Date of Filing: 14/08/2014 Date of Final Order: 12/06/2015
The complainant Sri Mintu Ghosh, S/o. Late Dhirendra Ch. Ghosh, has filed the present case U/S 12 of the Consumer Protection Act, 1986 against the O.P, The Branch Manager, The Oriental Insurance Company Ltd., Cooch Behar Branch praying for issuing a direction upon the O.P to pay the claim amount to the complainant also to pay as compensation, mental pain and agony, harassment, deficiency in service and cost amounting of Rs.2,55,000/- in total and other relief(s) as the Forum may deem feet and proper.
The gist of the complaint as culled out from the record is that the complainant runs in shoe shop namely New Shoe Mart, which was insured with the Oriental Insurance Company Ltd., Cooch Behar Branch. The O.P issued a Policy being No. 313202/40/2012/110 period of insurance from 11/05/2011 to Midnight 10/05/2012, Sec No. 1A, Section SEC 1(A) Fire and Special perils Building. Sum Insured for the building of Rs.2,00,000/- and premium of Rs.115/- which was deposited by the complainant to the O.P.
During the validity of the said policy, unfortunately, the complainant's shop has been destroyed by fire at the night of 26/12/2011 and the total amount of goods destroyed by the incident of fire. The fire has caused damage to other adjacent shops. Also about which complainant have a certificate from O.C. Cooch Behar Fire Station (vide Memo No. CFS 28/2012) dated 27/01/2012 in which the total description at the incident has been described. The complainant have also informed the said matter to B.D.O. Cooch Behar and collected certificate from him on 03/01/2012. The complainant have also informed about it to D.M. Cooch Behar by giving full description of and lodge a complaint to Kotwali P.S. GDE No. 1398 dated 27/12/2011 describing the total incident. But the complainant did not get any amount for the building though the complainant paid premium regularly and the building was also insured under the said policy to the same company. The complainant received only the insurance amount for the material stored in the shoe shop. The O.P. violated the terms and conditions in respect of the said insurance policy. Due to such activities of the O.P. by adopting unfair trade practice, the Complainant suffered from mental pain, agony which be termed as deficiency in service. Finding no other alternative the Complainant has filed the present case before this Forum seeking redress and relief.
The Complainant filed the instant Case No. DF/55/2014 with enclosed some original/Xerox copy of documents together with I.P.Os. of Rs.200/- before this Forum for redress of the dispute and prayed for direction to the O.Ps to pay (1) Rs.2,00,000/- as compensation, (2) Rs.50,000/- for mental pain, agony, harassment and deficiency in service and (3) Rs.5,000/- towards litigation cost, besides other relief(s) as the Forum deem fit, as per law & equity.
The O.P., Oriental Insurance Company Ltd. has contested the case by filing written version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the complainant has no cause of action to bring this case.
This O.P. contented that the O.P issued a Shopkeepers Insurance Policy bearing No. 313202/40/2012/110 for the period from 11/05/2011 to Midnight 10/05/2012 in the name of Mintu Ghosh, Vill. & P.O. Baneswar, Cooch Behar from the Cooch Behar branch of the O.P. Total sum insured Rs.1,00,000/- covering Rs.1,00,000/- for building of class ‘A’ construction in the business premises against the risk of fire and/or allied perils u/s 1(A) and 1(B) respectively under the same policy of insurance.
The further contention of the O.P is that the shop of the complainant destroyed by fire which was situated on land of N.F. Railway owned by Railway Authority i.e. Indian Railway. There was no written permission allowing the complainant to construct a shop premises for carrying out business in that premises. The complainant could not submit any permission from the Indian Railway or show any deed of lease between the complainant and Railway Authority. So, it is/was unauthorized construction made by wood and G.I. sheets etc. Any unauthorized construction is not cover under such insurance policy. Accordingly, there is no liability of the O.P. insurance company in respect of the shop premises.
Furthermore, it has been clearly mentioned on the face of the Shopkeepers Fire Insurance Policy Schedule in SEC I (A) Fire and Special perils Building, Building of class 'A’ construction. However, the complainant’s shop was not comes under class ‘A' construction. It was made of tin shed, wooden structure and walling on a land in which complainant had/have no right, title and interest. Therefore, this answering O.P was not liable to make any further payment under Shopkeepers Insurance Policy for building and there was no irregularity, negligence and deficiency in service or unfair trade practice on the part of the O.P.
Ultimately, the O.P. prayed for dismissal of the case with costs.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Has the Opposite Party any deficiency in service as alleged by the Complainant and is liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, peruse the entire documents in the record also heard the argument advanced by the parties at a length.
Point No.1.
Evidently, the Complainant obtained a Shop Keepers Insurance Policy from the Oriental Insurance Company after depositing an amount covering the risk of fire of his shop namely, New Shoe Mart. The Opposite Party issued a Policy certificate in favour of the complainant. Thus, the relation between the Complainant and the O.P so established from the record we are in considered opinion that the Complainant is a consumer of the O.P.
Point No.2.
The Opposite Party has its Branch office at Cooch Behar town and total valuation of this case is Rs.2,55,000/- which less than Rs.20,00,000/-.
So, this Forum has every jurisdiction to try this case.
Point No. 3 & 4.
According to written complaint and evidence of the Complainant, the Complainant runs a shoe shop, which was insured with the Oriental Insurance Company Ltd. Cooch Behar Branch. The O.P issued a policy i.e. “Standard Fire and Special Perils Policy” vide No.313202/40/2012/110 policy period from 11-05-2011 to 10-05-2012. Insured Certificate for the period from 11-05-2011 to 10-05-2012 issued by the O.P, Oriental Insurance Company reveals that Class-1 Building sum insured Rs. 1,00,000/- and Stock in trade of all kind of shoe Rs. 3,00,000/- and no coverage on furniture fixture and by the O.P Insurance Company.
The Insurance Company assessed the valuation of loss of stock as Rs. 2,90,000/- and agreed to pay Rs. 2,48,324/- and that amount is claimed to have been paid to the Complainant in respect of stocks and received by him but the claim in respect of the building has been repudiated i.e. claim of Rs.2,53,000/-, refused on the ground of the shop/building not being of class ‘A’ construction in the business premises against the risk of fire and/or allied perils.
It is the specific case of O.P is that the shop of the complainant destroyed by fire which was situated on land of N.F. Railway owned by Railway Authority i.e. Indian Railway. There was no written permission allowing the complainant to construct a shop premises for carrying out business in that premises. The complainant could not submit any permission from the Indian Railway or show any deed of lease between the complainant and Railway Authority. So, it is/was unauthorized construction made by wood and G.I. sheets etc. Any unauthorized construction is not cover under such insurance policy. Accordingly, there is no liability of the O.P. insurance company in respect of the shop premises.
The opposite Parties filed some documents by Firisti from which the photographs reflects that the market area huts are made with tin sheds/or cemented pillars of which entire tin shed/roof etc. are being seen at a glance in low land by the adjacent side of the Railway Station ‘Baneswar’ Platform. It cannot be said beyond doubt whether the land in question belongs to the N.F. Railway or not but presumably it can be said that the said market area belongs to the Railway consisting of low land and ditch. Neither of the parties called for any report from the N.F. Railway Authority as to the owner of the land. As per report of the O.C., Cooch Behar Fire Brigade, we may reasonably presume that the land belongs to N.F. Railway and the owners of the shops made the constructions in the Bazaar as it appears from the nature and character of construction in the photograph.
It is pertinent to mention that as and when the Opposite Party after proper enquiry accepted proposal and issued policy, they cannot deny the claim of the Complainant. This act and conduct of the O.P. is barred by principle of estoppels.
Whatever it may be, in our considered view the reasonable amount should be awarded to the Complainant for destruction of his shop, as evidently, the said shop, which has been devastated by fire duly insured by the O.P Insurance Company.
Perused the report of the surveyor dated 03.03.2012 but we are not inclined to accept the report of the Assessor in toe-toe, as he has not assessed the value of the construction of the shop, may it be class ‘A’ construction or otherwise. It is pertinent point to mention that the facts and circumstances of the case of the Complainant also corroborated with the certificate of B.D.O. Cooch Behar –II Block and the Report of the O.C. Fire Brigade (Annexure C&D) and thus, the prayer of the Complainant is acceptable beyond any manner of doubt. Evidently, the sum assured of the Policy of shop premises is of Rs. 1,00,000/- and in our considered opinion it is reasonable if we allow the insured amount to the Complainant considering the loss of his shops with compensation.
It is also pertinent point to mention that in this case accident of fire is not disputed. In this Juncture reliance has been placed upon the citation reported in 2015 (1) CPR 621 (NC) where the National Commission observed that Insurance Claim cannot be repudiated where Surveyor and Investigator appointed by the Insurance Company did not raise any doubt about manner of accident.
In the light of foregoing discussion and based on facts and Evidence on record we find no cogent ground for repudiation the genuine claim of the complainant and the act and conduct of the opposite party certainly falls under the category of deficiency in service as described in Section 2 (1) (g) of the C.P. Act, 1986 and the complaint deserves to be allowed but in part.
Thus, the complaint succeeds.
ORDER
Hence, it is ordered,
That the case succeeds and the same is allowed with Rs.5,000/- as litigation cost of the proceedings. The O.P hereby directed to pay the complainant Rs.1,00,000/- as sum assured of the policy as to the shop of the complainant Rs.20,000/- towards compensation, for harassment, mental agony to the complainant.
The ordered amount shall pay to the Complainant directly within 45 days failure of which the O.P shall pay Rs.100/- for each day’s delay and the amount to be accumulated shall be deposited in the “State Consumer Welfare Fund”, West Bengal.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.
Dictated and corrected by me.
Member President
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
Member
District Consumer Disputes
Redressal Forum, Cooch Behar
