This appeal is directed against the Final Order dated 25.11.2019 delivered by Ld. D.C.D.R.F., Malda in CC No 88 of 2016. The appellant’s case in nutshell is that the appellant Rabiul Hoque as proprietor of Runa Food Products & Manufacturer of Kurkure Papad and Other items had purchased an insurance policy from the United India Insurance Company Ltd from the Branch Manger office English Bazar, Malda to protect his manufacturing items for the period from 11.09.2015 to 10.09.2016. The said insurance policy contents the cause carrying storm, cyclone, typhoon, tempest, hurricane, tornedo, flood and inundation. During the policy period between 20th September and 30th September 2005 it was raining continuously and as such all the materials stored in the unit of the Appellant/Complainant became submerged under the rainy water and for that reason the Complainant sustains a loss of Rs. 5 Lakh. Due to such accidental loss of such manufacturing items due to heavy rain the Complainant was mentally shocked and under the treatment of doctors at National Neuro Science Centre at Calcutta and was complete bed rest for couple of months. Thereafter, he intimated the loss and the incident to the Insurance Company. The Insurance Company then sent a surveyor for inquiry. The Insurance Company on the basis of Surveyor’s Report has repudiated the claim of the Complainant Vide letter dated 10.11.2015 by mentioning the words of surveyor “as per Survey Report” the damage of stock was due to damp and moisturize which is not covered by insurance in the standard fire and special peril policy. The Complainant against such repudiation of claim sent a letter to the Divisional Manager, United India Corporation on 27.01.2016 for reconsider the matter but which was not entertained on the part of Divisional Manager and for that reason the Complainant had registered the instant Consumer Complaint. Ld. Forum has adjudicated the dispute on hearing the Complainant and came into conclusion that as the Surveyor’s Report did not support the case of the Complainant and there was no report from any concerned authority to prove that the said materials of the Complainant were damaged due to severe rainfall and for that reason the instant Consumer Complaint was dismissed. Being aggrieved with this order this appeal follows on the ground that the respondent as O.P Insurance Company has not recorded their presence before the Ld. Forum and the case was heard Ex-parte and the Ld. Forum has dismissed the Consumer Complaint Ex-parte without appreciating the fact and circumstances of the case and deprived the Complainant to adduce more evidence in support of his claim, that the order of Ld. Forum was bad in law and liable to be set aside. The appeal was registered in due time and it was admitted in its own course and notice was sent to the respondent Insurance Company Ltd. who has contested the case through their Ld. Advocate Mr. Bhattacharya who has also filed the Written Objection against the Memo of Appeal and contended that the appellant never took any attempt to produce or call any Meteorological Report from the department concern and also not file any prayer before the Ld. Forum for seeking opportunity to produce or call such weather report from the concerned department and the order of Ld. Forum was sound justifiable and in this appeal there is no chance of success on the part of the Appellant/Complainant. The appellant during the course of hearing the appeal submitted the Meteorological Report which he has obtained from Meteorological Department of Government of India and the appellant intended to accept the said report as additional evidence. Today is fixed for hearing the appeal along with petition of additional evidence. The appellant records the presence through Ld. Advocate Mr. D. Banerjee and the respondent contested the appeal today through Ld. Advocate Mr. A. Bhattacharjee. Both the petition of additional evidence and the merit of the appeal are heard today as the prayer of additional evidence directly hits the merit of the case and for that reason the hearing of the additional evidence and hearing of the appeal on merit are completed today.
Decision with reasons
Admittedly, the appellant as proprietor of Runa Food Products & Manufacturer Pvt. Ltd has purchased the Insurance Policy from United India Insurance Company Ltd. for the protection of the manufacturing unit that is building, stocks and contents and for purchasing the said policy the annual premium was paid by the Complainant/Appellant and thereafter he sustained a loss due to some heavy rainfall as the manufacturing unit was submerged with rainy water which caused damages of the stocks of the items in unit. He preferred a claim for obtaining the compensation on account of loss due to heavy rainfall and that was repudiated on the part of the Insurance Company only on the basis that the surveyor in his report mentioned that the so-called damage was held due to dam and moisture which is not covered in the clauses of the insurance policy to the standard perils and sub perils policy. During the course of hearing Ld. Advocate of the appellant mentioned that he urged before the Ld. Forum for giving him sufficient opportunity to produce the weather report from the Meteorological Department to prove that all the damages were held due to heavy rainfall but such opportunity was not provided to him by the Ld. Forum. He further argued that Ld. Forum has observed that as the Surveyor Report does not substantiate the claim of the Complainant and for that reason the repudiation of claim on the part of the Insurance Company was justifiable one. From the Judgement and Order of the Ld. Forum does not reveal whether the Insurance Company has contested the case or not. But it is apparent that at the time of final hearing none recorded the presence of the Insurance Company during the course of hearing the argument. The Surveyor’s Report also has not come before the Ld. Forum to go through on it. Ld. Forum has observed about the Surveyor’s Report on the basis of contents of Consumer Complaint where the Complainant in his Consumer Complaint mentioned in Para 7 that a letter with reference to BGD-LTR-PG/16/013 dated 10.10.2015 was received by the Complainant from the said Surveyor Bankim Sutradhar with some question mark which was based on vague and ambiguity only to deprive the Complainant”. Ld. Advocate of the respondent Mr. Bhattacharya countered this argument by mentioning that the Surveyor’s Report was supplied by the Surveyor to the Complainant and the Ld. Forum relied the said report during the course of hearing and for that reason the order of Ld. Forum has not suffered from any mistake. He, further argued that the Meteorological Report could be obtained by the Complainant/Appellant after the Ex-parte Judgement was delivered and this attempt clearly indicates that to fill up the lacuna the Complainant has obtained the said report while during the course of hearing before the Ld. Forum the Complainant never took any effort to call the weather report from the Competent Authority. He, further argued that the report of Surveyor also goes against the case of the Complainant/Appellant and for that reason there is no scope to become success in the appellate stage.
After, hearing both sides the Commission finds that the order of Ld. Forum suffers from various mistakes. The Final Order of Ld. Forum does not speak elaborately whether Surveyor’s Report was placed before the Ld. Forum. No annexures or exhibit mark mentioned in respect of Surveyor’s Report in the body of Judgement. The Complainant claims that Surveyor’s letter was sent to him which was enclosed in the Consumer petition and the report of Surveyor could not be obtained by him as the Insurance Company did not send it to him. There was no occasion to place the Surveyor’s Repot before the Ld. Forum as because the Insurance Company did not contest the case and also did not record the presence in spite of notice. He, further argued that he verbally requested the Ld. Forum to give him some space for obtaining a report from Meteorological Department but the Ld. Forum in order to quick disposal of the case did not give him sufficient opportunity to call for the Meteorological Report from the Competent Authority and for that reason the Complainant should be allowed to produce the Meteorological Report as additional evidence as it has been obtained from the Meteorological Department recently. In order to achieve the proper justice, the Commission thinks it fit to send back the case to the Ld. Forum for further adjudication afresh by giving opportunity to both parties to tender evidences before the Ld. Forum and highlight their cases in a sufficient manner so that Ld. Forum may adjudicate the dispute in a rightful manner. The Meteorological Report and the Surveyor’s Report should be placed before the Ld. Forum for proper perusal and shall take a decision over the instant Consumer dispute in a rightful manner.
Hence, it’s ordered
That the appeal be and the same is hereby allowed on contest without any cost. The impugned Final Order dated 25.11.2019 in CC No 88 of 2016 delivered by Ld. D.C.D.R.F., Malda is hereby set aside.
Ld. D.C.D.R.F., Malda is hereby requested to obtain the Written Version from the respondents and asked the parties to the case to file any further evidence including the Meteorological Report and Survey Report to prove their claims and counter claims and after completion of process of hearing Ld. Forum shall deliver the Final Verdict touching the merit of the case. Both parties are requested to appear before the Ld. D.C.D.R.F., Malda on 02.03.2022 for fixing a next schedule and the Respondent/O.P. are hereby permitted to file the W.V before the Ld. Forum within 45 days from this day in order to contest the case.
Let a copy of this order be supplied to the parties free of cost and the same to be communicated to the Ld. D.C.D.R.F., Malda for doing the needful.
