This complaint U/S 12 of C.P. Act, 2019 was initially filed against the Opposite Party- The Branch Manager, The New India Assurance Company Limited, Having its office at Vivekanada Bipanan Kendra, Race Course Para, P.O. & Dist. Jalpaiguri, Pin Code: 735101 who contested the case by filing written version.
The case of the complainant as per his complaint is as follows-
The complainant argued in his plaint that he is the owner of a shop namely Sri Ganesh Metal Stores which is situated at Haldibari Bazar, Ward No. 8 of the Haldibari Municipality, P.O. Haldibari Bazar, P.S.- Haldibari, Pin Code- 735122, Dist. Coochbehar who availed a Fire Insurance Policy from the Opposite Party on 16.06.2020 being no. 51230448200600000057 dated 16.6.2020 for the amount of Rs 16,00,000/- and the said Policy was valid from 16/06/2020 to 15/06/2021 and during validity of the aforesaid policy on 12/04/2021 at about 2:30 a.m. the complainant came to know that there was devastating fire at the Basan Patty of the Haldibari Bazar and after getting the news the complainant immediately rushed to the spot and trying to save his shop but he failed to save his shop. The complainant added in his plaint that the said
incident of fire was reported in the local news paper namely ‘Uttar Bongo Sambad’ on 13/04/2021 and on 13/04/2021 the Complainant submitted the claim form the Opposite Party for claiming compensation amount to Rs 16,00,000/-(Rupees Sixteen Lacks) only.
The complainant also argued in his plaint that after destroying the store, the complainant sale the scrap to the different shops namely Baba Mahakal Timbers and Rangadar Metal in different dates.
The complainant also argued that due to sudden and unfortunate fire, almost all documents have been destroyed and he could not be able to recover valuable documents from the ashes of the Shop.
The complainant also argued that he lodged a Written Complaint before the Haldibari Police Station on 18/04/2021 and the Haldibari Police Station received his compliant being HDB PS GDE No. 573 /2021 dated 18/04/2021.
The complainant also argued that he made a representation to the Officer-in-Charge of the Haldibari Fire Station, Coochbehar on 18/04/2021 for issuing a letter of authenticity of fire incident. The said representation received by the Officer-in-Charge, Fire Station on 18/04/2021.
The complainant also argued that he maintained stock register in his shop which had been burnt, however some papers had been with him in his place in torn condition which shows that on the date of incident the materials amounting to Rs 28,35,000/- (Rupees Twenty Eight Lacs Thirty Five Thousand) only was within the stock of the Complainant.
The complainant also argued that in the year 2021 he applied for the renewal of Trade License of his shop and after completion of all formalities the office of the Councilors, Haldibari Municipality, renewed his trade license for the period of year 2021- 2022.
The complainant also argued that after submitting the claim form the valuer of the Opposite Party came to the place of the Complainant and took all the documents in original form and submitting the same to the Opposite Party and on 21/08/2022 the Opposite Party sent a notice to the Complainant and requested him to submit some documents those were mentioned in the said letter and in reply to the notice of the Opposite Party, on 16/09/2022 the Complainant sent a letter to the Opposite Party and submitted documents those were available to him and after receiving the said letter along with the documents, the Opposite Party sent a Email to the Advocate of the Complainant on 20/09/2022 and stated that they were not satisfied with the documents and requested him to submit documents again on 12/10/2022. The Opposite Party again issued a notice to the Complainant and asking him to submit some documents as mentioned in the said notice.
The complainant also argued that on 18/11/2022, Office of the Councilor, Haldibari Municipality issued a certificate in favor of the Complainant where it was mentioned that the Complainant is proprietor of the shop namely “Sri Sri Ganesh Metal” and the said shop was fully burnt on 12/04/2021 at midnight.
The complainant also argued that the Opposite Party in its Email dated 20/09/2022 of this instant Complainant wrongly hold that the complainant paid the fees for the renew of license on 30/04/2021 and the Opposite Party did not consider the fact that the Certificate dated 30/04/2021 was renewal certificate and same was issued after completion of all formalities and the complainant during his validity of earlier license completed the all procedure.
The complainant also argued that there was no doubt about the fire incident and his shop destroyed in the said fire incident and it is settled principle of law that the insurance claim could not be delayed or repudiate on technical ground where the incident proved to be genuine.
- The complainant also argued that due to this incident he was suffering huge loss for the aforesaid accident and due to Opposite Party’s act i.e. delayed to disburse the valid claim, the Complainant suffering mentally agony and depression.
- The complainants pray as follows: -
- Directing the Opposite Party to pay Rs 16,00,000/- (Rupees Sixteen Lacs.) only of the claim amount of the Complainant.
- Directing the Opposite Parties to pay damages of Rs.50,000/- (Rupees Fifty Thousand) only for agony, shock and sufferance sustained by the complainant.
- Interest pendent lite:
iv) Cost of the case.
Total value of claim is amount to Rs 16,50,000/- (Rupees Sixteen Lacs. Fifty Thousand Only).
List of Documents filed by the complainant:
Annexure A: Photocopy of the policy.
Annexure B: The Photocopy of the news paper (relevant page).
Annexure C: The Photocopy of claim form
Annexure D: The Photocopy of Bills
Annexure E: The Photocopy of the Written Compliant
Annexure F: The Photocopy of the representation
Annexure G: The Photocopy of Stock statement
Annexure H: The Photocopy of Certificate
Annexure I: The Photocopy of Letter dated 21.8.2022
Annexure J: The Photocopy of Letter dated 9.9.2022
Annexure K: The Photocopy of Postal Receipt dated 16.9.2022
Annexure L: The Photocopy of Receipt Acknowledgement
Annexure M: The Photocopy of Email dated 20.9.2022
Annexure N: Photocopy of Notice dated 12.10.2022
Annexure O: The Photocopy of certificate dated 18.11.2022
The O.P., The Branch Manager, The New India Assurance Company Limited, Having its office at Vivekanada Bipanan Kendra, Race Course Para, P.O. & Dist. Jalpaiguri, Pin Code: 735101 contested the case by filing Written Version (W.V.) and as per his W.V. the case is as follows-
The Opposite Party argued in his W.V. that the statements contained in several paragraphs of the complaint are not correct and are denied by the Opposite Party and also the complainant suppressed material facts before the Court and therefore the complaint should be dismissed. The Opposite Party also added in his W.V. that the insurance under Shopkeepers’ Policy is issued subject to the terms condition, exclusion and definitions.
The Opposite Party also argued in his W.V. that the complainant stated that he submitted the claims along with all the necessary documents but there were still many documents that the insured had to submit and the insurance company sent a letter to the complainant seeking for the documents and some clarifications but the insurance company did not received anything from the complainant.
The Opposite Party also argued in his W.V. that in the letter of the complainant stated that he paid the amount as per Municipal Rules but the query of the Opposite Party was not the payment but the effectiveness of the License. The Opposite Party also argued that the License fee is deposited on 30/04/2021 and the previous license was valid till 31/03/2021 and the accident occurred on 12/04/2021 and there is a gap of one month between the expiry of the previous License and the renewal of the same and at the time of accident the License was not in effect.
The Opposite Party also argued in his W.V. that the trade Certificate was also issued on 30.04.2021 which is again after the date of accident and the voucher submitted is not issued by the Surveyor but it wasissued by the scrap dealers who have bought the scrap from Mr. Kalyan and the insurance company issued a letter to the complainant but he failed to give satisfactory reply.
The Opposite Party also argued in his W.V. that the complainant did not submit the Stock Register from 01.04.2021 to 12.04.2021, did not submit the Purchase Register from 01.04.2021 to 12.04.2021, did not submit Sales Register from 01.04.2021 to 12.04.2021, did not submit the Balance Sheet of Profit and Loss from 01.04.2021 to 12.04.2021, did not submit the Balance Sheet of Profit and Loss for the financial years 2020 and 2021, did not submit the Trial Balance Sheet from 2020 to 2021, 2019-2020 and 2018 -2019, did not submit the Fire Brigade Dept report and also did not submit the Panchnama.
The Opposite Party also argued that the complainant also not submitted the Form 16 for the year 2020-2021, 2019-2020 and 2018-2019 but he submitted only the acknowledgement and acknowledgement is not a proof of filing a return and hence, Form 16 for the last three years still not received yet by the Opposite Party. The Opposite Party also argued that time to time they issued letter to the complainant for clarifying the above noted points, but the claimant always neglected the letter and failed to reply and the insurance company finally on 22.12.2022 close the file with a option to reopening the same if the claimant supply the documents. The Opposite Party also argued that all four PSU General Insurance Companies followed similar procedure and settled the claim as per guide line of the IRDA.
This Opposite Party also argued in his W.V. that the Insurance Company was not at any stage failed and neglected to render the service to the complainant and it is denied that due to deficiency in service the complainant had to suffer a huge financial loss.
Points for consideration
1) Whether the complainant is a consumer?
2) Whether the case is maintainable under the CP act 2019?
3) Whether this Commission has its jurisdiction to decide this case?
4) Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?
5) Is the complainant entitled to get any award and relief as prayed for? If so, what extent?
All the points are taken up together for consideration and decision.
Seen and perused the complaint petition and Written Version filed by the parties which are supported by the affidavit, documents filed by both parties. We are also heard arguments advanced by both parties in full length.
It is very much clear from the evidence by the Opposite Party that the shop was duly insured under SHOPKEEPER INSURANCE issued by THE NEW INDIA ASSURANCE COMPANY LTD. vide Policy No. 51230448200600000057 which was valid from 16/06/2020 to 15/06/2021 (midnight) and the accident was took place on 12/04/2021 at about 2:00 a.m. So, the Insurance policy was valid at the time of the said accident and based on the statement of the complainant the Commission is very much clear that the complainant was running his shop for his daily business to maintain his livelihood. Thus the Commission has no doubt that the complainant is a very much consumer as per the C.P. Act 2019 and the Opposite Party THE NEW INDIA ASSURANCE COMPANY LTD. has its office at Jalpaiguri at Vivekananda Bipanan Kendra, Racecourse Para, P.O. & P.S.- Jalpaiguri, Dist.- Jalpaiguri and it is also clear from the policy that Opposite Party issued this policy from this Branch and there is no doubt that this Commission has its jurisdiction to decide this case.
It is very much clear from the evidence from the complainant that the said shop was destroyed by a devastating fire on 12/04/2021 at about 2:00 a.m. from where the complainant was running his business. It is also cleared from the evidence that the complainant informed this matter to the different authorities and the said incident was published in Uttar Bongo Sambad, a daily circulated local news paper on 13/04/2021.
From the evidence of the Opposite Party it is very much clear that the insurance company has knowledge of this accident and after satisfying the fact they engaged a Surveyor from their end. In the report of that said Surveyor it is clear that they had conducted a survey and assessed Rs. 12,99,557.25 (Rupees Twelve Lac. Ninety Nine Thousand Five Hundred Fifty Seven and Twenty Five Paisa) only. In the Surveyor’s report it is crystal clear that Surveyor enquired the matter and from his observation point the complainant submitted the available documents to the Surveyor and finally the Surveyor submitted his
report to the Insurance Company on 07/10/2021. After that, on 21/08/2022 and 0n 20/09/2022 the Opposite Party issued letters to the complainant asking for some documents. The complainant clarified that he tried to supply all the available documents to the Surveyor and on the basis of that the Surveyor gave his report. Insurance company never denied the Surveyor’s report.
The insurance company stated that they have required documents to settle the claim but it is cleared from the evidence of the complainant that many items were destroyed in that said incident. Subsequently, the complainant tried to collect those required documents but unfortunately he failed to do so.
It should be remember that this is a small shop and the complainant is a small scale businessman. So, it is not possible for him to maintain his business accounts in a large and professional manner. Moreover, as per decision of the Hon’ble Supreme Court in a Gurmel Sing vs. National Insurance Company Ltd., S.C.C. online S.C. 666, decided on 20/05/2022 that the insurance company has become too technical while settling the claim and has acted arbitrarily. The appellant has been asked to furnish the documents which were beyond the control of the appellant to procure and furnish. Once, there was a valid insurance on payment of huge sum by way of premium and the Truck was stolen, the insurance company ought not have become too technical and ought not to have refused to settle the claim on non- submission of the duplicate certified copy of certificate of registration, which the appellant could not produce due to the circumstances beyond his control.
Here, in view of the decision of the Hon’ble Supreme Court of India reported in 2023 ACJ 104-Oriental Insurance Co. Ltd. vs. K. Narashima Reddy Motor insurance-
Repudiation claim- insurance company repudiated the claim on the ground that insured has not produced driving licence- In appeal insurance company challenges the order of National Commission allowing the claim- Held: there are concurrent findings of District Forum and National Commission that driving licence was burnt in the accident; even surveyor’s report suggests the same; no error committed by the fora in allowing the claim.
The decision of Hon’ble Supreme Court of India reported in 2023 ACJ 396- referred by the side of the complainant is well applicable in our present case. In view of the said decision the Hon’ble Supreme Court of India in the case of Karnavati Veneers Co. Ltd. vs. New India Assurance Co. Ltd. and others reported in 2023 ACJ 396-
Fire insurance- Repudiation of claim- Fire broke out in the factory of insured and surveyor of insurance company assessed loss at Rs. 21,76,524- Insurance company repudiated the claim on the ground that insured failed to submit required document in breach of policy condition- State Commission upheld repudiation of the claim- National Commission affirmed the findings of State Commission- Policy condition with regard to submission of required documents on desires necessary documents for assessment of claim and all material documents available with insured were given to the surveyor of the insurance company who after extensive inspection assessed the loss- Insurance company has not disputed the loss assessed by its surveyor- Whether insurance company was justified in invoking policy condition with regard to submission of required documents for repudiating the claim- Held: no: insurance company directed to pay Rs. 21,76,524.
So, as per the above discussion it is very much clear that there was a deficiency of service from the part of Insurance Company and the Commission here followed the decision of the National Insurance Company Limited vs ALI CLOTH HOUSE & ANR reported in I (2022) CPJ91 (NC) –
that the Insurance Company was not justified in repudiating the claim of the Insured Complainant and hence, the Insurance Company is liable to compensate the insured for the loss suffered by him due to fire in Shop to the tune of Rs. 1,45,000 as claimed by him.
However, since the Stock and Account Registers were not being maintained by the Insured, we hold the deduction of 25% made by the Insurance Company on that Account.
That in the instance case also the insured for the loss suffered by him due to fire in Shop to the tune of Rs. 16,00,000 (Rupees Sixteen Lacs.) only as claimed by him. However, since the Stock and Account Registers and other documents were not being properly maintained by the insured, we hold the deduction of 25% made by the Insurance Company on that Account and the complainant is entitled to get Rs. 12,00,000 /- (Rupees Twelve Lacs) only for his claim.
Hence, it is
ORDERED
That the Consumer Case No. 103/22 be and same is allowed in contest against the O.P. (The New India Assurance Company Limited).
The complainant do get an award of Rs 12,00,000 /- (Rupees Twelve Lacs) only for his claim, Rs. 5,000 /- (Rupees Five Thousand) only for mental pain and agony and Rs. 5,000 /- (Rupees Five Thousand) only for litigation cost. The total payable amount is Rs. 12,10,000 /- (Rupees Twelve Lacs and Ten Thousand) only and this amount will be paid to the complainant by the O.P. within 30 days (Thirty days) from the date of this order failing which the complainant will be entitled to get a simple interest of 6 % per annum from the date incident, i.e. from 12/04/2021.
The O.P. (The New India Assurance Company Limited) is directed to pay Rs. 12,10,000 /- (Rupees Twelve Lacs and Ten Thousand) only by issuing account payee cheque in favour of complainant within 30 days (Thirty days) from the date of this order failing which the complainant will be entitled to get a simple interest of 6 % per annum from the date of incident, i.e. from 12/04/2021.
Let a copy of this judgment be given to the parties directly or through their representative Ld. Advocate for compliance free of cost.
