Tripura

StateCommission

A/20/2016

Bajaj Allianz General Insurance Company Ltd. - Complainant(s)

Versus

Sri. Ajit Debbarma - Opp.Party(s)

Mr. Karnajit De

10 Aug 2016

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL

COMMISSION,

TRIPURA

 

APPEAL CASE No.A/20/2016

 

 

 

1. Bajaj Allianz General Insurance Company Ltd.,

Basanta Enclave, 4^th Floor,

B. Baruah Road, Ulubari,

Guwahati – 781007.

                                                  ….    ….    ….    ….    Appellant.

 

 

                   Vs

 

 

1. Sri Ajit Debbarma,

S/o Lt. Narendra Debbarma,

P.O. & Vill - Mandwi, P.S. Mandwi,

District - West Tripura.

Pin – 799045.

                                                            ….    ….    ….    ….    Respondent.

 

 

 

 

 

PRESENT

 

HON’BLE MR.JUSTICE S.BAIDYA,

PRESIDENT,

STATE COMMISSION

 

MRS. SOBHANA DATTA,

MEMBER,

STATE COMMISSION.

 

MR.NARAYAN CH. SHARMA,

MEMBER,

STATE COMMISSION.

 

 

 

For the Appellants             :         Mr. Karnajit De, Adv.

For the Respondent           :         Mr. Ranagopal Chakraborty, Adv.

Date of Hearing       :         19.07.2016. 

Date of delivery of Judgment:       10.08.2016

 

 

J U D G M E N T

 

 

S. Baidya, J,

This appeal filed on 16.05.2016 by the appellant, Bajaj Allianz General Insurance Company Ltd. under section 15 of the Consumer Protection Act, 1986 is directed against the Judgment and Award dated 01.02.2016 passed by the Ld. District Consumer Disputes Redressal Forum (in short District Forum), West Tripura, Agartala, in case No.CC-06/2015 whereby the Ld. Forum allowed the application filed under section 12 of the Consumer Protection Act and directed the opposite party Bajaj Allianz General Insurance Company Ltd., the appellant herein to pay Rs.12.00 lakhs for damages of the goods in the shop, Rs.25,000/- for deficiency in service and Rs.5,000/- as cost of litigation totalling Rs.12,30,000/- with a further direction that the said amount will carry interest from the date of filing of the application i.e. on and from 07.01.2015 @7% per annum till the date of payment. By the said judgment it is also directed to pay the said amount to the complainant, the respondent herein within two months. It is further directed by the said judgment that if the amount is not paid within two months, it will carry interest @9% per annum.

2. The case of the appellant, as narrated in the memo of appeal, in brief, is that the complainant-petitioner Ajit Debbarma, the respondent herein had purchased a policy named Standard Fire and Special Perils Policy from Bajaj Allianz General Insurance Company Ltd. (for convenient it is termed as Insurance Company) vide Policy No.OG-14-2405-4001-00003211 with effect from 11.12.2013 to 10.12.2014 covering the risk of the goods and furniture etc. of his shop situated at Mandai Bazaar for a sum assured of Rs.20.00 lakhs. It is alleged that on 28.03.2014 at about 23.00 hours a fire incident took place at Mandai Bazaar and the said shop of the complainant has been gutted by the fire and thereafter, the complainant approached the Insurance Company for compensation under insurance policy benefits, but the Insurance Company denied to make payment on the plea that some cash memos shown by the complainant were fake, while some were genuine as reported by one Surveyor named Sanjay Deb Roy appointed by the said Insurance Company.  
3. It is also alleged that thereafter, the complainant filed the petition under section 12 of the C.P. Act before the Ld. District Forum claiming compensation, and the Insurance Company also contested the case by filing written statement contending that the petitioner filed some fake documents and on subsequent survey it was also found that some cash memos submitted by the petitioner were fake and it was a clear violation of condition no.8 of insurance policy and therefore, the claim of the complainant was not entertained by the Insurance Company.
4. It is also alleged that the Ld. District Forum without considering the written statement and without considering the fact of submission of fake bills/cash memos by the complainant, passed the impugned judgment and thereby being aggrieved and dissatisfied with the impugned judgment, the appellant has preferred the instant appeal on the grounds that the Ld. Forum ought to have considered that the complainant had made false declaration and used fraudulent devices for getting insurance benefits, that the Ld. Forum committed a grave error of law in passing the impugned judgment against the appellant Insurance Company as the same has been passed ignoring the written statement and the argument advanced from the side of the Insurance Company rendering the same untenable in law and as such, the impugned judgment should be set aside for ends of justice to protect the interest of public exchequer and hence, the instant appeal has been preferred. 

Points for Consideration

5. The points for consideration are (i) whether the Ld. District Forum was proper, legal and justified in awarding the compensation by the impugned judgment and (ii) whether the judgment under appeal should be set aside or otherwise as prayed for.

Decision with Reasons     

6. Both the points are taken up together for the sake of convenience and brevity.
7. Admittedly, the respondent-complainant took an insurance policy named Standard Fire and Special Perils Policy from the appellant Insurance Company vide Policy No.0G-14-2405-4001-00003211 covering the risk period from 11.12.2013 to 10.12.2014 of the stock of goods and furniture of his shop for an assured sum of Rs.20.00 lakhs. It is also admitted fact that on 28.03.2014 at 23.00 hours a fire incident took place at Mandai Bazaar and as a result, the shop of the complainant has been gutted by the accidental fire causing total loss to the complainant in respect of his stocks and furniture. It is also admitted fact that the matter of fire incident was informed to the appellant Insurance Company who in turn appointed Mr. Pranay Goswami, an Assessor and Surveyor on 29.03.2014 and the survey was conducted on the same date. It is also admitted fact that subsequently, one Sanjay Deb Roy was also appointed as Second Surveyor by the Insurance Company. It is also admitted fact that the said fire incident took place during the insurance coverage period. It is also admitted fact that the Insurance Company refused to entertain the claim of the complainant on the plea that some cash memos submitted by the complainant were found fake by the surveyor.
8. The Ld. Counsel for the appellant Insurance Company submitted that the complainant while submitting his claim application violated the condition no.8 of the insurance policy. He also submitted that the complainant submitted some cash memos and on enquiry made by the Second Surveyor Sanjay Deb Roy, it was found that the said cash memos which are three in numbers were fake. He also submitted that the complainant made a false declaration concerning the said three cash memos to manage a lump sum amount as compensation from the Insurance Company. He also submitted that as the complainant violated the condition no.8 of the policy, the Insurance Company is well within its right to repudiate the entire claim of the complainant as the adopting of fraudulent means or devices by the complainant renders the insurance benefits forfeited. He also submitted that the Ld. District Forum overlooked the said condition no.8 of the policy and erroneously passed the award by the impugned judgment which, not being proper, legal and justifiable, should be set aside and the appeal should be allowed.
9. On the other hand, Ld. Counsel for the respondent-complainant submitted that the fire incident by which the shop of the complainant was gutted completely was major as per fire report issued by the Divisional Fire Officer, West Division. He also submitted that on getting information from the complainant, the Insurance Company appointed Mr. Pranay Goswami as Assessor and Surveyor for assessing the quantum of damages caused to the complainant by such accidental fire. He also submitted that Mr. Pranay Goswami in his assessment and survey report opined that the cash memos submitted by the complainant along with claim application were genuine. He also submitted that the said surveyor in his report opined that he did not notice, if the complainant violated any condition of the policy while submitting the claim application before the Insurance Company. He also submitted that Mr. Goswami calculated the quantum of damages by making depreciations in respect of goods and also depreciation in respect of furniture and fixtures etc. and thereby submitted his report holding erroneously that the total liability comes to Rs.9,93,694/- which is not sustainable in the eye of law.
10. The Ld. Counsel for the respondent also submitted that the Mr. Sanjay Deb Roy who was appointed as Second Surveyor by the said Insurance Company opined that three cash memos were fake, but the surveyor has not been examined as witness by the Insurance Company in the Ld. Forum. He also submitted that the shop owners who allegedly issued the said three cash memos and who made an endorsement with signature on said three cash memos as alleged by the Insurance Company have not been examined as witnesses for proving that the said three cash memos were not actually issued by them from their shops and also for proving that the endorsement made on the said three cash memos were made by them after verifying their cash memo-book. He also submitted that the second surveyor was appointed by the Insurance Company with a view to nullify the opinion of the first surveyor to the effect that the cash memos submitted by the complainant along with the claim application are genuine and also to defeat the just claim of the complainant. He also submitted that the intention of the Insurance Company for appointing of the second surveyor was nothing, but somehow to repudiate the claim of the complainant. He also submitted that in this regard, the Ld. District Forum rightly disregarded the opinion of the second surveyor concerning the alleged fake documents. He also submitted that the Ld. District Forum rightly did not take into consideration the deduction of some depreciations on the claim amount made by the first surveyor. He also submitted that going through the materials lying with the record, the Ld. Forum rightly passed the award by the impugned judgment which, being proper, legal and justified, should be upheld and the appeal having no merit should be dismissed.
11. At the beginning, we find it appropriate to reproduce the condition no.8 of the insurance policy which runs as follows:-

Condition No.8. “If the claim be in any respect fraudulent, or if any false declaration be made or used in support thereof or if any fraudulent means or devices are used by the Insured or any one acting on his behalf to obtain any benefit under the policy or if the loss or damage be occasioned by the willful act, or with the connivance of the Insured, all benefits under this policy shall be forfeited.”

12. Admittedly, the complainant had insurance coverage of the stock and furniture of his shop for an assured sum of Rs.20.00 lakhs out of which as per policy, a sum assured of Rs.1.00 lakh was in respect of furniture and fixtures (FFF) and a sum assured of Rs.19.00 lakhs was in respect of stocks of the shop. It transpires from the photocopy of Auditor’s report made by M/s S. Basu-Thakur & Co. (Chartered Accountant) that at the time of said accidental fire on 28.03.2014, the closing stock of the complainant was at Rs.12,40,762/- out of which closing stock in the shop was at 10,87,902/- and stock of godown was at Rs.1,52,860/-. We find from the report of the First Surveyor Pranay Goswami that it is undisputed that the stock kept in the godown of the complainant was unaffected. So, after deduction of stock in the godown, the stock in the shop destroyed by said fire accident was valued at Rs.10,87,902/-. It transpires that the first surveyor deducted 5% on dead stock count amounting to Rs.54,395/- to avoid over assessment and all sorts of doubt, considering the age of the shop.
13. Admittedly, the shop of the complainant was running since 2002. Obviously, in a shop like the complainant’s one, there would remain goods unsold for years together and would not be found in saleable condition. The first surveyor deducted 5% on dead stock which, according to us, is found reasonable and acceptable and as such, 5% on dead stock amounting to Rs.54,395/- is found deductible from the total quantum of damages of goods kept in the shop of the complainant at the relevant time. Therefore, after deducting the said amount of Rs.54,395/- as 5% on dead stock, it comes to Rs.10,33,507/-. It further appears that the first surveyor also deducted 7.5% amounting to Rs.77,513/- on the plea to justify the loss of stocks mentioned in the report, but there is no such condition in the policy to deduct such 7.5% on the closing stocks as mentioned in the first assessment report and as such, such deduction of 7.5% on the closing stock is not acceptable. So, it is found that the complainant suffered a loss of Rs.10,33,507/- for causing damage of the stocks in the shop by such accidental fire. Therefore, the calculation of the quantum of damages to the extent of Rs.9,55,994/- as recommended by the first surveyor in his report is not correct and acceptable.
14. The first Surveyor Mr. Goswami rightly mentioned in his report that as per the insurance policy, as regards the furniture and fixtures, the insurance coverage was at Rs.1.00 lakh. It further appears from the said report that 5% depreciation amounting to Rs.5,000/- has been made as per norms, considering the age of the furniture etc. and therefore, the loss on FFF comes to Rs.95,000/-. As per report, Rs.5,000/- has been deducted as salvage and the liability, therefore, on FFF comes to Rs.90,000/-. So, the total loss suffered by the complainant due to the said fire incident comes to Rs.10,33,507/-+Rs.90,000/- totalling Rs.11,23,507/-. Going through the impugned judgment, it appears that the Ld. District Forum awarded compensation of Rs.12.00 lakhs in lump sum without mentioning anything as to how it has arrived at such amount of Rs.12.00 lakhs.
15. It appears from the report of the surveyor that the complainant suffered a loss of Rs.9,93,694/- after deducting an amount of Rs.52,300/- on the heading ‘Policy Excess’, but we find nothing in the policy authorizing such deduction in the name of policy excess. Not only so, Mr. Goswami also did not mention in his report as to how the policy of the complainant exceeded the said amount of Rs.52,300/- beyond the coverage limit and as such, the deduction of said amount of Rs.52,300/- as made by the first surveyor is not acceptable.
16. It transpires that the second Surveyor Mr. Sanjay Deb Roy submitted report dated 17.02.2015 to the Insurance Company to the effect that the cash memo issued by Saha Bag Traders bearing Sl.No.2100 for Rs.3,53,450/- dated 18.03.2014, cash memo issued by S. Paul vide Sl.No.3499 dated 04.03.2014 for Rs.1,62,862/- and Sl.No.3500 dated 18.03.2014 for Rs.1,62,940/- are fake. It also appears that the owners of Saha Bag Traders and S. Paul have not been examined by the Insurance Company for establishing that they actually made such endorsements with their respective signatures on the photocopy of the cash memos. The Insurance Company also miserably failed to examine the second Surveyor Mr. Sanjay Deb Roy for establishing that this surveyor made necessary verification in respect of the genuineness of the said three cash memos for establishing the allegation that the said three cash memos are fake. The mere allegation of the Insurance Company terming the said three cash memos as fake documents is not ‘ipso facto proof’ of the matter pleaded in the written statement. The examination of the second Surveyor Sanjay Deb Roy and the examination of the proprietors Saha Bag Traders and S. Paul before the Ld. Forum was highly essential and in the absence of the same, it does not prove that the said three cash memos are fake. Therefore, we find no justifiable ground for holding that the said three cash memos are fake documents. As the Insurance Company miserably failed to establish that the said three cash memos as fake documents, we are of the view that the allegation of the Insurance Company to the effect that the complainant violated the condition no.8 of the insurance policy does not stand at all. In the circumstances, we are also of the view that the said three cash memos must be held to be genuine. Going through the impugned judgment, we find that the Ld. District Forum rightly ignored the plea of the Insurance Company in respect of the said three cash memos as fake documents. Accordingly, we are also of the view that the Insurance Company had no cogent and valid reason to repudiate the claim of the complainant as “No Claim” and therefore, the repudiation of the claim of the complainant by the Insurance Company is not sustainable in the eye of law.  
17. It has already been mentioned that the Ld. District Forum awarded an amount of Rs.12.00 lakhs as compensation for damages to the stock of goods and furniture etc., but we find that the quantum of damages as mentioned earlier comes to Rs.11,23,507/-. The quantum of damages as assessed by the Ld. District Forum to the extent of Rs.12.00 lakhs is found not sustainable. We also find that the Ld. Forum awarded an amount of Rs.25,000/- for deficiency in service and also Rs.5,000/- as cost of litigation to the petitioner-complainant. We find nothing to interfere with the awarding of such amount on the said two counts. So, the award of Rs.12.00 lakhs on the count of stocks made by the Ld. District Forum is liable to be modified and an amount of Rs.11,23,507/- is found allowable as loss of stocks on goods and furniture etc. The impugned judgment is liable to be modified to that extent only.
18. In the result, the appeal is allowed in part. An amount of Rs.11,23,507/- is awarded in place of Rs.12.00 lakhs made by the impugned judgment. The awarding of Rs.25,000/- for deficiency in service and Rs.5,000/- as cost of litigation and other directions for making payment to the complainant as made in the impugned judgment by the Ld. District Forum shall remain unaltered. The impugned judgment dated 01.02.2016 passed by the Ld. District Forum, West Tripura, Agartala in case no.CC-06/2015 is modified to that extent only.
19. The appellant Bajaj Allianz General Insurance Company Ltd. is directed to deposit a sum of Rs.5,000/- in the Legal Aid Account of this Commission within five weeks from the date of this judgment as cost of appeal, failing which this amount shall carry interest @9% per annum after the expiry of five weeks from the date of this judgment till the payment is made.                    

 

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura