Fact remains that this complainant a sole proprietorship business in manufacturing and storing paints chemicals allied products under the name & style of color Fest Industries “RIMA”at 170 Swinhoe Lane, under P.S. Kasba, Kolkata- 700039 and practically for the purpose attracting his business including the manufacturer of raw materials like Benzole, Benzene, Thinner, Alyked etc.  Complainant received all required licenses, permissions and other valid papers from different authorities including West Bengal Pollution Control Board and further he has his certificate under West Bengal Factories Rules 1958 and Fire Licence.

          This complainant insured the entire business and factory under the Fire covering plan along with machineries, stock of paints and raw materials for a total sum of Rs.9,00,000/- by a policy bearing No.510100/11/07/00000110 dated 24.04.2007 and same was valid up to 27.04.2008.

          But unfortunately on 11.10.2007 at around 2 P.M. a fire broke out in factory premises and fire was controlled by the Co-operation of local people and the fire brigade personnel, and anyhow the fire was restricted and matter was reported to the Officer-in-charge, Kasba Police Station, Baishnab Ghata – Patuli Fire Station intimating the fact of fire who took necessary step at 170 Swinhoe Lane, Calcutta 700039 and locked the gate of the factory premises and took the key with them to the Kasba Police Station which was returned only on 27.10.2007 in the evening.  Due to said fire actually the entire premises was burnt to ashes and gutted for which complainant suffered a loss to the tune of Rs.9,12,000/-.  On receipt of the key back from the Kasba P.S. on 27.10.2007 complainant informed the op to arrange for inspection and accordingly on 28.10.2007 surveyor/loss assessor Mr. Anil Gupta held inspection at the accident site and found the factory premises of the complainant and also observed that the entire factory premises was completely gutted due to fire on 11.10.2007.

          Thereafter, on 29.10.2007 the surveyor of the op issued a notice dated 29.10.2007 at the residential address of the complainant and the entire office and the factory was put under lock and key as closed and asked to furnish series of documents as required by surveyor.

          After all complainant sent its claim against loss due to fire which broke out on 11.10.2007 for a sum of Rs.9,70,487/- which was duly received on proper seal and signature of the op on 21.01.2008.

          The Surveyor Gautam Basu again reminded the complainant to file necessary papers from the custody of the complainant but as because due to file all necessary documents were also burnt, the complainant informed the reason for non-production of the documents but anyhow on 22.04.2008 the complainant submitted the approximate monthly purchase, consumption and stock from 01.04.2007 to 30.09.2007 along with three years Balance Sheet and Profit & Loss A/C and other documents to the said surveyor Gautam Basu and thereafter on 22.12.2008 the op sent a settlement voucher for Rs.2,64,933/- in full and final against the claim of complainant against the insured sum of Rs.9 lakhs.  But complainant refused to accept the said settlement voucher and reported that the said settlement voucher cannot be accepted because his loss due to fire has not been properly assessed and for which complainant sent back the said original settlement voucher to the op by making enclosure to his letter dated- 22.07.2009.

          In the above circumstances, complainant filed this complaint praying for redressal and for releasing the claim amount.

          On the other hand the op insurance company by filing written statement submitted that complainant no doubt obtained one ‘Standard Fire and Special Perils Policy’ from the op and during the subsistence of such policy i.e. on 11.10.2007 certain stock of the complainant at this said premises had been alleged to have been damaged and gutted due to fire and no doubt the complainant lodged the complaint on 14.01.2008 but complainant claimed Rs.9,70,476/-.

          But it is said that fire broke out in the factory on 11.10.2007 and no doubt fire brigade appeared there for extinguishing fire and Kasba Police received the information and appeared there and that is not denied by the op.  But it is submitted that in fact for assessment of entire claim, complainant was asked to produce some essential statement for the last two years that is from October, 2005 to Sept. 2007 and for the month of Oct. 2007 (till 11.10.2007 when the fire incident occurred), including challan and invoices for purchase of raw materials for last two years, delivery challan and sale invoices of finished products for last two years.  But complainant did not produce it and for which the consideration of the exorbitant amount for settlement of any insurance claim is not followed for which the surveyors after observing everything submitted such report.  Surveyor after inspecting the factory premises and also examining the other required criteria in this regard came to a conclusion regarding the extent of loss and in his report he specifically mentioned the quantum of actual loss of machineries, raw materials and other finished goods and thereafter assessed the amount on the basis of the actual loss and/or damaged incurred due to such alleged fire. And in the said surveyor report, it was specifically mentioned that various anomalies regarding the documents as furnished by the complainant was also detected and surveyor ultimately assessed the quantum of loss on the basis of available documents.  In view of the fact for not furnishing cogent evidence by the insured actually the claim was settled on the basis of the surveyors report and other allegations of the complainant are false and fabricated.

                                             Decision with reasons

          On meticulous care on study of the complainant and written version of the ops and also considering argument as advanced by the Ld. Lawyers of both the parties, it is found that the complainant’s factory was insured under the present op.  The factory had been in the said premises and it is a fact that fire broke out on 11.10.2007 at around 2 P.M..  No doubt, complainant failed to produce any document in support of his transaction, purchase of articles, sale of articles or goods to the surveyor but surveyor again and again reported the complainant to produce all documents and the loss assessor assessed the same and finally assessed a sum of Rs,2,60,407/- on the basis of the available documents.  But complainant did not accept it.  Then he filed the case before this Forum.  So question is whether the complainant is entitled to Rs.9 lakhs as assured sum of loss due to said fire or not.  In this regard we minutely heard the Ld. Lawyer for the complainant and when this Forum asked the Ld. Lawyer for the complainant to show the income tax statement of the said year, it was submitted and from which it is found that complainant submitted income tax return for the year appearing receipt No.3011003999 wherefrom it is found he only submitted income tax return showing that his income is not taxable because his total income per year is Rs.96,800/-.  The most interesting factor is that income tax return was submitted for the financial year ended on 31.03.2007.  But along with income tax return no Balance Sheet was submitted which is evident from the fact that there is no annual receipt by the insurance company except income tax return.  But anyhow it is clear that their income tax return for the year 2005-06 which was submitted on 23.03.2007 and complainant submitted business Balance Sheet A/C.  Balance Sheet, computation sheet and other papers and during the financial year 2005-06 total valuation of the assets was shown Rs.4,62,780/-.  But for the financial year 2006-07 no Balance Sheet was submitted along with income tax return.  Though it was submitted on 20.03.2008.  So, it is clear that complainant suppressed his total assets and total income and loss in the Balance Sheet at the time of submitting income tax return for the financial year 2006-07 ended on March, 2007.  But truth is that the said fire broke out in the factory premises of the complainant on 11.10.2007 and if we consider the loss relying income tax return for the financial year 2006-07 ended on March, 2007 we find that the complainant did not submit the Balance Sheet of the assets, Profit & Loss statement and statement of Balance Sheet to the Income Tax Authority.  It indicates that complainant valuation of toal assets was more less than that of the sum assured of Rs.9 lakhs which is evident from the fact of the year 2005-06 income tax return in which complainant showed his asset to the extent of Rs. 4,62,780/- and that was submitted along with income tax return which was received by the Income Tax Authority on 23.03.2007.  So, it is clear that total asset of the complainant for the year 2005-06 was Rs.4,62,780/- and if we rely upon that income tax return then we can say that in the mean time valuation of the assets of the company was not more than Rs.5 lakhs in the year 2006(2005-06) and invariably on the subsequent year it was below that range because as per income tax return statement it is found his yearly income is only Rs.96,800/-.  Then his monthly income is within the range of Rs.8,000/- only.

          Further fact is that complainant did not file yearly assest statement to the insurance company as per law and it is the duty of the complainant to submit it and to show the present valuation of the assets and position of the assets.  Furthermore we have also considered other papers wherefrom we find that complainant did not produce such papers as required by the insurance company for settlement of claim.  But even then insurance company appointed loss surveyor and other surveyors for assessment of loss physically and it was done by surveyor Mr. Gautam Basu.  We have gathered that surveyor assessed the spot loss wherefrom it is found that all the machineries were installed in the year 1995 and so the machineries were very old on the day of incident and valuation of the machineries as on Oct. 2007 was fixed as per web site list and after depreciation cost.  Considering all aspects loss assessor submitted report for releasing a sum of Rs.2,64,933/-.  So, apparently considering the entire aspect we find there was no scope on the part of the loss assessor to decide more but loss assessor assessed the entire spot loss very legally wherefrom we have gathered that in the hands of the complainant there were papers which are in the custody of the complainant but the theory of loss of all documents cannot be believed if all documents were gutted why the income tax return and some other papers were supported by the complainant and then any prudent man can say that the valuable documents were not gutted in the factory premises when there is no office room in the factory premises and such valuable are always kept in the safe custody in the house of the traders and this complainant did not file it because if those documents would be filed in that case his claim in respect of Rs.9 lakhs would be frustrated and further it is evident from the fact that in the particular year of the incident that for the year 2006-07 income tax return was submitted without any Balance Sheet, stock registered etc but it was submitted in the previous year which is evident from the paper and that income tax return reveals that for the financial year 2005-06 as per stock and assets, total valuable was below Rs.5 lakhs.                              And then how the complainant can claim such loss of Rs.9 lakhs as loss.  It is found from the insurance papers that it is the principle for loss of assessment that would be made on the basis of the valuation of the assets as on the date of incident of fire and in this regard we have gathered that insurance company no doubt assessed the same by appointing very expert loss assessor and he rightly submitted the report and we cannot any way discard the report when complainant has failed to produce available documents.

          But anyhow considering the valuation of the assessment of the year 2005-06 we find that it was within the range of Rs.5 lakhs and for that year 2006-07 nothing was submitted along with income tax return but it was it was filed on the date of argument but truth is that it was not filed along with income tax return for which there was no such receipt and it is prepared subsequently and it has no veracity and peculiar factor is that on the date of filing of this case complainant did not file those documents on 30.11.2009.  Complainant did not also file this document and the income tax return of the financial year 2006-07.  So we are convinced to hold that complainant only for the purpose of getting the entire sum assured produced some documents and submitted some documents on the date of argument which is proved from the available documents the income tax return 2006-07.  But even then we applied our judicial mind and conscience and relied upon the income tax return of the year 2005-06 and relying upon that assessed valuation near about Rs. 5 lakhs.  We are directing the op to consider the fact to consider the entire position of the complainant shall be considered more by awarding a further sum of another Rs.1 lakh and in total a sum of Rs.3,64,933/- in favour of the complainant by settling his claim as final settlement.  No interest in this regard is awarded finally of the ground we have awarded extra Rs.1 lakh considering his present financial position.  But under any circumstances the complainant is not entitled to get entire sum assured as prayed for and accordingly the claim is settled finally after proper evaluation and this Forum is awarding a sum of Rs.3,64,933/- in favour of the complainant and op Insurance Co. are hereby directed to issue a cheque in the name of the complainant within two months from the date of this order along with the litigation cost of Rs.5,000/- in favour of the complainant.

          Hence, it is

                                                     ORDERED

          That the complaint be and the same is allowed in part on contest with a cost of Rs.5,000/- against the ops and ops are directed to issue a cheque of Rs.3,64,933/- in favour of the complainant within two months from the date of this order failing which the ops shall have to pay a punitive damages @ Rs.500/- per day till full satisfaction of the decretal amount and if it is collected the same shall be deposited to the State Consumer Welfare Fund.

          Ops are directed to comply the order very strictly within stipulated period of two months failing which penal action shall also be taken against them u/s 27 of C.P. Act 1986 and in consequent that they may be sent to jail for repudiation, violation and disobeyance of the Forum’s order.