In the Court of the Consumer Disputes Redressal Forum, Unit -I, Kolkata, 8B, Nelie Sengupta Sarani, Kolkata-700087. CDF/Unit-I/Case No. 146 / 2006 1) Sri Amitava Ganguly, Son of Ajit Kr. Ganguly, 112/9A, Golf Club Road, Kolkata-33. ---------- Complainant ---Verses--- 1) The Branch Manager, The New India Assurance Co. Ltd. 8/2, Gariahat Road, Kolkata-19. 2) Mr. R. Sengupta, AGM, The New India Assurance Co. Ltd., Kolkata Regional Office, 4, Mangoe Lane, Kolkata-700001. ---------- Opposite Party Present : Sri S. K. Majumdar, President. Sri T.K. Bhattacharya, Member Order No. 2 3 Dated 1 8 / 0 2 / 2 0 1 0 . Complainant Ajit Kr. Ganguly by filing a petition of complaint on 7.6.06 u/s 12 of the C.P. Act has prayed for issuing direction upon the o.ps. to pay the assured sum of Rs.5,52,000/- and additional compensation of Rs.1 lakh for his mental agony and interest @ 18% p.a. on the principal sum of Rs.5,52,000/- from the date of repudiation on 25.7.05 till the date of payment and litigation cost and further relief or reliefs as the forum may deem fit and proper. Complainant took a lease a plot of land at P-15, Sonarpur Road, Kolkata-88 belonging to Kolkata Port Trust and erected a godown suitable for storing goods and containers for commercial use. He purchased fire insurance policy from o.p. no.1 paying valuable consideration by way of premium and as such, he is a consumer of servic4e viz. insurance service sold by the o.p. Complainant being aggrieved by the non settlement of the insurance claim intimated o.p. no.2 the principal officer of insurance company requesting his intervention for settlement of his long pending claim, but as no response was given to the complainant he has filed this case alleging deficiency of service of insurance which has caused loss and damage to the complainant. The monitory compensation is about Rs.6,52,000/-. On 29.11.04 the claim of the petitioner was repudiated by the insurance company by their letter dt.25.7.05 giving rise to the cause of action of this case. The godown in question is covered under Standard Fire and Special Peril Policy and the same is covered by the insured premised from 8.9.004 to 7.9.05 for a total sum insured to the extent of Rs.10 lakhs. Within the validity of the insurance policy a fire broke out at the godown on 2.11.04, Fire Brigade personnel promptly responded and fought to extinguish the fire and ultimately it was extinguished; however, causing loss and damage to the complainant and the complainant informed o.p. no.2 by a letter dt.8.11.04 and he submitted Claim Form 16 on 29.11.04. Thereafter one Mr. N.C. Chadha introducing himself as the surveyor appointed by the insurance company sought for various information and documents from the complainant. Although the complainant had no prior information about such appointment of Mr. Chadha but on good faith he handed over the required documents and allowed Mr. Chadha to inspect and survey the loss and damages suffered by the complainant due to fire accident in the premises in question. The fact was duly informed by a letter dt.1.12.04. Thereafter on 20.12.04 the insurance company informed the complainant that two surveyors viz. one Mr. Nisith Chandra Chatterjee and Mr. N.C. Chadha had been appointment for the purpose of inspection. West Bengal Fire Services subsequently raised bill of Rs.6583/- for extinguishing the fire and amount of the bill was paid by the complainant. Complainant thereafter by a letter dt.27.12.04 with reference to the demand notice of West Bengal Fire Services made inquiry regarding the survey by the joint surveyors of the insured premises and also prayed for necessary direction for conducting joint survey. It appears something fishy to the complainant that out of own volition and without any jurisdiction how Mr. N.C. Chadha represented himself as appointed surveyor for inspection of the premises in question. But deliberately the o.ps. remained silent or inactive which has raised suspicion in the minds of the complainant about such survey by Mr. Chadha. Thereafter by a letter dt.25.7.05 the claim of the complainant was repudiated on two grounds viz (i) presence of hazardous materials in the non hazardous godown, (ii) repair done against the normal wear and tear. But it is surprising to note that even after the repudiation of the claim of the complainant Mr. Chadha continued inspection vide his letter dt.6.1.06 demanding cooperation of the complainant. The repudiation of the claim of the complainant is out and out arbitrary and being aggrieved by such repudiation, complainant has filed this case against the o.ps. The o.p. nos.1 and 2 have resisted the contention of the complainant by filing a w/v on 16.4.07 contending interalia that the complainant has hired the insurance service for commercial purpose to cover his business and not for his personal coverage. As such, he is not a consumer as provided u/s 2(d)(i) of the C.P. Act and so, the complaint is liable to be dismissed. It has further been contended interalia that in the proposal form the godown was declared as non hazardous, but as per the report of the survey and declaration of the insured it was revealed that the godown contained jute, fiber, gunny bag, plastic bag, chemical water and also acids, all of which fall under the hazardous goods categorically of the fire tariff. So, for the discloser of the material fact of the insured he is not entitled to get any benefit. The claimant complainant has not furnished appropriate documents as per the requirement of the surveyor and/or insurance company in the matter of his claim for settlement, so, following the principle “one cannot take the advantage of his own wrong”. The complainant is not entitled to get any relief as prayed for. In view of this premises the case is liable to be dismissed. Decision with reasons: - We have already said that originally Ajit Kr. Ganguly filed this case on 7.6.06 with the prayer as noted above against the o.p. nos.1 and 2, but on the event of his death on 8.3.09 his son Amitabha Ganguly was substituted without any objection by the other side vide order no.20 dt.6.10.09. Main contention of the o.ps. is that on the basis of the report of the surveyor Mr. N.C. Chadha, the premises in question viz. the godown hired and insured by the complainant was to be used for keeping and maintaining non hazardous goods, but in violation in terms of the agreement of the insurance some hazardous article viz. jute, fiber, chemical water, acid etc. were stored there and as such, they repudiated the claim of the complainant. The o.p. has also contended that such wire house hired by the complainant used for storing goods for commercial purpose, so, the complainant is not a consumer as provided u/s 2(i)(d) of the C.P. Act, 1986. But we must not loose sight of the fact that insurance is an agreement between the insurer and the insured wherein the insurer on receipt of payment (premium) offers and gives certain services and protection to the insured person. So, the question of giving service is involved on the basis of the agreement. Here the main question is that the o.p. has repudiated the claim of the insured person on the ground of keeping hazardous goods in the godown in question. The insured person is not entitled to get any claim of the insurance amount for violation of the terms of agreement contemplated in the insurance policy. The period of insurance coverage was from 8.9.04 to 7.9.05 for a sum insured of Rs.10 lakhs. Fire accident took place in the night on 2.11.04 and it was duly informed to the insurance company on 3.11.04. Thereafter, the insurance company appointed one Mr. N.C. Chadha and Nitish Chandra Chatterjee for taking survey and the complainant cooperated in the matter of inspection regarding survey of the locale in question. The insured had also paid Rs.6583/-, annex-C, to the West Bengal Fire Services for extinguishing the fire. We have already mentioned that fire accident took place on 2.11.04 and the surveyor was appointed on 29.11.04. Said it in other words, he was appointed after 28 days from the date of fire accident and the reasons for this inordinate delay is best known to the insurer. In this respect annex-F is to be noted. The complainant had to spend Rs.5,52,000/- for the repair of the godown in question because according to the complainant it is only source of livelihood, but the claim of the complainant has been repudiated by the letter of the O.P. no.1 dt.25.7.05 only on the ground that hazardous goods were kept by the complainant in the godown and the repair work was done only against normal wear and tear. But it is pertaining to note that they have not disputed that the amount to the extent of Rs.5,52,000/- was spent by the complainant for completing the repairing work of the godown in question. We have also perused the letter of repudiation, annex-H. According to the report of N.C. Chadha in his conclusion, he has stated that “the complainant stored hazardous goods in the godown , this is breach of warranty and not cooperated at all with the surveyor, the claim, in my opinion should not be entertained by the insurers”. The complainant was not satisfied with the report of N.C. Chadha. The complainant was aggrieved against such report. It is also important to note that in order to maintain transparency the complainant informed local fire service station and the insurance company was duly informed on 3.11.04. It is also evident that after repeated requests by the complainant, the insurance company appointed Mr. Chadha and Mr. Chatterjee to conduct the survey work. But surprising to note the survey work was only conducted by Mr. Chadha alone and we have already stated that the survey work was taken after 28 days from the date of fire accident. It is evident from the report of Mr. Chadha that the complainant extended all sorts of cooperation. The fire destroyed the floor, asbestos, room, wall and plaster of the godown. This is more supportive and ratified by the certificate issued by West Bengal Fire Services and Emergency Services, annex-B, wherein it has been specifically mentioned that cause fire could not be assessed and the floor, asbestos, wall and plaster of the godown measuring about 12,000 sq.ft. were destroyed. There is nothing to disbelieve this certificate issued by the fire services authority and we are of the opinion that the report of Mr. Chadha along cannot over ride the veracity of the certificate issued by Govt. of West Bengal Fire and Emergency Services. Further the report of Mr. Chadha is not also very clear and specific on the points of storing the hazardous goods inside the godown by the complainant. Therefore, considering the facts, circumstances, evidence on record both oral and documentary, we are of the opinion that the report of private personnel cannot over ride the report of the government specialist department viz. West Bengal Fire Service and Emergency Service. In view of this position, we find merit in the case of the complainant and he is accordingly, entitled to get the relief as ordered hereunder. Hence, Ordered, That the petition of complaint is allowed on contest with cost against the o.ps. The o.ps. are directed to pay jointly and/or severally of Rs.5,52,000/- (Rupees five lakhs fifty two thousand) only for damages due to fire accident in the godown in question and to pay compensation of Rs.50,000/- (Rupees fifty thousand) only and litigation cost of Rs.5000/- (Rupees five thousand) only making a grand total of Rs.6,02,000/- (Rupees six lakhs two thousand) only positively within forty five days from the date of communication of this order, failing which it will carry interest @ 10% p.a. till full realization. Fees paid are correct. Supply certified copy of this order to the parties on payment of prescribed cost. _____Sd-______ ______Sd-_______ MEMBER PRESIDENT | 
