Both parties are prseent. Judgement is ready and pronounced in open Commission.
By – Smt. Kabita Acharjee(Goswami), Member
The facts of the case to put in a nutshell as below :
The complainant, being the sole proprietor of a shop namely B.K. Medicine & Surgical situated at Vill. Janubasan, P.O. Nonakuri Bazar, P.S. Tamluk, Dist. Purba Medinipur, Pin 721172, took an insurance policy namely, SBI General’s SME Package Insurance Policy for his shop on 22.07.2019 having covering period from 28.07.2019 to 27.07.2020 from the Opposite Party No. 1 & 2 being the Head Office & Branch Officer through their corporate agent i.e. SBI, Kaktia Branch, the Opposite Party No. 3. During tenure of the said policy on 17.08.2019 the stock of medicine of the complainant shop damaged due to sudden Flood and Inundation at the locality of the complainant resulting a damage of Rs. 5,94,043/-. As the complainant took the aforesaid policy to cover that sort of risks also, the complainant approached to Opposite Party No. 1 & 2 and duly complied with all the formalities including filling of Claim Form being Claim No. 744921 as asked on behalf of the Opposite Parties Nos. 1 & 2 in order to get his claim against such damage of stock due to Flood and Inundation. Opposite Party No. 4, being the surveyor of the aforesaid claim case, visited the risk location on 24.08.2019 and the damaged stock were buried in his presence, the complainant was asked to submit some relevant documents vide the letter dt. 25.08.2019 and as per their instructions, the complainant submitted all documents. On 23.12.2019, the regional Claim Manager for & on behalf of the Opposite Parties No. 1 & 2 rejected the claim of the complainant stating ‘The affected location is found to be at Janubasan (Kakatia), Nonakuari, Tamluk, Purba Medinipur, West Bengal-721172, whereas the Policy risk location mentions the insurance location as Vill Ballukhat, Tamluk, Purba Medinipur, West Bengal-721137. The affected location is thus not covered under the Policy. Thus, the claim is not tenable.’.The complainant contacted all of the Opposite parties including their Grievance Redresal Officer again and again and demonstrated all matters without any result and finding no other alternative, the complainant sent a legal notice on 09.08.2021 through his Ld. Advocate to reimburse the proclaim amount of Rs. 5,94,043/- along with interest @ 10% p.m. from the date of receipt of this notice till actual realization of the said amount as per the claim being no. 744921 against Policy No. 4705115-03, SBI General’s SME Package Insurance Policy of SBI General Insurance Company Limited within fifteen days but no action has been taken from the end of Opposite Parties. The ops failed to provide proper service to the complainant. There is negligence on the part of the ops and they committed unfair trade practice. The cause of action arose on and from 01.09.2021. Hence the complainant has filed this case praying for directing the ops to refund of amount of Rs.5.94.043/-, compensation of Rs.10,00,000/- for mental agony and Rs.50,000/- as towards litigation costs.
Notices of the case were duly served upon all the ops. The ops-1, 2, 5 and 6 contested the case by filing written version thereof. OP No. 3 ,the Manager of SBI and OP No. 4 Joshi Prakash Chandra, surveyor appeared but they did not contest the case., as such, the case has been proceeded exparte against them.
The sum and substance of the written version of the OPs No. 1, 2 5 and 6 can be stated inter alia as follows-The prayer of the complainant is improper, illegal and unjust. From the insurance policy it is found that the insured obtained policy for the premises/location for vill. Ballukhat, P.O. Bullukhat, Tamluk, Purba Medinipur, West Bengal but on inspection the affected premises is shown and disclose the affected area/location is Village Janubasan (Kaktia), P.O. & P.S. Tamluk, Dist. Purba Medinipur and the address/location of the insured premises as per policy document is at vill. Ballukhat, P.O. Ballukhat, Tamluk, Purba Medinipur, West Bengal. Insurance policy I annexed herewith as annexure-A. The affected place is mentioned in the Claim Form i.e. separate business place and the aforesaid place is not covered under the SME PACKAGE Insurance policy being No. 0000000004705115-03 which contains different place/location as insured premises. Copy of Claim is annexed herewith as annexure-B. The surveyor visited the affected area/location situated at village Janubasan (Kaktia) P.O. & P.S. Tamluk, Dist. Purba Medinipur and it is disclosed that the said effected is not mentioned in aforesaid policy as risk location but on inquiry it is disclosed that the said effected portion is not coverage under the insurance policy that is totally separate from the insured Risk Location. According to policy terms and conditions of the policy the intimation should be informed immediately after occurrence and in case of any untoward incident regarding claim or other criminal act which may be subject of claim under this policy the insured shall give immediate notice to the police and co-operate with the company insecuring conviction of the offender. The case of any untoward incident the insured should inform to the company immediately within 24 hours otherwise, valuable time would be loss to investigation of the incident and the insurer can verify as to whether any untoward incident had taken place and also to take immediate step and the violation of condition of the policy deprives the insurer of a valuable right to investigate as to the commission of the incident and actual feature of condition of affected area. Although there was assessment of loss to the extend of Rs. 4,67,868/-(Rupees four lacs sixty seven thousand eight hundred sixty eight only) for alleged but the factum of incident would not be established and believed and moreover such assessment was not supported by purchase memo, sell memo and stock book and the documents like bank statements, balance sheet and trading and P/L Account was not believable and reliable. The effected place is not cove ered under policy as mentioned above so there is no deficiency of service from the side of the complainant and as such the claim made by the complainant is not at all tenable and the same is liable to be rejected/dismissed. Therefore ,it is most humbly prayed that the complaint filed by the complainant shall be dismissed with costs to meet the ends of promoting justice and equity.
Points for Determination
- Is the case maintainable in its present form and in Law ?
- Is the complainant entitle to the relief as sought for ?
Decision with Reasons
Both the points No. 1 and 2 are taken up together for convenience of discussion as they are related to each other.
We have carefully perused the complainant on affidavit, written version ,evidence of both contesting parties ,written notes of arguments along with documents on record. Having regards had to the facts and circumstances of the case in the light of evidence, it is evident that there is no dispute that complainant is a consumer having grievances against the OPs, as such the case is maintainable in its present form and law.
Now, on careful analysis of the materials on record, it appears that the Insurance Certificate and claim form there is no material discrepancy regarding the situation and location of the shop concerned. From the report of the surveyor appointed by the contesting OPs it appears that the surveyor could locate the medicine shop in question it is not the case of the Ops that the claimant had no shop in the name and style given in the insurance certificate. It is also not disputed the cause of damage was due to inundation. It is evident from the evidence of the complainant and the materials on record that it is an admitted fact that the insurance policy in question was taken for the complainant B. K. Medicine and Surgical on 22.07.2019 having covering period from 28.07.2019 to 27.07.2020 . It is also admitted fact the stock of B.K. Medicine and Surgical damaged on 17.08.2019 during the covered period. The complainant submitted the claim form and complied with all the legal formalities to obtain the claim.The contention of the OPs regarding un-matching of affected location and risks location is not at all sustainable in these present scenario, they have failed to show any scrap of paper from where they can prove that the B.K. Medicine and Surgical is not situated at Janubasan. Moreover, the complainant have submitted his trade licence year to year wherefrom it is clear that B.K. Medcine and Surgical is situated at Janubasan. Insurance policy document also contains the mailing address of B.K. Medicine and Surgical at Janubasan. The OPs have also admitted the fact that they perused all the relevant documents and papers of policy holder before issuing policy but they did not file any document of policy holder to show that policy was taken at separate location. Mere allegation does not prove the case. The complainant supplied all the documents regarding the shop B.K. Medicine and Surgical from where it is clear that the policy risks location and affected location is same and identical. But OPs did not prove that the policy risks location and affected location is different.
From the observation made by the surveyor appointed by the contesting ops, it appears that on the day of inspection the risk location was critically evaluated. Sample test of damaged goods were made and found the different marks and instances of damage caused by inundation by heavy rain water. The OPs should have made payment accepting the surveyor’s report. The contesting ops can not deny its liability to make payment in term of surveyor’s observation because the OP itself caused survey of the site as per insurance claim settlement rules. This commission also do not find any ground to reject the surveyor’s report. The surveyor went to Janubasan, P.O. Nonakuri bazaar, P.S. Tamluk, Dist. Purba Medinipur for inspection and assessed the damage to the tune of Rs. 4,67,868/- and damaged stocks were buried in his presence. Thus, complainant has been able to prove that the contesting ops have fallen in the mischief of deficiency of service and unfair trade practice for not settleing the claim of the complainant. The complainant is entitled to get Rs. 4, 67,868/- as insurance claim alongwith interest @ 7% per annum over the said amount from the date of filing of this case till realisation in full as compensation and litigation costs of Rs.2000/-.from ops-1,2,5&6. The ops 3 & 4 have no liability as against the claim of the complainant.
Accordingly the points for determination are disposed of.
Resultantly, the case succeeds.
Hence, it is
Ordered
that CC/124/2021 be and the same is allowed on contest against Ops-1 ,2 ,5 & 6 and dismissed exparte against ops-3 & 4.
The Ops-1 ,2 ,5 & 6, who are jointly and severally liable, are directed to pay Rs. 4, 67,868/- as insurance claim alongwith interest @ 7% per annum over the said amount from the date of filing of this case till realization in full as compensation and litigation costs of Rs.2000/- to the complainant within 45 days from the date of this order.
In default, the complainant is at liberty to put the order into execution as per law.
Let a copy of this judgement be supplied to the complainant and the contesting OPs free of cost.
