This appeal is directed against the final order of Ld. D.C.D.R.F, Alipurduar dated 23/7/2019 in connection with CC no. 8 of 2018. The fact of the case in brief is that Ashim Bhowmik of Alipurduar being the owner and proprietor of M/s Bhowmik Enterprise dealing with business of selling papers and stationary items having shop cum go-down at park road Alipurduar has insured his business with coverage of fire burglary and flood to the tune of rupees 65,00,000 since 8/11/2014 and he annually renewed the insurance coverage by paying the premiums. On 2015 due to a heavy flood he sustained huge loss of business products and his claim from the insurance was settled at rupees 6,11,000 and the said amount was disbursed by the insurance company. But unfortunately, on 11/08/2017 due to a heavy flood he sustained havoc loss amounting to rupees 12,11,882 and he raised the claim for compensation from the insurance company which was repudiated by the insurance company on 20/11/2017 and for that reasons, he registered a consumer complaint against the universal Sampo General Insurance and Indian Overseas bank. The said consumer complaint was disputed by the insurance company as op no.1 and 2 by submitting WV and contended that as per terms of the policy, the insured has violated the said terms and for that reason, after obtaining the survey report and confirming the said violation, the company has repudiated the claim on the right ground and the consumer complaint was liable to be dismissed. The Indian overseas bank has also contested the case by WV and contended that the case of the complainant was false and frivolous and liable to be rejected.

After recording the evidences and after hearing all sides, Ld. Forum has come to a conclusion that there was deficiency of service on the part of the Insurance Company and for that reason, the Insurance company as OP no. 1 and 2 was directed to make payment the  sustaining losses to the complainant to the tune of rupees 12,11,883/-  along with rupees 20,000 for mental pain and agony and rupees 10,000 as litigation cost.

Being aggrieved with this order, this appeal follows on the ground that the order of Ld. Forum was unwarranted and not appropriate in the eye of law as there was a warranty clause where in the insurance coverage it was stipulated  that the surrounding public road is not to be higher elevation than the risk located but Ld. Forum has overlooked the same exception clause in the policy paper and for that reason, this order was passed which was totally misconceived and not sustainable in law.

The appeal was admitted on merit and the notice was served upon the complainant/respondent A Bhowmik and the Branch Manager of India Overseas Bank. The respondent A Bhowmik in spite of receiving notice of appeal, do not appear to contest the case. The IOB also did not contest the appeal.

Accordingly, the appeal was heard in presence of Ld. Advocate of the appellant.

Decision with reasons,

On going through the pleadings of both sides and on hearing the Ld. Advocate of the appellant it comes to our knowledge that the respondent A Bhowmik was a regular client of the appellant company who has insured his business materials with the policy of standard fire, special perils and he used to make the payment of premium amounts  annually. In the year 2015, he has sustained serious losses for damaging of his business items due to flood. His claim was settled by the insurance company. At that point of time, the surveyor of the Insurance Company brought to the knowledge of the insurance company that the business place of the insured was located in some lower place to the comparison of road level and for that reason, the insured was asked to make height of his business place in comparison to the adjoining road height in order to protect his materials from future floods. Again, in the year 2017, while the area was affected with flood then the business place of the insured was submerged with water due to the plinth height of the shop was found in some lower as to road level.

The observation of the surveyor mentioned in annexure 5, clearly speaks that the insured was well aware before the emergence of flood of 2017 as he was priorly cautioned to raise height of the risk place more than the height level of the adjoining road but the advice of the surveyor was not paid any heed on the part of the insured, more over he has violated the very warranty clause existed in the terms of the policy (annexure-6).

During the course of the hearing before the Ld. Forum the insurance company in their WV has categorially mentioned about the said gross violation on the part of the complainant and the very warranty clause was highlighted before the Ld. Forum. But Ld. Forum has found that the said warranty clause has lost its importance and weightage but the reasons for the said observation has not clearly explained in the body of judgment. Rather the Ld. forum has intentionally by-passed the said exemption clause of the insurance policy, such observation of Ld. Forum is not very convincing one. No reasons have been cited in support of such observation rather the warranty clause in the insurance policy justifies the ground of repudiation on the part of the Insurance company.

Such ground of repudiation could be rebutted on the part of the complainant during the course of hearing by a prayer of appointing a Commissioner to locate the actual position of the risk place and to negate the surveyor’s report about the violation of warranty clause. But the complainant did not take any initiative for holding an inspection over the risk place.

So, the final order of Ld. Forum in apparent has shown defective and such inherent defects should be cured in the appellate stage otherwise the miscarriage of justice cannot be prevented. So, in our view, the final order of Ld. Forum in this score is liable to be set aside as it is not sustainable in the eye of law.

Hence, it is,

Ordered,

That the appeal be and the same is hereby allowed on its own merit without imposing any cost. The final order of Ld. D.C.D.R.F Alipurduar, dated 23/7/2019 in reference to CC no 08 of 2018 is hereby set aside.

Let a copy of this order be sent to the Ld. D.C.D.R.F and also to be supplied to the parties free of cost.