The instant case was instituted on the basis of a petition of complaint filed by one Rakesh Kumar Jain, S/O. Late Joharraj Jain, of Vill. & P.O. Samsi, under the P.S. Ratua, Dist. Malda u/s. 12 of Consumer Protection Act, 1986 before this Forum now Commission which was registered as Complaint Case No. 33/2016.

The fact of the case as revealed from the petition of complaint as well as from the evidence is that Rakesh Kumar Jain, the complainant is a sole proprietor of his business carrying under the name and style of his firm Rakesh Kumar Jain having a business in the premises located at the rental building of Kishanlal Agarwalla to Samsi state high way within P.S. Ratua. It has been further stated that the complainant has been dealing in all types of seasonal jute stock and selling business since 1990 till the date of filing of this case.

The complainant has been carrying his business by occupying office building including two numbers of godown which all together rented from building owner named Kishan Lal Agarwal.

On 28/09/2013 at about 13-00 hrs. the complainant was informed by his engaged labour and some other labours that some dense smoke was coming out from the jute stocks in the godown and his labour also apprehended that fire may got from the jute stocks in the godown. At the time of hearing such incidence the complainant was near his house at Samsi Bazar and immediately rushed to the place of his business and with the help of labours and other neighbors he was able to control the fire by pouring water from the submersible water lifting machine which was installed within his business premises.

The further case of the complainant is that the complainant purchased Standard Fire and Peril Policy vide Policy No. 013400/11/12/11/00000570 and the said policy was valid from 30/01/2013 to 29/01/2014 and the complainant duly paid the premium amount.

After the incident the complainant informed the Officer-in-Charge of Samsi Police Out Post over telephone and also informed the Branch Manager of State Bank of India as the State Bank of India duly financed the business and also informed in writing to the nearest Police Station. The complainant also informed about the incident to the Divisional Manager United India Insurance Co. Ltd. on 30/09/2013 about the loss of damage due to fire. But the Insurance Company ultimately repudiated his claim this is why the complainant has come to this Forum with a prayer for compensation of Rs. 5,00,000/-(Rupees Five Lakhs Only) along with compensation, harassment, mental pain and agony Rs. 1,00,000/-(Rupees One Lakh Only) and cost of the suit.

The petition has been contested by the O.P. Insurance Company by filing a written version denying all the material allegation as levelled against the Insurance Company contending inter alia that the instant case is not maintainable according to the Law and facts. The petition of complaint is barred by principle of waiver and estoppels.

The definite defense case is that the incident of fire was not reported to the nearest Fire Station which is only 18 (Eighteen) km. away from the side.

The further defense case is that after the incident the complainant obtained the trade license on 07/10/2013 by way of practicing fraude and he has not paid G.P. Tax within due time. After the incident the complainant paid the G.P. Tax on 07/10/2013.

Furthermore, the complainant filed the Income Tax return for the year 2012-13 – Nil. Though he showed the opening as on 01/04/2013.

Accordingly, the Insurance Co. repudiated the claim for misrepresentation, mis-description and non-disclosure of material particular. Considering such facts and circumstances the instant case is liable to be dismissed with cost.

In order to prove the case the complainant himself was examined as P.W.-1 and he examined Surveyor Mr. Kundu as P.W.-2. No other witness was examined on behalf of the complainant and the complainant also proved and marked the Survey Report as Ext.-1. No other document was exhibited.

On the other hand one officer viz. Ashim Kr. Burman of United India Insurance Co. was examined as D.W.-1 and cross-examined and O.P. proved the policy as Ext.-A. No other documents were proved and marked exhibit.

Now the point for consideration:-    Whether the complainant is entitled to get any relief as prayed for?

::DECISION WITH REASONS::

At the time of argument the Ld.Lawyer of the complainant submitted that the Insurance Company has repudiated the claim on the ground of misrepresentation, misdescription and non-disclosure of any material part. The Insurance till today did not cancel the policy as and when the claim was repudiated on the ground of misrepresentation, misdescription and non-disclosure of material part. So this type of story of repudiation is quiet unbelievable.

It is the well settled principle of Law that plaintiff/ complainant will prove his own case and the plaintiff/complainant is entitled to get any relief on the weakness of the defense side.

Now the complainant will have to prove in this case that the complainant purchased the jute from the different persons in the hut or market. But in this case no stock register has been filed to show that the complainant purchased jutes from the different persons on payment of cash. No statement of accounts has been filed to show that the complainant paid money to the person from whom the complainant purchased jute. No such person was examined on behalf of the complainant.

It may be the fact that the complainant purchased jute from the different persons but at least one person should be bought to the Forum now Commission as witness to show that he sold jute to the complainant.

It is quiet unbelievable that the complainant stacked a huge number of jute in the godown.

It is not understood why the stock register has not been maintained and why no receipt was filed to show that he paid money.

It is not the case of the complainant that the jute was grown up in the occupied land of the complainant. No such document has been filed to that effect.

It is not understood why the complainant did not inform the Fire Brigade Station which is situated within 18 K.M. from the place of occurrence. Such non-giving information to the fire brigade also raises strong suspicion as to the genuineness of the case.

Moreover, the complainant did not file any document as regards to the police case whether any definite police case was started or not.

It is a fact that the complainant informed the Samsi Out Post on 03/10/2013 where the incident took place on 28/09/2013. Whey there was such delay it was not understood. On perusal of the letter addressed to the Branch Manager, Samsi State Bank of India that the fire was extinguished by pouring water from the submersible pump but no document has been filed by the complainant to show that necessary permission was taken from the competent authority under the Provision of the West Bengal Ground Water Resources (Management Control and Regulation) Act, 2005.

Moreover, no document has been filed that the submersible pump was installed. It also raises a strong suspicion as regards to the genuineness of the case.

The Ld.Lawyer of the complainant put a strong reliance upon the Survey Report. According to his argument the Surveyor assesses the loss of 1,37, 918/- (Rupees One Lakh Thirty Seven Thousand Nine Hundred Eighteen Only). Definitely, Surveyor report may be relied upon.

On perusal of the Survey Report it is found that the complainant neither informed the Landlord who has also the Jute Godown in the same compound nor the insured informed the Fire Brigade Station situated at Chanchal which is 18(Eighteen) km. from the place of occurrence. On perusal of the report it is also found that the insured failed to provide his complete set of books of accounts.

No statement of accounts of purchasing jutes was also been given by the Surveyor as verified by him. But on perusal of the report the insured submitted his stock books manually and with system along with supporting purchase / sales register and bills. But it is not understood why the insured did not file the stock book maintained manually though it was produced before the Surveyor. Such fact also raises a strong suspicion. As such no reliance is given to the Surveyor Report.

So considering such facts and circumstances the instant case is liable to be dismissed.

C.F. paid is correct.

Hence,          ordered

that the case be and the same is dismissed on contest without any cost.                   

Let a copy of the order be given to the parties free of cost on proper application.