This case has arisen out of application U/s 12 of the Consumer Protection Act, 1986.
The case of the petitioner is that he started a proprietorship business/fertilizer shop in the name and style Ashu Enterprise with the financial help of O.P.No:3 & 4 through Cash Credit A/c No:5115250000008 which was increased up to Rs.30,00,000/- sanctioned on 18.08.2014. For that limit of CC account he deposited Rs.5,73,594/- of Term deposit and LIC policy. As per proposal of O.P.No:3 the shop, godown and stocks valued Rs.41,00,000/- of the petitioner was insured by the O.P.No:1 being Policy No:313501/48/2018/904 for the period 28.07.2017 to 27.08.2018.
That unfortunately sudden inundation was occurred on 13.08.2017 at Uttar Dinajpur District and petitioner’s godown was under 4 feet water & the fertilizers have been desolved in water or destroyed valued Rs.20,00,000/-. Petitioner informed the O.P.No:1&3 about the damage and loss, in due time and O.P.No:1 was also informed by O.P.No:3 and their Representative visited petitioner’s godown/shop several times. As per their instruction petitioner filed claim application before O.P.No:1 who sanctioned Rs.9,20,000/- only on 04.09.2018 to which he has submitted a written objection. He made an application to O.P.No:3 to adjust his Cash Credit loan amount by the compensation money and also adjust his security deposit but O.P.No:3 & 4 accepted only Rs.9,20,000/- from O.P.No:1&2 in collusion with them and without his prior permission.
That thereafter O.P.No:3 has claimed Rs.17,72,007/- from the petitioner for his balance loan and on default O.P.No:3 sent a notice to the petitioner for getting possession of his godown/shop building otherwise asked him to pay Rs.20,54,911/- to the bank, thereby he is suffering from mental headache and also will have to suffer in his future life. For the negligence and unfair trade practices on the part of the O.Ps he suffers financial loss and thus lodged complaint for direction to the O.P.No:1&2 to fix up his actual damage at Rs.20,00,000/- & to pay the balance insurance claim amount Rs.10,80,000/- with interest @14% p.a, direction upon O.P.No:3&4 to demand the balance claim amount of Rs.10,80,000/- from O.P.No:1&2, compensation of Rs.2,00,000/- and litigation cost of Rs.50,000/-.
O.P.No:1 & 2 contested the case by filing W.V stating that the petitioner, their customer secured coverage under insurance policy name and style as Shop Keepers Insurance Policy through O.P.No:3&4/BGVB, the Corporate Agent of O.P.No:1&2, OIC Ltd as per norms and compliance of terms & conditions of IRDA. In policy schedule nature of business mentioned Fertilizers and other goods shop as per direction of BGVB, Chakulia Branch. There is no mention in the policy that godown was insured by this policy.
Petitioner informed inundation dated 13.08.2017 to BGVB on 16.08.2017 who informed O.P.No:1 on 21.08.2017, received by O.P.No:1 on 23.08.2017. After receiving said letter from BGVB O.P.No:1 & 2 deputed Indranil Bhattacharjee, Surveyor & Loss Assessor who inspected the spot/place on 31.08.2017 & submits report that Chakulia flood was occurred on 12.08.2017 & the shop containing pesticide etc & small items were kept in shop, situated at main road remain unaffected & all the damaged stock were disposed of with approval of Panchayet Pradhan but before disposal of the damaged stock it was not informed to O.P/Insurance Company by petitioner which is clearly violating Para:7 of General Conditions of the policy.
On 24.08.2017 Sandip Sarkar Surveyor & Loss Assessor of OIC Ltd in a letter informed petitioner that only 07 bags of Fertilizer found damaged at shop premises. Indranil Bhattacherjee in his final survey report dated 24.12.2017 mentioned that stock of petitioner’s shop on July, 2017 was Rs.31,58,200/-. Loss assessed for the damage on a compromise settlement was Rs.10,79,100/-. Liability assessed on joint agreement of the BGVB Authority & the insured stands Rs.9,22,630/-. But in this time also petitioner did not able to provide the supporting documents of his actual stock lying in the shop on the date of occurrence. He also did not produce any purchase bill or voucher to the Ins. Company supporting his loss. The Surveyor in his report mentioned that the adjoining area of godown premises do not bear any mark or effect of huge quantity of chemical fertilizer presents or act of dissolve in the area. The grass and shrubs were un affected. This also provide doubt about the present or dissolved chemical fertilizer of Md. Mahboob Alam.
As per final survey report of Indranil Bhattacherjee dated 24.12.2017 liability assessed Rs.9,22,630/- form which O.P/Insurance Company deducted Rs.2630/- for reinstate the policy & actual amount which will be payment was calculated Rs.9,20,000/-. Md. Mahboob Alam Prop. of Ashu Enterprises was also agreed to accept that money and he put his signature on a Discharge Voucher of OIC Ltd mentioning that “I/we hereby accept from OIC Ltd of Rs.9,20,000/- only (approved net claim amount in full & final settlement) of my/our claim for the loss of DAP/MOP/NPK/UREA which occurred on 13.08.2017 & 14.08.2017 covered under Policy No:313501/48/2018/904.” Branch Manager of BGVB, Chakulia Branch was also present there and signed on that Discharge Voucher as a witness and financier. The OIC Ltd transferred that RS.9,20,000/- in favour of BGVB, Chakulia Branch A/c of Ashu Enterprise so the petitioner was not entitled to get any further amount from O.P.No:1&2 and they pray for dismissal of the case.
O.P.No:3&4 submits separate W.V stating that the complainant took a CC Loan from O.P.No:3&4 of Rs.30,00,000/- vide loan A/c No:5115250000008 and insured the shop, godown and stocks of his business by O.P.No:1&2 valued Rs.41,00,000/- & paid the premium regularly through O.P.No:3. That on 13.08.2017 sudden inundation was occurred and the stock fertilizer has been desolved in water and petitioner filed claim before O.P.No:1 and an amount of Rs.9,20,000/- has been paid by the O.P.No:1 against the claim of the petitioner and said amount was adjusted with petitioner’s loan account. That his loan account declared as NPA and O.P.No:3 started proceeding against the petitioner for recovery of the loan. They also pray for dismissal of the complaint being baseless, false and frivolous.
Points for Consideration
- Whether there was deficiency in service or unfair trade practice on the part of the O.Ps which gives rise cause of action to file the case and the complainant is entitled to get relief as prayed for?
D e c i s i o n W i t h R e a s o n s
Admittedly Md. Mahboob Alam, Prop of Asu Enterprise took Cash Credit Loan of Rs.30,00,000/- from BGVB, Chakulia Branch (O.P.No:3&4) vide Loan A/c No:5115250000008.
Certificate of Enlistment renewed for the period of 2018-19 depicts that Chakulia Gram Panchayet is satisfied to issue Provisional Certificate to Trade for enlistment-Fertilizer shop at P.O + P.S-Chakulia, Dist:Uttar Dinajpur, Description of Trade-retail Fertilizer shop. It is not disputed that the said shop is situated at road side.
The petitioner’s case is that as per proposal of O.P.No:3 the shop, godown and stocks of the petitioner was insured by O.P.No:1 being Policy No:313501/48/2018/904 for the period 28.07.2018 to 27.08.2018 and all kinds of fertilizer and other goods shop valued Rs.41,00,000/-.
O.P.No:3&4 stated that the petitioner insured the shop, godown and stocks of his business by O.P.No:1&2 valued Rs.41,00,000/- & paid the premium regularly to O.P.No:3.
Policy schedule shows that it was a Shop Keepers Insurance Policy, Insured’s name-BGVB, Chakuliahat BR. A/c Ashu Enterprise, Address-Prop. Mehboob Alam Vill & P.O-Chakulia, P.S-Chakulia, Uttar Dinajpur, Nature of Business: Fertilizers and others goods shop, Description of Property Covered: Sec 1(A) Fire and Special Perils-building: Building of Class A construction, Sec 1(B) Fire & Special Perils-contents: Sr Description No:1-All kinds of fertilizers & others goods shop–Value:41,00,000/-.
Complainant’s case is that unfortunately sudden inundation was occurred on 13.08.2017 at Dist:Uttar Dinajpur and petitioner’s godown was under 4 feet water & the fertilizers like DAP, NPK, MOP, UREA etc have been desolved in water or destroyed valued Rs.20,00,000/- & he informed the O.P.No:3 about the damage and loss in due time and O.P.No:1 was also informed by O.P.No:3.
Ld. Advocate for the O.P.No:3&4/BGVB argued that as per periodical stock statement submitted by the petitioner to it, stock (damaged) valued Rs.30,00,000/- .Petitioner himself in his petition of complaint and memo of evidence stated his loss valued Rs.20,00,000/-, so the claim of petitioner shall prevail.
In Para-5 of his questionnaire petitioner stated that there was no scope to inform the matter in written on 14,15/08/2017 for lack of communication due to excess flood and he informed the matter through mobile on 14.08.2017 but BGVB intentionally communicate the matter to the insurer OIC after lapse of two days.
O.P.No:3&4 (BGVB) keep silence about it. Document says the petitioner filed application dated 16.08.2017 to the Branch Manager, BGVB, Chakulia Branch about loss of 20,00,000/- for damage of Fertilizers kept in his godown, which was received by the addressee on 19.08.2017. According to O.P.No:1&2 BGVB informed it to O.P.No:1 on 21.08.2017 which O.P.No:1 received on 23.08.2017. It is apparent that there was delay of 06 days to inform BGVB & 10 days to OIC Ltd.
It appears that Sandip Sarkar, Surveyor & Loss Assessor, appointed by OIC Ltd by his letter dated 24.08.2017 informed the petitioner that in connection with inundation loss of your stock in trade we visited the premises on 24.08.2017 & checked water damaged stock outwardly and advised to segregate those and keep separately for our inspection.
Please confirm the following:
- Only 07 bags of Fertilizer found damaged at shop premises. A list was submitted for physical damaged stock & destroyed stock.
- Sale and purchase documents & Stock Register as on the date of loss and after adjustment of the damages into the Register.
- Stock Statement submitted to the bank if any loan is there.
- Last 03 years audited final accounts.
- Filled in Claim Form.
- Certificate from Local Authority about the happening of inundation.
- Trade License, Profession Tax Receipt and Photographs taken from your end.
Sandip Sarkar submits Fire survey report (preliminary) dated 15.10.2017 noting damage stock destroyed on 14.08.2017 due to local safety amounting to Rs.20,02,580.00 & damage stock physically found on 24.08.2017 amounting to Rs.5,130/-.
Indranil Bhattacherjee Surveyor & Loss Assessor & APP Valuer, deputed by OIC Ltd inspected the godown & shop of Ashu Enterprise on 31.08.2017 in presence of insured/petitioner & Bank Representative and submits inspection report, that they observed the shop containing pesticide, fungicide & small items were kept in shop situated beside Main road and unaffected. Godown situated in the Chakulia-Pathati road in single storied building having Class 1 construction (Size 1800 sq. ft)- they observed that all the stock of fertilizer is kept in this place. As there is scarcity of space then the Fertilizer for small period used to be kept in the godown. It was observed & confirmed from locals the water level in the godown was 5 feet. All the stock were kept in the godown were came in contact with the flood water those were damaged. Chakulia Flood was occurred on 12.08.2017(Sunday), due to huge quantum and weight, absence of labor space recovery cannot be done. All the water soaked fertilizers started emanating foul smell and objections from the locals. All the damaged stock were disposed off with approval of Panchayet Pradhan.
Indranil Bhattacharjee submits final survey report dated 24.12.2017-occurrence-that to avoid peoples wrath and protest for the fear of the chemical effect of the soils, the insured immediately withdrawn the stock from the stored area without intimation to insurer. Preliminary survey report was carried out by Sandip Sarkar and during his inspection, all the materials were either disposed of or destroyed. He had found no stock in trade. After checking the stock statement submitted to the bank & after analysis of the account by Chartered Accountant Gobardhan Kankani liability assessed on the joint agreement with the bank authority of the insured stands Rs.9,22,630.50. Liability-the underwriters liability is limited to Rs.9,22,630.50 only if agreed by the insurer (waiving the violation of the condition) which beyond control of the insured. Taking note of the fact they recommended compromise settlement, the insured/bank agreed with the loss assessment. As it is a general loss, they are recommending the loss based on negotiate settlement. According to OIC Ltd Rs.2630.50 was adjusted/deducted therefrom for reinstate the policy.
Kanai Nunia authorized witness for O.P/Insurance Company submits memo of evidence by affidavit to which the petitioner submitted questionnaire, replied by Insurance Company, stands as before.
Debasish Das the then Branch Manager of BGVB, Chakulia Branch was examined as O.P.W.2 who admits that on 13.08.2017 the area where petitioner’s business situated was flood affected. He does not know whether the entire stock of fertilizer in the petitioner’s shop cum godown was washed out in that flood or not. He stated that the petitioner informed that his property was damaged by flood and accordingly they informed OIC Ltd. He cannot recollect whether the petitioner claimed Rs.20,00,000/- from Insurance Company. They have no connection with any amount. He cannot say on which date the claim was settled between the petitioner and OIC Ltd but receipt was produced with the bank that the OIC Ltd settled the claim at Rs.9,20,000/- which the petitioner received as full and final settlement and OIC Ltd sent the receipt of payment of Rs.9,20,000/- to the bank after settlement. OIC Ltd on September 04, 2018 informed through e-mail that the settlement amount of Rs.9,20,000/- will be disbursed. He admits that they called Mahbbob Alam to the bank and he signed disbursement voucher in bank’s office but he denied that they procure his signature on said voucher on calling him to his office.
Claim Payment Voucher dated 03.09.2018 shows that an amount of Rs.9,20,000/- has to be credited to the account of Ashu Enterprise with BGVB, Chakulia Branch, in response to Bank’s letter dated 06.06.2018 stating the date of flood from 11th August, 2017 onwards. Discharge Voucher dated 04.09.2018 bears the seal of Ashu Enterprise and signature of Md. Mahboob Alam Proprietor upon revenue stamp affixed thereon, counter signed by Branch Manager, BGVB, Chakulia Branch as witness with date 04.09.2018. The petitioner signed under the statement I/we hereby voluntarily give discharge receipt to the Company in full and final settlement of all my/our claims present or future arising directly/indirectly in respect of the said loss/accident. I /We hereby also subrogate all my/our rights and remedies to the Company in respect of the above loss/damage. Mere absence of date under the signature of the petitioner cannot and shall not prove otherwise that he affixed seal of his firm and signature on revenue stamp other than the date written in Discharge Voucher dated 04.09.2018, further corroborated from the signature with date of the Branch Manager of the Bank. The petitioner thereby bind himself & in consideration of approval of his claim accepts the payment from OIC Ltd amounting to Rs.9,20,000/-. He is thereby estopped from saying otherwise.
Whatever he alleged and argued on his behalf that his signature was obtained on Discharge Voucher by exercising fraud and collusion, between OIC Ltd & BGVB, in our opinion, cannot be subjected before the Consumer Commission, rather he may ventilate his such grievances to the appropriate forum.
Under above facts and discussion, we are of the opinion that there was no deficiency of service or unfair trade practice on the part of OIC Ltd or BGVB, so the petitioner is not entitled to get relief as prayed for.
In the result the case fails.
Hence, it is
O R D E R E D
that the C.C-13/19 be and the same is dismissed on contest against O.Ps but without cost.
Let a copy of this order be given to the parties free of cost.
