Both parties are present. Judgement is ready, it is pronounced in open Commission in 6 pages 3 separate sheet of paper.

BY -    SRI ASISH DEB, PRESIDENT

Brief facts of the complainant case is that the M/S ARKA Nursery being situated at Mouza Satikeswar, within Sarda Gram Panchayet, Deshapran Block, in J.L. No.473, Plot NOs. 801,803,739,767,768,769,770,783, having an area of approx. 52 decls. is represented by its proprietor who is the permanent resident of the aforesaid locality and address within this Jurisdiction. The Opposite Party No.1 is the Loanee Bank and the Opposite Party No.2 has provided standard Fire & Special Perils Policy bearing Policy No. 51260011200100000005 dated 15^th April, 2020 in favour of the Complainant for the ARKA NURSERY through the Development Office Level/Broker: Bank of India. The Bank of India, Contai Branch provided business loan/Cash Credit Loan with a limit of Rs. 10,00,000/- for the purpose of carrying out Nursery Project by the Complainant after executing necessary documents on 22.02.2018 against A/C No. 418230110000017. As per the Bank’s norms and direction of the O.P. NO.1, the Complainant was compelled to obtain an Insurance Policy known as Standard Fire & Special Perils Policy under the New India Assurance Company, Opposite Party No.2 herein bearing policy No. 51260011200100000005 dated 15^th April, 2020. In Compliance with the direction of both the O.P. NO.1 and 2, the Complainant deposited regularly the premium amount through the O.P. No.1. Due to devastation caused by the cyclonic storm that lashed in the particular Area in the name of ‘AMPAN’ in the year, 2020, all the plantations of the of the complainant standing on the field of  ARKA NURSERY were severely damaged and/or completely perished due to severe impact of the said storm. Since, the Complainant was regularly paying the premium through the O.P. no.1 for the aforesaid Insurance Policy as per the guidance and direction of the O.P. No.1 who sanctioned the Cash Credit Loan in favour of the Complainant for the development of the ARKA NURSERY  at mouza Satikeswar under P.S. Contai, in the district of Purba Medinipur, the Complainant had submitted the claim for awarding compensation amount due to severe lo0ss sustained by the proprietor of M/S ARKA NURSERY, Complainant herein, on 23.05.2020 due to cyclonic storm i.e. AMPAN. Upon receipt of the said application of the Complainant for granting compensation by the O.P. No.2 through the O.P. no.1, the O.P. no.2 appointed Surveyor who had visited the particular ARKA NURSERY and after holding such survey, the Surveyor appointed by the O.P. NO.2 submitted its report before the concerned authority of the O.P. no.2. Although about a year was elapsed following holding of such survey of the spot by the appointed Surveyor of the O.P. no.2, neither the compensation amount nor any response was received by the Complainant from their end for the reason best known to the O.P. NO.1 and O.P. no.2 and hereby the Complainant has been sustaining severe financial loss in the particular Nursery Business being carried out in the name of M/S ARKA NURSERY by the Complainant inasmuch as for want of money, the proprietor of ARKA NURSERY, was unable to make development of the Nursery properly and adequately to attract the customers. The Complainant also sustained acute mental pain and agony for the loss not being compensated by the concerned O.P. NO.1 and 2 in spite of having valid Insurance Policy, as aforesaid. Even, after repeated knocking at the doors of both the O.Ps days after days no fruitful result was achieved. Finding no other alternative, the Complainant sent a Legal Notice through its Advocate, Mr. Pradip Kumar Panda, Contai Criminal Bar Association, Contai on 23.03.2021. While the notice was served at the office of the Bank of India, Contai Branch on 23.03.2021 through hand, Notice upon the O.P. No.2 was sent through Registered post with A/D under Article NO. RW332044995IN which was also delivered to the O.P. NO.2 on 26/03/2021 as it appears from the report of Track consignment obtained through internet. Even after receipt of the Legal Notice, both the O.P. have been sitting idle over the matter till date without making any response therefore; nor any compensation has been paid to the Complainant although the New India Assurance Co. Ltd. Has received the regular premium from the Complainant though the O.P. No.1.Owing to devastation of plantations by the storm, the Complainant has sustained loss to the tune of Rs. 11,63,000/- (Rupees Eleven Lakhs and Sixty three Thousand). As the ARKA NURSERY was under Insurance Coverage through the O.P. No.2, the Complainant is, therefore, entitled to get the compensation in order to compensate the loss already sustained due to storm. The Opposite Parties have made deficiency in service by not taking adequate steps within the reasonable period of time for making payment of the aforesaid compensation amount so as to enable the proprietor of ARKA NURSERY to revive the Nursery Business. Both the Opposite Parties are jointly and severally liable for the loss and injuries the Complainant have been facing on each and every day due to their negative attitude for not making payment of compensation which the Complainant is entitled to get due to loss sustained following devastation caused to the ARKA NURSERY by the severe impact of the cyclonic storm ‘ AMPAN’. The Complainant is also entitled to get further compensation form the Opposite Parties for the mental pain, agony and suffering for an amount of Rs. 50,000/- apart from the losses for which the compensation has been separately prayed for. The cause of action for this case arose on and from the date when the O.P. No.1 and 2 have got the legal notice dated 23.03.2021 from the Ld. Advocate for and on behalf of the complainant for making payment of compensation amount. The instant case could not be filed earlier than on today due to impositi9on of the Lockdown following outbreak of Corona virus in the State; as such, the delay so caused n filing the instant Consumer Case may kindly be condoned for the reasons beyond the control of the Complainant. Save and except this complaint, no other complaint or litigation has been initiated by the complainant in any other Court of Law or anywhere in respect of the same dispute or cause of action. In the above facts and circumstances, the Complainant prays for the following reliefs. An order/or direction upon the Opposite Parties for making payment of compensation towards loss sustained by the Complainant in the Nursery for a sum of Rs. 11,63,000/- (Rupees eleven Lakhs and Sixty three thousand) only; an order for making payment of further compensation of Rs. 50,000/- to the Complainant for deficiency of services, mental pain and agony; an order for payment of litigation cost of Rs. 20,000/- to the Complainant for conducting the case; and to grant such other relief or reliefs to the Complainant which may deem fit and proper; and for which act of kindness, the Complainant, as in duty bound shall ever pray.

Notices were duly served upon both the ops calling upon them to answer the complaint.  They have contested the case by filing separate written version.

In its written version op-1 has asserted that the instant case is not maintainable in its present form and facts and circumstances of the case. The instant case is barred by limitation, waiver, estoppels, acquiescence and/or principles analogous thereto. It is submitted that O.P. NO.-1 is the Creditor/ Nationalized Bank and whereas the complainant is a debtor of O.P. NO.-1, he took loan from the O.P. NO.-1 for his business and O.P. NO.2 herein is an insurance company who insured the stock of the Complainant thereof. The complainant sent a copy of an advocate letter dated 23.3.2021 to O.P No.-1 thereafter the O.P. NO.1 sent a letter to opposite party No.2 on 26.03.2021 for taking appropriate steps for the insurance claim of the complainant annexing the advocate letter. It is submitted that the Complaint took cash credit loan from the O.P. No.0-1 for his business. The Complainant brings a Standard Fire & Special Perils Policy with the OP. NO.-2. Several times O.P. No.-1 informed/advised to the Complainant over phone that he should contact the insurance company i.e. Opposite Party No.2 . In view of the facts and circumstances  there had been no cause of action arisen in favour of complainant and against the  OP No.-1 for filing the complaint. In view of the same.

 The op-2 has resisted the claims of the complainant by filing a written version thereto. Succinctly, put the contentions made can be delineated as follows: The OP-2 denied all the allegations contained in the complaint para wise  except those are specifically admitted in this written version or otherwise dealt with, and added-2 that nothing stated in the complaint should be deemed to be admitted merely because the same is not specifically traversed. According to this op the Complainant can not get any benefit for his own willful fault and clear violation of the terms and conditions of the Insurance Policy. This O.P. submits that one proposal was received from the Branch Manager, Bank of India, Contai Branch for which the premium value was also sent by the said Branch manager, Bank of India for the insurance of Insurance coverage under “Standard Fire & Special Perils Policy” in their name being the Insured for their Borrower namely ‘Arka Nursery’ represented by its proprietor Sri PrabhatGiri @ ProbatGiri the Complainant herein in respect of the Nursery situated at Sati Keswar, Ajodhyapur, Contai, Purba Medinipur covering an area of land. The proposal was for the insurance coverage of stocks and stocks in process under Standard Fire and Special Perils Policy on land in certain Plots and that proposal was not signed by the Horticulture Officials or any Govt officials as the scheme/project was not Govt. Vetted Scheme. Accordingly, to obey the principle of ‘utmost Good Faith’ this O.P. 2 accepted the proposal issued by the tie up partner Bank of India and issued the policy being no. 51260011200100000005 for the period from 12:00:01 A.M. 15.04.2020 to 11:59:59 P.M. 14.04.2021 as per norms and as per the terms and conditions of the Policy and forwarded to the O.P. No.1- Bank. Accordingly, there was/ is no scope beyond the coverage of the Insurance Policy issued by this O.P. NO.2 in respect of anything other than the terms and conditions of the Insurance Policy coverage. Accordingly, the claimed Plantations standing on the field of Arka Nursery were not covered by the said Policy and the Complainant has not stated any break up of the claim in the petition of complaint and so it is very much difficult to find out the actual damages, if any sustained by the Complainant due to the stated ‘Amphan’ devastation and no such report from the Government Authority has also been submitted to show the loss, damages, if any, in respect of the lands of the complainant for which the claim has been lodged and/or stated in the petition of complaint. The policy was a Standard Fire and Special Perils Policy on stocks and stocks in process i.e. stocks of fertilizers & Nursery materials and not for any saplings or plantation. The instant Consumer case being otherwise bad the same is liable to be rejected with cost.

Points for determination are:

1. Is the case maintainable in its present form and in law?                  

2.   Is the Complainant entitled to the relief(s) as sought for?

Decision with reasons

Both the points, being inter related to each other, are taken up together for discussion  for sake of brevity and  convenience.

We have carefully perused and assessed the complaint on affidavit, written versions evidence of the complainant and ops  and the documents on record.

We have given thoughtful consideration to the arguments advanced by the of Ld Advocates for the complainant and the ops.

Having regards had to the facts and circumstances of the case in the light of evidence, it is evident that there is no dispute that complainant is a consumer having grievances against the OPs, as such the case is maintainable in its present form and in law.

On careful analysis and evaluation of the facts and circumstances of the case and evidence on record, it appears that indisputably the Opposite Party No.1 is the Loanee Bank and the Opposite Party No.2 has provided standard Fire & Special Perils Policy bearing Policy No. 51260011200100000005 dated 15^th April, 2020 in favour of the Complainant for the ARKA NURSERY through the Development Office Level/Broker: Bank of India. The Bank of India, Contai Branch provided business loan/Cash Credit Loan with a limit of Rs. 10,00,000/- for the purpose of carrying out Nursery Project by the Complainant after executing necessary documents on 22.02.2018 against A/C No. 418230110000017. As per the Bank’s norms and direction of the O.P. NO.1, the Complainant obtained an Insurance Policy known as Standard Fire & Special Perils Policy under the New India Assurance Company, Opposite Party No.2 herein bearing policy No. 51260011200100000005 dated 15^th April, 2020. In Compliance with the direction of both the O.P. NO.1 and 2, the Complainant deposited regularly the premium amount through the O.P. No.1.

 The op-1 has supported the case of the complainant and stated that The Opposite Party No.1 is the Loanee Bank and the Opposite Party No.2 has provided standard Fire & Special Perils Policy bearing Policy No. 51260011200100000005 dated 15^th April, 2020 in favour of the Complainant for the ARKA NURSERY through the Development Office Level/Broker: Bank of India. The Bank of India, Contai Branch provided business loan/Cash Credit Loan with a limit of Rs. 10,00,000/- for th4e purpose of carrying out Nursery Project by the Complainant after executing necessary documents on 22.02.2018 against A/C No. 418230110000017. As per the Bank’s norms and direction of the O.P. NO.1, the Complainant was compelled to obtain an Insurance Policy known as Standard Fire & Special Perils Policy under the New India Assurance Company, Opposite Party No.2 herein bearing policy No. 51260011200100000005 dated 15^th April, 2020. In Compliance with the direction of both the O.P. NO.1 and 2, the Complainant deposited regularly the premium amount through the O.P. No.1.

Whereas op-2 has not disputed the fact of issuing Insurance policy . According to it one proposal was received from the Branch Manager, Bank of India, Contai Branch ,op-1 for which the premium value was also sent by the said Branch manager, Bank of India for the insurance of Insurance coverage under “Standard Fire & Special Perils Policy” in their name being the Insured for their Borrower namely ‘Arka Nursery’ represented by its proprietor Sri PrabhatGiri @ ProbatGiri the Complainant herein in respect of the Nursery situated at Sati Keswar, Ajodhyapur, Contai, Purba Medinipur covering an area of land. The proposal was for the insurance coverage of stocks and stocks in process under Standard Fire and Special Perils Policy on land in certain Plots.

 The crux of dispute raised by the op-2 is that the claimed Plantations standing on the field of Arka Nursery were not covered by the said Policy and the Complainant has not stated any break up of the claim in the petition of complaint and so it is very much difficult to find out the actual damages, if any sustained by the Complainant due to the stated ‘Amphan’ devastation and no such report from the Government Authority has also been submitted to show the loss, damages, if any, in respect of the lands of the complainant for which the claim has been lodged and/or stated in the petition of complaint. The policy was a Standard Fire and Special Perils Policy on stocks and stocks in process i.e. stocks of fertilizers & Nursery materials and not for any saplings or plantation. On reading the  terms and conditions as enumerated in the policy certificate we find the grounds of repudiation of the claim and the pleas as assigned have above have no foundation or leg to stand upon. ‘Amphan’ devastation is well accepted truth which can be taken into judicial notice, this need not be proved. The policy was a Standard Fire and Special Perils Policy on stocks and stocks in process i.e. stocks of fertilizers & Nursery materials and also for saplings or plantation. A nursery without saplings or plantation can not be termed as nursery. Moreover , nothing adverse was observed in the report of the Surveyor which was relied on by the op-2. From the Surveyor’s report it can be found that the surveyor verified the closing quantity and value of the sapling, fertilizers insecticides for the relevant period and he meticulously examined the above aspects. The complainant has been appreciated by  the surveyor  for co-operation. He drawn up the calculation average costs. During his visit he physically verified water damaged dead saplings, plants. The description of damage by inundation caused by the water of Amphan, a nature catastrophe or  Special Peril, is very much convincing. So, there was no justifiable reason for not to offer the complainant the amount of loss evaluated by the surveyor ie. Rs.6,16,619/-. This commission is also of the view that the assessment of loss done by the surveyor is justified and well reasoned assessment ; it should be accepted in to or as a whole. By not settling the claim as per Surveyor’s report, the  op-2 has fallen into the arena of mischief of Deficiency in Service. The complainant has got no cause of action to get relief as against the op-1. The complainant is entitled to get Rs.6,16,619/-.as claim under the Standard Fire and Special Perils Policy being No. 51260011200100000005  against A/C No. 418230110000017 as insured BOI , Contai A/C  418230110000017, M/S Arka Nursery along with simple interest @ 8% per annum from the date of filing of this case till full realization in the nature of compensation and Rs.5000/-as towards litigation costs.

 Both the points are disposed of accordingly.

Thus, the case succeeds.

 Hence, it is

O R D E R E D

That CC/90 of 2021 be and the same is allowed on contest against op-2 and dismissed on contest against op-1.

The op-2 is hereby directed to pay Rs.6,16,619/-( Six Lakh Sixteen Thousand  Six Hundred Nineteen only ) to A/C No. 418230110000017 being  maintained in the (BOI ,Contai A/C  418230110000017, M/S Arka Nursery ) along with simple interest @ 8% per annum from the date of filing of this case till full realization in the nature of compensation and Rs.5000/-as towards litigation costs  by issuing a Demand Draft or through NEFT/ RTGS within 45 days from the date of this order ; in default the complainant can take recourse of execution of the order as per law.

Let a copy of the judgment be supplied to each of the parties free of cost.