Assam

Cachar

CC/47/2019

Hanuman Automobiles Engineering works - Complainant(s)

Versus

The Divisional Manager, Oriental Insurance Co. Ltd. - Opp.Party(s)

Adv. Souman Choudhury

19 May 2022

ORDER

Heading1
Heading2
 
Complaint Case No. CC/47/2019
( Date of Filing : 22 Nov 2019 )
 
1. Hanuman Automobiles Engineering works
Sonai Road, Silchar
Cachar
Assam
...........Complainant(s)
Versus
1. The Divisional Manager, Oriental Insurance Co. Ltd.
Town Club Building, P.W.D Road, Silchar
Cachar
Assam
2. The Branch Manager, Oriental Insurance Co. Ltd.
Town Club Road, P.W.D Road, Silchar-1
Cachar
Assam
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. JUSTICE Sri Samarjit Dey PRESIDENT
  Kamal Kumar Sarda MEMBER
  Deepanita Goswami MEMBER
 
PRESENT:
 
Dated : 19 May 2022
Final Order / Judgement

                                                                   

ORDER AND JUDGMENT

 

                       The complainant’s case,  in brief, is that the complainant subscribed the Shop keeper’s  Insurance policy  No.-322600/48/2017/954 dated 16/09/2016 from the Opposite Party  Oriental Insurance Company  Ltd.  The Policy  was  subscribed for total coverage  amount  for  Rs.50,00,000/- (Rupees  Fifty Lakh) only  i.e.,  Rs.49,00,000/- ( Rs. Forty 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.7,500/- and he is making payment 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.6,52,587/- ( Rs. Six Lakh  fifty two thousand five hundred Eighty seven) only.  The complainant   submitted insurance claim with the O.P.  Insurance  Company.  That  on  receipt of the  claim  the O.P.  engaged  Surveyor  who  surveyed the damages and losses.  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. The complainant also preferred an appeal before the Insurance Ombudsman but the Insurance Ombudsman by a letter dated 13/06/2019  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.6,52,587/- ( Rs. Six Lakh  fifty two thousand five hundred Eighty seven) 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. Samiron Ghosh, 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. Samiron Ghosh, 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 oral argument put forward by the learned counsels of  the  respective parties.  Perused the entire evidence on record.  Let us  now appreciate the evidence below.

                                                      In his evidence PW-1, the complainant has averred that he  subscribed the Shop keeper’s  Insurance policy  No.-322600/48/2017/954 dated 16/09/2016 from  O.P.  Oriental Insurance Company  Ltd. in consideration of premium. The Policy  was  subscribed for total coverage  amount  for  Rs.50,00,000/- (Rupees  Fifty Lakh) only  i.e.,  Rs.49,00,000/- ( Rs. Forty 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.7,500/- and he is making payment regularly.  The above facts, however, have not been disputed by the DWs. 

                                   Further  averment  of PW-1 is 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 the shop premises   got damaged  causing  loss of Rs.6,52,587/- ( Rs. Six  Lakh  fifty two thousand five hundred Eighty seven) only.  As claimed by PW-1,   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. P.W.-1  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 dated 13/06/2019  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  OP   has  constituted deficiency  in service towards  him.  In his evidence DW-1 has stated that Samiron  Ghosh 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.    From the evidence of DW-1 it further reveals that  he has got no personal knowledge  regarding the incident and also nobody from their office visited the  premises of the insured. 

                                    The evidence of DW-2, the surveyor, 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.  According to DW-2,  after conducting  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 the instant case and  Sri  Swapan  Paul, surveyor and loss assessor  pertaining to claim  for Allied Distributors 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  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 case record  that the complainant has submitted 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 his shop house got damaged to the tune of  Rs.6,52,587/- and  the list of damaged materials has been exhibited vide Ext.-22 but in the present case the complainant has not submitted the supporting documents like purchase memos etc. of the materials.  Also the complainant has not submitted any other documents to substantiate the fact that at the relevant time the  materials shown in Ext.-22 list were available  in stock in the shop .  The Survey report also does not  disclose the list of damaged materials found at the spot at the time of verification in the shop premises and assessment of loss.  As such it is found that in the case the fact that the complainant  incurred loss of Rs.6,52,587/- due to inundation of the shop premises has not been proved.  It is also not possible at this stage to ascertain the actual loss or damage caused due to inundation  by rain water.  But as from the survey report  it has come out that  rain water entered  in the premises  of the complainant and as a result materials got damaged  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.3,25,000/- ( Rupees three lakh twenty five 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.

 
 
[HON'BLE MR. JUSTICE Sri Samarjit Dey]
PRESIDENT
 
 
[ Kamal Kumar Sarda]
MEMBER
 
 
[ Deepanita Goswami]
MEMBER
 

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