1. This is a case of deficiency of service of the United India Insurance Company Limited, the opposite party, (hereinafter ‘the insurer’ for short) as alleged by the flood victim as well as complainant of this case for repudiation of insurance claim without any basis.
2. Backdrop of the case, in brief, is that the complainant Md.Imdadul Hoque filed an application under Section 12 of the Consumer Protection Act, 1986 (hereinafter ‘the Act’ for short) stating inter alia that the complainant, being the proprietor of a biscuit factory, obtained from the insurer one Standard Fire and Special Peril Policy viz. No. 131001/11/12/11/00000172 securing ` 5,00,000/- as sum assured, in case of damage caused to the biscuit factory, covering the period of insurance from midnight of 05/06/2012 to midnight of 04/06/2013. That the biscuit factory having been inundated due to flood on 28/09/2012, the complainant, along with all supporting documents, had been approaching the insurer time and again for settlement of the assured claim, but ultimately the insurer repudiated the claim without any basis. Hence, the complainant has sought for redressal of his grievances along with costs to compensate his financial loss, physical sufferings, mental pain etc.
3. On referring the admitted complaint, in terms of the provisions of Clause (a) of sub-Section (1) of Section 13 of the Act, the insurer in its written version of the case, denying all averments of allegations made in the complaint, stated that on receiving information from the complainant about the damage of the biscuit factory due to flood the insurer, as per normal practice, engaged one accredited surveyor to assess the damage caused by the flood and the loss sustained by the complainant. It is also stated that the surveyor submitted report to the effect that the complainant having not cooperated the surveyor during assessment on the spot willfully contravened the prescribed conditions of the policy for which surveyor had suggested the insurer to repudiate the claim.
4. From the pleadings of the parties, since on receipt of the claim for damage of the factory due to flood made by the complainant the insurer engaged a surveyor to assess the damage, it is apparent that the fact of flood is not disputed. Though the opposite party has raised various pleas about non-joinder of necessary parties; complaint is barred by principle of waiver, estoppels and acquiescence etc. no evidence is led in this regard. Jurisdiction of this Forum being very limited as contemplated under Section 14 of the Act, and also from the trend of evidence of the insurer finding that repudiation of claim is being mainly surrounded by a particular fact, i.e. at the time of assessment of damage the complainant deliberately withheld from cooperating the surveyor to assess the damage caused by the flood and the loss sustained by the complainant, our discussions and decisions are confined to the following issues:
I S S U E S
(1) Whether the parties have been able to establish their respective cases?
(2) Whether the insurer has repudiated the claim of the complainant in a
justifiable manner?
(3) To what relief/ reliefs the parties are entitled?
5. From the complainant side two witnesses namely, the complainant Md. Imdadul Hoque and another independent witness Md. Asad Ali, have been examined as PW1 and PW2 respectively and they have been duly cross-examined.
Shri Sankar Sarkar as DW1 has been examined from the side of the opposite party who has also been duly cross-examined from the complainant side.
6. ISSUE No. 1
(a) The complainant in his application under Section 12 of the Act and as PW1 in his evidence-in-chief amongst various statements asserted that he obtained one policy bearing No. 131001/11/12/11/00000172 securing ` 5,00,000/- as sum assured against the damage of his business establishment covering the period of insurance from midnight of 05/06/2012 to midnight of 04/06/2013 and on 28/09/2012 when his business establishment was damaged out of inundation caused by flood observing due formalities the complainant repeatedly requested the opposite party for settlement of the claim, but ultimately, it was repudiated. PW2 in his evidence-in-chief has extended support to PW1 so far as this part of evidence is concerned. PW2 further stated that the complainant, being poorly literate, sought for help from PW2 during the period of settlement of his claim for which PW2 is conversant with the facts and circumstances of the case. PW2 further stated that at the insistence of PW1, as ordered by the Revenue Circle Officer, lot Mandal prepared a report of damage of the biscuit factory caused by the flood.
(b) PW1 pressed into original copy of policy bearing No. 131001/11/ 12/11/00000172 and receipt of payment towards the policy marking as Ext1 and Ext 2 respectively. The insurer has neither challenged these documents during cross-examination nor has adduced any rebuttal evidence through DW1. Thus, the complainant has been able to establish that the properties of the factory were duly insured. Of course, it is not the case of the insurer also that the complainant did not obtain any policy.
(c) During evidence-in-chief DW1 stated that the insurer on 08/10/2012 having entrusted DW1 to conduct a survey as to damage of complainant’s factory caused by the flood DW1 visited the factory on 09/10/2012 and found that the flood water had already receded from the area and pressing into his survey report Ext “Ka” stated that DW1 had insisted the complainant to show his damage; but the complainant did not cooperate the surveyor. The testimony of DW1, that the complainant had failed to cooperate the surveyor, found to be absurd and illogical because such abstinence on the part of the complainant from cooperating the surveyor appears to be against the normal human conduct and behavior as the complainant is a flood victim as well as an interested party to get relief out of coverage of his insurance policy inasmuch as not only the complainant but also all dependent members of his family are supported from the income of the factory and under such circumstances the complainant should definitely assist any person religiously whoever came forward to revive the livelihood of entire members of the family of the complainant.
(d) Report prepared by DW1 in Ext “Ka” found to be self contradictory as according to DW1 the complainant did not cooperate the surveyor in assessing the damage in one hand and DW1, again in one stage, stated that the complainant had submitted a bunch of old papers to DW1 on the other hand. At the foot note of Ext “Ka” under the heading of “ENCLOSURES” DW1 has mentioned about three documents viz. “01. Photographs (digital), Policy copy” and “02. Survey fee bill” whereas there is no mention about so called “a bunch of old papers” under the heading of “ENCLOSURES”. But interestingly, none of the documents as mentioned under the heading of “ENCLOSURES” found to be attached with Ext “ka” not to speak of “a bunch of old papers”.
(e) PW1 during evidence-in-chief, pressing into Ext 7 and Ext 8, (Ext 9 does not contain any signature and seal of the author of the document and hence it is not taken into consideration) stressed that materials enlisted in these two documents were also damaged. PW1 denied the suggestions put in challenge of these two documents but the insurer did not adduce any evidence to substantiate the suggestions in regard to Ext 7 and Ext 8.
(f) The story set up by DW1, that complainant failed to dismantle the oven and intimate the surveyor after dismantling, the surveyor being unable to assess damage, had submitted a report to the effect that there was no damage to the factory, appears to be not worthy of credence. DW1 himself stated that the oven of the factory was made of mud. If that is so, any article made of mud only not of any solid material like cement etc. it can in no case stand as it is if flood water gets contacted to it. It is more so when evidence of DW1 is viewed with that of the report of Circle Officer marked as Ext 3. This document Ext 3 having contained office number with date and seal of office signed by a public servant can unhesitatingly be said to have assumed the status of public document. This document has neither been challenged nor has the insurer adduced any rebuttal evidence to discard the content of Ext 3. According to Ext 3 the biscuit factory was damaged due to last flood. Such being the position it is crystal clear that the factory and ancillaries thereto were damaged due to flood.
(g) Taking into totality of the entire materials available on record, as have been revealed during the discussion above, we are constrained to hold that the opposite party has awfully failed to establish that the complainant had failed to cooperate the surveyor in assessing the damage caused by the flood and loss sustained by the complainant whereas the complainant has duly established his case. Hence, this issue is answered in favour of the complainant and against the opposite party.
7. ISSUE No. 2
(a) The complainant in his application under Section 12 of the Act and as PW1 in his evidence-in-chief amongst various statements asserted that he obtained one policy bearing No. 131001/11/12/11/00000172 being marked as Ext 1 securing ` 5,00,000/- as sum assured against the damage of his business establishment covering the period of insurance from midnight of 05/06/2012 to midnight of 04/06/2013. He also pressed into receipt of payment towards the policy marking as Ext 2. On 28/09/2012 business establishment of the complainant was damaged out of inundation caused by flood, that is to say, damage of the business establishment was caused within the period of the coverage of the insurance. These parts of material evidence have not in any manner been put in to challenge during cross-examination conducted by the opposite party.
(b) The main contention of the opposite party is that at the time of assessment of damage the complainant deliberately withheld from cooperating the surveyor to assess the damage caused by the flood and the loss sustained by the complainant. But the insurer, that is, the opposite party has not succeeded in establishing its plea as has been discussed under Issue No. 1 above. Such being the position repudiation of claim of the complainant is not made in a justifiable manner.
This issue is answered accordingly.
8. ISSUE No. 3
(a) It is undisputed fact that the complainant obtained a policy viz. policy No. 131001/11/12/11/00000172 being marked as Ext 1 securing ` 5,00,000/- as sum assured against the damage of his business establishment covering the period of insurance from midnight of 05/06/2012 to midnight of 04/06/2013. He also pressed into receipt of payment towards the policy marking as Ext 2. As discussed under Issue No.1 and Issue No. 2 above that the opposite party has failed to establish its case and repudiation of claim of the complainant is not made in a justifiable manner respectively. Calamities causing the damage to the complainant’s factory and ancillaries thereto had taken place within the period of insurance coverage. Therefore, the complainant is entitled to get entire benefit of insurance coverage promised by the policy in question.
That apart, the complainant has been deprived of his legitimate claim for which he has to move from pillar to post for a considerable period to establish the genuineness of his claim and thereby he has been suffering a lot, financially, physically and mentally. Such being the position the complainant is not only entitled to get interest on the sum assured from the date of his claim before this Forum but also entitled to get an additional amount as compensation to solace his physical and mental tiredness as well as financial involvement.
ORDER
The opposite party United India Insurance Company Limited is hereby ordered to disburse the assured sum covered by policies No. 131001/11/12/11/ 00000172 interest, if any, thereon to the complainant obtaining proper identification within 30 (thirty) days from the date of receipt of this order.
The opposite party United India Insurance Company Limited is further ordered to pay interest at the rate of 6% per annum on the principal assured sum from the date of filing this case, that is, with effect from 13/11/2014 till the date of finally settled the disbursement of the due amount.
It is further ordered that United India Insurance Company Limited shall pay a sum of Rs. 10,000/- (Rupees ten thousand) only as compensation to solace physical and mental tiredness as well as financial involvement of the complainant and another sum of Rs. 5,000/- (Rupees five thousand) only as costs of the litigation to the complainant along with the payment of assured sum as has been indicated above.
Given under our hand and seal of this Forum this 24th day of August, 2017.
