Date: 27-08-2015
Mr.Kamal De, President
The instant case relates to insurance claim for a sum of 1,50,000/- along with other reliefs under the Consumer Protection Act, 1986.
The case of the Complainant, as illustrated in the petition of complaint, is that the Complainant, Sri Gurupada Shit is the owner of a book shop under the name and style, “Bani Depayan” situated at Vill. + PO. Garkamalpur, P.S. Mahisadal, Dist. Purba Medinipur. The Complainant took loan from the State Bank of India, Mahisadal branch against hypothecation of goods worth 3,90,000/- on 30-04-2012 against account no. 30483103853. At the instance of the bank, he also took Fire Insurance Policy from the OP No. 1 being Policy No. 512600/11/11/0100000148. Due to heavy rain on 04-05-2012, rain water entered inside the book shop and damaged books worth 1,50,000/- and also account related registers. The Complainant apprised the OP No. 1 about such matter but to no good. The Complainant verbally informed the matter to the Bank on 05-05-2012 and also gave intimation in writing to the OP No. 1 on 21-08-2012. The Complainant further submitted application in prescribed form to the OP No. 1 on 28-05-2012 claiming 1,50,000/- as against the sum insured of 3,00,000/-. The Bank issued a letter to the OP No. 1 on 07-05-2012 for consideration of the insurance claim of the Complainant. As the OP No. 1 did not take any positive step, the Bank again wrote a letter on 21-12-2012. OP No. 1, however, issued a letter asking the Complainant to submit weather report of 04-05-2012, which the Complainant submitted on 06-12-2013. In spite of this, the OP Insurer did not settle his insurance claim. Accordingly, the Complainant filed a complaint before the Assistant Director, Consumer Affairs & Fair Practices, Regional Office, Abasbari, at Tamluk. The OP filed an objection on 15-01-2015 alleging that the Complainant has not been able to file all the requisite papers in due time and as such, it cancelled the claim of the Complainant. Hence, the case.
OP No. 1, the New India Assurance Co. Ltd. entered appearance and contested the case by filing WV contending inter alia that the petition of complaint is not maintainable in law and is barred by limitation. It is denied that on 04-05-2012, rain water flooded into the book shop of the Complainant and damaged books worth 1,50,000/- along with accounts papers or the Complainant informed the incident to the OP no. 1 in due time or the OP No. 1, with ulterior motive, did not give the insurance claim of the Complainant. It is alleged by the OP No. 1 that intimation of loss was received by it on 28-05-2012, whereas the incident occurred on 04-05-2012. Thus, the intimation of peril was given after 24 days. It is also alleged that the OP Insurer deputed a Surveyor-cum-Loss Assessor for survey and he visited the book shop of the Complainant on 06-06-2012 in presence of the Complainant and found some damaged books and such damage was not total, but partial, which are saleable at a discounted price. The Surveyor assessed the loss to the tune of 11,888/-. On receipt of survey report, the OP No. 1 issued a letter dated 23-07-2012 asking for certain clarifications, viz., delayed intimation of loss, non-mention of cause of loss in the claim form. The Complainant was further asked to submit requisite documents like copy of FIR, purchase documents, especially in respect of alleged books and khatta, daily purchase and sale register for the months of April and May, 2012, Profit & Loss Account, Balance sheet for the year 2012, Metrological report, etc., etc. But, the Complainant did not fulfil the aforesaid requirement, for which, another follow up letter was sent on 25-09-2012 with a request to submit the aforesaid documents within 7 days, else the claim would be closed as “No Claim”. Still, the Complainant did not submit the aforesaid documents. As such, the OP Insurer was compelled to close his claim as “No Claim” through letter dated 08-01-2013. It is claimed that there was no deficiency of service on the side of the OP Insurer and as such, the complaint case is liable to be dismissed.
OP No. 2 initially appeared in this case, but at the insistence of the Complainant, its name was expunged vide order no. 9 dated 16-07-2015.
Points for consideration
- Whether there is any deficiency in service on the part of the OP No. 1 in handling the claim of the Complainant?
- Whether the case is barred by limitation?
- Whether the Complainant is entitled to get relief or reliefs, or not?
Decision with reasons
Point Nos. 1 to 3:
All these points are taken up collectively for discussion for the sake of brevity and convenience and as the points are inter-linked with one another.
It has been argued from the side of the OP No. 1 Insurer that the claim of the Complainant is barred by limitation.
Perused the case records wherefrom it appears that the incident took place on 04-05-2012, and the instant case has been filed on 30-04-2015. Apparently, it may look like that the case is barred by limitation. But, as we know, what is apparent need not necessarily be the real fact.
Admittedly, the Bank registered a Fire Insurance Policy in the joint name of the Bank as well as the Complainant under the OP No. 1 Insurance Company being Policy No. 51260011/11/0100000148. The insurance policy is not disputed from the side of the OP No. 1. It appears that the Complainant informed the matter to the Bank on 05-05-2012 and he also submitted an application in the prescribed form of the OP No. 1 Insurance Company on 28-05-2012 claiming a sum of 1,50,000/- as against the total sum insured of 3,00,000/-. The Insurance Company also deputed a Surveyor-cum-Loss Assessor for survey and assessment of loss and he visited the shop of the Complainant on 06-06-2012. Thereafter, the OP again asked for clarification about delay in intimating the matter of incident to the Insurance Company and also asked for some documents like Copy of FIR, Weather Report, Balance sheet and other accounts related papers. The demands from the side of the OP No. 1 continued and continued without any ultimate relief. Weather Report, as we find, was received by the Complainant from SBI, Mahisadal branch on 06-12-2013 and he submitted the same to the OP No. 1 on 09-12-2013. In spite of submission of the documents and in spite of having insurance policy, it appears the OP failed to meet up the claim and harassed the Complainant for submission of other intended documents. It appears that the matter went up to the Assistant Director, Consumer Affairs & Fair Business Practices, Purba Medinipur Regional Office. The OP No. 1 filed an objection on 15-01-2015 repudiating such claim of the Complainant. Repudiation of claim, as we find, is dated 15-01-2015. If we consider the date 15-01-2015 as the date of cause of action, the case is not barred by limitation. More so, the Complainant pursued his claim since happening of the incident and finally his claim for insurance was negated on 15-01-2015 by the OP No. 1 by a letter to the Assistant Director, Consumer Affairs & Fair Business Practices, Purba Medinipur Regional Office.
The aforesaid facts, to our mind, does not smack of any mala fide or intentional laches on the part of the Complainant. The weather report being made available to him by the bank only on 06-12-2013, there was hardly any scope for him to fulfill the demand of the OP No. 1 in this regard. A tour through the survey report certainly leaves no room for any confusion about the genuineness of the incident of inflow of rain water inside the book shop of the Complainant and resultant damage to the stocks of books, khatas etc. Such peril occurred during the validity period of the insurance policy in question. Yet the OP No. 1 asked the Complainant to furnish whole lot of documents to settle a claim which was assessed at 11,888/-. How inconsiderate the Insurance Company has been in their dealings with the said claim can be ascertained from the fact that although the Complainant filed the copy of GDE, they insisted on submitting the copy of FIR on the ground that the SBI, Mahisadal branch in their letter dated 07-05-2012 mentioned that FIR lodged was enclosed. It appears that the matter went up to Assistant Director, Consumer Affairs & Fair Business Practices, Purba Medinipur Regional Office. The OP No. 1 filed an objection on 15-01-2015 repudiating such claim, which prompted the Complainant to file the present case. It, therefore, goes to show that the cause of action notwithstanding primarily arose on 04-05-2012, it continued till 15-01-2015 when the OP No. 1 conveyed its final decision to the Assistant Director, Consumer Affairs & Fair Business Practices, Purba Medinipur Regional Office. The Complainant filed the present complaint case when all his vigorous perseverance of the matter with different authorities culminated in a disaster. Considering all such aspects, we do not think that the case is barred by limitation. The objection of the OP No. 1 in this regard is thus not tenable.
We have carefully perused the report of the Surveyor. The Surveyor, in his report dated 29-06-2012 has stated that “there were tell-tale signs of rainwater having entered into the shop. The shop is slightly at a lower level from the road and the accumulated rainwater from the roadside drains had entered inside the shop damaging the stock of books kept in racks.. I made enquiries locally and got confirmation that the Insured’s shop was flooded in the rains. The insured had taken urgent steps to shift the stocks to a safe place and thus prevented a bigger damage (loss prevention measure)”. Suffice it to hold from the above that there is nothing to dispute about the authenticity of Complainant’s claim as regards damage to business stocks over inflow of rain water inside the shop of the Complainant.
Now, let us discuss about the quantum of insurance claim the Complainant is entitled to against his demand for a sum of 1,50,000/-.
It appears from the documents on record a joint inspection report was prepared by the Surveyor as well as the Complainant wherein item wise details of damaged stocks have been noted and on comparison we find that the Surveyor did take into consideration each and every item of the said damaged stocks while preparing his report. It is important to note here that while the joint inspection report was generated, the Complainant did not raise his voice of decent/ or write anything adverse while putting his signature in the said report. Thus, it can reasonably be inferred that the Complainant had got nothing to dispute the findings of the Surveyor while figuring out the extent of loss suffered by the Complainant. More so, the Hon’ble Apex Court as well as the Hon’ble National Commission, time and again have reiterated that without sufficient proof to hold otherwise, the loss assessed by a Surveyor cannot be called in question.
The Surveyor, as it appears, assessed the loss at 15,890/-. To the estimation of the Surveyor, the stocks were not totally damaged, but it was a partial one and there was further deletion on account of under insurance. The Surveyor observed that while the Complainant took an insurance policy for 3,00,000/-, the value at risk was 4,01,000/-. Accordingly, he derived at a final figure of 11,888/-.
In such given facts and circumstances, we cannot go beyond the Survey Report. More so, when the Complainant has not come up with cogent documentary proof to justify his claim for a sum of 1,50,000/-. Having scrutinized the materials on record and having regard to the Survey Report and in above all, in absence of any supportive documentary proof to establish the claim of the Complainant, we are of view that the Complainant is entitled to the loss assessed by the Surveyor, i.e., 11,888/- in full and final settlement of his claim. That apart, the Complainant is also entitled to get compensation for the mental pain, stress and agony and litigation cost from the OP No. 1.
All these points are, accordingly, disposed of in favour of the Complainant, albeit in part.
Hence,
ORDERED
that the C.C. No. 38/2015 be and the same is allowed on contest against the OP No. 1 in part. The OP No. 1 is directed to pay 11,888/- as insurance benefit to the Complainant and compensation to the tune of 10,000/- and litigation cost amounting to 8,000/- within 40 days from the date of this order. In default, the Complainant would be at liberty to execute this order in accordance with law in which case, the OP No. 1 shall be liable to pay interest @ 9% p.a. over 11,888/- from the date of filing of the case till full and final payment is made.
