Tripura

StateCommission

A/39/2017

Sri Nara Narayan Chakraborty - Complainant(s)

Versus

The General Manager, Bajaj Allianz General Insurance Co Ltd. - Opp.Party(s)

Sri. A.L.Saha, Sri. Joydeep Paul, Sri. Kajal Nandi, Sri. A. Saha

31 Jan 2018

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

Case No.A.39.2017

 

 

1. Sri Nara Narayan Chakraborty,

S/o Late Ramesh Chandra Chakraborty,

Proprietor of ‘Chakraborty Medical Hall’,

Sabroom, P.S. Sabroom,

District - South Tripura,

Pin: 799145.

… … … … … Appellant/Complainant.

 

VS.

 

 

1. The General Manager,

Bajaj Allianz General Insurance Company Ltd.,

G.E. Plaza, Airport Road, Yerwada,

​

2. The Zonal Manager,

Bajaj Allianz General Insurance Company Ltd.,

2 B, 2^nd Floor, N.H. Centre Point,

Opp. Bora Service Station, G.S. Road,

Ulubari, Guwahati-781007.

 

3. The Branch Manager,

Bajaj Allianz General Insurance Company Ltd.,

Mantribari Road, P.O. Agartala, P.S. West Agartala,

District – West Tripura,

Pin: 799001.

 

4. The Branch Manager,

United Bank of India,

Sabroom, District - South Tripura,

Pin: 799145. 

… … … … … Respondent/Opposite Parties.

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

For the Appellant:                                          Mr. Kajal Nandi, Adv.

For the Respondent No.1, 2 & 3:                   Absent.

For the Respondent No.4:                              Miss Leena Sarkar, Adv.

Date of Hearing and Delivery of Judgment: 31.01.2018.

 

J U D G M E N T [O R A L]

 

 

U.B. Saha,J,

The instant appeal is filed by the appellant, Sri Nara Narayan Chakraborty (hereinafter referred to as complainant), along with an application for condoning the delay of 160 days in preferring appeal, against the judgment dated 15.12.2016 passed by the learned District Consumers Disputes Redressal Forum, Gomati, Udaipur (hereinafter referred to as District Forum) in Case No. C.C. 19 of 2015 whereby and whereunder the learned District Forum has held that the complainant is entitled to get Rs.90,000/- as compensation from the O.P. No.1 and 2 and further Rs.5,000/- as cost of litigation. Thus the O.P. No.1 and 2 are directed to pay in total Rs.95,000/- to the complainant within 30 days from the date of judgment,.

2. The delay was condoned by this Commission after hearing the parties and the appeal was admitted on 22.11.2017. The matter was fixed for hearing on 18.12.2017. On 18.12.2017, the matter could not be heard as the Ld. Counsel for the respondent no.1 and 2 (hereinafter referred to as opposite party/Insurance Company) did not receive the copy of the memo of appeal. The matter was adjourned fixing the date for hearing on 06.01.2018. On 06.01.2018, again the matter was adjourned on the prayer of Ld. Counsel for the opposite party Insurance Company. Today, the matter is listed for hearing.
3. Mr. K. Nandi, Ld. Counsel appearing on behalf of the appellant-complainant has prayed for 4 weeks time. We reject the prayer for time considering the matter as old pending. The matter is taken up for final hearing on merit. Heard also Miss Leena Sarkar, Ld. Counsel appearing on behalf of the respondent no.4 i.e. the Branch Manager, United Bank of India, Sabroom Branch (hereinafter referred to as opposite party no.4/Bank). None appears for the respondent-opposite party no.1 and 2 i.e. the General Manager, Bajaj Allianz General Insurance Company Ltd. and the Zonal Manager, Bajaj Allianz General Insurance Company Ltd.
4. The facts needed to be discussed are as follows:-

The appellant-complainant filed an application before the learned District Forum under Section 12 of the Consumer Protection Act, 1986 alleging that he was the owner of one medical shop, namely, M/s Chakraborty Medical Hall near Sabroom Hospital which was set up in a rented room by taking loan from United Bank of India, Sabroom Branch, the opposite party no.4. The said shop of the complainant was insured with opposite party no.1-Insurance Company. In the intervening night of 20.06.2013 and 21.06.2013, his shop was gutted by fire causing damage of Rs.5 lacs to him. According to him, the Fire Service Authority and the Police Authority enquired the matter and certified that the loss of complainant was Rs.3 lacs and 5 lacs, respectively. It is also stated in the complaint petition that in respect of his loan account, he last furnished the statement of his stock in the shop as on 10.06.2013 to be Rs.4,64,000/- to the opposite party no.4-Bank. When he reported the matter of the fire incident to opposite party no.2, the Zonal Manager, Bajaj Allianz General Insurance Company Ltd., one Surveyor visited the site and assessed the loss to the tune of Rs.90,000/- and finally, the opposite party no.1 and 2 offered an amount of Rs.80,000/- to him. According to him, his shop was completely damaged in the said fire incident and as such, he is entitled to get Rs.5 lacs as compensation. It is the further case of the complainant that the respondent-opposite party no.4 had also assured him that they would take necessary steps so that he could get the sum assured amounting to Rs.3 lacs, but the respondent-opposite party no.4 did not take up the matter with the Insurance Company. Being aggrieved and dissatisfied with the amount offered by the opposite party no.1 and 2, he has approached the learned District Forum.

5. The opposite party no.3, the Branch Manager of the Insurance Company was initially impleaded as a party before the learned District Forum, but later, as per prayer of the complainant the name of respondent-opposite party no.3 was struck off. The opposite party nos.1 and 2 in their joint written objection admitted the policy purchased by the complainant and stated that though the fire incident was occurred on the intervening night of 20.06.2013 and 21.06.2013, but the complainant had given the information of fire incident to the opposite party-Insurance Company after one month. Then and then, the opposite party-Insurance Company deputed one IRDA licensed Surveyor to assess the loss of the complainant-insured, but the complainant has disposed of all the stocks prior to inspection by the Surveyor deputed by the opposite party Insurance Company. Not only that, the complainant has failed to produce any records of his purchase and sale as well as the documentary evidence of authentication to assess the loss. It is also contended by the opposite party Insurance Company that the complainant has also failed to provide any documents that he is an income tax assessee. It is the further case of the opposite party-Insurance Company that when the deputed Surveyor visited the shop premises of the complainant for assessing the loss of the complainant, he did not even find any debris or other related evidence of fire incident to estimate the actual loss and being compelled, the Surveyor ultimately considered 30% of the sum assured to be the actual loss.
6. Opposite party no.4 Bank in their written statement simply stated that the complainant took a cash credit loan for the business of his medical shop vide A/C No.040520020219 on 01.01.2000 and ultimately, there was more than Rs.3 lacs of unpaid loan amount to the Bank from the complainant. Thus, according to them, if the complainant is favoured with any compensation, same may be deposited in the said loan account.
7. At the time of hearing, complainant examined himself as P.W.1 and stated that he was running his business taking a land parcel from one Sumit Kr. Chowdhury on a monthly rent of Rs.800/- whereupon he constructed a pucca room with GCI sheet roofing and wooden structure for which he incurred at least Rs.1 lac from his personal pocket and also after taking a cash credit loan from the UBI, Sabroom Branch. He further stated that he also used to furnish monthly statement of stock of his shop and its value to the opposite party no.4-Bank. He also deposed that he had insured his shop against all kinds of damage for any fire incident or theft, for a sum of Rs.3 lacs under opposite party no.2 vide Policy No.OG-14-2405-4001-00000586. According to him, in the intervening night of 20.06.2013 and 21.06.2013, a fire incident took place at Sabroom market and in consequent thereto his shop was completely gutted and he sustained a loss to the tune of Rs.5 lacs. Subsequent to the fire incident, the Fire Service Authority enquired the matter and assessed the damage to the tune of Rs.3 lacs excluding the cost of furniture and construction and also furnished a certificate in that regard and the Officer-in-Charge, Sabroom Police Station also enquired the matter and assessed the damage to the tune of Rs.5 lacs. He has further stated that he had last furnished his statement of stock to the opposite party-Bank on 10.06.2013 showing the value of the stock amounting to Rs.4,64,000/-, but the Bank Authority did not detect any discrepancy in it. After the incident, he claimed Rs.3 lacs for the damage sustained by him to the Insurance Company and one Surveyor of the opposite party no.1 and 2 visited his shop premises and assessed the loss at 30% of the sum assured of Rs.3 lacs i.e. Rs.90,000/- and ultimately, they illegally offered Rs.80,000/- to him as compensation which he denied to receive. He has also proved some documents such as his letter dated 21.07.2013 which was exhibited as Exhibit.1, letter of the Insurance Company dated 29.11.2013, 02.02.2014 and 12.07.2014 along with one blank voucher (4 sheets) which was exhibited as Exhibit.2 series and one copy of Bank Statement (6 sheets) which was exhibited as Exhibit.3. In his cross examination by the opposite party nos.1 and 2, he admitted that the incident occurred on 20.06.2013 and he submitted his complaint on 11.09.2015 and as such, a suggestion was given that the case was time barred. He also admitted that he did not submit any trade licence of his shop and that he is not an income tax payee. In his cross examination by the opposite party no.4, he admitted that his shop was running with a Bank loan from United Bank of India, Sabroom Branch and approximately, Rs.3 lac was due to the Bank from him.
8. From the side of the opposite parties, no evidence was adduced. On perusal of the letter under Exhibit.2 series, it appears that from the side of opposite party no.1 and 2, reminder was issued to the complainant again and again to submit different documents, such as, trade licence, duly filled in claim form, balance sheet of his shop, income tax return, photographs of the damaged premise, fire service report etc. and finally, the Insurance Company allowed the claim to the extent of Rs.80,000/- as communicated by their letter dated 12.07.2014. Thus, the cause of action actually arose on 12.07.2014 when the complainant first learnt that his claim was reduced to Rs.80,000/- from his claim amounting to Rs.3 lacs and the complaint was filed on 11.09.2015. Thus, the learned District Forum rightly held that the complaint of the complainant was not time barred.
9. Mr. Nandi, Ld. Counsel while urging for enhancement of the award passed by the learned District Forum would contend that the learned District Forum failed to consider the Exhibit.1 i.e. the application of the complainant addressed to the Officer-in-Charge, Fire Station, Sabroom wherein the Officer-in-Charge, Sabroom Fire Station certified that the fire occurred is true. According to him, the Officer-in-Charge of the Sabroom Fire Station certified the fact stated by the complainant in his application, meaning thereby, the damage caused to the medical shop of the complainant is Rs.3 lacs i.e. the amount insured. He further submits that as the opposite party did not adduce any evidence, the learned District Forum should have accepted the contention of the complainant.
10. Miss Sarkar, Ld. Counsel submits that the dispute is between the complainant and Insurance Company, Bank is nothing to do with the matter. She further submits that as admittedly loan amount is due to the Bank from the complainant, the Bank Authority may be allowed to realize the same from the complainant as per procedure of law.
11. None appears on behalf of the opposite party-Insurance Company. We have gone through the impugned judgment and the evidence on record to decide the appeal on merit.
12. The learned District Forum in its findings held that the complainant did not prove any satisfactory evidence so far he sustained loss in the said fire incident. He neither examined any Fire Service official, nor submitted any report from the said Fire Service Authority to show that he sustained a loss of Rs.3 lacs, though a copy of the letter addressed by the complainant to the Fire Service Authority, Sabroom was submitted before the learned District Forum as evidence and which was marked as Exhibit.1 wherein he claimed his loss to be Rs.3 lacs and the Fire Service Authority neither mentioned nor certified regarding the loss of the complainant, but simply certified that the fact of fire incident occurred was true. Admittedly, the Fire Service Authority did not assess any loss of the complainant. No valid document regarding stock in the said shop as on the date of fire incident was also submitted before the learned District Forum. Copy of some statements of stocks prepared by the complainant himself allegedly submitted to the United Bank of India are proved as Exhibit.3 series wherefrom it appears that such statement submitted by the complainant to the said Bank on 10.06.2013 mentioned his stock on that date to be of Rs.4,64,000/- and the said document was unilaterally prepared by the complainant and not verified by any other authority and the said facts also not supported by any voucher or other documents for which the learned District Forum held that the complainant failed to prove that he had a stock of Rs.3 lacs or more on the date of fire incident in his shop and that all the said goods were gutted into fire. The learned District Forum has also held in such a situation, that it is very difficult to assess the loss of the complainant. The opposite party nos.1 and 2 have already admitted that according to the report of their Surveyor, the loss was assessed to the tune of Rs.90,000/- i.e. 30% of the sum assured vide Exhibit.2 series and thereafter, Rs.10,000/- was deducted therefrom as ‘Policy Excess'. What is meant by 'Policy Excess' was not clear to the learned District Forum as the opposite party-Insurance Company did not adduce any evidence and on what ground, the said amount was deducted by the Insurance Company was also not clear to the District Forum. Thus the learned District Forum has held that the Insurance Company cannot be permitted to deduct any amount under any fanciful head without any cogent reason behind it and finally held that the complainant is entitled to get Rs.90,000/- as compensation from opposite party no.1 and 2 Insurance Company and further Rs.5,000/- as cost of litigation as stated (supra). Opposite party No.1 and 2 were also directed to pay Rs.95,000/-, in total to the complainant within 30 days from the date of judgment.
13. In the evidence of the complainant though he has stated that the Officer-in-Charge of the Sabroom Fire Station certified that he sustained a loss amounting to Rs.3 lacs, but from the evidence on record i.e. the application addressed by the complainant to the Officer-in-Charge Sabroom Fire Station (Exhibit.1), it appears that the Officer-in-Charge, Sabroom Fire Station only certified regarding the fire incident and did not say anything about the damage or loss sustained by the complainant. Therefore, the learned District Forum rightly held that the complainant did not prove any satisfactory evidence to the extent of his loss sustained by the said fire incident. More so, admittedly, when the Surveyor deputed by the opposite party-Insurance Company visited the shop premises of the complainant on 23.07.2013 about one month after the fire incident, the complainant failed to produce any records regarding his purchase and sale and the documentary evidence of authentication to assess the loss. In absence of any documents or proof regarding the loss sustained by the complainant it was not possible for the Surveyor to assess the actual loss of the complainant, but as the Police Authority and the Fire Service Authority certified regarding the fire incident which is accidentally in nature and insured suffered loss of his stocks due to the fire incident and some other shops of the locality were also gutted, the Surveyor assessed the loss 30% of the sum insured i.e. Rs.90,000/- as the sum insured is Rs.3 lacs. By this time it settled that the report of the Surveyor, as is well established, is an important and substantial piece of evidence in respect of such cases and has to be relied on unless it is controverted by cogent and convincing reasons challenging its findings. In the instant case, the complainant admittedly did not produce the documents in support of his claim before the surveyor deputed by the Insurance Company and not only that, he has also not examined the Officer-in-Charge of the Sabroom Fire Station. So, in absence of any documents, it was very difficult on the part of the Surveyor to assess the loss of the complainant as claimed for, for which he assessed the loss to the tune of Rs.90,000/- i.e. 30% of the sum assured (vide Exhibit.2 series).
14. Admittedly the opposite party Insurance Company did not adduce any evidence except filing the written statement and some documents, but mere non-adducing of evidence by the opposite party Insurance Company would not entitle the complainant to get the compensation as claimed for. Complainant is to prove his own case by way of adducing evidence in favour of his claim which he failed.

In view of the above, we are of the considered opinion that the learned District Forum did not commit any wrong while passing the impugned judgment. Thus, no interference is called for.

In the result, the appeal is dismissed being devoid of merit. No order as to costs.      

Send down the records to the Ld. District Forum, Gomati, Udaipur.