This is a case u/s. 12 of Consumer Protection Act filed by the complainant against the O.P named above.

            The fact of the case of the complainant, in a nutshell, is that the complainant has a Mineral Grinding Factory situated at Plot No. 758 of Dhanirampur G.P.-I,  Jogijhora Barabak,  Ethelbari under Police Station Falakata, Dist. - Alipurduar  for manufacturing lime stone powder, dolomite  powder etc.

            The complainant covered with the policy of United India Insurance Company Limited, Siliguri Branch under Policy No. 31900/11/13/11/0000/426 for the period from 28.3.2014 to 27.3.2015 and the value of the said policy is Rs.20, 00,000/- for the purpose of fire insurance including storm and earth quake of the stock of lime stone etc. and the said policy under bank clause to Dena Bank, Siliguri Branch.

            The further case of the complainant is that on 11.05.2014 at about 9 P.M. as severe storm and rain damage the roof of the factory structure and the rain water entered and cause damage to the powder of the lime stone kept in bags inside the factory. Thereafter, the complainant informed this fact  to the O.P and accordingly the Surveyor of the O.P came to the spot and survey the matter by taking photographs and sample for lab testing and the complainant also demanded insurance compensation money amounting to Rs. 10,76,500/- for total estimate to the stock damage after recovery of selvage goods and others. The complainant on 20.8.2014 and on 4.9.2014 submitted several documents as per direction to the O.P and also made several communications with the O.P including E-mail and over telephone. But the O.P/Insurance Company on 18.05.2015 rejected the claim application of the complainant on some flimsy grounds and could not consider the situation and position regarding the damage of the complainant.  The complainant has further stated that the O.P has clearly violated the policy obligation and in order to discharge from their duty and also for avoiding to pay the compensation money to the complainant and due to such act of the O.P the complainant sustained heavy loss both financially and mentally.

            Hence, this case has been filed by complainant with a prayer to direct the O.P to pay Insurance Compensation claim money amounting to Rs.10, 76,500/- and also to pay Rs.2, 00,000/- towards mental agony and also to pay Rs. 10, 000/- towards litigation Costs from the O.P.

            In the instant case the O.P has appeared before the Forum and contested the case by filing Written Version contending inter alia, that the case is not maintainable in law as well as barred by law and the O.P has already repudiated the claim of the complainant. The O.P has prayed for dismissal of the case as the O.P has denied all the material allegations made by the complainant against the O.P.

            The complainant as well as the O.P have filed evidence on affidavit and also filed written argument in support of their respective case. Both the parties have also filed documents in support of their cases.

            We have gone through the material on record meticulously and also carefully perused the documents filed by the parties.

            In this context, the following issues are necessarily come up for consideration to reach just decision of the case.

                                               POINTS FOR CONSIDERATION

           Is the complainant a consumer u/s.2 (1)(d)(i)(ii) of Consumer Protection Act?

           Has this Forum jurisdiction to try the instant case?

           Is there any deficiency in service on the part of the O.P?

           To what other relief/reliefs the complainant is entitled?

                                                    DECISION WITH REASONS

           In this case the complainant runs a business under the Insurance Policy of United India Insurance Company Limited, Siliguri and for the purpose of Insurance he paid premium and the

value of the said Insurance is Rs. 20,00,000/-. The complainant has Mineral Grinding Factory at Falakata on 11/05/2014 in the night as severe storm and rain damage the roof of the factory structure and the rain water entered and caused damage to the powder of the lime stone kept in bags inside the factory. Thereafter, the complainant claimed the Insurance money amounting to Rs. 10,76,500/- and the Insurance Company i.e. O.P sent his surveyor to inspect the spot and the surveyor came there and submitted his report to the O.P and on the basis of that report the O.P refused to pay the Insurance amount to the complainant. So, according to the act the complainant is a consumer by paying premium for his Insurance and he has filed this case within local jurisdiction. So, this case is well maintainable.

           In this case it is not disputed that the complainant runs a Mineral Grinding Factory where he kept the lime stone powder inside the factory for his business purpose and he made an Insurance with the O.P and paid the premium. Accordingly the evidence adduced by the complainant that there was a storm in the night of 11/05/2014 and huge rain fall there. The report submitted by the surveyor that the factory was damaged due to the rain fall. According to the Government notification that the percentage of calcite is 35%(-)10% i.e. 31.5% should be there as it is an effective one but according to the complainant due to the said natural calamity the percentage of calcite composition was reduce below 31% and the surveyor in his report as made clearly on this point. But inspite of that the surveyor refused to allow the petition of the complainant and accordingly the O.P did not pass any order of Insurance amount in favour of the complainant. The surveyor report is here submitted by the O.P. During argument the point was raised regarding the validity of the surveyor report.  The surveyor Mr. Subrata Sanyal appointed by the O.P was asked to appear and notice was sent to him on several times but it was not served as his door was locked. The O.P did not produce the surveyor to clarify to his report. From the report i.e. annexure – B it is seen that the Government has amended his notification regarding guideline of liming materials issued on 12/04/2012 vide no. 531-Inpt./12F-01/12 which it appears that the Government has amended the percentage of chemical composition only on Hydrated lime, Dolomite there is no change of composition of calcite in that said notification. After carefully scrutiny of surveyor’s report (Annexure–B) in which we find that it is self contradictory. He has totally depended upon the amended chemical composition of the Government. He has reported in Para – 5.7.4. wherein he mentioned that the calcium percentage of the lime stock of the complainant is 27.74 and 28.67  both are below the chemical composition of the Government rule. Inspite of that on the basis of that amended of the Government wherein calcite is not mentioned it is only on Hydrated lime and Dolomite. He has refused the claim of the complainant and he did not turn up to this Forum to clarify his report. Inspite of several attempts the O.P refused to pay the Insurance amount only on the basis of this contradictory report of the surveyor. In the written argument the O.P has depended upon totally on the surveyor report. There is no other reasons mention there. But after carefully scrutiny of the case report along with evidence we find that the surveyor report is self contradictory and on the other hand it can be said that the surveyor submitted his report in wrong impression for which he did not turn up to clarify the same. According to the Government notification the calcite which was stock in the complainant factory was below the chemical composition limit due to the said natural calamity and the complainant is entitled to get the insurance amount from the O.P. The refusal of the O.P is not at all according to law. He took the premium from the complainant and there is no laches from the part of the complainant regarding the damage. It was completely natural calamity so, the O.P is bound to pay the claim amount of the complainant. The complainant is entitled to get the insurance amount of Rs. 10,76,500/- along with 1,00,000/- for his mental agony and 5,000/- for his litigation costs.

           Hence, for ends of justice, it is,

                                                                 ORDERED

            that the instant case be and the same is allowed with costs against the O.P.

            The complainant do get a decree amounting to Rs. 10, 76,500/- against the O.P. The complainant do get a further decree amounting to Rs. 1,00,000/- against the O.P for his mental agony and sufferings and he also do get a further decree amounting to Rs. 5,000/- against the O.P as litigation costs i.e. total amounting to Rs. 11,81,500/-. The O.P is directed to make the above payment within one month from the date of receiving of this order i.d. legal action will be taken against him.

            Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.

Dictated & Corrected by me