West Bengal

Paschim Midnapore

CC/126/2011

M/S BABA Loknath Rice Mill - Complainant(s)

Versus

The Branch Manager, The New India Assurance Co. Ltd - Opp.Party(s)

20 Sep 2012

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

 Complaint case No.126/2011                                                         Date of disposal: 20/09/2012                               

 BEFORE : THE HON’BLE PRESIDENT :  Mr. K. S. Samajder.

                                                      MEMBER :  Mrs. Debi Sengupta.

                                                      MEMBER :  Mr. Kapot Chattopadhyay.

 

    For the Complainant/Petitioner/Plaintiff: Mr. S.  Bhattacharya. Advocate.

    For the Defendant/O.P.S.                          : Mr. M.  K.  Chowdhury. Advocate.

            M/s-BABA Loknath Rice Mill, Prop-Sri Swapan Kr. Gantait,, S/o-Gobinda Ch.

           Gantait,Vill & P.O. Baishnabchak, P.S. Kolaghat (K.T.P.P.),

           Dist-Purba  Medinipur……………………………………………..Complainant.

                                                              Vs.

1. The Branch Manager, The New India Assurance Co. Ltd., Kharagpur Branch, at Inda, P.O. Kharagpur, P.S. K.G.P.(T), Dist-Paschim Medinipur
2. The Divisional  Manager, The New India Assurance Co. Ltd., at Divisional Office, Haldia, P.O. Khanjanchak, P.S. Durgachak. Dist-Purba Medinipur…………..Ops.

The case of the complainant in a nutshell, is that M/s. Baba Loknath Rice Mill, of which the complainant is the owner, was insured with the Ops.  On 04/05/11 at about 2.30 p.m. and in impetuous storm blew away over the village Raine.  The intensity of the  storm was very powerful  as a result of which the chimney of the Rice Mill fell down on the  boiler shed of the mill and for this reason the chimney and boiler shed of the mill were damaged seriously causing loss of about Rs.2,65,000/- to the complainant.  The incident was informed to the local Panchayet and the B.D.O.  The complainant also made claim by filing up the claim form on 09/05/11 by filing up the claim form.  The Op No.1 appointed Shri Anuj Dutta Roy as surveyor to whom the complainant filed necessary documents except the Meteorological report.  But the claim was not entertained by the Op No.1 on the basis of the report of the surveyor.  The Op No.1 repudiated the claim of the complainant.

Hence this case:

     The Ops contested the case by filing W/O.  The Ops contended, inter alia, that after the intimation of damage of chimney and boiler shed of the rice mill of the complainant was

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received Mr. Anuj Dutta Roy was appointed as surveyor and loss assessor by the Ops.  Mr. Dutta Roy visited the Rice Mill of the complainant and made inquiry at the spot and its surroundings.  During inspection it was observed Mr. Dutta Roy that the chimney’s foundation    subsided leading to the chimney’s collapse on the boiler shed which itself suffered no loss.  Mr. Dutta Roy further found no other visible damage, even of the C.I. sheet/A.C. sheet held on bamboo frame work.  No damage to any property was found within the vicinity of the mill. There was no document whatsoever, including the Meteorological report to support the incident of the impetuous storm.  Accordingly the Op No.1 repudiated the claim which was duly informed to the complainant.  The Ops also challenged the maintainability of the case.

   On these grounds the Ops prayed for dismissal of the case.

   It is now for our consideration as to whether the complainant is entitled to get the relief as claimed.

Decisions with reasons:

   It is not disputed that the Rice Mill of the complainant was insured with the Op No.1. The dispute is regarding the alleged loss suffered by the complainant due to the impetuous storm.  According to the complainant the storm blew away the chimney of the Rice Mill and the chimney fell on the boiler shed.  On receiving the claim application the Op No.1 appointed Mr. Anuj Dutta Roy as surveyor and loss assessor.  He made survey of the Rice Mill and found that the chimney subsided from its foundation.  According to the report of Mr. Dutta Roy, there was no mark of impetuous storm, nor any document to be filed by the complainant.  The only document filed by the complainant in support of the storm is the certificate of the local Panchayet Pradhan.  The report shows that the chimney subsided from its foundation.  If the storm was so severe that the chimney had subsided from its foundation then certainly there would have been some other marks of such disaster in the locality as well as other parts of the Rice Mill of the complainant.  We find from the report of Mr. Dutta Roy that the chimney fell on the boiler shed.  The report further shows that there was no damage to the C.I. Sheet/A.C. Sheet held on bamboo frame work.  If the intensity of the storm was so high that could lead to the fall of chimney from its foundation then certainly the shed built by C.I. Sheet/A.C. Sheet with bamboo frame work would have certainly been blown away.  Further, there was no mark of the so called impetuous storm within the vicinity of the Rice Mill.  Had there been any such storm as stated by the complainant then certainly the storm would have left its mark in the adjacent areas of the Rice Mill.  There is no report from the local B.D.O office in support of the storm.  No report is also there from the meteorological office.  Only report from the local Panchayet unassociated with the report of the Meteorological office and also the absence mark of severeness of the storm in the vicinity of the Rice Mill as well as other portion of the Rice Mill,

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definitely raises suspicion about the trustworthiness of the alleged incident of storm.  Moreover, the complainant could not show any reason whatsoever as to why Mr. Dutta Roy the surveyor and loss assessor shall file report against the complainant’s version of storm if realty there was any such incident.   Mr. Dutta Roy seems to be a technical person and he has definitely observed the situation as to how the chimney fell.  According to him the chimney subsided from its foundation. So the reason of falling the chimney was otherwise then the storm.  The complainant could not satisfactorily assail the report of Mr. Dutta Roy.

     Now, during the hearing of argument Ld. Lawyer for the Ops specifically canvassed before us that the  present case is not  maintainable in view of the fact that the Rice Mill is a commercial organization and as such it cannot come under the purview of ‘Consumer’ under the Consumer Protection Act”.    The Ld. Lawyer for the complainant submitted that the case is for realization of the insurance amount.   It has got nothing with the nature of business of the complainant.  He further submitted that the complainant is a proprietor of the Rice Mill and carrying on business for the purpose of the self-employment and as such it can not be said that the case is not maintainable.

     We have given due consideration to the submissions made for both the parties.  We have also gone through the materials on record.

     We would like to refer to the petition of complaint whereas the complainant has described himself to the proprietor of M/s Baba Loknath Rice Mill.  That such description was false would be evident from the petition of complaint itself.  The petition of complaint shows that it has been signed by the complainant Swapan Kr. Gantait as partner of the M/s Baba Loknath Rice Mill by affixing the seal of the firm.  So, it is incorrect if not false, to say that the complainant is the proprietor of M/s Baba Loknath Mill.  Moreover, nowhere from the four corners of the petition of complaint it would be seen that the complainant has stated a single word that he carries on his business of Rice Mill for the purpose of self employment.  That M/s Baba Loknath Rice Mill is a partnership farm, not proprietorship organization of the complainant Swapan Kr. Gantait, would be very much clear from the insurance policy of the Rice Mill.  Wherein, it has been clearly set out that M/s. Baba Loknath Rice Mill is a partnership farm having other partner, namely, Mr.Tarapada Mukherjee apart from the complainant.  So, by no stretch of imagination it can be said that M/s. Baba Loknath Rice Mill is a proprietorship organization of notice by complainant Swapan Kr. Gantait is the proprietor. On the contrary M/s Baba Loknath Rice Mill is a partnership firm and as such the case should have been filed by the firm, not in the Personal capacity of the complainant. So, the case itself is bad in law.

In this regard, we would like to refer to the decision of Ganga water tank Industries Vs. Assistant Engineer (city) revenue, CG State Electricity Board (2012 (3) CPR 17) where The

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Hon’ble Chattishgarh State Consumer Disputes Redressal Commission relying upon the decision of The Hon’ble National Commission in the case of Ishwar Singh Vs. Dakshin Haryana Bidyut Prasaran Ltd., has held that the partnership farm cannot file consumer complaint.

In the present case, we have clearly found that M/s. Baba Loknath Rice Mill is a partnership farm and that the complainant Swapan Kr. Gantait has falsely described himself to be the proprietor of the firm.  No doubt that the Rice Mill in question is a firm formed by more than one person for the purpose of earning and sharing profit by manufacturing rice and as such it cannot be said to be engaged in commercial activity for the purpose of earning livelihood by self employment of the complainant Swapan Kr. Gantait.  Therefore, the complainant does not come under the explanation given under Section 2(1)(d) of the Consumer Protection Act 1986 and it is clearly a case of availing services of the Ops for commercial purpose.  So, we concur to the view of the Ld. Lawyer for the Ops that the case is not maintainable.

Accordingly the case must fail.

                        Hence, it is,

                                            ordered

                                                          that the complaint Case No.126/2011 be dismissed on contest, however, without cost. Let copies for this judgement be supplied to the parties free of cost.  

Dic. & Corrected by me

                                                         I agree               I agree                      

              

         President                                Member             Member                      President

                                                                                                                 District Forum

                                                                                                              Paschim Medinipur.