State Consumer Disputes Redressal Commission
Sri Goutam Paul vs United India Insurance Co. Ltd on 27 September, 2013
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO- CC/88/2009 DATE OF FILING: 02.12.2009 DATE OF FINAL ORDER: 27.09.13 COMPLAINANTS: 1. Sri Goutam Paul. 2. Sri Uttam Paul Both Proprietors of M/s Paul Hardware Store, At Subhashpally, Police Station Alipurduar, District- Jalpaiguri, Pin- 736121. OPPOSITE PARTIES : 1. United India Insurance Co. Ltd, Service upon the Chairman, Registered and Head Office: United India House, 24 Whites Road, Chennai-600 014. 2. The Branch Manager, United India Insurance Co. Ltd., Cooch Behar Branch, M.J.N. Road, Cooch Behar, Pin 736101. 3. Sri Divisional Manager, United India Insurance Co. Ltd. Siliguri Divisional Office, Bharat Bhawan, 116, Hilcart Road, Siliguri. 4. Regional Manager, United India Insurance Co. Ltd., Himalaya House (2nd floor), 38-B, Jawaharlal Nehru Road, Kolkata- 700 001. BEFORE HONBLE MEMBER : Sri Debasis Bhattacharya. HONBLE MEMBER : Sri Jagannath Bag. FOR THE COMPLAINANTS : Mr. Prasanta Banerjee. Ld. Advocate. FOR THE OPPOSITE PARTIES : Mr. Tapan Kr Mohanty , Ld. Advocate. Ms. S. Roy Chowdhury, Ld. Advocate. _____________________________________________________________________________ : O R D E R :
MR. J.BAG, LD. MEMBER The petition of complaint has been filed by Sri Goutam Pal and Sri Uttam Pal, in the matter of an insurance claim against the OP insurance company, namely, United India Insurance Co. Ltd.
Briefly stated, the facts of the complaint are as follows:
The petitioners being proprietors of M/s Pal Hardware Store obtained an insurance of their shop-cum-godown (on building ) for an amount of Rs. 10,00,000/- and another insurance for the stock in trade , initially, for an amount of Rs.20,00,000/- and then enhanced to Rs.70,00,000/- w.e.f 16.07.2007. On 23.07.2007 at about 11 p.m the shop-cum-godown met with an accident caused by Fire breakdown . As a result , all the stock-in-trade / documents , furniture and fixtures etc were burnt and the said shop-cum-godown was badly damaged . The Divisional Officer , West Bengal Fire Service issued his report dated 30.07.2007 with regard to the said Fire breakdown wherein it was stated that some portion of wall and shutter of the godown gate had to be broken to extinguish the fire. The Complainant in his letter dated 24.07.2007 informed the insurance company about the accident . The Officer-in-Charge, Alipurduar Police Station was also informed . The Secretary, Alipurduar Town Babsayee Samiti and the Manager State Bank of India , Alipurduar and other authorities concerned were also informed of the accident.
Pursuant to the information furnished, the insurance company appointed surveyor Sri Ashok Mahanta, appointed who inspected the shop on 24.07.07 and requested the petitioners vide Memo No. AM/12/07-08 dt. 25.07.07 to submit necessary documents. On subsequent visit to the shop-cum-godown on 26.07.07 the surveyor collected all available documents and asked the Petitioners to furnish some more documents. Allegedly the petitioner No. 1 signed certain blank papers at the instance of the Surveyor. Thereafter, in spite of several discussions with the representatives of the insurance company and issue of letters, the insurance company did not take any step towards meeting the claim of the petitioners and as such a legal notice was served upon the OP insurance company on 13.03.08 following which OP-2 sent a letter (No.031902/ CLM/659/2007) along with a claim form asking the petitioner to submit the same after duly filling it up. The claim form was submitted on 26.03.08. Again , on 15.09.08 OP-2 sent a letter to the petitioners asking for such documents as were already submitted except (a) Comprehensive Stock Register (b) Purchase, Sales and Stock Register for the accounting years 2006-07 and 2007-08 ((c) Purchase / Notice Challan etc (d) Ledger Books including other relevant books and documents and (e) Record- Dealership / Distribution, all of which had been stated to be destroyed in the accidental fire. The insurance company was found to have been reluctant to settle the claim. Another legal notice dated 05.12.08 was issued. Sr. Divisional Manager, United India Insurance Co. Ltd. vide their letter dated 17.12.08, referring to Paragraph-5B of the General Conditions of Shopkeepers Insurance Policy, impressed that evidence substantiating the reported loss was lacking and the list of articles lost in fire said to have been destroyed by fire, but still purported to have been submitted, was supposed to have been prepared after the loss only. The OPs vide their letters dated 22.07.09/ 29.07.09/ 24.08.09 declined to make any payment.
Being aggrieved by and dissatisfied with the malafide conduct, negligence and / or failure of the respondents (OPs) of depriving the Petitioners by not meeting their bonafide claims duly covered under valid insurance policies being policy No. 031902/48/06/34/00000804 and policy No. 031902/11/07/11/00000239, the Petitioners moved before the Honble High Court at Calcutta under its writ jurisdiction ; but in spite of Honble High Courts direction to consider the claim on the basis of the list of articles upon taking immediate steps to scrutinize the same and render a decision in the matter within a period of four weeks from date (01.07.2009), no step being taken by the OPs a contempt petition has been filed and the same is pending. Hence the present complaint has been brought up before this Consumer Disputes Redressal Commission with the prayer for direction for payment for a sum of Rs.80,000,00/- (Eighty lakhs ) along with interest @ 18% from 24.27.07 i.e. from the date of the accident.
The petition of complaint carries with it several documents :
Copy of Standard Fire and Special Perils Policy (19/07/2007 to midnight of 18/07/08) Copy of Shopkeepers Insurance Policy (09/03/2007 to midnight of 08.03.08) Copy of Surveyors letter No.AM/12/07-08 Copy of Surveyors letter dated 26.07.07 Copy of the letter dated 06.01.2008 written to the Branch Manager, United India Insurance Company Ltd, Cooch Behar.
Copy of Ld. Advocates letter dated 13. 03. 08 addressed to OP-2.
Copy of Claim Form submitted on 26.03. 2008 Copy of the letter dated 15.09.2008 written by Sr. Div. Manager, Siliguri Division, United India Insurance Co. Ltd.
Copy of the letter dated 1st October 2008 sent by the Complainant Sri Goutam Paul Copy of Advocates letter sent from the Complainant Copy of Income Tax Return for the returns for the assessment year 2007-08/ 2006-07/ 2005-06 submitted by Sri Goutam Paul , proprietor , Paul Hardware Stores Copy of Statement of Assets Hypothecated dated 31.03. 2007/ 28.02. 2007/31. 01. 2007.
Copies of letters dated 24. 07.2007 intimating about the fire accident addressed to the Officer-in-Charge Alipurduar Police Station / Secretary, Alipurduar Town Babsayee Samity / Manager, State Bank of India , Alipurduar / Officer in-Charge United India Insurance Co. Ltd. CoochBehar Branch /Officer-in-Charge , Fire Brigrade Alipurduar Copy of Fire Report issued by the Divisional Officer W. B. Fire & Emergency Service , H-2 , Division , Jalpaiguri Copy of valuation of land and building properties owned by Sri Goutam Paul and Sri Uttam Paul issued by Jayanta Dey (Mukul) Dated 13.06.06 Copy of the letter dated 17. 12. 2008 issued by OP No. 1 addressed to M/s Paul Hardware Copy of the list of articles destroyed in fire breakdown Copy of Honble High Courts Order dated 13. 07. 2009 Copies of letters dated 22. 07. 2009/ 29.07 09 sent to M/s Paul Hardware by OP Copy of the reply letter dated 22. 07. 2009 sent to OP Copy of Ld. Advocates letter dated 14. 08.
2009 sent from the Complainant and Copy of Ld. Advocates letter issued on behalf of the OPs The Complaint is contested by the OPs by filing written version denying all allegations excepting those as are matters of record , contending, inter alia, that the fact of total damage of all the stock-in-trade including documents, furniture and fixture etc and the shop-cum-godown needs be proved , that the cost of the stock-in trade and that of the building as claimed by the Complainant needs to be proved, that though the surveyor asked the complainant to furnish documents / Books of Accounts, Purchase Register, Sale Register , Vat Register , Trading Accounts , Balance Sheet, Cash Book etc. the Complainant did not submit such documents as said to have been destroyed in fire, that the Complainant by their letter dated 07.07.07( 27.07. 2007) addressed to the Branch Manager United India Insurance Co. Ltd. expressed their consent to settle the claim for Rs. 5 lakh as full and final settlement in the absence of relevant documents , that the Complainant by their letter dated 01. 10. 2008 informed the insurance company about their inability to furnish the relevant documents as asked for settlement of claim that the Complainant failed to submit the list of damaged articles specifying the quantity and price along with relevant documents substantiating claim for arriving at a decision and that the Complainants having no cause of action, there is no deficiency in service or negligence on the part of the OPs.
We have gone through the evidence / questionnaire / replies to questionnaire filed by both the Complainant and the OPs, the Surveyors Report , evidence filed by the surveyor and replies furnished by the surveyor to the questionnaire . Ld. Advocates appearing for both parties have been heard at length.
Ld. Advocate appearing for the Complainant reiterated the fact that the OP insurance company, having issued shopkeepers policy/fire policy on payment of premiums by the Complainant neglected to settle the claim raised following the total loss of the stock-in-trade and damage of the insured shop-cum-godown.
All necessary documents were furnished excepting a few as destroyed in fire. The insurance company sat tight over the claim in spite of repeated approach by the Complainant to settle the claim. The stock-in-trade as lying hypothecated to the SBI Alipurduar Branch is very much evident from the statements submitted to the Bank, but the OPs took no note of that fact and insisted on furnishing of such unimportant documents as were reported to have been destroyed in the accidental fire. Such act on the part of the OP insurance company is pointer to the deficiency in service and negligence . The Complainants are very much within their lawful right to claim due compensation as assured by the policies taken and more so, the claim of the complainant not being disproved by the insurance company with cogent evidence.
Ld. Advocate appearing for the OP insurance company submitted that though the stock-in-trade and the building were mortgaged to the State Bank of India, Alipurduar, the said Bank was not made a party . The documents which were very vital for the purpose of assessment of the loss claimed to have been occurred were not produced by the Complainants, inspite of repeated reminders . It has been seen that the income tax challen / returns have been furnished in the name of the Complainant instead of in companys name . The Complainant also failed to furnish the list of articles with their price and also failed to furnish documents showing sources of such purchase . The Complainant never challenged the surveyor,s report in any manner and instead , when the surveyor visited the shop-cum-godown , he categorically stated that as all relevant documents would not be made available , some documents being destroyed in fire , he would accept Rs.5,00,000/- as full and final payment as compensation . The OP/ Insurance Company having no deficiency in service the complaint should be dismissed, it was pleaded.
Ld. Advocate of the OP insurance company cited the decision of Honble National Consumer Disputes Redressal Commission, as reported in (I) 2013 CPJ 440(NC) holding that surveyors report is an important document and same should not be rejected by Consumer Fora unless cogent reasons are recorded for doing so. Another decision reported in I (2009) CPJ 22 (NC) was also relied upon impressing that since no relevant documents were produced either before insurer or before Forum complaint filed by the Complainant following a fire accident was rightly dismissed .
Decision with reasons :
The questions before us for consideration are-
(a) Are the Complainants consumers?
(b) Is there any deficiency on the part of the OP insurance company?
(c) Are the Complainants entitled to such relief as prayed for?
There is no dispute that the Complainants took two insurance policies from the OP insurance company covering the risks of stock-in-trade and shop-cum-godown and such policies were valid on the date of the accidental fire .Benefits as available under the insurance policy not being transferable for commercial gain, the Complainants herein are covered by the term consumers as defined under Section 2 (d) of the Consumer Protection Act 1986 .
We take up other two points for consideration as a matter of convenience.
There is no dispute that there was an accident at the shop-cum-godown of the Complainant on 23.07.07 . There is also no dispute that as a result of the fire break down the stock- in- trade including documents, furniture and fixture, etc. were burnt and the said shop-cum-down was damaged. All concerned authorities including the OP/ insurance company were duly informed of the accident .
The dispute is mainly regarding the volume and value of the stock-in-trade and the extent of damage caused to the shop-cum-godown. While the Complainant claimed that the stock-in-trade was valued at about Rs.72 - 75 lakhs and the extent of damage of the building valued at Rs.10-12 lakhs , the surveyor appointed by the OPs reported otherwise after scrutiny of documents made available to him coupled with local enquiry on visit to the shop-cum-down of the Complainants.
The fact goes that the Complainant in his evidence on affidavit (Page-12) admitted that he submitted documents which were available but some other documents being destroyed in the fire could not be submitted. Those documents were (a) Comprehensive Stock Register. (b) Purchase, Sales and Stock Register for the accounting year 2006-07 and 2007-08 (c) Purchase Invoice with challen etc. (d) Ledger Books including other relevant books and documents, (e) Record Dealership / Distribution. The Complainant vide Paragraph 16 of his complaint stated that the surveyor Mr. A.P. Moitra personally inspected the shop-cum-godown and was aware of non availability of the documents. His failure (and helplessness) to furnish the required documents has been further reflected in his submissions as put in his letter dated 1st October 2008 (Complaint Page-56) addressed to OP saying I have already submitted whatever pages of the stock statement that could be salvaged from the fire and I have nothing more to submit as the rest of the documents has ended up in fire. Again , his letter dated 25.01.09 (Complaint Page - 131 ) is an attempt to push the ball into the court of the SBI Alipurduar Branch for such proof as he himself was required to provide . If he was of that view, why he did not make the said SBI Alipurduar Branch one of the parties for the purpose of verification of facts with production of documents remained unanswered.
There is no doubt about the fact that the policy covering the risk of stock-in-trade was for a sum of Rs. 70,000,00/- and that covering the risk of the shop-cum-godown for Rs.10,00,000/-, but the evidence as adduced by the Complainant failed to establish that the stock-in-trade on the material date of accidental fire was worth Rs.70,000,00/- or the extent of damage caused to the shop-cum-godown was to the tune of Rs. 10,00,000/-.
From the surveyors report it appears that the loss assessed (i) against the stock was Rs.8.99,780.71/-, (ii) against FFF Rs. 50,884/-, (iii) against fire fighting charges Rs. 9,226/- i.e. total Rs.9,59,890.71 as against shopkeepers insurance policy and against building Rs.33,140/- against fire policy. Hence, total loss assessed (stock-in-trade + building )was Rs. 9,93,030.71/- . Liability assessed under shopkeepers policy as agreed by the insured is Rs.4,49,890/- + Rs.50,884 /- + Rs.9,226/- = Rs.5,10,000/- less policy excess Rs. 10,000/- i.e. Rs. 5,00,000/-. Loss assessed on the building Rs. 33,140/- less policy excesses Rs.10,000/- i.e. total Rs.23,140/- . For both the policies surveyors assessment as to the insurers liability stands at Rs.5,00,000/- + Rs. 23,140/- i.e. Total Rs. 523140/- ( Five lakhs twenty three thousand one hundred and forty ) only .
The letter of consent in regard to the assessment of the loss by the surveyor shows that he had no objection if payment to the tune of Rs. 5,00,000/-only was considered as full and final settlement of the claim in view of the fact that relevant documents could not be produced by him for the purpose of assessment.
Going by the facts of the complaint vis--vis the evidence / arguments on record , we are of the considered view that while the Complainant failed to establish his claim for Rs. 80,000,00/- ( Eighty lakhs ) only against his insurance policies , the OP Insurance Company at the same time failed to act in accordance with the report and recommendation of the surveyor for a long time and did not settle claim in spite of the fact that the surveyors recommendation on the basis of loss assessed was quite reasonable. The deficiency in service on the part of the OPs is established. The complaint is allowed in part on contest and it is ORDERED that the Complainant shall be paid by the OPs a sum of Rs. 5,00,000/- for the loss of the stock-in-trade and Rs.23,140/- for the damages caused to the shop-cum-godown . The total sum of Rs. 5,23,140/- (Five lakhs twenty three thousand one hundred and forty ) only along with interest @ 6% thereupon from the date of the accident shall be paid to the Complainant within 45 days from the date of this order , failing which the total sum as may be arrived at on the 46th day of this order shall carry further interest @ 9% till full realization of the same.
There shall be no order as to costs.
Sri Jagannath Bag. Sri Debasis Bhattacharya.
Member Member