Hon'ble Mr. Subhas Ch. Guin, Member.
The gist of the complaint petition as culled out from the case record is that the Complainant Mr. Pratap Chandra Roy took a C.C. loan of Rs.15 Lakhs ( Rupees fifteen Lakhs) only from IDBI bank, Cooch Behar Branch, N.N. Road, P.S. Kotwali, Dist- Cooch Behar(O.P. No.2) for his business which deals in snacks, biscuits, mustard oil and namkin etc for his livelihood from self employment. His business was housed in a godown cum Office. After granting loan, the O.P. No.2 arranged for insurance of business place and total materials of the Complainant with the Bajaj Allianz General Insurance Company Ltd.,(O.P. No.1) which issued insurance policy having No. OG-19-2472-4001-00000940 with validity of the same from 23.11.2018 to 22.11.2019 and sum insured Rs.20 Lakhs with full coverage of standard fire and special peril and accident policy with payment of premium amount. On 22.02.2019 at about 12.00 mid night to 12.50 A.M a devastating fire broke out at the godown cum Office of the Complainant which damaged all stock material stored therein for which the Complainant filed a written complaint before IC Kotwali police Station, Cooch Behar. The Pradhan of the concerned Gram Panchayet issued a certificate to that effect on 25.02.2019. Then the Complainant informed the incident of fire to the both O.Ps through mobile phone on 23.02.19 and O.P. No.1 sent an investigator/ Fire assessment person named Somendra Chakraborty to investigate the matter and to assess the total loss on 24.02.19. The surveyor/ loss assessor issued letter and demanded some documents from the Complainant on the same day which the Complainant sent through courier. At the time of the incident local people informed the fire brigade and fire brigade personnel arrived at the spot to put out the fire and the Divisional Fire Officer, Cooch Behar Division issued certificate to that effect on 12.03.19. Again on 27.03.19 the Complainant informed the incident to the O.P. No.1 in writing and submitted income tax return and total balance sheet of the trading account of the Complainant for the assessment year 2017-18 and 2018-19. He also submitted stock statements to O.P. No.2 as per terms and conditions of the loan on 13.04.18, 10.07.18 and 16.01.19. After submission of all documents as asked by the O.P. No.1 & 2 and spot enquiry by the valuer of O.P. No.1, the valuer demanded some other documents but the Complainant could not submit the same before O.P. No.1 due to devastating fire which turned those documents into ash. But the Complainant collected true copy of bills/ vouchers, invoice from different seller and submitted all those before O.P. No.1. On receipt of all those documents, the O.P. No.1 issued a claim discharge voucher in favour of the Complainant in respect of claim No.OC-19-2405-4001-00000097 with claim amount of Rs.3,92,562/- only. After going through the total claim discharge voucher, the Complainant did not sign the same as because he submitted a total claim of Rs.19,98,000/- to the O.Ps. On the contrary he submitted a petition before the O.P. No.1 to re-assess the claim on 25.05.19 which the O.P. No.1 did not comply. Again on 18.06.19, the Complainant filed a written complaint before O.P. No.2 for reassessment of the claim but the O.P. No.2 also did not respond to that complaint till date. The Complainant filed written complaint before the O.Ps many times to re-assess the claim but till date the claim was not re-assessed. Finding no other alternative, the Complainant filed this instant case before this Commission to get his grievances redressed. He prayed for a direction to the O.P. No.1 to pay him the insurance claim of Rs.19,98,000/- and to pay Rs.2000/- as cost with interest.
Both O.Ps contested the case by filing written version, evidence on affidavit and some related document. The O.P. No.1 filed written argument on 28.09.2022. In the written argument O.P. No.1 admitted that they issued an insurance policy in favour of the Complainant of sum insured Rs.20 Lakhs with hypothecation of O.P. No.2 subject to the terms and conditions of the insurance policy with validity from 23.11.18 to 22.11.19 for the standard fire and special peril policy. O.P. No.1 also argued that after getting information from the Complainant about the incident of fire they sent Mr. Somendra Chakraborty, Chartered Engineer/ Surveyor/Loss assessor licensed by IRDA to investigate and assess the loss claimed by the Complainant and after discharging his duties there he asked the Complainant to submit certain documents to assess the claim but the Complainant could not submit purchase bills of items citing frivolous reasons that those bills were burnt in the fire. The Complainant could not submit stock register/ sales register/purchase register citing another plea that he did not maintain the same as alleged by the O.P. No.1. The detail balance sheet was not submitted by the Complainant to the surveyor so exact stock figure could not be ascertained by the surveyor although the stock submitted to bank were almost near to cash credit loan amount. In absence of necessary documents demanded by the loss assessor, he assessed the loss taking into account the bank statement of the Complainant for the last one year before the incident. In the said year the Complainant deposited a sum of Rs.44,06,507/- in his account. So to determine the probable stock per month this amount is divided by 12 which equals Rs.3,72,208/- and it is found to be reasonable. Again to confirm the stock further, a volumetric analysis of burnt room was done by loss assessor. The burnt room was having 27’2”x 13’7”x 8”4”(height). The volume of the stock was calculated taking the height of the stock as 5’ considering the fact of carbon deposition mark on the wall. It was found to be 1844.84 sq. ft. However, examining the burnt stock it was observed by the loss assessor that majority of burnt items were of value Rs.5.00(MRP). The volume of one such packet was 5”x 6”x 0.5” i.e. 0.0084 sq. ft. So, in the abovesaid volume of stock number of packet could be stored is calculated dividing 1844.84 sq. ft. by 0.0084 sq. ft. which equals 219623.81. Thus based on above facts and finding and available documents surveyor prepared a loss assessment to the tune of Rs.3,93,604/-. Thereafter, the O.P. No.1 sanctioned a sum of Rs.3,92,562/- in favour of the Complainant against his claim but the Complainant refused to sign the claim discharge form and submit the same to the O.P. No.1 because his claim was much higher than the sanctioned amount. Thus, the O.P. No.1 demanded that there is no deficiency in service on their part.
In his argument, O.P. No.2 admitted that they sanctioned a cash credit loan to the Complainant amounting to Rs.15 Lakhs /-(Rupees fifteen Lakhs) only with adequate insurance coverage of the stocks and assets created out of bank’s finance and assigning the same in favour of IDBI bank Ltd. The said stock and assets were insured by the O.P. No.1 company on 24.11.18 with a validity from 23.11.18 to 22.11.19 for sum insured Rs.20 Lakhs under fire and special peril policy with O.P. No.2 hypothecation clause. Prior to incident of fire, the Complainant was submitting his stock statement on quarterly basis which was also one of the terms and conditions of the credit facility provided to him. In all such stock statement, the Complainant had declared his stock value to the tune of Rs.20 Lakhs only. In the last stock statement submitted by the Complainant on 16.01.19 for the quarter ending on 31.12.18 the value of stock was declared Rs.19.96 Lakhs. The O.P. No.2 was surprised to know the amount of Rs. 3.92 Lakhs offered for claim against sum insured Rs.20 Lakhs and stock value Rs.19.96 Lakhs as on 31.12.18 and the same was shocking to the O.P. No.2 as the stock destroyed in fire were created out of both bank’s fund and Complainant’s own fund. The O.P. No.2 argued that it is best known to the O.P. No.1 company that on what basis they have offered the settled amount to the tune of Rs.3.92 Lakhs only and the O.P. No.2 has no role to play on deciding the claim amount of the Complainant as because they are a banking Company and act as a financer and an agent of O.P. No.1 in this case. On the other hand, the damage due to fire caused to the Complainant is of great concern for the O.P. No.2 as due to such damage the Complainant cannot take proper care of his credit facility extended by the O.P. No.2 Company which may turn into a non performing assets of the company. Thus filing this case against the O.P. No.2 is just to avoid the payment of outstanding dues which is the intention of the Complainant as alleged by the O.P. No.2. Therefore there is no deficiency in service nor unfair trade practice on the part of the O.P. No.2.
Perused the case record, written version and evidence on affidavit submitted by both parties. Heard the argument by the Complainant and O.Ps at length. The following points are required to be discussed to reach a conclusion in the case.
Points for consideration
- Is there is any deficiency in service or unfair trade practice on the part of the O.Ps?
- Is the Complainant entitled to get any relief?
Decisions with reason
Both Point No.1 & 2 are taken up together for discussion as they are interlinked with each other and for brevity. Being informed about the incident of fire, the O.P. No.1 sent their loss assessor to investigate the matter and assess the loss caused to the Complainant. After investigation, the loss assessor demanded some documents from the Complainant to be submitted. The Complainant sent a few documents through courier but he could not submit stock register/ sales register/ purchase register and purchase bills of items as the purchase bills were burnt in the fire. Later he submitted a few purchase bills of item collected from different sellers. He could not submit the registers as because those were not maintained by him. The Xerox copies of purchase bills dated ranging from 16.01.19 to 18.02.19 are annexed in the complaint petition. The total value of items purchased in the said bills was Rs.6,00,220/-. He also submitted stock statement of different quarter which were submitted to the OP bank with closing stock ended on 31.03.18, 30.06.19, 30.09.18 and 31.12.18. The abovesaid quarters were prior to the incident of fire and the closing stock of the said quarters were 19.98 Lakhs, 19.98 Lakhs, 19.98 Lakhs and 19.96 Lakhs respectively i.e. to the tune of Rs.20 Lakhs only. The loss assessor of the O.P. No.1 Company evaluated the loss caused for breaking out of fire without considering the above factors. Instead he assessed the loss by using volumetric analysis of stock from the carbon deposition on the wall of the godown due to fire. After assessing the loss he intimated the same to the O.P. No.1 Company who later issued claim discharge form with an amount of Rs.3.92 Lakhs as claim to be signed and submitted by the Complainant. He did not discharge his duties in presence of a witness nor did he give any report of assessment to the Complainant. He filed a Fire Survey Report alongwith a case law. The said report does not bear any signature of Surveyor and Loss Assessor nor does it bear signature of witness and the Complainant. Thus it is presumed that assessment was done by loss assessor alone. The case law is not incongruence with instant case in discussion. Thus the Complainant was in dark as to how the assessment of loss was done by the O.P. No.1 Company. He was surprised when the claim discharge voucher with settled amount Rs.3,92,562/- reached his hand to be signed and submitted to the O.P. No.1. Consequently he refused to sign and submit the same to the O.P. No.1. The settled amount Rs. 3,92,562/- made the O.P. No.2 surprised and shocked also. On the other hand, the closing stock for the fiscal 2016-2017 and 2017-2018 are Rs.19,38,847/- and Rs.23,07,413/- respectively as reported in the balance sheet of business of the Complainant. All these factors promoted the Complainant to appeal before both the O.Ps to re-assess the claim for damage due to fire but they did not pay heed to his appeal which tantamount to deficiency in service on the part of both O.Ps. The process of evaluation of burnt stock by using volumetric analysis without considering the closing stock of the previous years is the one step towards assessment of loss. Although there are some error in calculating the loss by this process as a result of which settled amount became meagre compared to closing stock or what the Complainant expected for the loss. In the aforesaid discussion the evaluation of burnt stock only was concerned but there was no question of asset to be evaluated although the insurance coverage was of the stock and assets of the Complainant. All these factors play a very vital role for the settled amount being reduced to a great extent. Therefore, all these activities of the O.P. No.1 fall in the category of unfair trade practice for which the Complainant became wretched and could not pay off EMI of his loan as a result, the O.P. No.2 Company filed a suit on 23.12.20 for realization of money against the Complainant in the Court of Civil Judge, Senior Division, Sadar, Cooch Behar. Had the claim of insurance been settled with an appropriate amount at an early date, the Complainant would not have faced such consequences. Hence, the Commission comes to a conclusion that the Complainant is entitled to get relief as prayed for in the complaint petition.
Accordingly both the Point No.1 & 2 are answered in affirmative and decided in favour of the Complainant.
In the result, the instant case succeeds on contest with cost.
Hence,it is
Ordered
That the instant case No. CC/92/2019 be and the same is allowed on contest with cost.
The O.Ps are directed to pay Rs.19.96 Lakhs (Nineteen Lakhs ninety six thousand Rupees) only to the Complainant jointly or severally towards claim of insurance and Rs.10,000/- for litigation cost. The O.Ps are further directed to pay the awarded total sum of Rs. 20.06 Lakhs (Twenty Lakhs six thousand Rupees) only within 30(thirty) days from the date of this order failing which the awarded sum shall carry an interest @ 6 % per annum till its realization.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order be also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
