BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM.
KAMRUP,GUWAHATI
C.C.No.58/10
Present
1) Md.Sahadat Hussain, A.J.S. - President
2) Smti Archana Deka Lahkar - Member
Mrs. Sarada Devi -Complainant
Wife of Late Megh Prasad Upadhya,
Resident of Lakhra,
District- Kamrup ,Assam
-Vs-
1) The Divisional Manager -opp. party
National Insurance Company Ltd.
Maligaon Division Office
Maligaon Chariali
Guwahati-II, Kamrup, Assam
Appearance
Advocate for the complainant -Mr.Baharul Islam & Mr.Abdul Aowal Mandal
Advocate for the opposite party - Smti Rita Das Majumder
Date of oral argument: 30.3.2017
Date of judgment : 5.5.2017
JUDGMENT
This is a case u/s 12 of the Consumer Protection Act , 1986.
1) The complaint filed by Mrs.Sarada Devi was admitted on 10.6.2010 and the notice was served on the opp.party (the Divisional Manager, National Insurance Company Ltd., Maligaon Division) and the opp.party filed a written statement; and thereafter the complainant filed her evidence on affidavit on 5.11.2010 and one Mrs.Padmabati Basumatary also filed her evidence on affidavit in support of the case of the complainant and both of them were cross-examined by the opp.party side, but opp.party side declined to adduce any evidence and accordingly, the stage of evidence of opp.party side was closed on 20.5.2011; and thereafter both the parties filed their written argument; and this forum delivered judgment on 7.2.2013 and dismissed the complaint on contest. Thereafter, the complainant preferred appeal before the Hon’ble State Consumer Disputes Redressal Commission, Assam, which was registered as F.A.5/2013 and Hon’ble State Consumer Disputes Redressal Commission, Assam, vide its judgment dtd.24.9.2013 disposed of the said appeal and set-aside the judgment dated 7.2.2013 of this forum and remanded the case with a direction to hear the case on merit, and the Hon’ble State Consumer Disputes Redressal Commission, Assam, vide that judgment also held that the complaint had been filed by the complainant within limitation. After receiving the case record on remand from Hon’ble State Consumer Disputes Redressal Commission, Assam, this forum gave opportunities to the parties to file fresh evidence , but they declined to give fresh evidence and base on their evidence given earlier and then they were given opportunity for filing their fresh written argument and forwarding their fresh oral argument; and accordingly Ld advocate Mr.Abdul Aowal Mandal filed fresh written argument for the complainant and Ld advocate Mrs.Rita Das Majumder filed fresh written argument for the opp.parties; and finally, on 30.3.2017, we have heard oral argument of Ld advocate Mr.Baharul Islam and Mr.Abdul Aowal Mandal for the complainant and of Ld advocate Mrs.Rita Das Majumder for the opp.party and today we deliver our judgment which is as below-
2) The gist of the case of the complainant is that the hotel of the complainant Mrs. Sarada Devi by name and style “M/S SARADA HOTEL” situated beside N.H.37 at Ward No.13, Lakhra, Guwahati, which was insured with National Insurance Company Ltd., Maligaon branch, vide policy No. 200800110731000 00338 , which was effective from 30.11.2007 to 29.11.2008 with insured value of Rs.3,50,000/- was burnt on fire on 6.4.2008 and in the said burning incident the said hotel including of fixtures, furniture , food stocks, utensils, gas burner ,gas cylinders, wearing garments, school certificates, land documents, curtains, fans, electric goods , electric motor, and many other valuable articles and goods of the value of Rs.6,00,000/- were completely damaged. The local police station investigated the matter and issued certificate about the loss and the Director of Fire Service, S.F.S.O. also issued a certificate to that effect vide memo No. SFSO/FPW/1642/08 on 8.5.2008. On the date of fire, Dispur Fire Brigade station prevented the said fire. After gutting out the said hotel house, the surveyor of the opp.party surveyed the house and submitted his report to the opp.party, but the opp.party side did not pay her the insured amount. Thereafter, on 9.10.2009 she filed an application before the present opp.party (Divisional Manager, National Insurance Company Ltd.) along with relevant documents and requested him to settle her claim at Rs.3,50,000/- only. Although the total value of her loss is Rs.6,00,000/- , he has not responded her grievances; and thenafter she served a legal notice upon the opp.party, but he refused to address her grievances and therefore,, she prays to this forum to direct the opp.party to pay her Rs.3,50,000/- as compensation for loss of her hotel and goods and materials contained therein with interest @ 12% per annum and also to give other reliefs may deemed fit and proper.
3) The gist of the pleading of the opp.party is that the complaint is barred by limitation , and no cause of action arose on 6.4.2008. The fire broke out in the hotel of the complainant on 6.4.2008 , but the complainant filed the complaint in June,2010, i.e. beyond two years limitation fixed U/S 24 (A) of Consumer Protection Act,1986 . It is not true that in the said incident of breaking out the fire in the hotel premises of the complainant the fixtures, furniture, food stocks, utensils, gas burner, gas cylinders, wearing garments, school certificate, land documents, curtains, fans, electric goods , electric motor, and many other valuable article and goods of the value of Rs.6,00,000/- were damaged. Their surveyor surveyed the matter and submitted his report, but the complainant failed to submit the relevant documents, although she was asked by them to file the relevant documents and as a result their divisional manager closed the claim for non-submission of required documents, and that was also communicated to the complainant vide their letter dated 7.10.2009. The complainant failed to submit fire brigade report, and the police report as well as land documents/ rent receipt to them to settle the claim ,although he was asked to file those documents vide their letter dtd.18.2.2010. The complainant is not entitled to any amount as claimed by her. The complaint made by the complainant is not bonafide, but is frivolous and vexatious one, and therefore, it is liable to be dismissed with compensatory fine.
4) We have perused both sides’ pleading as well as their evidence. We have also perused the submission of both sides’ Ld counsels. It transpires to us that both sides admit that the complainant, Smti Sarada Devi , wife of Late Megh Prasad Upadhya, resident of Lakhra, Guwahati District- Kamrup (Metro), had been running a hotel business by taking a house on rent at ward No. 13, beside N.H.37, Lakhra, District –Kamrup (Metro) in the name and style “ M/S SARADA HOTEL ” taking trade license from Guwahati Municipal Corporation vide Serial No. 9626, Registration No. 6/98/97 dtd. 6.6.2006 and her hotel was insured with National Insurance Company Ltd., Maligaon branch, vide policy No. 20080011073100000338 , which was effective from 30.11.2007 to 29.11.2008 of which the insured value is Rs.3,50,000/- . It is also found that both sides admit that the said hotel of the complainant gutted on fire on 6.4.2008 and all the belongings of the hotel including the hotel room were damaged by that fire. It is also both sides’ admitted fact that about the alleged incident of fire, the local police station investigated the matter and the fire brigade station of Dispur doused the fire ; and after the said incident of the fire, the surveyor of the insurance company(opp.party) surveyed the said incident of fire and submitted the report to them and the complainant, vide her application dtd 9.10.2009, requested the opp.party to settle her claim of compensation at Rs.3,50,000/- which is the insured value of her policy, although, the value of total loss is about Rs.6,00,000/-, but the opp.party declined to give any compensation to her.
5) The opp.party sides’ plea is that the complainant failed to submit all the relevant documents including original land documents/rent receipts, original fire brigade report and original police report and therefore, they closed the claim. After perusing the evidence of the complainant, it is found that she states in her evidence on affidavit that the goods and items damaged by the said fire are-
1. School certificate of two sons
2. Birth certificate of two sons
3. Gas Book (card)
4. Ration card
5. Voter lists
6. Land Documents
7. And also many other valuable documents etc.
8. Two (2) Boxes Clothes
9. Eight (8) numbers of Khat (use in hotel)
10. Twenty four (24) numbers of chairs
11. Ten (10) numbers of Table
12. Cash box and box Table
13. Gold ornaments four bhoris
14. Saucepen 20 numbers, big size seven (7) numbers and small size thirteen (13)numbers .
15. Hot case - five (5) numbers
16. Pressure cookers five (5) numbers, big size three(3) and small size two(2)numbers
17. Kerahi five (5) numbers, big size three(3) numbers
and small size two (2) number
18. Glass forty numbers
19. Thali (kahi) fifty (50) numbers
20. Bati one hundred (100) numbers
21. Plate one hundred (100) numbers
22. Jug ten (10) numbers
23. Spoon, small size five (5) dozen numbers and big size one(1) dozen .
24. Screen clothes six (6) numbers
25. Fan Five (5) numbers
26. Electric articles, Meter Box etc.
27. Mixture Machine
28. Fridge
29. T.V.
30. Radio and Tape
31. Dek
32. Godrej
33. Rice 2 Bag
34. Atta 2 Bag
35. Mustard oil one (1) Tin
36. Dalda one (1)Tin
37. Gas Stove + Cylinder
38. Coila 10 Bag
39. Filter, big drum and small numbers of filter
40. Almirah five numbers
41. Glass Boim 14 numbers
42. Biscuit 2 cartoons
43. for battle leaf shop articles
44. Tinpat 7 Bundles
45. Bottom
46. For well
47. For temple construction with articles
48. For Coila firing Chouka
49. Bucket ten (10 ) numbers, big one (1) number and small nine(9) numbers
50. Sugar half bag 30- k,g,
51. Tea leaf 2 k.g.
52. Chana Dali 5k.g.
We have perused the report of the Director, Fire Service, S.F.S.O. Assam, Guwahati given vide memo No. S.F.S.O./FPW/1042/08 dt.8.5.08 and found that the director of Fire Service certifies that in the said fire three residential room as well as one hotel room belong to the complainant alongwith all goods of said house and hotel were damaged in the said fire. After perusing Ex.3, which is the report of Officer-in-charge of Garchuk Police Out Post dtd.10.4.2008 , it is seen that Officer-in-charge of Garchuk Police Out Post certified that on 6.4.2008 the hotel owned by Sarada Devi, wife of Lt. Megh Prasad Upadhya , situated at Lakhra, Betkuchi, Guwahati has been burnt in fire and her hotel materials, L.I.C.paper, bank account, school certificates, Ration Card, Gas Card, and Mobile Phone etc have been destroyed in the said fire; and they are investigating the said case of fire vide Garchuk G.D.E. No. 83 dtd. 6.4.2008. From these two reports it is clear that, in the fire that had taken place on 6.4.2008 in the hotel M/S Sarada Hotel owned by Sarada Devi, the hotel room along with residential room of Mrs.Sarada Devi, and all the cash as well as the goods and materials of the said hotel were completely burnt and destroyed . Now question is that what materials and goods had been in the stock of the said hotel before setting of fire in the said hotel ? We have perused the said list of materials and goods given by the complainant and found that,
Item No.9. Eight (8) numbers of Khat
Item No.10. Twenty four (24) numbers of chairs
Item No.11. Ten (10) numbers of Table
Item No.12. Cash box and box Table
Item No.14. Saucepen 20 numbers, big size seven (7) numbers and small size thirteen (13)numbers .
Item No.15. Hot case five (5) numbers
Item No.16. Pressure cookers five (5) numbers, big size three(3) and small size two(2)numbers
Item No.17. Kerahi five (5) numbers, big size three(3) numbers
and small size two (2) numbers
Item No.18. Glass forty numbers
Item No.19. Thali (kahi) fifty (50) numbers
Item No.20. Bati one hundred (100) numbers
Item No.21. Plate one hundred (100) numbers
Item No.22. Jug ten (10) numbers
Item No.23. Spoons, small size five (5) dozen numbers and big size one(1) dozen .
Item No.24. Screen clothes six (6) numbers
Item No.25. Fan Five (5) numbers
Item No.26. Electric articles, Meter Box etc.
Item No.27. one Mixture Machine
Item No.28. one Fridge
Item No.29. one T.V.
Item No.30. One Radio and Tape
Item No.31. One Dek
Item No.32. One Godrej
Item No.33. Rice two (2) Bag
Item No.34. Atta two (2) Bag
Item No.35. Mustard oil one (1) Tin
Item No.36. Dalda one (1)Tin
Item No.37. One Gas Stove + Cylinder
Item No.38. Charcoals 10 Bag
Item No.39.One filter, one big drum and a few small filters
Item No.40. Almirah five numbers, three big and two small.
Item No.41. Glass Boim fourteen numbers
Item No.42. Biscuit two cartoons
Item No.44. Tin Pat seven Bundle (C.I.sheets)
Item No.45. Bottom
Item No.49. Bucket ten numbers, big one (1) number and small nine(9) numbers
Item No.50. Sugar half bag 30 k,g,
Item No.51. Tea leaf 2 k.g.
Item No.52. Chana Dali 5k.g.
Item No.53. Mati Dali 10 k.g.
Item No.54. Rahar Dali 5 k.g.
Item No.55. Onion 1 bag
Item No.56. Naharu 5 k.g.
Item No.57. Potato 2 bags
Item No.58. Egg 2 plate
Item No.59. Cash amount of Rupees 30,000/- (Thirty thousand) only can only be said the materials as well as the hotel room had been in stock in the said hotel before setting of fire in the said hotel; but item No. 1,2,3,4,5,6,7,8,13 cannot be materials of a hotel as these are not items kept and used in a hotel.
6) We have perused the Ex.4 , the insurance policy and found that the complainant got her hotel M/S Sarada Hotel insured with the opp.party vide policy No. 200800/11/07/3100000338 for the period with effect from 30.11.2007 to midnight of 29.11.2008 and the policy was issued on 30.11.2007. It is also found that by that policy furniture, fixtures , and fittings to the tune of Rs.1,50,000/- as well as other stocks to the tune of Rs.2,00,000/- had been secured by that policy. It is also found that the fire had taken place in the hotel of the complainant after three months three days of the date of issue of the policy . The gap between the insurance of the policy and the date of fire indicates that on the date of fire all the furniture secured had been in the state which had been in the state that had been found at the date of issue of the policy, meaning thereby the value of furniture , fixtures and fittings damaged by the fire had been Rs.1,58,000/-. As per the policy other stocks were of value Rs.2,00,000/- at the time of issue of the policy; and the other stocks are deemed to mean twenty saucepan, five hot case, five pressure cooker, five kerahies, forty glasses, fifty kahis, hundred baties, hundred plates, ten jugs, six dozen spoons, one mixer machine, two bag rice, two bag ata, one tin mustard oil, one tin dalda, fourteen glass boiums, ten buckets, thirty k.g.s sugar, two k.g.tea leafs, five k.g. chana dal, ten k.g.mati dal,one bag onion, one bag Rahar dal, five k.g. naharu, two bags potatos, two plate eggs, but the complainant has failed to give any cash memos of purchasing these stocks and he has also failed to give evidence that all these items (other stocks mentioned in the policy) had been in the hotel room at the day of fire. Therefore, in respect of damage of other stocks (cash, goods and utensils etc.) we have to do guess work about damage of such items; and so, we guess that utensils, cash, raw ford items etc. atleast to the tune of Rs.1,00,000/- might have been damaged in the said fire. Therefore, as per our opinion, the complainant might have lost furniture, fixtures, fittings, utensils, raw food materials etc. and the cash to the tune of Rs.2,50,000/- only. As the lost items were secured by the policy issued by the opp.party, the opp.party is liable to pay compensation to the tune of Rs.2,50,000/- to the complainant as compensation for loss of those items by her in the said fire.
7) The opp.party side did not response to the claim filed by the complainant and that act of opp.party amounts to deficiency of service to the complainant; and therefore, the opp.party is liable to pay above said amount with interest at the rate of 12% p.a. from the date of filing of the complaint to the complainant alongwith Rs.10,000/- as compensation for putting the complainant in mental agony by illegally closing her claim and Rs.10,000/- as cost of the proceeding.
6) Because of what has been discussed as above, the complaint against the opp.party namely Divisional Manager, National Insurance Company Ltd., Maligaon Division Office is allowed on contest and he is directed to pay Rs.2,50,000/-with interest at the rate of 12% p.a. from 10.6.2010 to the complainant as compensation for loss and damage of goods and materials of her hotel M/s Sarada Hotel in the fire that had taken place on 6.4.2008 alongwith Rs.10,000/- as compensation for putting her in mental agony by illegally closing her claim and Rs.10,000/- as cost of the proceeding. The complainant is directed to pay amounts within 45 days and in default of which , other two amounts shall carry interest @ 6% p.a. from this date (date of judgment ).
Given under our hands and seals in this day of the 5th May, 2017.
Free copies of judgment be delivered to the parties.
(Smti A. D. Lahkar) (Md.S.Hussain)
Member President
