Date of filing: 21.12.2012 Date of disposal: 19.8.2016
Complainant: Arup Kumar Das, S/o. Shri Chittaranjan Das, Proprietor, M/s. Shiva Associates, Village: Fatica, Post Office: Sagrai, Police Station: Raina, District: Burdwan, West Bengal, PIN – 713 424.
-V E R S U S-
Opposite Party: 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, Burdwan Branch, Indian Overseas Bank, G. T. Road, Burdwan, PO, PS. & District: Burdwan, West Bengal, PIN – 713 101.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Shantimoy Roy & Tamal De.
Appeared for the Opposite Party No. 1: Ld. Advocate, Saurav Kumar Mitra.
Appeared for the Opposite Party No. 2: None.
J U D G E M E N T
This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OP-1 as the OP-1 has settled the insurance claim amount at a very lower amount arbitrarily, illegally and whimsically.
The brief fact of the case of the Complainant is that being an unemployed youth he started one production unit, namely Rice Husking Grinding in the year 2006 in the name & style as M/s. Shiva Associates. The Complainant obtained financial loan from the OP-2-Bank and the said unit was mortgaged with the Bank. The Bank having collaboration with the OP-1 forced the Complainant to purchase an insurance policy from the OP-1 and accordingly the Complainant obtained an insurance policy from the OP-1 which covered the stock in trade of the said unit and plant and machinery of the same. The insurance policy was valid for the period from 22.07.2009 to 21.07.2010. The name of the said policy was Standard Fire and special Perils policy for Rs.12, 50,000=00. As the Complainant obtained financial loan from the Bank, hence he used to submit the details of stock before the Bank regularly. Within validity of the insurance policy fire broke out at the said insured unit and due to this reason entire insured stock as well as building was burnt to ashes. Such incident and huge loss was duly intimated to the Insurance Company as well as the Bank. Subsequently an insurance claim was lodged with the Insurance Company by submitting claim form along with all the relevant papers and documents. Upon receipt of the claim form the Insurance Company appointed one Surveyor to assess the loss sustained by the insured due to fire. The Surveyor visited the burnt premises and asked for production of some papers and the same was duly submitted by the Complainant to the Surveyor. On 11.08.2011 the Insurance Company by issuing a letter informed the Complainant that the Surveyor has recommended the claim for a sum of Rs.3, 40,760=00 as full and final settlement. Upon receipt of the said information the Complainant met the OP-1 at its office claiming for disclosure of the ground of such settlement, but instead of giving any explanation the OP-1 creating pressure upon him told to accept the amount without making any protest. According to the Complainant such action of the OP-1 is illegal, unfair and unlawful. According to the Complainant due to fire he had to suffer loss to the tune of Rs.18, 70,000=00. As his claim has not been settled by the OP-1 before coming to the Ld. Forum, having no alternative he has approached before this Ld. Forum praying for direction upon the OP-1 For making payment of Rs.18,70,000=00 towards the loss of the insured goods and/or to pay Rs.12,50,000=00 towards insurance coverage, to pay compensation for an amount of Rs.1,00,000=00 towards mental pain, agony and harassment, to pay interest on the insured amount and litigation cost of Rs. 10,000=00 to him.
The petition of complaint has been contested by the OP-1 by filing written version stating that the Complainant obtained the insurance policy by covering the risk of a commercial unit. So this complaint is not maintainable before the Ld. Forum. As complicated questions of law and fact are involved in the present case and voluminous evidence is required, hence on that score the complaint should go. Moreover, this complaint is bad for non-joinder of necessary party as the Complainant did not incorporate New India Assurance Company Limited in this complaint. The OP-1 has contended that an insurance policy by covering the risk of M/s. Shiva Associates was issued by this OP, which was valid for the period from 22.07.2009 to 21.07.2010 subject to certain terms, conditions and stipulations mentioned therein. The original policy is in the custody of the insured. In the said policy the risk of stock in trade of Rs.9, 50,000=00 and plant machinery of Rs.3, 00,000=00 was covered. An intimation of loss due to fire has been lodged on 25.11.2009 stating that the said incident took place on 14.11.2009. No explanation for such delay has been explained in the claim form by the Complainant, as well as, in the petition of complaint. It is also not mentioned by the Complainant in the claim form regarding general diary. The incident allegedly took place on 14.11.2009 to 15.11.2009, but the same was reported to the police officer on 18.11.2009. Upon receipt of the intimation on 25.11.2009 the Surveyor was appointed and claim form was issued in the name of the Complainant. The Protocol Surveyors and Engineers Private Limited was appointed as Surveyor. He visited the spot on 26.11.2009. Since his appointment the Surveyor gave several letters to the Complainant for production of some documents. The OP-1 also gave reminders for production of the same. The Surveyor produced his survey report on 22.03.2011 by assessing total loss of Rs.3, 41,490=00. The OP-1 upon receipt of the said report deducted a sum of Rs.730=00 as RT premium and settled the claim for Rs.3, 40,760=00. The said settlement was intimated to the insured as well as the OP-Bank by issuing letter on 11.08.2011. So there was no deficiency in service, as well as, unfair trade practice on behalf of this OP, rather the OP-1 settled the claim as per Surveyor’s report. It is submitted by the OP-1 that the Complainant did not lodge the claim before this OP with clean hands as the Complainant paid premium for stock in trade to the tune of Rs.9, 50,000=00 and in the claim form it is disclosed by the Complainant that on the date of occurrence there was stock of Rs.14,50,000=00. No risk for the building was covered in the said policy and in respect of plant machinery premium was paid by him for risk of Rs.3, 00,000=00 but in the claim form he claimed Rs.3, 30,000=00 towards the loss of plant machinery. The claim form was submitted by the Complainant on 03.06.2010. It is further submitted by the OP-1 that the settlement letter along with discharge voucher was disbursed on 11.08.2011 and the same was duly received by the Complainant. The instant complaint has been initiated on 11.12.2012 i.e. after one year four months from the date of settlement of claim. According to the OP-1 the contract of insurance is a contract on good faith and trust. The OP-1 has no direct knowledge regarding the accident, loss etc as per the Insurance Act, and for this reason this OP had to rely upon the report of the Surveyor. The OP after getting the report of the Surveyor has settled the claim of the Complainant. Therefore the settlement of claim is legal, justified and reasonable, The Complainant knowing fully well that he is not entitled for more than the settled amount, has filed the instant complaint with a view to obtain monetary gain through an improper manner, which cannot be at all entertained. As this complaint is devoid of any merit, prayer is made by the OP-1 for dismissal of the complaint with exemplary cost.
The Complainant has adduced evidence on affidavit and challenging the same the OP-1 has filed questionnaire and the Complainant replied the same accordingly. The OP-1 has filed the Surveyor’s report with a copy to the other side. The OP-1 has also placed reliance on some judgments. The copy of the said rulings has accordingly served on the Complainant. We have carefully perused the record; documents filed by the contesting parties, Surveyor’s report, rulings and heard argument at length advanced by the Ld. Counsel for the parties. Be it mention that inspite of receipt of notice the OP-2 did not turn up to contest the complaint either by filing written version or orally.
We have noticed that on 22.04.2014 this Ld. Forum has passed the judgment by allowing the complaint in part directing the OP-1 to make payment of Rs.3,40,760=00 within 45 days from the date of passing of the judgment, in default the amount will carry an interest @10% p.a. for the default period. Being aggrieved with the said judgment the Complainant preferred an appeal before the Hon’ble SCDRC, West Bengal. The Hon’ble SCRDC was pleased to pass its judgment in the said appeal being no-FA/555/2014 by allowing the same in part on contest without any cost setting aside the impugned judgment of the Ld. District Forum. The Hon’ble SCDRC, W.B. was also pleased to remand the case back to the Ld. Forum for a fresh hearing and to pass a de novo order.
At the very outset we are to adjudicate as to whether the Surveyor’s report bears any evidentiary value or not. During hearing the Ld. Counsel for the Complainant has submitted that the Surveyor’ report cannot be considered as an important document/evidence as the same has not been filed on affidavit and for this reason the Complainant did not bother to challenge the report by filing questionnaire. According to the Complainant the Surveyor’s report cannot be treated as unchallenged. The Hon’ble National Commission has held in its judgment reported in (2010) 3 WBLR (CPNC) 542 that ‘the Surveyor’s report carries vital significance and cannot be brushed aside on untenable grounds.’ Subsequently the Hon’ble National Commission was pleased to hold in its judgment reported in (2012) (I) CPR 386 (NC), that the report of the Surveyor which is not supported by affidavit cannot be accepted. The Ld. Counsel for the OP-1 has relied on the judgments passed by the Hon’ble National Commission reported in 2015 (2) CPR 64 (NC), 2015 (2) CPR 459 (NC) and 2015 (3) CPR 35 (NC). In the first judgment it is hold that the report of Surveyor is to be given due weight, in the second judgment it has been held that unless there are sufficient grounds to make departure from report of Surveyor, same should not be discarded. The contention of the third judgment does not match with the fact of the instant case. Upon careful perusal of the rulings as relied on by the OP-1 we are of the view that admittedly the Surveyor’s report is an important document which cannot be discarded without assigning any reason, but it is has also been settled by the Hon’ble NCDRC that the Surveyor’s report should be filed on affidavit, unless it does not bear any evidentiary value. In the case in hand admittedly the Surveyor’s report has not been filed on affidavit, so it cannot be accepted as it does not bear any evidentiary value.
Therefore we are to adjudicate this complaint without any Surveyor’s report.
In respect of some pleas as taken by the OP-1 i.e. commercial purpose, arbitration clause and non-joinder of necessary party we are of the opinion that in view of the judgment passed in the case of Harsolia Motors, plea of commercial purpose does not stand as the insurance policy cannot generate any profit and the profit is the main aim of commercial purpose. In view of the Section-3 of the Consumer Protection Act, 1986 and judgment passed in the case of Skypak (supra) & Mridul Estate (NC) and many others, the Hon’ble Apex Court and the Hon’ble National Commission have held that inspite of existence of an arbitration clause in the agreement, the dispute can be adjudicated by the Consumer Forum/Commission. In the case of Savita Garg (supra) & Kunal Saha (supra) the Hon’ble Supreme Court was pleased to hold that due to non-joinder/mis-joinder of necessary party/parties the complaint should not go. Therefore the above-mentioned three pleas as taken by the OP-1 is thus decided against the OP-1.
It is seen by us that the Complainant being an unemployed youth started one production unit, namely Rice Husking Grinding in the year 2006 in the name & style as M/s. Shiva Associates. The Complainant obtained financial loan from the OP-2-Bank and the said unit was mortgaged with the Bank. The Bank having collaboration with the OP-1 told the Complainant to purchase an insurance policy from the OP-1 and accordingly the Complainant obtained an insurance policy from the OP-1 which covered the stock in trade of the said unit and plant and machinery of the same. The insurance policy was valid for the period from 22.07.2009 to 21.07.2010. The name of the said policy was Standard Fire and Special Peril policy for Rs.12, 50,000=00. As the Complainant obtained financial loan from the Bank, hence he used to submit the details of stock before the Bank regularly. Within validity of the insurance policy fire broke out at the said insured unit and due to this reason insured stock was burnt to ashes and plant machinery got severe damage. Such incident was duly intimated to the Insurance Company as well as the Bank. The Complainant lodged an insurance claim with the Insurance Company by submitting claim form along with all the relevant papers and documents. Upon receipt of the claim form the Insurance Company appointed one Surveyor to assess the loss sustained by the insured due to fire. The Surveyor visited the burnt premises and asked for production of some papers and the same was duly submitted by the Complainant to the Surveyor. On 11.08.2011 the Insurance Company by issuing a letter informed the Complainant that the Surveyor has recommended the claim for a sum of Rs.3, 40,760=00 as full and final settlement. Upon receipt of the said information the Complainant met the OP-1 at its office claiming for disclosure of the ground of such settlement, but to no effect. The allegation of the Complainant is that such settlement of the insurance claim at a very lower amount by the OP-1 is illegal, unfair and unlawful and hence this complaint is initiated praying for certain reliefs
The OP-1 did not contradict that the risk of stock in trade of Rs.9, 50,000=00 and plant machinery of Rs.3, 00,000=00 of the unit of the Complainant was covered under the insurance policy obtained from it. During validity of the said insurance policy fire broke out on 14.11.2009/15.11.2009, but the Complainant gave an intimation of loss of the insured article due to fire on 25.11.2009 stating that the said incident took place on 14.11.2009. No explanation for such delay has been explained in the claim form by the Complainant, as well as, in the petition of complaint. It is also not mentioned by the Complainant in the claim form regarding general diary. The incident allegedly took place on 14.11.2009 to 15.11.2009, but the same was reported to the police officer on 18.11.2009. Upon receipt of the intimation on 25.11.2009 the Surveyor was appointed and claim form was issued in the name of the Complainant. The Protocol Surveyors and Engineers private Limited was appointed as surveyor. He visited the spot on 26.11.2009. Since his appointment the Surveyor gave several letters to the Complainant for production of some documents. The OP-1 also gave reminders for production of the same. The Surveyor produced his survey report on 22.03.2011 by assessing total loss of Rs.3, 41,490=00. The OP-1 upon receipt of the said report deducted a sum of Rs.730=00 as RT premium and settled the claim for Rs.3, 40,760=00. The said settlement was intimated to the insured, as well as, the OP-Bank by issuing letter on 11.08.2011. So there was no deficiency in service, as well as, unfair trade practice on behalf of this OP, rather the OP-1 settled the claim as per Surveyor’s report. It is submitted by the OP-1 that the Complainant did not lodge the claim before this OP with clean hands as the Complainant paid premium for stock in trade to the tune of Rs.9, 50,000=00 and in the claim form it is disclosed by the Complainant that on the date of occurrence there was stock of Rs.14,50,000=00. No risk for the building was covered in the said policy and in respect of plant machinery premium was paid by him for risk of Rs.3,00,000=00 but in the claim form he claim Rs.3,30,000=00 towards the loss of plant machinery. The claim form was submitted by the Complainant on 03.06.2010. It is further submitted by the OP-1 that the settlement letter along with discharge voucher was disbursed on 11.08.2011 and the same was duly received by the Complainant. The instant complaint has been initiated on 11.12.2012 i.e. after one year four months from the date of settlement of claim. According to the OP-1 the settlement of claim is legal, justified and reasonable, hence prays for dismissal of the complaint with cost.
In respect of delay intimation about the incident and loss to the OP-1 as alleged by the OP-1 we are to say that at the time of submitting the claim form as the OP-1 did not raise this question and upon receipt of the intimation Surveyor was appointed by its to assess the loss due to fire and ultimately assessed the same, now the OP-1 is not entitled to raise this plea. Moreover, the insurance claim was not repudiated by it on that score, so such contention cannot be accepted at a belated stage.
We have gone through the claim form as submitted by the Complainant before the OP-1 after the incident, from where it is evident that the Complainant claimed a sum of Rs.1, 00,000=00 towards the damage of the building, but admittedly the building was not within the coverage of the said policy and no premium was by him for such coverage. So in our view the Complainant cannot claim any farthing in this account. Not only that the claim form denotes that the Complainant claimed a sum of Rs.3,20,000=00 towards the loss of plant and machinery and Rs.14,50,000=00 due to loss of stocks in trade. In this regard we are also of the view that where the plant and machinery was covered for Rs.3, 00,000=00 and stock in trade of Rs.9, 50,000=00, then the Complainant cannot claim policy excess amount in his claim form. The Complainant has submitted that being a rustic village people he claimed those amounts without knowing pros and cons of the terms, condition and limitation of the insurance policy. In respect of such submission we are to say that where the Complainant is carrying on business and obtained an insurance policy covering the risks of the items, hence he was supposed to know about the terms and conditions of the insurance policy and he cannot take plea under his ignorance. The submission of the OP-1 in this respect is justified and fair one. Moreover, where the stock in trade was under the coverage of this policy for Rs.9, 50,000=00, then why the Complainant kept the stock for Rs.14, 50,000=00 on the date of occurrence, no reply is forthcoming from the Complainant. It is revealed that the Complainant kept the stocks going beyond the terms, conditions and limitation of the insurance policy and for this reason he is not entitled to claim a sum of Rs.14, 50,000=00 from the OP-1 inspite of loss of the entire stocks in trade.
We have noticed that after the incident Fire Brigade came who brought the situation under control by strenuous efforts and the matter was also reported to the local Police Authorities, Burdwan by issuing letter on 15.11.2009 and police case started. Fire Brigade report reveals loss of approximately Rs.12, 00,000=00 including the premises involved in fire. Be it mentioned once again that the building/premises was not under any insurance coverage and hence the Complainant is not entitled to get any amount towards any loss of premises/building. From the stock statement issued by the Bank as submitted by the Complainant in every month regularly that on 31.10.2009 value less margin was 1056.13, i.e. Rs.10,56,000=00. From the Bank statement as submitted by the Complainant for the period from April, 2009 to October, 2009 the total value less margin was 7268.07, so the average is coming at 1038.30. Therefore it can be said that on the date of occurrence the total value of stock was for Rs.10, 38,300=00. Admittedly Insurance policy was taken by the Complainant for covering the risk of the stock in trade for Rs.9, 50,000=00, but the document reveals that beyond the said amount the Complainant kept the stocks in trade on the date of occurrence. So the Complainant cannot claim excess amount going beyond the terms, conditions and limitations of the insurance policy. In this respect the Ld. Counsel for the OP-1has submitted that due to stock variation, dead stock, sound stock and salvage value of partial damaged stock 30% should be deducted from the value of the stock in trade as per the Insurance Act. But in this respect the OP-1 did not adduce any cogent evidence to corroborate such submission. Therefore the submission as advanced by the OP-1 cannot stand having no basis. But it is true there was sound stock on the date of occurrence and there was variation in rate and of course there was partially damaged stock. Therefore in our view it will meet justice if we deduct @10% due to salvage value and sound stock from the total value of stock as on the date of loss. After deduction the amount will come at Rs.9,34,470=00 i.e. Rs.10,38,300=00 - Rs.1,03,830=00 = Rs.9.34.470=00 and in our considered view the Complainant is entitled to get a sum of Rs.9,34,470=00 towards loss of stock in trade in view of the insurance policy.
Regarding loss of plant and machinery the Complainant has claimed Rs.3, 20,000=00, though the insurance coverage was for Rs.3, 00,000=00 and the paid premium for the said amount. So in our opinion the Complainant cannot claim excess amount going beyond the limitation of the insurance policy. We have noticed that the Complainant has failed to provide any details of machinery installed in the premises, as well as, their capacities, year of purchase, cost of the plant and machinery either in the petition of complaint or adduced evidence by producing cogent evidence in this respect. If the complainant disclosed the said information then it will be possible for us to come to the considerable amount towards loss of the plant and machinery after deducting the depreciation amount. But due to want of those documents, we are not in a position to pass an award towards loss of plant and machinery due to fire on hypothetical basis. Therefore in our opinion as the Complainant has failed to prove his claim towards loss of plant and machinery due to fire, he is not entitled to get any amount in this account.
It is pertinent to mention that the Complainant had already received an amount of Rs.3,40,760=00, therefore now he is entitled to get Rs.9,34,470=00 – Rs.3,40,760=00 = Rs.5,93,710=00.
Admittedly, the OP-1 has settled the claim of the Complainant at a very lower amount and for this reason the Complainant had to run from pillar to post, but to no effect. Such action of the OP-1 certainly suffers from deficiency in service for which the Complainant is entitled to get compensation from the OP-1. It is also an admitted fact that before coming to this Ld. Forum grievance of the Complainant had not been redressed and by filing this complaint the Complainant had to incur some expenses for which he is also entitled to get litigation cost from the OP-1.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint is allowed on contest in part with cost against the OP-1 and dismissed ex parte without any cost against the OP-2. The OP-1 is directed to pay a sum of Rs. 5, 93,710=00 (Rs. Five lack ninety three thousand seven hundred ten) only to the Complainant towards loss of stock in trade after deducting the paid amount as mentioned before within 45 (forty five) days from the date of passing of this judgment, in default, the above-mentioned amount shall carry interest @9% (nine per cent) per annum for the default period. The OP-1 is further directed to make payment of Rs. 5, 000=00 (Rs. Five thousand) only as compensation due to mental pain, agony and harassment and litigation cost of Rs. 2, 000=00 (Rs. Two thousand) only to the Complainant within a period of 45 (forty five) days from the date of passing of this judgment, in default, the Complainant will be at liberty to put the entire award in execution as per provision of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
