OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.55/2012
Present:-
1) Md.SahadatHussain, A.J.S. - President
2) SmtiArchanaDekaLahkar - Member
3) MdJamatul Islam - Member
Mrs Sikta Das -Complainant
W/O- Sri Satyajyoti Das
R/O- H.No-17, Bye Lane No-1 ,
Barsapara,P.O- Binova Nagar
Guwahati-18
-VS-
1) The Regional Manager , -Opp.Party
National Insurance Company Ltd.
Regional Office,Bhangagarh,Guwahati-05
2) The Sr. Divisional Manager
Guwahati Divisional Office-I,
National Insurance Company Ltd.
G.S.Road,Bhangagarh ,Guwahati-05
3) The Branch Manager,
Beltola Branch,
National Insurance Company Ltd.
Beltola ,Guwahati-28
Appearance:
Ld advocate MrR.N.DevSarmah for the complainant
Ld.advocateMr.S.P.Sarmah for the opp.party
Date of argument - 28.02.2018
Date of judgment - 03.04.2018
JUDGMENT
This is a proceeding U/S- 12 of the Consumer Protection Act, 1986
1. The complaint filed by MrsSikta Das , the proprietor of M/S Debajyoti Store, Barsapara,Binovanagar,Guwahati against Regional manager, national Insurance Co.Ltd. ,Regional Office , Guwahati and 2 others was admitted on 07/09/2012 and notices were served upon the opp. parties also filed joint written statement on 02/01/2013 and thereafter the complainant filed her evidence and evidence of Sri Dipak Choudhury , Sri Biswajit Roy Choudhury and Sri LitonMitra in affidavit. The opp. party side cross examined CW-1 ,CW-2,CW-4 but CW-3 ,Biswanath Roy Choudhury was not cross examined by opp. party side . The opp. party side filed evidence of SmtJamunaBhuyan in affidavit and she was also cross examined by Ld counsel of the complainant. Finally, Ld advocate MrR.N.Dev Sharma filed written argument for the complainant and Ld advocate Mrs Rita Das Mazumdar for the opp. parties. Thereafter on 28/02/18 , we have heard oral argument of Ld advocate MrR.N.Dev Sharma for the complainant and of Ld advocate MrS.P.Sarma for the opp. parties and fix the day of 15th March ,2018 for delivery of judgment , but on that day we failed to deliver the judgment due to over works on that day and today we deliver the judgment which is as below:
2. The complainant’s case in brief is that, the complainant who is doing business in the name of proprietorship shop M/S Debajyoti Store, Barsapara,Binovanagar,Guwahati insured her mercantile –Stationery , cosmetics, grocery etc. and the shop house with Opp.Party No-1 vide Policy No-200110/48/07/9800000370 for the period w.e.f 15/01/2008 to midnight of 14/01/2009. The said shop caught fire on 31/10/2008 at about 12.30 AM and the devastating fire gutted the shop totally and she informed about the incident to the Opp.Party No-3 on 31/10/2008 and requested him to survey the matter and settled her claim and on 30/10/2009 .She received a letter dtd.28/10/2009 from the surveyor of the opp. party namely- Dibyendu Roy who requested her to furnish some documents but she was surprised receiving the said letter as she had already submitted all the documents to him and accordingly she sent reply to the said surveyor on 04/11/2009 disclosing the said matter and she also inform Opp.Party No-2 on 12/11/2009 about the matter. On last part of January,2010 she received a letter dtd.19/01/2010 from Opp.Party No-3 by which she was informed that, some of the documents filed by her had remained unsigned and then she visited the office of the Opp.Party No-3 and perform all the formalities and thereafter on 26/03/2010 an official of Opp.Party No-3 visited her shop and handed over a voucher of Opp.Party No-1 where it is cited that, the claim has been settled at an amount of Rs.4,97,000/- being full and final settlement of her claim and she was asked to put her signature accepting the settlement but she refused to accept the said amount as her shop was completely gutted in the said fire and she also sent a letter to the Opp.Party No-3 to that effect and requested Opp.Party No-3 to furnish copy of the survey report to her. But Opp.Party No-1 inform her that the copy of the survey report could not be given to her as it is a classified document but she collected the said survey report filing RTI petition and sent the drawbacks of the survey report to Opp.PartyNo-1 and requested him to review the settlement amount but she was informed by Opp.Party No-2 and 3 that they are unable to review the settlement amount vide their letters dtd.23/08/2010 and 19/09/2010 without responding the queries made by her and thereafter Opp.Party No-2 asked her verbally to submit one voucher (Voucher Form No-B- 17) if needed money from her claim and accordingly she submitted a completely filled up voucher in the Form No-B 17 on 27/03/2011 to Opp.Party No-2 and sent also copy of it to the Manager,i/c,CRM Department , Kolkata through email and inspite of that Opp.Party No-2 instructed her to submit a blank but signed voucher in Form No-B 17 only to meet up their official formalities and she also submitted a voucher as per that instruction and thereafter she got Rs.4,97,000/- only from the opp. party . She was asked to sign Form No-B-17 against payment of Rs.4,97,000/- only and she signed the form believing that the said payment was an interim payment , since the claim amount is finally not ascertained . This impression is conveyed to her because of the fact that final discharge of claim is acknowledged by signing of the final discharge Form No-ACF-25 which is still not issued with her and so she belief that the final discharge of the claim was not done and the payment received as an interim payment . After payment of Rs.4,97,000/- as the opp. parties remained silent for payment of her balance amount she sent a demand notice on 05/09/2011 to Opp.Party No-1 and 2 replied to her vide letter dtd.16/09/2011 denying their any liability to her claim and Opp.Party No-2 sent a copy of voucher Form No-B 17 signed by her alongwith that letter and after scrutinising the said voucher she found that, that voucher was not filled-up either by her or in consent of her but it is filled up /written by officials of opp. party only to deceive her from her lawfull claim using the blank but signed voucher (Form No-B -17) of her submitted on 27/03/2011 . As per Account Manual-volume-II maintained by the opp. party company , the claims discharged voucher , in full settlement and satisfaction and discharge of claim should be in the Form AC-25 but such form was not signed by her. In response to the letter dtd.16/09/2011 sent by Opp.Party No-2 ,she sent reply to Opp.Party No-2 on 11/10/2011 narrating all factual situations regarding the vouchers in Form No-B- 17 enclosing with letter dtd.16/09/2011 sent by Opp.Party No-2 . She never filled up the said form by herself nor it was filled up with her consent and so it is a case of gross negligence on the part of the opp. parties in rendering service to her. The surveyor stated to prepare the report without visiting the place of occurance and he also did not go through the documents and evidence of her while preparing the report and the said drawbacks have been established in the “over view of survey report “ dtd 31/05/2010 and the said report is totally prejudiced biased and manipulated .The opp. parties have violated all the norms and rules of IRDA in assesment of her loss for which she is entitled to balance amount of Rs.3,03,000/- out of total sum insured amounting to Rs.8,00,000/- as per terms and condition of the policy. The opp. parties filled up the blank voucher Form No-B-17 which was signed by her without her consent aiming to deprive her from her lawful claim. Due to financial contraint she has to take loan from bank and other private financer amounting to Rs.4,00,000/- for re-construction and settlement of her shop after destruction for not settling her lawful claim she has to suffer from mental harassment and thereby she is entitled to Rs.2,00,000/- as compensation and for non settlement of her claim in full term her elder daughter had to face loss of one valuable academic year and for that loss she is entitled to compensation to the tune of Rs.4,00,000/- with cost of proceeding amounting to Rs.50,000/-
3.The gist of the pleading of Opp.Party No-1 ,2 and 3 is that, there is no cause of action to file the present complaint by the complainant; the complaint is not maintainable and it is liable to be rejected under Section-26 of the Act. The complaint is time barred as per provision of Section-24(A) of the Act . The complainant accepted Rs.4,97,000/-without any objection on 27/03/2011. They have no knowledge that the complainant had taken bank loan etc. to re-establish her shop devastated in fire. The complainant never sent a non acceptance letter to them rather accepted the final amount as was settled by them without any protest. The amount of compensation assessed by them was on the basis of proper verification and thus there was no negligence on their part . The surveyor’s report is based on actual loss that had been suffered by the complainant. Though the policy was taken for a higher amount but the loss due to fire will be dependent on the actual loss at the time of fire. The acceptance of money by the complainant was not under protest and the amount was accepted by her after following all the formalities . They informed the complainant vide their letters dtd.23/08/2010 and 19/09/2010 that they can not review the settlement and the amount paid is not a interim payment . The complainant signed the vouchers after being fully satisfied with the settlement amount. They have followed all the rules and regulations necessary for settlement of claim of the complainant. They have already settled the claim of the complainant for Rs.4,97,000/- which the complainant received without objection and hence the complainant is not entitled to get any amount further against the said policy and she is also not entitled to get any compensation from them. She filed the complaint forwrongfull gain and it is liable to be dismissed.
4. We have perused both side’s pleading as well as their evidence . We have also perused the argument of both sides Ld counsels. We , after perusing both side’s pleading , found that it is both sides’ admitted fact that the complainant had purchased a policy from Opp.Party No-1 vide Policy No- 200110/48/071980000370 effective from 15/01/2008 to 14/01/2009 and the insured value of the said policy was Rs.8,00,000 covering her shop M/S Debajyoti Store, Barsapara,Binovanagar,Guwahati and stationery, cosmetics , grocery items etc. and during effectiveness of the said policy , her shop caught fire on 31/10/2008 at 12.30 AM and was totally gutted with all materials due to the devastating fire and on the same day the complainant informed Opp.Party No-3 about the matter and requested Opp.Party No-3 to get the matter surveyed through their surveyor and settle her claim .
It is also both sides admitted fact that the opp. parties assessed the loss of the complainant in the said fire at Rs.4,97,000/- and the complainant accepted that amount . The complainant plea in respect of receiving the said amount is that she accepted the said amount under protest, no as full and final settlement amount and she accepted the said amount to come out partly from the financial constraint and she submitted a completely filled up voucher in Form No-B-17 dtd.27/03/2011 to Opp.Party No-2 and a scan copy of it was sent to Manager, i/c, CRM Department of the opp. party (Kolkata) through email but Opp.Party No-2 , inspite that, instructed her to submit a blank but signed voucher in Form No-B-17 to meet up their official formalities otherwise he would not make payment of money and accordingly she submitted the said blank form but signed to Opp.Party No-2 and then she got Rs.4,97,000/- from the opp. party , but opp. party remained silent about payment of the balance amount and then she sent a notice to Opp.Party No-1 requesting for paying balance amount and Opp.Party No-2 replied to the said notice vide his letter dtd.16/09/2011 saying that they have no any further liability to her claim and sent also a filled up voucher (Form No-B-17) signed by her alongwith the said letter but after scrutinising the said voucher she found that the said voucher is not filled up either by her or in her consent but is filled up by officials of the opp. party only to deceive her and to exonerate them of her lawful claim and then she vide letter dtd.11/10/2011 replied to the said letter of Opp.Party No-2 and narrated all the factual situations to Opp.Party No-2 and challenged that the said voucher was not filled up by her or by anybody on her consent and she is yet entitled to get Rs.3,03,000/-out of total sum insured amounting to Rs.8,00,000/- . In this regard the plea of the opp. party is that they appointed surveyor on 31/08/2008 and the complainant submitted documents to him in the month of January and May,2009 and he submitted report on 17/11/2009 and accordingly they made payment on 26/03/2010 . According to the assessment made by the surveyor and that amount was the final settlement of the claim of the complainant and they are not liable to pay any further amount to the complainant against her claim. Now question is that whether complainant accepted Rs.4,97,000/- as full and final settlement of her claim. According to opp. party Exhibit-23 was submitted by the complainant without any objection and it was also signed by her and then she had received Rs.4,97,000/-.
We have perused the Exhibit-1, from Exhibit-1 (Insurance policy ) the insured value is Rs.8,00,000 /- and the policy was issued on 14/01/2008 giving enforcement from 15/01/08 to midnight of 14/01/09. As the insured value is Rs.8,00,000/- it must be presumed that before issuing this policy the opp. party side after doing proper investigation found that , the shop of the complainant was of value of Rs.8,00,000/- which includes the mercantiles- stationery , cosmetics , grocery etc. It is also found that the shop caught fire on 31/10/2008 just after 9 months and 15 days . So in such situation it can not be said that the value of the shop of the complainant reduced to Rs.4,97,000/- . In commonparlence a trader generally does not allow decrease of the stock of the mercantile and which he sales out he fill up the gap taking the mercantile from the wholeseller and so it must be presumed that on the day of fire the value of the shop of the complainant was around Rs.8,00,000/- including the total value of the stocks .
5. It is admitted fact that the complainant received Rs.4,97,000/- on 27/03/2011 which the complainant says that, she had received that amount under protest. Ex-23 is a voucher without any depth and this voucher is not denied by the opp. party. The complainant says that while she put the signature it was a blank form and for the first time she knew about the fact that it was filled up while the copy of it was served on her by the Opp.Party.No-2 vide letter dtd.16/09/2011. We have perused Ex-23 and it is the said voucher and it is written that the complainant received Rs4,97,000/- as full and final payment against the claim and they shall have no further claim under the capital “CLAIM” . The complainant state that she has not written that contents and while she submitted that form it was blank and contents were later on written by officials of opp. Party. while the complainant says that she has not written the same contents than the burden of proving the fact that the contents were written by the complainant herself or it was written on her consent is shifted to the opp. party, but the opp. party side has not tried their plea as to that document. Thus we hold that the plea of the complainant is a correct statement meaning thereby it is established that while the form of Ex-23 it was blank but the complainant put signature on it and she submitted the blank form putting signature on thepursuationof the officials of opp. party asking her that, thatway the form is required to process the payment of the remaining amount of the claim and after receiving that blank form the opp. party got it filled up through their officials making it favourable to them.
From Ex-20 it seen that there is no mention of a single word to the effect that , the complainant received Rs.4,97,000/- as full and final settlement of the claim of the complainant. So the voucher dtd.27/03/2011 (Ex-20), in our opinion infers that, the said payment was provisional or partial payment against the claim of the complainant. Secondly, in the survey report (Ex-13) the surveyor clearly states that the shop alongwith its contentis totally gutted in the said fire, which means that the complainant lost her shop alongwith total stock of her shop which was of value of Rs.8,00,000/- . We have already found that the opp. party side paid Rs.4,97,000/- only as partial /provisional payment on 27/03/2011 . It is also found that the complainant after receving the said amount has constantly been approaching the officials of the opp. party to pay her the remaining amount of the loss suffered by her (insured value) . As per rule of “IRDA (Protection of Policy holders interest) Regulation, 2002” the opp. parties are liable to pay the insured value of a shop in the case of total loss in a fire deducting some amount as per terms and condition of the policy . The surveyor has deducted Rs.10,000/- from the amount he assessed . He assessed the loss at Rs.5,07,430/- . We have found that the surveyor failed to show cuse and reason how he has assess the loss at Rs.5,07,430/- while he clearly states that the whole shop with materials was gutter in the said fire. Therefore , the survey report and assessment made by him can not be accepted. Therefore we hold that , the opp. party are liable to pay Rs.7,90,000(Rs.8,00,000-deduction Rs.10,000) and as the opp. party has already paid Rs.4,97,000/- to the complainant they are presently liable to pay Rs.2,93,000/-.
6. The opp. party is found withholding the said amount and thereby they caused harassment to the complainant and also compelled her to prosecute them incurring a handsome amount. Therefore, we hold that the opp. parties are liable to pay Rs.10,000/- as compensation for causing harassment to the complainant and Rs.10,000/- as cost of the proceeding as well as interest on the principal which we feel that 6% per annum would be a just rate.
7. Another pleading of the opposite party is that , the complaint is barred by limitation having it was filed after two years of arising cause of action of this complaint.In this respect the plea of the complainant is that the cause of action arose on 16/09/2011 and they filed the complaint on 07/09/2012 and hence the complaint seems filed within limitation.We have perused submission of both sides learned counsels and their evidence and it is found that after making several correspondendences with the opposite parties by the complainant ,the opposite party vide their letter memo no.200100/motor/tech/cd/2011/341 dtd.6/9/2011 (Ext.22) finally inform the complainant that Rs.497000/- which the complainant has received from them is the full and final payment against her claim connencting with loss of her shops and materials and she has no further claim under caption “CLAIM”and they have no further liability under claim .thus it is found that this letter caused arising Cause of Action for filing the present complaint by the complainant and cause of action first arose on 16/09/2011. Thus we hold that the complaint was filed within limitation having it was filed within 2 years of arising of the cause of action .
8. Because of what has been discussed as above, we hold that, the complaint has merit and the complainant has succeeded to prove his complaint against all three opp. parties . Hence, the complaint against all three opp. parties is allowed on contest and they are directed to pay the complainant the remaining amount of the claim which is Rs.2,93,000/- with interest @6% per annum from 07/09/2012 and also to pay her Rs.10,000/- as compensation and another amount of Rs.10,000/- as cost of the proceeding to which they are jointly and severally liable. They are directed to pay the amount within 45 days , in default, other two amounts shall also carry interest on the same rate.
Given under our hands and seal today on this 3rd April,2018.
(SmtArchanaDekaLahkar) (Md.Jamatul Islam) (Md.SahadatHussain)
Member Member President
