Date of Filing: 19.06.2015 Date of Final Order: 08.12.2017
Sri Asish Kumar Senapati, President
This is an application u/s 12 of the C.P. Act, 1986.
One Sanjib Karmakar (hereinafter referred to as the Complainant) lodged the complaint against the Branch Manager, The Oriental Insurance Co. Ltd., alleging deficiency in service and unfair trade practice.
The sum and substance of the complaint case is as follows:-
The shop room of the Complainant was gutted by fire at night on 26.12.11 and there were damages to other adjacent shops. The shop room of the Complainant was covered under Insurance Policy No.313202/48/2012/ 147 under the OP for the period from 29.05.11 to Mid-night of 28.05.12. The OP violated the terms and conditions of the Insurance Policy by harassing the Complainant. The activities of the OP is very much illegal and un-warranted, for which the Complainant has been passing his days with mental pain and agony. There was a gross negligence and deficiency of service as well as unfair trade practice of the OP. The Complainant has received the Insurance Amount for the materials of the shoe shop but no amount was received for destruction of the building though he gave premium regularly and the building was also insured to the said Co. The Complainant prayed for compensation of Rs.1 lakh, Rs.50,000/- for mental pain, agony and harassment and deficiency in service and Rs.5,000/- as cost of litigation.
The OP put his appearance and filed w/v on 15.12.15 inter-alia denying the material allegations made out in the complaint contending that the complainant has no cause of action to file this case and the case is liable to be dismissed for defect of parties and there is no deficiency or negligence on the part of the OP. The OP has prayed for dismissal of the case with cost.
POINTS FOR CONSIDERATION
- Is the Complainant Consumer as per provision under Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Is the case barred by law of limitation?
- Has this Forum jurisdiction to entertain the instant complaint?
- Has the O.P any deficiency in service, as alleged by the Complainant?
- Whether the Complainant is entitled to get any relief/reliefs, as prayed for?
DECISION WITH REASONS
Point No.1.
The Ld. Agent for the Complainant submits that the Complainant is a consumer under the OP as the shop room of the Complainant was insured under a Policy under the OP with effect from 29.05.11 to Mid-night of 28.05.12. It is urged that the Complainant paid the premium for his Policy and so, he is a consumer under the OP.
In reply, the Ld. Agent for the OP has submitted nothing on this point.
Having heard the Ld. Agents of both sides and on perusal of the Complaint and the w/v, we are of the view that the Complainant is a consumer under the OP. This point is thus disposed of.
Point No.2.
The Ld. Agent for the Complainant has submitted that the case is not barred by law of limitation as the cause of action arose on 26.12.11 and is still continuing. He argues that the shop room of the Complainant was gutted by fire on 26.12.11 at night but the OP did not pay the insured sum by assessing the loss of the shop room as yet.
In reply, the Ld. Agent for the OP has submitted that the case is barred by law of limitation. It is argued that the Complainant alleged that his shop room was gutted by fire on 27.12.11 and he already received the amount for damage from the O.P. by putting his signature in the Form of Discharge for Fire Loss dated 12.06.12. He has submitted that the case is totally barred by law of limitation u/s 24-A of the CP Act, 1986.
We have carefully gone through the materials on record and considered the submission of both sides. The alleged incident of destruction of cloth shop of the Complainant by fire was occurred on 26.102.11/27.12.11. It is the case of the Complainant that the OP did not settle his claim of damage of construction of the Complainant’s shop room. It appears from Annexure “A” submitted by the OP that the Complainant received Rs.1,40,619/- on 15.06.12 by putting his signature in the Form of Discharge for Fire Loss. The Complainant did not file any document to substantiate that he had made any correspondence with the OP after 27.12.11. We find that the cause of action of this case arose on 27.12.11 and limitation period is 2 years from the date on which the cause has arisen. In the present case, it is crystal clear that the Complainant has not filed this case within the period of 2 years from the date on which the cause of action arose. The Complainant has not even filed any application to satisfy this Forum that he had sufficient cause for not filing the complaint within the period of 2 years. In the circumstances, we have no hesitation to hold that this case is barred by law of limitation u/s 24-A of the CP Act, 1986.
Point No.3.
The Ld. Agent for the Complainant has submitted that the cause of action of this case arose within the territorial jurisdiction of this Forum and the claimed amount is also within the pecuniary jurisdiction of this Forum.
The Ld. Agent for the OP has submitted that the complaint case is not maintainable.
On going through the complaint, the w/v and other materials on record, we are of the view that this Forum has both territorial and pecuniary jurisdiction to entertain the complaint.
Point Nos.4 & 5.
Both the points are taken up together for the sake of convenience and to avoid repetition.
The Ld. Agent for the Complainant has submitted that the Complainant filed all the relevant documents before the Insurance Co. for settlement of his claim but the OP did not settle the claim with malafide intention. It is urged that the OP was duty bound to pay the damages of the construction of the cloth shop of the complainant caused due to fire on 26.12.11/27.12.11. It is urged that the Complainant is entitled to get compensation, as prayed for in the complaint petition.
The Ld. Agent for the OP has submitted that the claim of the Complainant for his alleged damage of construction of the shop room is not bona-fide as the Complainant is neither owner nor tenant of the shop room of the cloth shop. It is urged that the Surveyor of the OP investigated the case of the Complainant and found that construction of the cloth shop of the Complainant is on the Railway land and the Complainant is not owner/tenant of the said shop room. He has further argued that the OP received the Policy of the Complainant on declaration of the Complainant and the Complainant is not entitled to get any amount for damage of his construction as he was/is neither owner/ nor tenant of the land over which the cloth shop of the Complainant was constructed.
The Complainant insured his shop room under the OP for the period from 29.05.11 to Mid-night of 28.05.12 and paid premium for that period. It appears from Annexure “A” furnished by the O.P. that the Complainant received Rs1,40,619/- in full settlement of his claim for loss and damages sustained by fire and all demands arising from the fire to property insured under Policy No.313202/48/2012/147 by putting signature in the Form of Discharge for Fire Loss on 15.06.12. It is not understood how and why the Complainant has claimed further amount from the OP even after putting his signature in the Form of Discharge dated 15.06.12. Moreover, the Complainant has failed to produce any document to establish his ownership/tenancy over the shop room for which he claimed the cost of damages to the construction of his shop room. We find that the Complainant has failed to establish any deficiency in service or unfair trade practice against the OP.
In our considered view, the Complainant is not entitled to get any relief in this case. In the result, the complaint case fails.
Fees paid are correct.
Hence,
It is Ordered,
That the complaint case be and the same is hereby dismissed on contest against the OP without cost.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action. The copy of the Final Order will also be available in the following Website:
confonet.nic.in.
Dictated and corrected by me.
