In the Court of the
Consumer Disputes Redressal Forum, Unit -I, Kolkata,
8B, Nelie Sengupta Sarani, Kolkata-700087.
CDF/Unit-I/Case No.244/2010
1) B.S. Tar Pvt. Ltd.
113, Park Street, 6th Floor,
P.S. Park Street, Kolkata-16. ---------- Complainant
---Versus---
1) The New India Assurance Co. Ltd.
Having its Branch Office at Branch/Division 510400,
23, Ganesh Chandra Avenue, P.S. Bowbazar, Kolkata-13 and
Its regd. and Head Office at
87, Mahatma Gandhi Road, Fort, Mumbai-400001.
2) The Divisional Manager ,
The New India Assurance Co. Ltd.
Having its Branch Office at Branch/Division 510400,
23, Ganesh Chandra Avenue, P.S. Bowbazar, Kolkata-13.
3) The Branch Manager,
The New India Assurance Co. Ltd.
Having its Branch Office at Branch/Division 510400,
23, Ganesh Chandra Avenue, P.S. Bowbazar, Kolkata-13. ----------- Opposite Parties.
4) Essen Surveyors Pvt. Ltd. having its regd. office at
168/73, Prince Anwar Shah Road, Ground Floor, Kolkata-45
And Corporate office at 7/1, Russel Street, C/o Vivek & Co.,
12th Floor, Kolkata-71. ---------- Proforma Opposite Party
Present : Sri Sankar Nath Das, President.
Smt. Sharmi Basu ,Member
Order No. 25 Dated 14/01/2013.
Smt. Sharmi Basu, Member.
In a nutshell, the case of the complainant is that o.p. no.1 is insurance company namely New India Assurance Co. Ltd. and o.p. nos.2 and 3 are The Senior Divisional Manager and Branch Manager and o.p. no.4 is the Chairman of the said insurance company and o.p. no.5 is a proforma opposite party namely Essen Surveyors Pvt. Ltd. o.p.no.5 was expunged by the complainant after filing the instant case.The complainant had an insurance policy under the insurer, o.p. the company of o.p. nos.1 to 4.
In a nutshell, the case of the complainant is that the complainant through its Director informed about the incident over telephone and also issued letter on 25.4.06 to o.p. no.1 to inform that the complainant Factory had been badly damaged due to heavy thunder storm and cyclone on 24.6.06 and damaged the plant and machinery and for this damage the production had been hampered badly and the loss was assessed by the surveyor (o.p.5) who was appointed by the insurer, amounting to Rs.6,27,255/- (Survey Report, Annex.B alongwith complaint ptn.) and then the complainant claimed for damage due to storm and heavy rainfall to the insurer (o.p. 1 to 4) vide policy no.5104021106119000002 and 51040211061100000012. But after several attempts by the complainant for settlement the claim in question, o.p. nos.1 to 4 did not pay heed to settle that claim. Hence the case was filed by complainant with the prayer contained in the petition of complaint.
O.p. nos.1 to 4 had entered their appearance in this case by filing w/v and denied all the material allegations labeled against them and prayed for dismissal of the case. Ld. counsel of o.ps interalia has stated that the complainant is not entitled to claim of Rs.6,27,255/- since such figure was based on an erroneous survey report subsequently corrected and reassessed at Rs.3,71,941/- and
Ld. counsel for o.p. no.1 to 4 has also stated that the complainant could not establish that damages due to storm was covered under the policy in question.
Decision with reasons:
We have gone through the pleadings of the parties, evidence and documents in particular and it is observed by this Forum that in the instant case the complainant had an insurance policy viz. ‘Standard Fire and Special Perils Policy’ and the complainant had never defaulted in paying premium. It is also beyond doubt that on 24.6.06 a heavy thunder storm was occurred causing huge damage of factory, building, sheds, plants and machinery of the complainant company and for that reason the complainant had to suffer huge loss. Moreover, it is also admitted fact that the surveyor (proforma o.p.5) of insurer (o.p. 1 to 4) assessed the aforesaid loss as Rs.5,27,555/- and accordingly the complainant / insured placed the claim to the insurer.
But, being insurer and after receiving regular premium from the complainant, the insurance company neglected to settle the claim of the complainant nor even repudiated the claim. In this regard it is needed to be mentioned that Hon’ble National Commission has been pleased to observe that inaction of insurer towards the settlement of claim of insured / consumer tantamount to be deficiency in service of the insurer being service provider towards the insured. Therefore, we are of the opinion that the insurer i.e. o.p. nos.1 to 4 are jointly and/or severally liable for deficiency in service towards the consumer / complainant under provision of the COPRA, 1986.
To decide whether the complainant is eligible for claim in question or not following discussion is advanced: From the record we find that Regional Meteorological Centre, Kolkata, India Meteorological Department, Govt. of India issued a certificate on 11.5.06. from where it reveals that on 24.6.06 heavy thunder storm occurred.
Moreover, o.p. no.5 the surveyor appointed by the insurance company, had assessed the loss of the company (insured) due to damage by heavy thunder storm as Rs.6,27,255/-. Therefore, it is apparent before us that it is beyond doubt that due to heavy thunder storm on 24.6.06 the complainant company had to suffer loss of Rs.6,27,255/-. But this Forum cannot find any justification of the act of the insured (o.p.1 to 4) to reassess the loss in question by the same surveyor once again and to reduce the loss amount as Rs.3,71,941/-. In this regard the Bench is of the opinion that the reassessment of the o.ps. surveyor, appointed by the insurer (o.p.1 to 4) proves nothing but that the insurer beating around the bust to fulfil their malafide intention depriving the insured / consumer from its legitimate claim.
It is also needed to be mentioned that complainant h ad insurance policy of Fire and Special Perils Policy and here the claim has been preferred for loss owing to huge thunder storm and heavy rain fall and the same falls within the coverage of policy condition ‘Special Perils’.
Therefore, we are strongly of the opinion that the complainant is eligible for the claim of Rs.6,27,255/- along with interest @ 9% p.a. and the complainant is eligible to get relief in part.
Hence, ordered,
That the case is allowed on contest with cost against o.p. nos.1 to 4. O.p. nos.1 to 4 are jointly and/or severally directed to pay the complainant the claim amount of Rs.6,27,255/- (Rupees six lakhs twenty seven thousand two hundred fifty five) only along with interest @ 9% p.a. from the date of filing of the instant case i.e. from 28.07.2010, till the date of full and final realization of the entire amount and are also directed to pay the litigation cost of Rs.5000/- (Rupees five thousand) only within 45 days from the date of communication of this order, i.d. an interest @ 9% shall accrue over the entire sum due to the credit of the complainant till full realization.
Complainant is at liberty to file execution case before this Forum in case of non execution of the aforesaid order in its entirety within the stipulated period under the provision of the COPRA, 1986.
Supply certified copy of this order to the parties free of cost.
