Hon’ble Mr. Sudip Niyogi, President
This case arises upon a complaint u/s 12 of the C.P. Act, 1986. The case of the Complainant in a nut shell is that he runs a business of cloth in the name and style of “Asha Bastralaya” at village Bokalirmath within the district of Cooch Behar and his said business was duly insured with the Oriental Insurance Co. Ltd. i. e. the OP. The period from 24.09.15 to 23.09.16 was covered under the Policy of Insurance under shop keeper insurance policy for stock of all kinds of cloth, hosiery goods, woolen goods etc. for Rs. 10 lakh and furniture and fixtures amounting to Rs.2 lakh and his Policy No. was 313202/48/216/659. The Complainant, after the day’s work, would down the shutter and also lock it properly but unfortunately, on 15.06.16 at about 9 AM, when he went to his shop, he found that the shutter was open and the locks were in damaged condition. He also found after entering into the shop room that all the articles were in ransacked condition and most of the articles were stolen by miscreants. Immediately, he informed the matter to Kotwali PS and the Insurance Co. i.e. the OP. Kotwali PS started a case No.619/16 dated 15.06.16 u/s 379 IPC.
On being intimated, the Insurance Co. appointed one Surveyor namely Indranil Bhattacharjee for assessment of loss. The said Surveyor visited the shop of the Complainant on 09.07.16 and required some documents viz. Final Accounts for last 3 years, which was submitted to the IT authority, Stock Register, Purchase bill etc. from the Complainant. According to the Complainant, he sustained loss to the tune of Rs.4,03,000/- and after commission of theft, valuation was Rs.5,81,000/-. It is claimed by the Complainant that he was assured for settlement of his claim within a short time but nothing was done on behalf of the OP though he visited the Office of the OP on several occasions. So, ultimately, he was compelled to file the instant case before this Forum seeking several reliefs including direction upon the OP to pay his insurance claim of Rs.4,03,000/- and also compensation for harassment and deficiency in service on the part of the OP.
The OP contested this case by filing w/v and evidence on affidavit. The contention of the OP is that the instant complaint is not maintainable. However, he admitted about the business of the Complainant and the incident of theft as alleged. The OP claimed that Sri Indranil Bhattacharjee, an independent surveyor, who was appointed by the OP, made a survey and filed his survey report on the basis of the documents filed by the Complainant, whereas the loss was assessed amounting to Rs. 86,166/- and the same was recommended and sent by the OP to the Divisional Office, Siliguri for settlement of the claim of the Complainant. But, in the meantime, the Complainant filed this case without any notice or intimation to the OP. The OP further claimed that the Complainant did not maintain accounts and after a long gap, he provided the Books of Accounts and on cross-checking from unregistered bill, it was clear that the rate so given was 22 to 25% higher than the prevailing prices. So, the OP prayed for direction upon the Complainant to accept the settled amount from them as per survey report.
On the basis of the contentions of both the parties, the following points are required to be adjudicated upon.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per provision under Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Is there any deficiency in service on the part of the Ops as alleged?
- Whether the Complainant is entitled to any relief/reliefs, as prayed for?
DECISION WITH REASONS
Point No.1 and 2.
Here in this case, the Complainant claimed to have run a business of cloth in the name and style “Asha Bastralaya” at village Bokalirmath within the district of Cooch Behar and his said business was duly insured with the Oriental Insurance Co. Ltd. i. e. the OP. The Complainant is, no doubt, a consumer within the term as defined under CP Act, 1986.
The business of cloth of the Complainant and the Office of the Op are both located within the jurisdiction of this Forum. Therefore, we find that the cause of action arose within the territorial jurisdiction of this Forum and the claimed amount is also within the pecuniary limit of the District Forum. Thus, these points are disposed of in favour of the Complainant.
Point No.3 and 4.
Both the parties filed their evidence on affidavit and also written argument. On going through all these documents, it is found that the Complainant has a business of cloth at his place is admitted. It is also admitted that during the relevant time i.e. 15.06.16, the business of the Complainant was duly insured with the OP No.1. It is also admitted that on being informed, the OP appointed one Surveyor for ascertaining the loss. The Surveyor visited the spot, required some documents from the Complainant and finally, it is found, a report was submitted by the Surveyor showing the loss of Rs.86,166/-.
Now, the point is that the Complainant disputed the said amount of loss as determined by the Surveyor. According to the Complainant, he sustained loss of Rs.4,03,000/-. Not only that, it is the allegation of the Complainant that after the inspection was over on behalf of the OP, no intimation was given to the Complainant for settlement of the claim.
It has also been made clear by the Complainant that the documents which were submitted by him to the Surveyor had also been produced by the OP during hearing of argument. On the basis of these documents, Ld. Agent appeared for the Complainant argued that the amount of loss as assessed by the Surveyor was not at all proper and this way, he challenged the findings of the survey report.
So, from the argument made on behalf of the Complainant, it is clear that no specific fault or defect in the survey report could be pointed out by them. Instead, what is made is only a round about allegation on the findings of the Surveyor. The documents such as statement of valuation of stock, after-theft inventory, Stock Register for different relevant period and Income Tax Returns of the Complainant etc. were produced on behalf of the OP. The Surveyor is found to have detailed about his assessment and findings in his report. In absence of any specific allegation about any error or lack of consideration of relevant aspects by the Surveyor in his assessment of loss, mere an allegation that survey report or for that matter, the assessment of loss is not proper and thus not acceptable, is not suffice.
In fact, the principle of law is that the survey report for assessment of loss cannot be rejected unless there is cogent ground to do so. Therefore, in the present circumstances, we cannot accept the contentions of the Complainant in this regard.
During argument, Ld. Agent for the Complainant submitted that even long after the inspection or survey was completed by the Surveyor, the Complainant had been kept in dark and on repeated requests, the OP did not make anything to pay his compensation.
What we find, the alleged incident of theft was taken place on 15.06.16. The Surveyor submitted his report on 26.02.17. The date of approval from the higher authority of the OP for payment of the amount as assessed by the Surveyor received by the OP was on 23.07.18. This case was instituted on 15.06.18. Therefore, it is clear that even after submission of survey report, more than one year was elapsed, during which the Complainant got nothing. So, undoubtedly, this delay caused a severe hardship in the form of financial crunch on the Complainant, who had to suffer loss on account of theft in his business. The Insurance Companies need to be sensitive in observing the formalities for giving compensation in such cases taking into account the plight of their clients. Here in this case, no doubt there has been deficiency in service in delaying the performance of the formalities, the brunt of which had to be borne by the Complainant. So, the Complainant is entitled to compensation for deficiency in service on the part of the OP. This apart, Complainant is also entitled litigation cost amounting to Rs.5,000/-. Both these issues are disposed of in favour of the Complainant.
Hence, it is
Ordered
That the instant case be and the same is allowed on contest with cost. The Op is directed to pay an amount of Rs.86,166 i.e. the amount of loss assessed by the Surveyor to the Complainant. The OP Is also directed to pay Rs. 25,000/- for compensation towards mental pain and agony and also deficiency in service and Rs.5,000/- towards cost of litigation to the Complainant.
The aforesaid amount on different counts to be paid by the OP to the Complainant within a month from the date of this order i/d the said amount shall carry interest @6% per annum until realization. If the aforesaid order is not complied with, the Complainant is at liberty to realize the same by way of execution.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action, if any. The copy of the Final Order will also be available in the official Website: Dictated and corrected by me.
