Tripura

StateCommission

A/31/2019

The Branch Manager, Bandhan Bank - Complainant(s)

Versus

Sri Narayan Sarkar - Opp.Party(s)

Mr. Haradhan Sarkar, Mr. R. Ulla

18 Dec 2019

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

Case No.A.31.2019

 

 

1. Branch Manager,

Bandhan Bank, Kumarghat Branch,

Kumarghat, Unakoti Tripura, Tripura,

Pin: 799264, having its registered office at DN-32,

Salt Lake City, Sector-V, Kolkata-700091.

… … … … Appellant/Opposite Party No.1.

 

Vs

 

1. Sri Narayan Sarkar,

S/o Lt. Dhirendra Sarkar, Halaimura, Kumarghat,

Unakoti Tripura, Tripura.

… … … … Respondent/Complainant.

2. The Senior Claim Manager,

Tata AIG General Insurance Co. Ltd.,

Constantia Office Complex,

Dr. U. N. Brahmachari Street,

Kolkata, West Bengal.

 

3. Managing Director,

Tata AIG General Insurance Co. Ltd.,

Peninsula Business Park,

G. K. Marg, Mumbai, Maharastra.

… … … … Respondent/Opposite Party No.2 and 3.

 

 

 

PRESENT

Hon’ble Mr. Justice U.B. Saha

President,

State Commission

 

 

Dr. Chhanda Bhattacharyya,

Member,

State Commission

 

Mr. Kamalendu Bikash Das,

Member,

State Commission

 

 

 

For the Appellant:                                        Mr. Jayanta Majumder, Adv.

For the Respondent No.1:                                      Mr. Mridul Kanti Arya, Adv.

For the Respondent No.2 & 3:                      Ms. Puspita Chakraborty, Adv.

Date of Hearing & Delivery of Judgment:   18.12.2019.

 

J U D G M E N T [O r a l]

  

U.B. Saha, J,

The instant appeal is filed against the judgment dated 20.08.2019 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), North Tripura, Unakoti in Case No.C.C.4 of 2018 (CC/18/4) whereby and whereunder the learned District Forum allowed the complaint petition directing the opposite party no.1, the appellant herein, as well as the opposite party no.2, the respondent no.2 herein, to pay Rs.1,55,000/- to the complainant, the respondent no.1 herein, within a period of two months with interest @7% per annum from the date of filing of this claim petition, i.e. on and from 25.05.2018, failing which, the complainant shall be entitled to further interest of 9% from the opposite parties till the date of final payment.

2. Heard Mr. Jayanta Majumder, Ld. Counsel appearing for the appellant, Bandhan Bank (hereinafter referred to as opposite party no.1/Bank) as well as Mr. Mridul Kanti Arya, Ld. Counsel appearing on behalf of the respondent no.1-claimant (hereinafter referred to as complainant). Also heard Ms. Puspita Chakraborty, Ld. Counsel appearing for the respondent no.2 and 3 (hereinafter referred to as opposite party no.2 and 3/Insurance Company).
3. Brief facts needed to be discussed are as follows:-  

The complainant, Sri Narayan Sarkar, is the owner of a restaurant at Kumarghat, Netaji Chowmuhany. He opened one bank account with the opposite party no.1, Bandhan Bank, Kumarghat Branch being Account No.50150082926645. He had taken a loan amounting to Rs.2,50,000/- for development of his restaurant from the opposite party no.1-Bank along with one general insurance with the opposite party no.2-Insurance Company, but the Bank did not provide any copy of the insurance policy to him though on many occasions, he visited the Bank for the said policy. It is further contended in the complaint petition that on 18.02.2018 early morning, the restaurant of the complainant was gutted by a fire accident. Thereafter, the complainant informed Kumarghat Fire Station and the fire was doused by the Fire Service personnel. After the incident, the complainant informed the Bandhan Bank, Kumarghat Branch on 21.02.2018 about the fire accident and also made a GD entry with the Kumarghat PS stating about the aforesaid fire incident. After some days, complainant again went to the Bandhan Bank for taking necessary action regarding process of insurance claim, but the opposite party no.1 did not cooperate with the complainant and even did not inform the policy details to him. On 12.05.2018, the complainant made a complaint against the opposite party no.1 before the National Consumer Help Line and on the advice of the National Consumer Help Line, complainant lodged another complainant before the Consumer Grievance Forum of the Bandhan Bank through e-mail and the complainant also sent another e-mail to the opposite party no.1 stating the whole incident. Thereafter, by the initiative of the National Consumer Help Line, the opposite party no.1 sent Field Surveyor and Assessor, namely, Sri Ashish Bhattacharjee to inspect the alleged place of occurrence and after inspection Sri Bhattacharjee gave notice to the complainant supplying him details of insurance policy and mentioning the required list of documents to satisfy his claim. During inspection, the Surveyor was provided with trade license, loan sanction letter and copy of GD entry by the complainant. It is further mentioned in the complaint petition that on 11.04.2018 opposite party no.2 sent a letter to the complainant informing that they could not process the claim of the complainant because the insured premises was used as restaurant while occupancy of the premises was mentioned as ‘Shop’ in the insurance policy document. The complainant having received the letter went to the opposite party no.1 for collecting concerned policy, but opposite party no.1 did not pay any heed to the request of the complainant and in that juncture finding no other alternative complainant contacted with the Kolkata office of the insurance company who advised the complainant to approach the Tata AIG General Insurance Office at Agartala and accordingly, the complainant collected the concerned policy and he was informed that the policy was auto-generated by broker/agent of Insurance Company during taking loan. After getting the policy documents complainant found that in occupancy column 'Shop' is mentioned instead of 'Restaurant'. Complainant found that the insured sum was Rs.3,75,000/- having policy No.2200209125 and the period of insurance was from 26.04.2017 to 25.04.2018. It is reiterated by the complainant in his petition that during taking loan he provided all documents of his restaurant, including trade licence, where it is specifically written as ‘Restaurant’ in the occupancy column and as such, the mistake was done by the opposite parties, not by him and for this intentional mistake on the part of the opposite parties, complainant was not given the insured amount against his policy and hence, he filed the complaint petition before the learned District Forum claiming compensation for deficiency of service by the opposite parties.   

4. Upon receipt of the notice, opposite party no.1-Bank appeared and contested the case by filing the written statement stating, inter alia, that the complainant has availed a small enterprise loan of Rs.2,50,000/- from opposite party no.1 and accordingly, after all formalities, the Bank Authority disbursed the said loan to the complainant. Opposite party no.1 acts as a facilitator of TATA AIG General Insurance Co. Ltd. and as per request of the complainant, he was also provided with fire and burglary insurance from TATA AIG General Insurance Co. Ltd., the opposite party no.2 and 3 and the opposite party no.1 has no role to play in respect of insurance policy. It is further contended by the opposite party no.1 that the opposite party no.1 forwarded the claim of the complainant to the Insurance Company and coordinated with them regularly for the said claim of the complainant. The settlement of the claim is only done by opposite party no.2 and 3 and as such, it is the opposite party no.2 and 3 who sent the Field Surveyor to inspect the alleged burnt shop premises of the complainant. The allegation of the complainant is that he was denied to be given the insurance claim as in the loan application form occupancy was shown as shop instead of restaurant and in this respect opposite party no.1 is not at all liable because the loan application form was taken care of by the opposite party no.2 and 3 and the mistake is on the part of the Insurance Company and as such, there was no deficiency of service on the part of the opposite party no.1-Bank towards the complainant.
5. On receipt of the notice, the opposite party no.2-Insurance Company also appeared and submitted written statement contending that the complainant had availed ‘My Business My Choice’ package policy for the period from 26.04.2017 to 25.04.2018 which covered fire and burglary. Opposite party no.2 admitted that on 18.02.2018, within the validity of the Insurance Policy, the restaurant of the complainant gutted by fire and also admitted that they were intimated about the incident on 08.03.2018. The opposite party interrogated the complainant regarding delay of eighteen days in reporting the incident to them, but the complainant remained silent about the reason for delay in intimation. It is further stated that opposite party no.2 appointed one Surveyor for assessment of loss of the restaurant. As per coverage of the policy, only stock items are covered and during the survey the complainant could not produce any of the damaged items of the stock for assessment/physical inspection. However, based on the complainant's declaration about the damaged items, Surveyor considered the cost of stock items only while assessing the loss and accordingly, the Surveyor assessed the loss for Rs.41,950/-. It is further contended by the opposite party no.2 that the complainant's claim for insured sum of Rs.3,75,000/- is baseless as policy only covers the loss of stock items. The claim with respect to the loss of other items is not covered and hence, those items are not considered while assessing the damages and as such, there is no deficiency of service on the part of the opposite party no.2. It is a fact that initially they raised query regarding the admissibility of the claim as occupancy of insured premises was mentioned as ‘shop’ in the policy instead of restaurant, but finally based on the Survey Report they determined the liability for Rs.34,158/- which was offered to the insured and as such, the complaint of the complainant being devoid of any merit should be dismissed.
6. In order to substantiate the claim, complainant examined himself as P.W.1. In his deposition, he stated the facts as was put down in his complaint petition. During his re-examination, he has exhibited the following documents:-

1. Passbook of Bandhan Bank in the name of the complainant- Exhibit.1 series.
2. Copy of GD entry dated 21.02.2018 addressed to the OC, Kumarghat PS in1 sheet- Exhibit 2.
3. Report of the surveyor dated 12-03-2018 in two sheets- Exhibit 3/1 and Exhibit 3/2.
4. Copy of letter addressed to the complainant by the Sr. Manager, TATA AIG, Insurance Co. Ltd. in 1 sheet- Exhibit 4.
5. Report submitted by DFO in 1 sheet- Exhibit 5.
6. Trade license issued by Kumarghat Nagar Panchayet -Exhibit 6.
7. Copy of petition of the complainant addressed to the Fire Officer, Kailashahar- Exhibit.7.
8. Copy of insurance policy in 24 sheets- Exhibit.8 series.

He was also cross-examined by the opposite parties. In his cross-examination, he admitted that in his policy the insured premise has been shown as shop and also admitted that the insurer issued a cheque for an amount of Rs.34,158/- in his name, but he did not receive the same.

7. From the side of the opposite parties one witness, namely, Sri Ashish Bhattacharjee, has been examined as O.P.W.1. He stated that in the year 2018, he was a panel surveyor of TATA AIG General Insurance Co. Ltd. and as per endorsement made by the said Insurance Company for surveying an incident that happened in the shop of the complainant, he visited the said shop premises on 18.03.2018. He further stated that he found that the insurance was covered only for the stock of the shop as per policy of the insurance, but on his inquiry and survey, he found that it was a restaurant not a shop and he also found that a fire incident was occurred in the shop establishment of the insured and also found that the complainant informed about the fire incident to the Insurance Company after about eighteen days. He also stated that during his survey, he found no stock of the shop articles since the shop was repaired after the incident. During his survey, he was also handed over a copy of FIR and considering all circumstances and taking evidence of the surrounding shop owners, he estimated the loss suffered by the complainant at Rs.51,950/- for stock before deduction of Rs.10,000/- and other incidental expenses. The survey report prepared by him has been marked as Exhibit.A. He further stated that thereafter, on assessment of loss, the Company offered Rs.34,158/- to the complainant towards compensation through a cheque, but the complainant did not receive the same.
8. In course of cross examination, O.P.W.1 stated that during survey, he came to know from the complainant and the shop keepers of the surrounding shop establishments of the complainant that before the incident, there had been furniture, fixtures, fittings in the shop establishment of the complainant. He further stated that during survey, except FIR and claim statement, nothing was produced before him by the complainant. He denied that during survey, the complainant could not collect relevant documents in support of his sustaining loss and as such, he could not submit those relevant documents at the time of survey and that his assessment regarding loss suffered by the complainant at Rs.51,950/- was totally false and without basis. 
9. The learned District Forum after hearing the parties and taking note of the evidence on record allowed the claim of the complainant and awarded the amount as stated (supra).
10. While the complaint petition of the complainant was allowed, the learned District Forum in its judgment given its reasons which are as follows:-

“ 8. It is admitted fact that the complainant being a consumer of the OP No.1 was provided a loan of Rs.2,50,000/- along with one General Insurance given by OP No.2 and 3. It is also admitted fact that on 18-02-2018 early morning the restaurant of the complainant was gutted by a fire accident and it is also an admitted fact that the OPs were informed about the fire accident after eighteen days of the occurrence. The repudiation of the insurance company in regard to the fire insurance claim towards the complainant was due to the fact that while asking for bank loan the complainant mentioned in the occupancy column the word 'shop', but practically it was restaurant. However, it is the assertion of the opposite parties that they even then treated the case of the complainant quite liberally and on assessment of the loss by employing a surveyor ultimately offered loss for an amount of Rs. 34,158/- to the complainant, but the complainant denied to receive the same. It is urged by the complainant that during the process of obtaining loan for development of his business premises he submitted all necessary documents relating to his restaurant, including copy of trade licence on the basis of which the loan as prayed for by him was sanctioned by OP No.1 which was also insured by the OP-TATA AIG the insurer. The complainant has submitted the copy of trade licence issued by Kumarghat Nagar Panchayet (Exbt.6), which is valid up to 31-03-2019 (as reflected overleaf) and on perusal of the same it is found that the shop premises of the complainant is styled as restaurant. How could the word 'shop' be inserted in the occupancy column while the base document clearly indicates as restaurant. Therefore, this Forum is constrained to hold that the mistake cannot be done on the part of the complainant but surely it is done by the opposite parties.

9. From Exbt.8 series, the insurance policy, it is found that the restaurant of the complainant is covered under fire building and/or contents for sum of 3,75,000/-. The policy was issued by the OP-TATA AIG insurance Co. Ltd. and it was effective from 26-04-2017 to 25-04-2018. The restaurant of the complainant was gutted by a fire incident which took place on 18-02-2018 and as such, it is found that the restaurant of the complainant is very much covered under the insurance policy under fire building and/or contents. Following the fire incident the complainant recorded the same with the Kumarghat PS vide GD entry No.13 dated 21-02-2018. It is a formal information and thus makes no difference even after delay of three days in making a GD entry. As such, the complainant is entitled to insured amount for damage of the building and its contents by way of fire accident, which the policy issued by the OP, guarantees. The assessor and surveyor, Sri Ashish Bhattacharjee, who has been deputed by the OP, insurance Company, has been examined from the side of the opposite parties as OP No.1. In his evidence, Sri Bhattacharjee stated that he found that the insurance was covered only for the stock of the shop as per policy of the insurance and during his survey he found that a fire incident was occurred in the shop establishment of the insured. He further stated that during his survey he found no stock of the shop articles since the shop was repaired after the incident. The restaurant of the shop of the complainant was his bread earning source and the surveyor surveyed the restaurant after about one month of the fore accident and to survive with his family members the complainant had no other alternative left with him but to run the restaurant somehow and for this reason the complainant was obliged to repair his restaurant. The OP No.1 also stated in his examination in chief that considering all circumstances and taking evidence of the surrounding shop owners he estimated the loss suffered by the owner at Rs.51,950/- for stock and ultimately on deduction of  all incidental expenses the complainant was offered Rs.34,158/- by way of cheque which the complainant discarded to receive. During cross examination OP No.1 also admitted that during survey he came to know from the complainant and the shop keepers of the surrounding shop establishments that before the incident there had been furnitures, fixtures and fittings in the shop establishment of the complainant.  Kitchen units come under fixtures, while ovens, refrigerators and other free standing items of furniture come under fittings category. The extent of loss sustained by the complainant was assessed by the Divisional Fire Officer and the report has been submitted on behalf of the complainant and marked Exbt.5. In his assessment report Divisional Fire Officer has mentioned the articles like Fridge, Inverters, Chair, table, rack etc. as damaged articles. As per report of the DFO the category of Fire accident is major, which invariably goes to say that the building and the articles contained therein have been damaged and beyond use. The DFO in his report has declared the value of the property lost to the tune of Rs.2,10,000/- approximately. For building Rs.30,000/- has been assessed while for the articles Rs.1,80,000/- has been assessed. The measurement of the shop premises (restaurant) of the complainant was measured 6x12 sq. mtr. for which  assessment of loss to the extent of Rs.30,000/- is not at all on the higher side, but very much justified  and as such, the complainant is entitled to this amount towards the damage cost of the building. The surveyor (OPW No.1) appointed on behalf of the OPs while assessing the damage mentioned the existence of fittings and fixtures in the restaurant of the complainant, but in his survey report he has only mentioned about the existence of one fridge of LG Company. Vol. 215 ltrs., which is totally contrary to his evidence. No list of articles as damaged has also been submitted and exhibited from the side of the complainant. However, in the record a list of articles and goods which were allegedly damaged submitted by the complainant and authenticated by the president and Secretary of Kumarghat Merchant Association, Kumarghat, Unakoti District is found. Though the same has not been exhibited from the side of the complainant, but this Forum can take judicial notice of this document in assessing the existence of the articles at the time of fire accident and their prices. With due regard to the evidence of the OPW No. 1 and also taking into consideration the report of the Divisional Fire Officer about the existence of fixtures and fittings in the restaurant at the time of accident, the articles like refrigerator, mixture grinder, cooker, cash counter, fan, almirah, inverter, utensils, chair and table, coffee machine, juicer, micro hot case were supposed to be kept in the restaurant at the time of fire accident, this Forum can assess their prices judiciously. The restaurant of the complainant was opened in the year 2015 and on imposition of depreciation cost the price of the refrigerator may not be more than Rs.5,000/-. The cost of the mixer grinder is assessed at Rs.3,000/-, cooker at Rs.3,000/-, cash counter at Rs.2,000/-, the number of fans taking to be six the cost of the same is assessed at Rs.10,000/, almirah at Rs.6,000/-, inverter with battery at Rs.20,000/-, utensils roughly at Rs.8,000/-, chair and table approximately at Rs.15,000/-, coffee machine, juicer and micro hot cases together at Rs.15,000/-. As the building has  already been damaged by the fire incident besides re-construction of the building the complainant has also to re-wire his building for which he is also entitled to Rs.15,000/-. Because of the activities of the OPs the complainant has also suffered mental pain and agony, which may be compensated by way of some pecuniary supplementation by awarding Rs. 15,000/- on pain and sufferings. Since the shop premises of the complainant was a restaurant he must have at least two ovens and stored some raw materials like spices, vegetables, rice etc. for which a sum of Rs. 8,000/- is awarded. As such, on totaling all the heads the complainant is entitled to the damaged cost of his building and articles at Rs.1,55,000/- (Rupees One lac fifty five thousand) only.

On appreciation of the evidence and documents on record it is tangible that OP No.1 and 2 have failed to discharge their duties properly towards the complainant. Had the policy documents been handed over to the complainant by OP No.1 in time and if the word 'restaurant' in the occupancy column would be mentioned by the OP No.2, the complainant would not be resorted to file the complaint by not getting the proper insured claim amount, but in this manner by not doing their duties properly both the OP No.1 and 2 are found to be deficient and as such, the amount of compensation shall be borne by both the OP No.1 and 2 jointly and severally.   

The point is decided accordingly.”

11. Mr. Majumder, Ld. Counsel while urging for setting aside the impugned judgment would contend that admittedly, the complainant had an Insurance Policy with the opposite party no.2 and 3 and also the restaurant of the complainant was gutted. He has further contended that if there was any mistake regarding mentioning the restaurant as shop that was done by the Insurance Company not by the Bank. Thus, the Bank is no way liable for alleged deficiency of service.
12. Ms. Chakraborty, Ld. Counsel appearing for the opposite party no.2 and 3 while supporting the impugned judgment would contend that as the Bank did not supply the copy of the Insurance Policy to the complainant in time, the Bank cannot deny its liabilities. Her further contention is that the opposite party no.2 has already complied with the impugned judgment and award as directed by the learned District Forum.
13. Mr. Arya, Ld. Counsel for the complainant submitted that he has no objection if the impugned judgment and award is modified to the extent that the Insurance Company is liable to pay the entire amount not the 50% of the awarded amount as directed by the learned District Forum. He has also contended that though his claim was for Rs.4,45,000/, but the learned District Forum awarded only Rs.1,55,000/- and that is also divided between the opposite party no.1 and 2.
14. We have gone through the impugned judgment as well as the evidence on record, we are of the opinion that for mere non-furnishing the copy of the Policy by the Bank in time cannot be a ground to hold that the Bank is liable to pay 50% of the awarded amount, rather it would be proper to direct the Bank to pay lump sum amount of Rs.15,000/- and the rest of awarded amount should be paid by the opposite party no.2-Insurance Company to the complainant from the date of filing with interest @7% per annum.

Accordingly, the impugned judgment is modified and the opposite party no.1-Bank is directed to pay an amount of Rs.15,000/- for their deficiency for not providing the copy of the Insurance Policy in time to the claimant-complainant and the opposite party no.2 is directed to pay Rs.1,40,000/- minus the awarded amount already been paid to the complainant with an interest @7% per annum from the date of filing of this claim petition, i.e. on and from 25.05.2018, failing which, the complainant shall be entitled to further interest of 9% from the opposite parties till the date of final payment.

In the result, the appeal is partly allowed to the extent as indicated above. No order as to costs.

Send down the records to the learned District Forum, North Tripura, Unakoti.

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura