Company went to the office of the opposite party, but surprisingly the opposite party refused to receive the same and also denied to give any sort of payment in connection with the aforesaid policy.
3. Being aggrieved by the action of the Insurance Company, the complainant served a demand notice for making payment of Rs.6,90,000/- within a period of 15 days from the date of receipt of the notice. Thereafter also, the opposite party-Insurance Company did not make any payment, rather, they sent a reply dated 20.05.2016 to the engaged lawyer of the complainant that the complainant had obstructed the surveyor appointed by them to survey/inspect the damaged shop and thus they had closed the file as “no claim”. Along with such reply, the opposite party has also enclosed a copy of the letter of repudiation by mentioning a date as 05.03.2015, wherein, it has been written that they had appointed one Sri Bijan Chakraborty to survey/assess the loss, but allegedly the complainant did not allow him to do the same and thus they failed to assess the loss and for that reason they had closed the claim. It is also contended by the complainant that he did never obstruct any surveyor of the opposite party to survey/inspect the damaged shop of him and also did never receive any notice from the opposite party for such inspection. As a result, he was deprived of getting the assured amount for the deficiency of service of the opposite party-Insurance Company. Thus, he filed a complaint petition before the Ld. District Forum claiming an amount of Rs.7,90,000/- as compensation.
4. Opposite party, Oriental Insurance Company Ltd. appeared and filed its written statement denying the claim of the complainant. It is contended that the complainant did not allow the surveyor of the Insurance company to assess the damage caused by the fire incident and fact remains that the premises of the complainant was not gutted at all. Stock or other furniture were also not damaged. The complainant had filed application for compensation to get unlawful claim.
5. The Ld. District Forum on the basis of the pleadings of the parties formulated the following points for deciding the case;

1. Whether the shop premise of the complainant was gutted or damaged by fire?
2. Whether the petitioner is entitled to get compensation for deficiency of service of insurance company?

6. In support of the contention of the complainant, he has produced the Policy Certificate, Legal Notice, reply of Legal Notice, Repudiation Letter, Claim Form, Cash Memos, extract copies of G.D. Entry and he has also examined himself as one of the witness.
7. On the other hand, opposite party-Insurance Company produced the statement on affidavit of one Sri Goutam Banik, Administrative Officer of the Insurance Company and Surveyor, Sri Bijan Chakraborty. Opposite party has also produced the appointment letter of the surveyor as well as two other letters.
8. The Ld. District Forum after considering the evidence on record including the G.D. Entry passed the impugned judgment. Hence the appeal.
9. Mr. Debnath, Ld. Counsel appears for the opposite party-Insurance Company submits that without proper assessment regarding the fire incident in question by the surveyor of the Insurance Company, it was not possible for the Insurance Company to assess the alleged damage and settle the claim of the insured complainant. He further submits that from the letter of the surveyor dated 18.02.2015, it is evident that he contacted with the complainant through his mobile phone for inspection/survey of alleged gutted shop of the complainant, but due to obstruction, he could not survey the gutted shop and assess the damage. He further submits that the surveyor was examined by the opposite party-Insurance Company, but he was not cross-examined. He has also submitted that the G.D. Entry cannot be taken into consideration for the purpose of deciding the complaint case filed by the complainant. In support of his contention regarding the obstruction of the surveyor by the complainant, he has placed reliance on a decision of the Chhattisgarh State Consumers Disputes Redressal Commission dated 04.12.2014 in Good Luck Petroleum Co. Pvt. Ltd. Vs Future Generali India Insurance Company Ltd. and others (Complaint Case No.13/30).
10.    On the other hand, Mr. Das, Ld. Counsel appearing for the respondent-complainant while supporting the impugned judgment submits that the surveyor did not mention in his letter as to when he contacted with the complainant over mobile phone for inspection/survey of the gutted shop and how and what manner the complainant obstructed him to visit the gutted shop, meaning thereby, the said contention of the surveyor is totally false. He has also contended that immediate after the fire incident, the complainant informed the Melaghar Police Station and some villagers informed the Fire Service, but before reaching of Fire Service, the shop of the complainant and his dwelling house were completely gutted. He has further contended that, it is the admitted fact that according to the policy, for building of the complainant some assured was Rs.1 lac, for goods/stock Rs.3,50,000/- and for furniture & fixtures Rs.50,000/-. It is also admitted that the assured-complainant paid the premium up-to-date.  
11. We have gone through the evidence on record as well as the documents submitted by the parties and the impugned judgment of the Ld. District Forum. The Ld. District Forum in its findings allowed Rs.1 lac for the cost of gutted shop instead of Rs.1,50,000/- claimed by the complainant and for the damage of the grocery goods though the assured sum was Rs.3,50,000/-, but the Ld. District Forum allowed only Rs.1 lac as the complainant could not produce any documents about how much stock of goods was available at the time of fire incident and for the furniture, the District Forum allowed Rs.10,000/- instead of sum assured of Rs.50,000/- and also allowed Rs.5,000/- for the cost of litigation. From the evidence of the complainant, it appears that he has produced some cash memos regarding the purchased of articles before four days of fire incident and as per those cash memos, the value of the articles was Rs.1,32,000/- and those articles were purchased on different dates. Therefore, it can be presumed that some of the articles were also sold before the fire accident. Neither the Insurance Company, nor its witnesses produced before the Ld. District Forum disclosed anything that on which date the surveyor went to visit the gutted shop of the complainant and whether they have informed regarding the incident of obstruction to the police. A surveyor is supposed to take the police help, if necessary, to survey the gutted place for assessing the loss of the assured. From the G.D. Entry of the police station, it appears that on 16.02.2015, the complainant appeared himself to the police station and reported the fire incident and on the basis of the said G.D. Entry, an enquiry was also done and from the enquiry, it transpired that the shop of the complainant including his dwelling house was completely gutted.
12. We have gone through the judgment of the Chhattisgarh State Commission as relied upon by Mr. Debnath in Good Luck Petroleum Co. Pvt. Ltd. (supra) from which it appears that in that case, the Insurance Company appointed joint surveyors who after survey, assessed the loss of the complainant in that case and submitted the report and the Hon’ble State Commission of Chhattisgarh did not disbelieve the report of the surveyors since the complainant of that case has not been able to produce any credible evidence to contradict the same, but in the instant case, the opposite party-Insurance Company failed to prove as to when the surveyor visited the gutted place and when the complainant was informed by the opposite party-Insurance Company regarding the appointment of the surveyor and as to whether the surveyor took any initiative to survey the gutted shop and assess the loss of the complainant with the help of the police except the letter of the surveyor dated 18.02.2015 wherein, the surveyor mentioned that he contacted with the complainant over telephone. According to us, it is the duty of the opposite party-Insurance Company to survey the gutted shop even after allegedly obstructed by the complainant with the help of the police for assessing the loss of the assured.
13. We are of the opinion that a poor assured shopkeeper should not be deprived of by the Insurance Company on mere technical ground. We are of the further opinion that the duty of the Insurance Company is to satisfy the genuine claim of the insured, not to repudiate the claim on a technical ground as taken in the instant case, more so, if the appointed surveyor did not survey the gutted place of the assured complainant on the alleged ground of obstruction, then the Insurance Company should have taken up the matter with their appointed surveyor or might appoint the second surveyor and even thereafter also, the assessment regarding loss could not be done, then the Insurance Company could have taken up the matter with the police, but in the instant case, the Insurance Company failed to do so.

Considering the above, we are of the view that the Ld. District Forum did not commit any wrong while passing the impugned judgment, rather Ld. District Forum awarded a lesser amount than the assured amount, as the complainant could not produce any documents regarding the stock remained in his shop at the time of fire incident except some cash memos/vouchers of Shyama Varities from which he purchased the goods immediately before the incident.     

14. In the result, the impugned judgment of the Ld. District Forum is affirmed. The appeal stands dismissed being devoid of merit.

Send down the records to the Ld. District Forum, West Tripura, Agartala.

 

MEMBER State Commission Tripura MEMBER State Commission Tripura PRESIDENT State Commission Tripura