The brief facts of the case of the complainant is that the complainant is the owner and proprietor of M/S Bhowmik Enterprise having his Shop-cum-Godown at Park Road, New Town, P.O. & P.S.- Alipurduar, where the complainant used to deal with business of selling Papers and Stationery articles as distributor. The complainant used to deal with transaction through O.P No. 3 / Indian Overseas Bank, Alipurduar Branch, Alipurduar since long having his CC Account No. 306602000000042.
The further case of the complainant is that on being induced by O.P No. 3 the complainant insured his business articles under the O.P Nos. 1 & 2 covering Fire, Burglary and House Breaking & Flood and the sum insured at the tune of Rs. 65,00000/- on 08/11/2014 bearing Policy No. 2913/54529517/00/000 and the same Policy was renewed on 25/11/2016 being Policy No. 2114/54529516/02/B00 and the period of insurance from 16/11/2016 to midnight of 15/11/2017, for which the O.Ps took premium and issued a valid receipt assuring the complainant that they will provide proper service to the complainant. Thereafter, in the month of October, 2015 the business materials of complainant were damaged due to flood and thereafter the compensation was settled at the tune of Rs. 6,11,040/- and accordingly O.P Nos. 1 & 2 disbursed the said amount to the account of complainant which is lying with the O.P No. 3. In the year 2017 during the night of 11th/12th August again the complainant sustained huge loss due to flood which amounting to Rs. 12,11,882.70/- in the said business premises and while the complainant open his Shop-cum-Godown found that some of the packets containing classmates note books were lying scattered and some destroyed.
The complainant informed the matter to the O.Ps in writing and the O.Ps engaged their own surveyor and the complainant submitted all the documents including purchase vouchers and sell register regarding the stock on the date of incident but the O.Ps failed to pay the genuine claim to the complainant despite several requests.
Hence, the case filed by the complainant with a prayer to direct the O.P Nos. 1 & 2 to pay the insured amounting of Rs. 12, 11,882.70/- + interest @ 18% per annum till realization from the date of loss i.e. 11th/12th August, 2017 and also prayed for direction to pay Rs. 50,000/- towards compensation for mental agony and sufferings and also to pay Rs. 30,000/- towards cost of litigation.
All the three O.Ps have appeared before this Forum and a joined written version filed on behalf of the O.P Nos. 1 & 2 and O.P No. 3 filed his written version separately.
The O.P Nos. 1 & 2 have denied the allegations as leveled by the complainant against them and took plea that the surrounding public road is not higher elevation than the risk located, warranted that fea appliances is installed in adequate numbers in the location, warranted that the fire fighting system are in working condition through out the policy period, warranted that no Kutcha construction in the premises. They have also denied that no such deficiency in service on the part of the O.Ps as such both the O.Ps have prayed for dismissal of the case. But they kept mum in their written version regarding earlier settlement on the amount with the tune of Rs. 6,11,040/- in connection with damage occurred due to flood in the Month of October, 2015 on the same Shop-cum-Godown of the complainant.
The O.P No. 3 has stated in his written version that the complainant has made no claim against him and the complainant is a valued customer in his bank as he is maintaining one cash credit account in his bank also. He admitted Para – 4 of the complaint i.e. regarding renewal of the policy and made evasive denial against Para No. – 6 of the complainant (regarding earlier settlement at Rs. 6,11,040/-).
The complainant has filed evidence-on-affidavit as well as written argument in support of his case. On the other hand O.P Nos. 1 & 2 though file evidence-on-affidavit but did not file any written argument separately. As per submission of Ld. Agent for the O.P Nos. 1 & 2 the written version filed by them has been treated as written argument. The complainant has filed some documents as per firisty. The O.P side did not file any documents.
The O.P No. 3 has filed evidence-on-affidavit and written argument in support of his plea.
We have heard argument from both sides and also perused the materials on record meticulously.
Considering the above pleadings the following issues are necessarily come out for consideration to reach just decision of the case
POINTS FOR CONSIDERATION
- Is the complainant a Consumer u/s. 2(1)(d)(ii) of Consumer Protection Act, 1986 ?
- Has this Forum jurisdiction to entertain the instant case?
- Have the O.Ps any deficiency in service as alleged by the complainant?
- Is the complainant entitled to get any relief/reliefs as he prayed for?
DECISION WITH REASONS
Considering the facts and nature and character of the case all the points are interlinked to each other as such all the points are taken up together for consideration for the sake of brevity and convenience.
The complainant has been dealing with his transaction through O.P No. 3 being CC Account No. 306602000000042 and on being induced by O.P No. 3 the complainant insured his business articles under O.P Nos. 1 & 2 and the sum insured at the tune of Rs. 65,00000/- on 08/11/2014 bearing Policy No. 2913/54529517/00/000 and the said policy has been renewed on 25/11/2016 being Policy No. 2114/54529516/02B00 and the period of insurance from 16/11/2016 to 15/11/2017 and the O.Ps took premium and issued valid receipt against payment to that effect.
In view of the above transaction and negotiation it is crystally clear that the complainant is a bona fide consumer under the O.Ps as per provision laid down u/s. 2(1)(d)(ii) of the C.P. Act, 1986.
Whereas the complainant is a resident of Park Road, New Town, P.O. & P.S. – Alipurduar, Dist. – Alipurduar, Pin – 736121 and the office of O.P No. 3 is situated at College Halt, Alipurduar as such this Forum has territorial jurisdiction to try this case and whereas the claim amount is less than the pecuniary jurisdiction of this Forum as such this Forum has ample jurisdiction to try this case.
It is admitted facts that the complainant has insured his business-articles / goods kept in his Shop-cum-Godown under name and style as M/S Bhowmik Enterprise situated at Park Road, New Town, P.O., P.S. & Dist. – Alipurduar against Fire, Burglary, House Breaking and Flood and the Insured sum coverage amounting to the tune of Rs. 65,00000/-. It is also admitted facts that the complainant used to deal with his business through O.P No. 3 (Indian Overseas Bank, Alipurduar Branch) having his CC A/C No. 306602000000042.
Renewal of policy as stated by the complainant in Para – 4 of the complaint is admitted by O.P No. 3. No denial is made by the O.P Nos. 1 and 2 regarding earlier settlement on the amount of Rs. 6,11,040/- (Six Lakhs Eleven Thousand Forty) in connection with damage occurred due to flood in the month of October, 2015 on the same Shop-cum-Godown of the complainant. Surveyor report based on which the O.P Nos. 1 and 2 repudiated the claim of the complaint has not been produced and proved. The O.P Nos. 1 and 2 did not challenge the documents of the complainant as per his firisty.
No denial is made on part of the O.Ps against the occurrence of flood. Rather the certificate in respect of occurrence of flood on 11th and 12th August, 2017 issued by Councilor, Ward No. IV, Alipurduar Municipality supports the flood occurrence.
Copies of statement of stocks under hypothecation to Indian Overseas Bank, Alipurduar Branch indicate that business transaction done upto 31/03/2017 with the tune of Rs. 95, 47,750/- out of which the copies of damage stocks on 14/08/2017 indicate that the complainant suffered loss amounting to Rs. 12,11,882.70/-. Whereas the O.Ps did not deny the renewal of policy and whereas they did not deny the earlier settlement at Rs. 6, 11,040/- and whereas the O.Ps did not produce and prove the surveyor Kabi Das’s report based on which they repudiated the damage claim of the complainant as such we have no alternative but to refuse to accept the plea of the O.Ps; “That affected premises is much below than the road level” and considering the O.Ps admission regarding flood and their non-denial on earlier settlement at Rs. 6,11,040/- and thereafter their renewal of the policy; in our view; the warranty in the policy “WARRANTED THAT THE SURROUNDING PUBLIC ROAD IS NOT HOGHER ELEVATION THAN THE RISK LOCATED, WARRANTED THAT FEA APPLIANCES IS INSTALLED IN ADEQUATE NOS IN THE LOCATION, WARRANTED THAT THE FIRE FIGHTING SYSTEM ARE IN WORKING CONDITION THROUGH OUT THE POLICY PERIOD, WARRANTED THAT NO KUTCHA CONSTRUCTION IN THE PREMISES” has lost it’s importance and weightage in this case.
In our view considering the earlier settlement and renewal of the policy the O.Ps ought to meet up the claim of the complainant according to norms and terms of policy or by amicable settlement (as done in the earlier). Whereas in such a position the O.P side did not meet up the claim in such a way as stated above as such we are being constrained to say that there is deficiency in service on part of the O.Ps.
Positive results of the foregoing discussed points indicate that the complainant is entitled to get reliefs but that should be reflected in the ordering portion.
O.P No. 3 is exempted from responsibility of payment since no relief is sought for against him.
Thus all the points are disposed of accordingly.
Fees paid are correct.
Hence, for ends of justice; it is;-
ORDERED
that the instant case be and the same is allowed on contest with costs.
The complainant Sri Ashim Bhowmik do get a decree amounting to Rs. 12,11,883/- (Twelve Lakhs Eleven Thousand Eight Hundred Eighty Three) as his legitimate claim and he further do get a further decree of Rs. 20,000/- (Twenty Thousand) for his mental agony and sufferings + Rs. 10,000/- (Ten Thousand) as litigation costs against the O.Ps. The authority of both the O.P Nos. 1 and 2 are hereby directed to pay the total decreetal amount of Rs. 12,41,883/- (Twelve Lakhs Forty One Thousand Eight Hundred Eighty Three) to the complainant within 30 days from this day failing which the complainant will be at liberty to put this decree into execution according to law.
In case of realization of the decreetal dues through execution the complainant be entitled to 8% interest per annum on the decreetal dues from the date of filing of this case from 21/02/2018 till liquidation of the entire decreetal dues.
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.
