ORDER AND JUDGMENT
The complainant’s case,in brief,is that the complainant subscribed the Shop keeper’s Insurance policy No.-322600/48/2017/972 dated 21/09/2016 from the Opposite Party Oriental Insurance Company Ltd. The Policy was subscribed for total coverage amount for Rs.40,00,000/- (Rupees Forty Lakh) only i.e., Rs.39,00,000/- ( Rs. thirty nine lakh) for the stock in trade of all kinds of spare parts and similar other nature of goods and Rs.1,00,000/- (Rs. one Lakh) only for furniture & fixture. The complainant is to pay premium of Rs.9,464/- and he is making payment of the premiums regularly. That during the period from 31/03/2017 to 03/04/2017 most of the areas of Silchar town got submerged under water due to heavy rainfall and water entered into the shop premises of the complainant. As a result, the stocks in trade including furniture and fixtures in the shop premises of the complainant got damaged causing loss of Rs.6,44,674/- ( Rupees Six Lakh forty four thousand six hundred seventy four) only. The complainant submitted insurance claim with the O.P. Insurance Company. That on receipt of the claim, the O.P. made survey of the claim through their engaged Surveyor. The complainant provided all necessary documents to the Surveyor in support of the claim. But subsequently the O.P. Insurance Company repudiated the claim on flimsy ground that the shop premises of the complainant includes godown which is not covered by the policy. It is stated by the complainant that earlier he received damages under insurance coverage in respect of the same premises. The complainant also preferred an appeal before the Insurance Ombudsman but the Insurance Ombudsman by a letter intimated the complainant that he may approach the Court/Forum. It is stated that as the Opposite party has not settled the claim citing flimsy excuse so the complainant has suffered huge financial loss, mental agony & pain and also the action of the OP Insurance Company has constituted deficiency in service towards the complainant. The complainant has, therefore, prayed for passing an award for Rs.6,44,674/- ( Rupees Six Lakh forty four thousand six hundred seventy four) only towards compensation for the loss incurred by the complainant caused due to the damage of goods, for an amount of Rs. 5,00,000/- ( Rupees Five Lakh ) only towards mental pain , agony & disservice caused by the O.P. to the complainant and for cost of the case etc.
The Opposite Party No.-1 & 2 filed joint written statement stating , interalia, that the instant complaint is not maintainable in its present form and nature, that there is no cause of action of the case etc. etc. It is stated that after receipt of the claim intimation from the complainant , the O.P. Insurance Company deputed Mr. Swapan Paul, Surveyor for survey and assessment of loss and the said Surveyor after conducting survey and assessment of loss, submitted his report to the O.P. Insurance Company . In the survey report `the surveyor has observed that the insured/complainant’s shop and godown was in the same premises separated by partition. The Surveyor has also observed that the stock of godown was partly damaged/affected by inundated water which was not covered under the said shop keeper’s policy issued by the O.P. Insurance company. Accordingly, the O.P. Company basing on the observations and recommendations of the Surveyor repudiated the claim. Thereafter though the complainant submitted representation before the Insurance Ombudsman at Guwahati but it was observed by the Forum that the Insurance Company has rightly repudiated the claim. The O.P. Company has denied that the complainant suffered any loss and damage of the insured goods due to inundation and has prayed for disposal of the complaint after consideration of the survey report etc.
In support of the case the complainant has submitted his evidence on affidavit as PW-1 and has also exhibited some documents. On the other hand, evidence on affidavit of one Sri Chandan Dev, the Divisional Manager of the Oriental Insurance Company and Mr. Swapan Paul, Surveyor have been submitted from the side of the Opposite Party as DW-1 & DW-2 respectively. Some documents also have been exhibited from the side of O.P. Both PW and DWs were cross-examined by the opposite party . Both sides also submitted written argument in addition of the oral argument put forward by the learned counsels for the respective parties. Perused the entire evidence on record. Let us now appreciate the evidence below.
In his evidence PW-1, the complainant, has reiterated the same facts as described in the complaint. It has been averred by PW-1 that he subscribed the Shop keeper’s Insurance policy No.-322600/48/2017/972 dated 21/09/2016 from O.P. Oriental Insurance Company Ltd. in consideration of premium. The Policy was subscribed for total coverage amount for Rs.40,00,000/- (Rupees Forty Lakh) only i.e., Rs.39,00,000/- ( Rs. thirty nine lakh) for the stock in trade of all kinds of spare parts and similar other nature of goods and Rs.1,00,000/- (Rs. one Lakh) for furniture & fixtures. According to PW-1, the premium amount is Rs.9,464/- and he is making payment regularly. The above facts, however, are not in dispute in the present case.
The evidence of PW-1 further goes to show that during the period from 31/03/2017 to 03/04/2017 most of the areas of Silchar town got submerged under water due to heavy rainfall and water entered into his shop premises. As a result, the stocks in trade including furniture and fixtures in his shop premises got damaged causing loss of Rs.6,44,674/- ( Six Lakh forty four thousand six hundred seventy four) only. Further version of PW-1 is that after the said incident he submitted insurance claim with the O.P. Insurance Company and on receipt of the claim the O.P. engaged Surveyor who surveyed the damages and losses. He (P.W.-1) also provided all necessary documents to the Surveyor in support of the claim. But subsequently the O.P. Insurance Company repudiated the claim on the ground that the shop premises of the complainant includes godown which is not covered by the policy. Thereafter, according to PW-1, he preferred an appeal before the Insurance Ombudsman but the Insurance Ombudsman by a letter intimated that he may approach the Court/Forum. It has been claimed by PW-1 that as a result of non-settlement of his claim by the O.P. he has suffered huge financial loss, mental agony & pain and also the action of the O.P. has constituted deficiency in service towards him. On the other hand, in his evidence DW-1 has stated that Swapan Paul is their empanelled Sueveyor and on the basis of surveyor’s report the claim of the complainant was repudiated. DW-1 has exhibited the claim repudiation intimation letter as Ext.- F. However during cross-examination DW-1 has specifically stated that he has got no personal knowledge regarding the incident and also nobody from their office visited the premises of the insured except the Surveyor before repudiation of the scheme.
DW-2 Swapan Paul is the surveyor of the O.P. company. His evidence goes to show that he visited the Insured’s shop and godown on 01/04/2017 for the purpose of survey and to assess the actual loss suffered by the insured. After completion of survey and assessment of loss of the instant claim he submitted his report alongwith all the relevant papers/documents to the insurer. DW-2 has also averred that Ext.-H sketch map /plan was jointly drawn by him as a surveyor and loss assessor pertaining to the claim of the claimant of this case and Sri Samiron Ghosh, surveyor and loss assessor pertaining to claim for Hanuman Automobiles Engineering Works, Silchar and was duly signed by both of them, the Surveyors and Shri Rajendra Kumar Jindal himself as representative of both the firms. Though DW-2 has been fully cross-examined but the above facts have remained undisputed. Again though during cross-examination DW-2 was suggested by the complainant side that his survey report is false and he has deposed falsely as per instruction of the Insurance company but DW-2 has denied the same.
The incessant rain during the alleged period and submerge of different parts of the Silchar town including the area of the shop house of the complainant by stagnant water have not been disputed by the O.P. side. Even in Ext.-E survey report as well as in his own evidence the Surveyor has admitted the fact that rain water entered inside the alleged godown of the complainant which according to the complainant a part of his shop house. According to the Surveyor, only the stock of godown of the insured was damaged partially and the stock of shop was not damaged due to the said inundation. Also the maximum level of inundated water in the insured’s godown building was 1 ft. (approx) from the floor level. On the other hand, from the complainant we do not hear anything about the maximum level of inundated water. As the maximum level of inundated water is one ft. only so it can easily be presumed that the materials kept only in that portion were affected by water . The materials kept in the uper portion were not damaged. Again as the complainant deals with motor parts so it can not be said that due to inundation of water all the articles of motor parts were completely damaged. However, it reveals from the survey report that the surveyor has given the list of affected items.
Again though the O.P. has claimed that the articles of the godown were only partly damaged and the said godown has been separated from the shop house by a wall but the claim of the complainant is that the inundated portion is also a part of the shop house. That apart it can not be said that there can not remain any partition wall in a shop house. The O.P. side has maintained that complainant himself in the letter addressed to the Deputy Commissioner stated that the rain water entered in the godown causing damage of the stock of spare parts. But from Ext.-4 intimation letter addressed to the Chairman , Silchar Municipal Board and from Ext.-6 letter addressed to the Officer-in-charge, Rangirkhari Police Outpost it reveals that the complainant specifically mentioned in the intimation letter that rain water entered inside the shop house and damaged the spare parts. As such only from the letter addressed to the Deputy Commissioner it can not be said that the complainant has admitted the fact that rain water entered inside the godown and not inside the shop house. On the other hand, in their written argument the complainant has categorically stated that the stocks in trade were kept in the shop premises in the back side partitioned by a temporary wall. So the backside of the shop can no way be called a separate house. The complainant has also claimed that the insurance policy was issued and renewed on verification of the shop premises. There is also no statement from the side of the O.P. Insurance Company that they did not visit the shop of the complainant prior to the issuance of the policy.Under the circumstances, according to us, the O.P. Insurance Company can not repudiate the claim of the complainant wholly saying that rain water entered in the godown and not in the shop house of the complainant.
Though the complainant has stated that the stocks in trade as well as the furniture and fixture of her shop house got damaged to the tune of Rs.6,44,674/- but in the present case the complainant has not submitted the list of damaged items with its value so that actual loss can be ascertained. From Ext.-11 letter it reveals that the complainant did not submit to the Surveyor list of inundation affected/damaged items, stock list, purchase memos etc. On the other hand, from Ext.-J i.e., letter dated 14/02/2019 addressed to the Divisional Manager of the O.P. Company by Shri Ashit Ranjan Bhuiya, C.A. it reveals that total loss of stock by inundation was not debited in P/L account as on 31/03/2017 and also loss of stock by incident of inundation was not reflected in VAT Return for the month of March’2017. As such it is not possible at this stage to ascertain the actual loss or damage caused due to inundation by rain water. The Complainant also has not proved in the case the fact that she incurred loss of Rs.6,44,674/- due to inundation of the shop premises. But as from the survey report it has come out that a good number of items got damaged due to inundation by rain water so it would be justified if approximately fifty percent of the claim amount is awarded as compensation for damage of goods.
In view of the above, it is ordered that the O.P. Insurance Company shall pay an amount of Rs.3,20,000/- ( Rupees three lakh twenty thousand) only to the complainant against his claim for damages of materials. In addition the O.P. shall further pay to the complainant an amount of Rs.5,000/- ( Rupees five thousand) only towards mental pain, agony and harassment and shall also pay another amount of Rs. 5,000/- ( Rupees five thousand) only for cost of litigation. The entire amount shall be payable within a period of 60 (sixty) days from today else interest @9% per annum would accrue on the entire amount from the date of judgment till payment.
With the above, the case stands disposed of on contest. Given under seal and signature on this 19th day of May, 2022.
