Date: 18.06.2019.
The case record is taken up to-day, the 18.06.2019 for judgment and final order.
Facts of the complaint case, in brief, are that he is the owner of “Radhakrishna watch, sales & services” at Hawkers Corner, Siliguri, which had a fire insurance coverage under an Insurance Policy with the OPs valid from 19.09.2013 to 18.09.2014. His shop caught fire on 28.03.2014 and it with articles were damaged. The complainant lodged a diary with Siliguri Police Station on the same day. West Bengal Fire & Emergency Service, Siliguri, also took action and submitted a report on 02.05.2014. The complainant assessed the loss due to such fire to the tune of not less than Rs.10,00,000/- (Rupees Ten lakh) and submitted a claim for insurance money to the OP.
The OP, however, wrote a letter to their Divisional office recommending Rs. 5,60,000/- but ultimately Rs. 3,25,553/- was
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sanctioned. The complainant expressed his grievance in writing to the OP vide his letter dtd. 09.11.2015 in response to which the OP sent a calculation of compensation vide their dtd. 26.11.2015 to the complainant. The calculation shows various deductions without any reference to the concerned rules/towns.
On 16.12.2018, the complainant wrote to the divisional of Fire Officer of Darjeeling Division praying for a rectification of the fire report dtd. 02.05.2014 by inserting thereto “pucca construction” in place of “entire wooden construction.” Further the complainant made an appeal to the OP on 18.12.2015 to hold that claim till the receipt of such rectified report and also to consider the deduction towards salvage charge below 10%. Finding no reply from the either end, the complainant was compelled to receive compensation through cheque from the OP on 05.01.2016 however, with objection. Thus the complainant has been constrained to file the present complaint for the redressal of his legitimate grievance.
The OP entered appearance and contested the case by filing a written version wherein the material averments made in the complaint have been denied. It has been contended by the OP that the Insurance Policy itself shows categorically the liability of the OP to the tune of Rs. 5,50,00/- for stock in trade and Rs. 50,000/- for furniture & fixture. The trade license/certificate of enlistment issued by the Siliguri Municipal Corporation to the complainant in the name & style of “Radhakrishna watch”, sales & service. Other electrical & electronic goods, which the complainant mentions, can not be dealt in by him beyond the grant of the Corporation and hence the OP can not likewise have any liability for those goods. So the loss greater than the insured amount, even if any, is not supposed to be covered under risk of the OP-Insurance Company. The compensation amount arrived at through calculation from the amount of the risk coverage, as per norms & terms of the company. It is ultimately contended by the OP-insurance company that the complainant was paid compensation and hence there is neither any deficiency of service nor any unfair trade practice on the part of the OP-Insurance company. Thus the case is liable to be dismissed.
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To prove his case, the complainant has filed the following documents:-
- Enlistment Certificate,
- Insurance Policy,
- DGE police department,
- Letter from divisional officer,
- Letter to D/O, Insurance Co.,
- Letter of president, Hawkers Corner,
- Reconsideration letter to B/M Insurance Co.,
- Letter of Appeal to Branch Manager,
- Claim cheque.
POINTS FOR DETERMINATION
On the basis of respective submissions of the parties, the following points come up for determination:-
- Is the complainant a ‘consumer’ as per section 2(1)(d) of the C.P. Act. 1986?
- Whether the calculation to arrive at the amount of compensation paid to the insured was as per norms/terms?
- Whether there is any deficiency of service/unfair trade practice on the part of the OP?
- Whether the complainant is entitled to get the relief as prayed for?
DECISION WITH REASON
All the 04(four) points are taken up in seriatim discussion.
Point No. 1
It appears under the facts and circumstances of the instant case that the incident of fire was taken place on 28.03.2014 in the shop of the complainant under name and style ‘Radhakrishna Watch’ at Siliguri while the complainant being insured under a said Fire Insurance Policy Coverage from 19.09.2013 to 18.09.2014 with the OP-Insurance Company of this case and that has not been challenged. So, there exists no doubt in it that complainant is a rightful consumer as per section 2(1)(d) of the C.P. Act. 1986. This points is thus in favour of the complainant.
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Point No.-2
The calculation as informed to the complainant by the OP vide his letter dtd. 26.11.2015 which is a reply to the letter dtd. 09.11.2015 of the complainant shows various deductions from the insured amount. The compensation amount was thus the reduced insured amount, which is the cause of the complainant’s grievance.
The OP, however, stated in their evidence and also argument that the compensation was calculated as per section 64UM(2) of the Insurance Act. 1938. The deductions numbered more than one but the particular sub-section or proviso, if any, under which such deductions were made have not been mentioned against each by the OP-Insurance Company. Reference to the section as a whole admits of doubt in the mind specially of the complainant whether each deduction was supported by the Act or not. The Insurance Policy has the mention of articles other than the watches to be under coverage but an amount of Rs. 85,580/- was deducted on the ground that the articles other than the watches were not permitted to be dealt in by the complainant in the trade licence/certificate of Enlistment issued by the Siliguri Municipal Corporation. Strangely enough, the OP-Insurance company has not explained at any stage why the Municipal trade licence was not consulted at the time of issuing Insurance Policy. An amount of Rs. 44,287/- has been added against insured amount of Rs. 50,000/- towards furniture & fixture but logic or legitimacy behind such reduction has not been furnished.
Thus, it is not clear to this Forum whether the calculation to arrive at the compensation paid to the insured complainant was fully as per norms or terms.
Point No.-3
The OP-Insurance company have stated in the evidence as well as the written notes on argument that the complainant claims the amount of loss to be 10(ten) lakh rupees in Para-16 of the complaint but after having received the written version of OP reduced the amount in Para -15 of evidence to almost half , i.e.,
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Rs. 6,00,000/-. But OP have not challenged that reduced amount rather has reiterated that the policy issued is “shop-keeper’s Insurance Policy” covering the risk of Rs. 5,50,000/- for stock in trade and Rs. 50,000/- for furniture & fixture. The Insurance Company is not liable to pay more than the risk amount. The authorized person of the OP, namely Shri Tamal Dutta wrote on 28.07.2015 to the Divisional Office recommending Rs. 5,60,000/-. Mention of some electrical & electronic articles to be under insurance coverage in the policy proves that the Municipal trade license was not taken into consideration at the time of issuing insurance policy and not taking such license into consideration, in turn, proves that the OP-Insurance company accept that complainant’s dealing in with articles beyond the grant of Siliguri Municipal, Corporation is not their business, rather, falls under the jurisdiction of Municipal Administrative or police authority. However, the OP-insurance company awarded Rs. 3,25,553/- and the complainant-insured received the cheque on 05.01.2016.
Hence, it can not be said that there was no deviation, even if at least, from good service or fair trade practice on the part of the OP-Insurance company.
Point No.-4
The complainant, however, mentioned in his complaint that the loss due to fire would be Rs. 10,00,000/-(ten lakh rupees) but he did not present any calculation item wise to arrive at that amount. The fire report refers to some articles damaged by fire but does not refer to any approx amount of loss. The complainant wrote a letter dtd. 16.12.2015 to the Fire authority to rectify the report by inserting brick-built (Pucca) construction in place of “entirely wooden construction”, and requested the OP-Insurance company to hold the claim till the receipt of such rectified report. So the complainant appears to be aware of the fact that the amount of compensation depended, inter alia, on fire report but he has not made the fire authority a party to the case. The complainant further requested the OP-Insurance company to consider the deduction of salvage amount below 10% and thereby accede to the formula of deduction in calculation. The complainant
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has expressed his grievance over the compensation amount and received cheque for compensation with objection. All the points are thus disposed of.
In the result, the case succeeds but in part. Hence, it is,
O R D E R E D
that the instant Consumer Case No. 05-S-2016 be and the same is allowed on contest in part against the OPs with costs.
The OP-Insurance Company is directed to pay the complainant Rs. 85,580/- deducted from the amount insured for stock in trade plus Rs. 5,713/- deducted from the amount insured for furniture & fixture thus equal to Rs. 91,293/- only. Other deductions not challenged by the complainant are allowed.
There will be no other cost except that towards litigation and proceedings amounting to Rs. 5,000/- only which also the OP-Insurance Company will be liable to pay to the complainant.
Payment should be through an a/c payee cheque in the name of the complainant and be completed with 45 days from the date of this order.
Failing which the amount will carry interest@ 9% per annum on the awarded sum of Rs. 96,293/-(ninety six thousand two hundred ninety three rupees) from the date of completion of said 45 days till full realization.
In case of default, the complainant will be at liberty to execute this order through this Forum as per law.
Let a copy of this final order/judgment be supplied to each of the parties free of cost.
