West Bengal

StateCommission

FA/555/2014

Arup Kumar Das - Complainant(s)

Versus

The Manager, M.S. Universal Sompo General Insurance Co. Ltd. - Opp.Party(s)

Mr. Tamal De Mosihur Rahaman Mallick

03 Aug 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION
WEST BENGAL
11A, Mirza Ghalib Street, Kolkata - 700087
 
First Appeal No. FA/555/2014
(Arisen out of Order Dated 22/04/2014 in Case No. Complaint Case No. CC/190/2012 of District Burdwan)
 
1. Arup Kumar Das
S/o Sri Chittaranjan Das, Vill.-Fatica, P.O. Sagrai, P.S. Raina, Dist. Burdwan, Pin no. 713 424.
...........Appellant(s)
Versus
1. The Manager, M.S. Universal Sompo General Insurance Co. Ltd.
(A Joint Venture between Indian Overseas Bank), 7th Floor, Express Tower, 42A, Shakespeare Sarani, Kolkata-700 017.
2. The Branch Manager, Indian Overseas Bank
Burdwan Branch, G.T. Road, Burdwan, P.O., P.S. & Dist. Burdwan - 713 101.
...........Respondent(s)
 
BEFORE: 
 HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER
 HON'BLE MR. JAGANNATH BAG MEMBER
 
For the Appellant:Mr. Tamal De Mosihur Rahaman Mallick, Advocate
For the Respondent: Ms. Debjani Banerjee., Advocate
 Ms. Arpita Ghosh., Advocate
ORDER

Date: 03-08-2015

Sri Debasis Bhattacharya

This appeal is directed against the Order dated 22-04-2014, passed by the Ld. District Forum, Burdwan in C. C. No. 190/2012, whereof the Ld. District Forum directed the OP No. 1 to pay the loss assessed by the Surveyor after deducting RT premium.  Being aggrieved by and dissatisfied with the same, the Complainant thereof has preferred this appeal.

Case of the Complainant, in short, is that over the outbreak of an incident of fire on 14-11-2009, all the insured stock and the building of the Complainant burnt into ashes.  As a result, the Complainant suffered a loss of Rs. 18,70,000/- and so an insurance claim was raised with the OP Insurance Company.  After thorough survey, the OP Insurance Company on 11-08-2011, informed the Complainant that they would settle the claim for Rs. 3,40,760/-.  In spite of several letters to the OP Insurance Company, the latter has not disclosed the ground of such settlement.  Hence, the complaint case.   

Case of the OP No. 1 is that although alleged incident of fire took place on 14-11-2009, the Complainant reported the matter to the Insurance Company on 25-11-2009.  Subsequently, they appointed a Surveyor who visited the spot on 26-11-2009.  The Surveyor assessed the loss at Rs. 3,41,490/-.  After deducting Rs. 730/- as RT premium, they settled the claim for Rs. 3,40,760/- and due intimation to this effect was communicated to both the Complainant as well as the Bank vide letter dated 11-08-2011.  Although the Complainant paid due premium for the stock worth Rs. 9,50,000/-; in his claim form, the Complainant claimed that at the time of fire there was stock worth Rs. 14,50,000/-.  Moreover, the building was not covered under the said policy, and in respect of the plant and machinery, whereas the Complainant insured the same for a sum of Rs. 3,00,000/-, in the claim form, he stated it as Rs. 3,30,000/-.  The settlement letter along with discharge voucher was disbursed on 11-08-2011 and the same has been duly received by the Complainant. 

We are to consider in this appeal if there is any infirmity with the impugned order, or not.

Decision with reasons

Ld. Advocate for the Appellant has submitted that notwithstanding the Ld. District Forum rejected the prayer of the Respondent No. 1 for further time to submit Surveyor Report vide its Order No. 22 dated 05-03-2014, it delivered the impugned order on the basis of the value assessed by the Surveyor.  Also, surprising is the fact that the Ld. District Forum did not give any credence to the Fire Brigade report as well as the police report and simply accepted the survey report as gospel truth.  In such circumstances, for ends of justice, the impugned order be set aside. In support of his contention, the Ld. Advocate has referred to a decision of the Hon’ble National Commission in R.P. No. 2868/2013.

Ld. Advocate for the Respondent No. 1, on the other hand, has submitted that the Appellant reported the matter of incident to the Insurance Company after 10/11 days.  In fact, the police was also informed about the alleged incident of fire after 3/4 days.  Still the Respondent Insurance Company deputed a surveyor who assessed the loss at Rs. 3,41,490/-.  In absence of any cogent documentary proof from the side of the Appellant to contradict the value assessed by the Surveyor, the Respondent Insurance Company settled the claim as per the loss assessed by the Surveyor after deducting a sum of Rs. 730/- as RT premium.  The Appellant failed to provide crucial documents related to his claim to the Surveyor.  Yet, the Surveyor allowed the claim to be fair to the Appellant.  There can be no two opinions as to the fact that mere claim does not suffice.  The onus of proving a claim rests with the claimant himself.  However, the Appellant has failed to advance requisite documents to back up his claim.  The Appellant cannot blame others for his own shortcomings.  The report of the Surveyor is an important and significant document, reliance whereupon is required to be placed.  Therefore, the Ld. District Forum has done no wrong by upholding the value assessed by the Surveyor.  As such, the instant appeal be dismissed in limine.  In support of his claim, the Ld. Advocate has referred to a decision of the Hon’ble National Commission in R.P. No. 3978/2009 and another decision of this Commission in FA No. 52/2012.

Ld. Advocate for the Respondent No. 2 has submitted that proper procedure was not adopted by the Ld. District Forum while adjudicating the case.  As such, the impugned order cannot sustain in the eye of law and hence, the same be set aside.

We have gone through the materials on record, including the LCR. 

On going through the order sheets of the Ld. District Forum, it transpires that the Ld. District Forum, vide its order no. 9 dated 22-04-2013, rejected the petition submitted by the Respondent No. 1, whereby it prayed for further time for filing WV and accordingly, next date was fixed “for ex parte” (hearing).  Yet, vide its order no. 10 dated 13-05-2013, the Ld. District Forum revoked its own order and accorded liberty to the Respondent No. 1 to file WV subject to payment of certain costs.  Needless to say, by such act, the Ld. District Forum has overlapped its terms of reference set out under the Consumer Protection Act, 1986, which itself turns the impugned order into non-est in the eye of law.

Further, it transpires from the LCR that a petition was moved by the Respondent No. 1 on 05-03-2014 whereby it stated that the surveyor report was yet to reach its office from the Chennai Head Office and accordingly prayed for time to file the same.  Such prayer was, however, rejected by the Ld. District Forum by its order of even date and next date was fixed for argument/hearing.  Most surprisingly, it appears from the record that the Ld. District Forum accepted such report from the Respondent No. 1 on 01-04-2014 at the time of argument.  As a result, the Appellant was robbed off due opportunity to confront such report. 

Further, undisputedly, the Respondent No. 1 has already paid the amount assessed by the Surveyor after deducting Rs. 730/- on account of RT premium.  Against this backdrop, the very purpose of directing the Respondent No. 1 to settle the claim as per the recommendation of the Surveyor after deducting RT premium is not understood.

Considering such gross indiscretion in the process of administration of justice, we deem it fit and proper to remand back the case to the Ld. District Forum with a direction to adjudicate the case afresh after giving due opportunity to the parties to agitate their respective cases in proper perspective, including scope to the parties to argue for and against the Survey Report.

Accordingly, the appeal stands allowed in part.

Hence,

ORDERED

That the appeal be and the same is allowed in part on contest against the Respondents, but without any order as to costs.  The impugned order is hereby set aside.  Case is remanded to the Ld. District Forum, Burdwan for a fresh hearing and then to pass a de novo order.

Let a copy of this order be sent to the Ld. District Forum, Burdwan along with the LCR.   

 
 
[HON'BLE MR. DEBASIS BHATTACHARYA]
PRESIDING MEMBER
 
[HON'BLE MR. JAGANNATH BAG]
MEMBER

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