Tripura

Dhalai

CC/14/01

Sri Shyamal Ghosh. - Complainant(s)

Versus

The Branch Manager and others. - Opp.Party(s)

Mr. L.N.Chakraborty, Mr. S.Debnath.

23 Apr 2015

ORDER

BEFORE

District Consumer Disputes Redressal Forum,

Dhalai, Kamalpur

 

           Case No. 1/CC/KMP/ of 2014

 

                   Sri  Syamal Ghosh

                   S/O Late Manoranjan Ghosh,

Of  Kamalpur Town, PS- Kamalpur,

                   Dhalai, Tripura

                                                ……………………     Complainant

                                               Vs

1. The Branch Manager

    United Bank of India

    Kamalpur Branch, Kamalpur 

    Dhalai, Tripura.

 

2. The Manager

    For Bajaj Allianz General Insurance

    Company Ltd.2B,2^nd Floor, N.H.Centre Point,

    Opp.Bora Service Station,G.S.Road, Ulubari,

    Guwahati-781007.

                                                  ……………………… Opposite Parties.

         

                                              Present

                            Sri Arindam Paul.

                                 President,

             District Consumer Redressal Furum,

                           Dhalai, Kamalpur.

                              

M E M B E R S

   1.   Smt. Sibani Bhattacharjee

               2.   Shri Promode Chandra Debnath.

 

LD. C O U N S E L S

         For the Complainant          :     Mr. S.Debnath.Ld.Advocate

          For the Opp. Parties          :     Mr. G.Chakraborty,

                                                           Mr. Sunirmal Deb,

                                                           Ld.Advocates.                                             

                                                                                                                         

                    Date of Institution   :       13-03-2014                  

 Date of argument     :        09-04-2015    

 Date of judgment :        23-04-2015 

 

 

J U D G M E N T

 

1.                          By this complaint, complainant Shyamal Ghosh has sought compensation to the tune of Rs. 6,10,000/- for damage caused to cement, rods, furniture and shop from O.P. No. 1 and 2 as per policy No. OG-13-2405-4001-00000641and Policy No. OG-13-2405-4010-00000317.

 

2.                          The facts in brief is that, the O.P. No.1 is United Bank of India, Kamalpur branch. United Bank besides providing banking services acts as corporate agent of Bajaj Allianz General Insurance Company Ltd. ie  O.P. No. 2 Corporate Office, 2B,2^nd Floor, N.H.Centre Point, Opp.Bora Service Station,G.S.Road, Ulubari, Guwahati-781007.

 

 

3.                          The complainant had a business establishment in the Kamalpur town and he took a loan from United Bank of India, Kamalpur Branch (O.P. No.1). O.P. No.1 insured the same loan by making Sri Shyamal Ghosh, complainant purchase a standard fire and special perils and burglary insurance policy from O.P. No. 2.                                                                                  

 

 

4.                          On 01.5.13 in the mid night the complainant shop was destroyed by storm and his stock containing cement, iron rods, furniture and shop building etc. were damaged in the said calamity. He approached O.P. No. 2 and claimed damages and asked them to make good the losses in terms of the policy purchased by him. But after assessment of the damages by the assessor the O.P. No.2 informed the complainant that his policy does not cover damages due to storm and goods like cement, rods are also not covered as per the policy. The O.P. No.1 however has continued to deduct the loan amount which was secured by the insurance.

 

5.                          Being aggrieved the claimant has filed this instant claim.

6.                          The O.P. No. 1 and 2 have both filed their written statement .They have denied the claim made by the complainant.

 

7.                          O.P. No. 1 UBI Kamalpur Branch stated in their WS that they are only corporate agent of O.P. No.2 and damages etc are to be paid by the O.P. No. 2. O.P. No. 2 in their WS stated that the insurance policy does not cover damages caused by storm and stocks like cement and rods are not insured. The O.P. No.2 has also denied their liability stating that stock of cement was not covered under the policy under any circumstance and that the complainant failed to justify his claim by adducing papers relating to the stock, furnitures, sales book etc. In short the stand of the Ops is that the policy covers only damages caused by fire and burglary and not storm. The complainant could have taken additional insurance cover which he did not choose while applying for the insurance. The policy also does not cover damages to cement and iron rods. The complainant is bound by the policy document as per contract and the Ops are not bound to make good any losses beyond the contract.

 

8.                          Points for determination :

1)       Whether the complainant was subjected to undue influence by UBI, Kamalpur Branch, corporate agent of Bajaj Allianz G.I. Company Ltd. to obtain a policy or standard fire and burglary insurance as a pre-condition for granting loan, a policy which did not comprehensively cover all aspects of the risk.

2)       Whether there is any deficiency in the service rendered on the part of O.P. No. 1 and 2.

3)       Whether the complainant is entitled to compensation and who is liable to pay the same and what shall be the quantum of compensation.

4)       Whether the insurance policy sold to the complainant covered the damages to the cement and rod.

 

9.          DISCUSSION, DECISIONS AND REASONS THEREOF

We have heard the arguments forwarded by the Ld counsels at length and perused the records. The complainant has examined himself as witness.

The complainant also adduced the below noted documents.

1. Insurance policy of Bajaj Allianz(6 sheets)
2. Postal Receipt dated 18.11.2013(2nos),
3. Advocate demand notice dated, 18.11.2013(3 sheets)
4. Acknowledgement Card of Opposite Party No. 1(1 sheet),
5. Trade license of the complainant namely Sri Shyamal Ghosh(1 sheet).
6. Letter of complainant namely Sri Shyamal Ghosh dated 02.05.2013 received by opposite party No. 1.
7. vii)
8. Copy of loan sanction memo.

                   The documents which were duly admitted without objection were marked as Exbt. 1. Exbt 2. Exbt. 3, Exbt. 4, Exbt. 5, Exbt. 6 and Exbt. 7.

 

10.              On the other hand, O.P. No. 1 and 2 did not adduce any witnesses. The documents adduced by them were not formally proved but since not disputed by any party are read as evidence.

 

11.               For the sake of convenience point No. 1 and 2 are taken up together. From the insurance policy which was marked as Exbt. 1 , it appears that the establishment of Shyamal Ghosh situated at Kamalpur Town against which loan was granted was treated  as an engineering work shop which constructed structures made off steel by O.P. No.1 & O.P. No. 2. The policy covered stocks of iron grills, plant machinery, furniture fitting and fixtures. The policy documents issued to the complainant is not exhaustive. Thus, we referred to annexure 3 of the documents filed by the O.P. No.2 along with their WS where they have given the proposal form submitted by the complainant filled by O.P. No.1. From Annexure 3 it is apparent that it was not filled up by the complainant himself. He only signed the same. There are many columns which requires applicant to fill up, ie. the applicant is to tick mark on yes or no columns indicating their requirement for insurance coverage. It appears that in the form filled up by the complainant all columns are ticked in the negative. There was not a single tick in the “Yes” column. The form was filled up in the bank premises by the bank agents ie. O.P. No.1. The complainant has alleged that the policy was sold to him by UBI(O.P. No.1) as a pre condition for granting the loan which O.P. No.1 denies. He also alleges that he would have ideally liked a comprehensive policy and is not aware of the contents of the policy or the proposal form.

 

12.               It is no longer res integra that when undue influence is alleged in a contract then the onus is on the party that has the dominant role in the contract to prove otherwise. Admittedly the complainant did not get a comprehensive policy covering all the risks. In this case UBI who disbursed the loan is in a dominant position and the contract being unconscionable the onus is on UBI to show that the complainant signed the application knowing that he was not fully insured against all the types of risk.

 

13.               We are therefore, considered opinion that the O.P. No. 1 cannot be escape the liability stating that the complainant is bound by contract or that they are simple agents. The O.P no 2 was also deficient because they issued the policy without verifying the needs of the policy holder. The issues are, therefore, decided accordingly.

 

14.               As regards issue No. 3 and 4 we are of the opinion that O.P. No. 1 and 2 were deficient to providing proper service to the complainant. The trade license of the complainant clearly indicates that he deals in hardware and cement thus policy documents issued by O.P. No.2 on the basis of proposal form filled up by O.P. No. 1 stating that the complainant dealt in iron fabrication was wrong and amounts to deficiency in service.

 

15.               Admittedly, the contract between the complainant and O.P. No. 2 does not cover damages to cement. Thus, this consumer forum cannot award any damage for loss of cement. Rods as such is also not mentioned in the policy but can be considered as a part of stock for fabrication unit. However, loss of furniture and damage to the building is covered under the policy and insurance company cannot forgo its responsibility for paying the same.

 

16.               It is argued on behalf of the insurance company that the O.P. No. 1 did not sell a comprehensive policy for which OP. No.2 should not suffer. We could not agree with the said submission as in Diwari Experts vs Alitalila Cargo reported (2010) 5 SCC 754 SC has held that the principal is bound by the acts of the agents as per the prevailing practice in the particular industry. Supreme Court in Bharati Knitting Company vs. DHL reported (1996) 4 SCC 704 has observed that the consumer forum cannot give damage by going beyond the contract.   It can however, award compensation for deficiency in service which we intend to do.

 

17.               Now, it comes to the quantum of the compensation and who is liable to pay the same. It is settled law that the onus to prove the quantum of damage is on the complainant. Supreme Court in Draupadi Devi vs UOI reported (2004) 11 SCC 425 has settled this issue. The complainant in this case did not produce before the commission any quantifiable data or material to arrive a just conclusion regarding the actual damage sustained by the complainant. The complainant in his cross examination admitted that he files VAT return, maintains stock books, daily sale registers etc.  But he did not file any of these documents. This forum has no way to determine whether the complainant actually had a stock of 400 bags of cement or that he had 3,000 kgs of rods or iron sheets or furniture worth Rs. 30,000/- at the time of the storm. This forum also has no avenue to determine whether the damaged caused to the building amounted to Rs. 3, 00,000/-. Normally, after a damage caused due to a natural calamity the local revenue administration, fire service is informed and an assessment is made by SDM or fire service as regards the loss. The complainant did not adduce any document which could enable the forum to come to a just conclusion on the amount of fair compensation. It is true that assessor engaged by the insurance company was also at fault. Annexure 1 reveals that he found damage to the roof of the building & to some other parts of the property. Some stocks of cement were also affected in the damage. He did not assess in loss or damage as the same was not covered by the policy. He should have just assessed the damage and should not have sit as a judge over the entitlements as per policy. Thus, there is deficiency in service in the part of the assessor also for which O.P. No.2 is liable.

18.               From the report of the assessor further appears that the complainant had handed over to the assessor copy of his trade license, bank statement , purchase statement copy, as well as the statement copy, VAT challan copy, Stock book of furniture and goods. Thus, argument made by the O.P. No.2 that necessary documents asked for has not been furnished is not true. As damages cannot be ascertained we leave the matter for appropriate civil court to decide. However as we have held both the Ops to deficient in service we award a compensation of Rs 50,000/-(Fifty thousand Only) to the complainant which shall be payable by the insurance company and the bank jointly. We also award litigation costs of Rs 5000/-(Five thousand Only) to the complainanat payable by both the OP.s jointly.

 

19.               The case is disposed of with the above directions. Supply copy of judgments to the parties free of cost.

 

 

 

 

MEMBER DISTRICT CONSUMER FORUM DHALAI TRIPURA : KAMALPUR

MEMBER DISTRICT CONSUMER FORUM DHALAI TRIPURA : KAMALPUR

PRESIDENT DISTRICT CONSUMER FORUM DHALAI TRIPURA : KAMALPUR