West Bengal

Dakshin Dinajpur

CC/45/2020

Sri Arjun Kumar Roy, S/O- Mr. Basanta Roy, Prop. Basanta Motors - Complainant(s)

Versus

The Branch Manager, The Bajaj Allianz Gen. Insurance Co. Ltd. - Opp.Party(s)

Humayun Kabir

14 Jul 2023

ORDER

 The instant case has been initiated by the complainant U/S – 35 of C.P. Act, 2019 against the Opposite Parties claiming Rs.6,16,958/-(principle amount), compensation Rs.100,000/- and  Litigation Cost – Rs. 10,000/-  Total = Rs7,26,958/- with interest @ 12% P.A from the date of cause of action.

The complainant having a showroom of Hero motor cycle under the jurisdiction of this commission and runs his business in the name & style of Basanta Motors. The complainant purchased a insurance policy bearing no.OG-17-2414-4001-00001505 and it was valid from 27.02.2017 to 26.02.2018 to cover the fire risk & other special perils of his business/showroom (Basanta Motors).

            As per the above mentioned policy, the complainant motor cycle showroom has been covered for the sum assured Rs.60,00,000/- (sixty lakhs) only in which it’s covered Rs. 4,0000(four lakhs) for furnitures&fixtures,42,00,0000/-(forty two lakhs) for new motors bikes and 14,00.000/- for  spare parts and machinery .

            On 14.08.2017 complainant’s showroom was sunk due to heavy flood and after that area of that showroom,which is under Bansihari police station, remain under flood water for more than 9-10 days.

The showroom of the complainant is two stored building with ground floor and building is constructed with ground level. That on the date of flood there was 120 pieces of motor bike in the building and 91 bikes were in the ground floor. Due to heavy flood in that area, the half of the ground floor went under the flood water and there was no chance of recovery or save those bikes. 91 bikes were under water and they were damaged.

            Thereafter the complainant request O.P.no. 2 through O.P.no.1 for spot survey of those bikes. As such O.P.no.1 survey through his surveyor the loss and the surveyor has taken the estimated value of loss of Rs. 6,16,985/- of damaged motor cycles from the complainant.

O.P.no.1 is the insurer and O.P.no.2 is the authorized agent of O.P.no.1 .So the complainant always made contact with O.P. no.1, through his authorized agent.

            That the above mentioned incident occurred on 14.08.2017, but the repudiation letter dated 09/05/2018 received by the complainant in the year 2019 through O.P.no.2.          That O.P.no.2, the bank requested O.P.no.1 to settle the loss claim of the complainant ,through e-mail dated 29/07/2019 &31/07/2019.Earlier the complainant also requested O.P.no.1 to settled the claim, through e-mail dated 24/07/2018 & 19/09/2018. But O.P.no.1 did not response till 31/07/2019.

            That after providing all the necessary documents by the complainant to the insurance company, the O.P.no.1 refused the bona-fide claim with a baseless ground mentioned in the repudiation letter that the stocks of vehicles and spare parts kept in the basement of the complainant unit which were damaged by flood water. That the showroom is of two stored building and constructed with ground level and there is no basement.

            That the loss incurred by the complainant on 14/08/2017 and O.P.no. 1 repudiated the claim on 09/05/2018. But if the basement is only the ground for repudiation thenO.P.no.01 refused the claim within 30 days of the spot survey but in this case they send the repudiation letter through an e-mail in 25^th day of February of 2019 with an ill intention. So there is deficiency of service in the part of the O.P. insurance company. That being aggrieved by the O.P.s for not granting the insurance claim of the complainant and for all this illegal activities of the O.P.s the complainant file this instant case against the O.P.s before this commission for redressal.

It appears from the case record that notices were issued to the Opposite Parties 1& 2 and the said notices were duly served upon them. Despite of receiving notices, the Opposite Party no. 2 did not appeared before this Commission nor filed written version so, the case is proceeded ex parte against the Opposite Party no. 2  by vide order no.17 dated 17/05/22.

The O.P. No. 1 in his written statement has denied all the material allegations of the complainant which has been narrated in the complaint. O.P.no.1 stated in his written version that the complainant has approached him for insuring the showroom. O.P. no. 1 explained the entire terms and conditions to the complainant. After understanding the terms and conditions, the complainant obtained the standard fire and special peril policy bearing no.OG-17-2414-4001-00001505 . The complainant had intimated a claim by submitting claim documents in support with the claim form for seeking compensation on account of alleged loss occurred. Thereafter O.P.no.1 appointed one surveyor namely proclaim Insurance Surveyors and Loss Assessors private limited” and they made 1^st survey on 6^th september2017,about  loss  at alleged showroom (Basanta motors) of Arjun kumar Roy .And final survey made on 10^th April 2018. As per the survey report, surveyors report only 76 motor bikes were damaged and net loss assessed by the surveyor as Rs. 45,964/-.But as per the survey report, the damaged bikes were kept in the basement of showroom. As per the terms & condition of insurance policy, policy shall not cover any loss or damaged to stock/contents stored in the basement and so for this O.P.no.1 is legally bound to repudiate the claim of complainant. That there was no deficiency of service on the part of the O.P.no.1 in respect about the damage claim of the complainant. On the basis of the surveyors report the complainant kept his stocks in the basement and it is the gross violation of the insurance policy condition, on the part of the insured. So the petition is not maintainable and liable to be rejected.

 To prove his case, the complainant has submitted evidence on affidavit along with the following documents-

  (i)  Xerox copy of claim form.

            (ii)  Xerox copy of estimated value of spare parts.

(iii)  Xerox copy of tax invoice of new motor bikes dated 29/06/2017

(iv) Xerox copy of tax invoice of new motor bikes dated 30/06/2017

(v) Xerox copy of tax invoice of new motor bikes dated 26/07/2017                                                                                                                    Xerox copy of tax invoice of new motor bikes dated 31/07/2017    

           vii) Xerox copy of tax invoice of new motor bikes dated 03/08/2017                                                               

         viii)  Xerox copy of survey report of insurance company

          ix) Survey report of Nirman consultancy dated 01/06/2022

           x)  Repudiation letter dated 09/05/2018.

           xi) Policy schedule in the name of Arjun kumar Roy.

            xii) Site plan of the alleged showroom prepared by Amit Saha Diploma civil engineering dated 28/10/2014.

xiii) Copy of e-mails dated 24^th July 2018 and 29^th July 2019.

 

           O.P.No.01 also files evidence on affidavit .But no documents have been filed      by O.P. No.01.  

        In view of the above mentioned facts, the following points are cropped up for consideration.

                                          POINTS FOR CONSIDERATION

      1) Whether the complainant is a consumer to the opposite parties?

      2) Whether there is any deficiency in service on the part of the opposite parties?

      3) Whether the complainant is entitled to get any relief/reliefs as prayed for?

 

                                   DECISION  WITH  REASONS

 

         We have heard the argument by Ld. Advocate of both the sides, (complainant, O.P. No 01) at length. We have also gone through the evidence on affidavit, cross examination and written argument of both the parties. We also perused the documents filed by the complainant.  

            At the time of argument the Ld. Lawyer appearing for the complainant narrated the fact of the case as mentioned in the complaint. He further submitted that the claim of the complainant is legal, genuine and the opposite parties are liable to pay the claim amount as per their own undertaking laid down in the policy.

On the other hand, Ld. Advocate of the O.P.no.01 also narrated the defense case. He stated that as per the survey report, the damaged bikes were kept in the basement of showroom. As per the terms & condition of insurance policy, policy shall not cover any loss or damaged to stock/contents stored in the basement and so for this O.P.no.1 is legally bound to repudiate the claim of complainant. Hence the case is not entertain-able & maintainable against O.P.no.01.

Now let us discuss all the points one by one.

Point No. 1

On perusal of the materials on record, it appears that the opposite party no.01 has admitted in his written version that the complainant is insured with O.P.no.01 insurance policy no- Policy bearing No. OG-17-2414-4001-00001505. O.P. No. 2 is the authorized agent of O.P. No. 1.The complainant is a customer of O.P. No. 2 by having a current A/C.  O.P. No. 2 sells the insurance policy of O.P.no.1 to his customer i.e. the complainant. If this be so, then it is clear that the complainant is a consumer to the opposite parties according to sec 2(7) of the consumer protection Act 2019.

Point No. 2 & 3

Both the points are taken up together for discussion for the sake of convenience and brevity.

 It is admitted fact that the complainant purchased an Insurance policy vide no. OG-17-2414-4001-00001505 which was valid for the period 27/02/2017 to 26/02/2018,  (cover the fire risk and other special perils) from O.P. no.01, through his agent O.P.no.02. As per the said policy the complainant’s motor cycle showroom has been covered for sum assured Rs.60,00,000/-(sixty lakhs),in which it covered Rs.4,00,000/-(four lakhs) for furniture & fixtures,Rs.42,00,000/-(forty two lakhs) for new motor bikes and Rs.14,00,000/(fourteen lakhs) for spare parts & machinery.  

            The showroom of the complainant was sinking due to heavy flood on 14/08/2017 and the area of showroom was under gone in flood water for more than 09-10 days. On the date of flood there was 120 pieces motor bikes in the showroom out of which 91 bikes were in the ground floor. Due to the heavy flood the half of the ground floor went under water and there was no chance of recovery of the bikes. So 91 bikes were damaged. Then a survey was done through the surveyor of O.P.no.01 and took the estimate value of loss of Rs. 6,16,958/-of the damaged motor cycles from the complainant. 

As per the requirement of O.P. no.1, the complainant  submit necessary documents, claim form duly signed by the complainant ,O.P.no.01 refused the claim on the ground that stock of vehicles and spare parts kept in the basement of the complainants unit which were damaged by flood water.

But from the documents filed by the complainant, i.e. the site plan of the alleged showroom which was approved by the Shibpur Gram panchayat, Buniadpur, Banshihari Block, reveals that there is no mentioning of Basement.  So the plea taken by O.P. No. 1 is not believable and acceptable. Therefore the showroom of the complainant is two stored building constructed with ground level and there is no basement. So the repudiation of claim of the complainant is baseless and not valid.       After the scrutiny of the survey report of the surveyor appointed by O.P. No. 1, we find that it has been admitted that due to abnormal rise in water level of Tangan river, the insured premises got flooded with water and as a result motor cycles and spare parts got submerge under water and were damaged.

            In the cross examination, O.P. No. 1 answered that the surveyor is not a civil engineer. He did not file any measurement report about the ground level of the alleged building in his survey report. Complainant has independently appointed Nirman Consultancy for auto level survey with necessary instruments. A survey report has been submitted along with field visit report including the measurement and key plan drawing with survey point. It is prepared by B.TECH CIVIL ENGINEER namely Monojit Adhikary. So, it cannot be presumed by eye queue whether the alleged building have any basement or not. Measurement is required but the survey report of the insurance company did not show any measurement of the building. So, we find that the survey report is not properly done and it cannot be acceptable. 

             From the above discussion, we found that there lies gross negligence as well as deficiency of service on the part of O.P. No. 1. O.P. No. 2 is the authorized agent, he also requested O.P. No. 1 to settle the loss claim of the complainant through e-mail dated 29/07/2019 &31/07/2019. So, O.P. no.2 has tried his level best to settle the matter. We find that the case is not maintainable against the O.P. No. 2.

             From the documents filed by the complainant of the damaged bikes and spare parts, it reveals that the loss incurred in respect of the bikes (91) pieces is of Rs. 5,08015/- (rupees five lakhs eight thousand and fifteen) only and loss in respect of the spare parts is of Rs. 108943/- (rupees one lakh eight thousand nine hundred forty three) only. So the complainant is entitled to get the loss of the properties due to the flood water as it is covered under the insurance policy of O.P. no. 01.

 

            We relied on the observation taken by the Apex court in  Insurance Company vs Harcharan Chand Rai Chandan Lal,IV(2004)CPJ 15(S) and National Insurance Company VS Laxmi Narain Dhut III(2007) CPJ 13(SC) where it has held that the policy is a contract between the parties and both the parties are bound by terms of contract.   Under such circumstances it appears that the insurer violated the terms and condition framed by it.  Therefore, we found that there lies gross negligence in service on the part of the O.P. No.1. Under the above circumstances the complainant is entitled to get the relief.

 

 

             Accordingly all the points are decided in favour of the complainant.

 

 

Hence, it is

                                                                O R D E R E D

 

That the consumer complaint case No 45/2020 is allowed against O.P. No. 1 in part with cost and dismissed against O.P. No. 2. The opposite party No. 1 is directed to pay Rs.(508015/-+ 108943/-) =Rs.616,958/- (rupees six lakh sixteen thousand nine hundred fifty eight ) only as principal claim along with interest @8% per annum from the date of this order  till the realization by issuing an account payee cheque in favour of the complainant.

The opposite party No. 1 is further directed to pay  Rs 10,000/- (rupees ten thousand only)as compensation and Rs.5000/- as litigation cost by issuing an account payee cheque in favour of the complainant within 45 days from the date of passing of this order failing which, the complainant is at liberty to execute the order according to law.