State Consumer Disputes Redressal Commission
Caledonian Jute & Industries Ltd. vs The Regional Manager & Another on 20 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/111/2011 DATE OF FILING : 02.12.2011 DATE OF FINAL ORDER: 20.09.2013 COMPLAINANT CALEDONIAN JUTE & INDUSTRIES LTD. Registered office at 9, Biplabi Troilakya Maharaj Sarani ( Brabourne Road) Kolkata-700 001 Represented by its Director, Mr. Gopiram Maskara. OPPOSITE PARTIES 1. The Regional Manager New India Assurance Company Limited Kolkata Regional Office 4, Mangoe Lane, Kolkata-700 001. 2. The Divisional Manager The New India Assurance Company Limited Unit-510900, Guha Estate, Second Floor, 7, G.C.Avenue, Kolkata-700 013. BEFORE : MEMBER : MR. S.COARI MEMBER : MR. D.BHATTACHARYA FOR THE COMPLAINANT: Mr. Madhusudan Sur, Mr. Souvik Chatterjee, Ld. Advocates FOR THE OPPOSITE PARTIES : Mr. N.R.Mukherjee, Ld. Advocate : O R D E R :
MR. S.COARI, LD. MEMBER The present complaint case has been filed by M/s. Calendonian Jute & Industries Ltd. U/S 17 of the Consumer Protection Act thereby praying for reliefs against the Ops, The New India Assurance Company Limited, directing the Ops to pay Rs. 48,54,196/- towards the loss suffered by the petitioner, interest for the period from 24.1.2011 to the date of actual payment and Rs. 5,00,000/- towards compensation for harassment and mental agony suffered by the complainant.
The case of the complainant, in brief, is that the complainant is engaged in processing of raw jute and manufacturing of jute products, etc. According to the complainant, the complainant got the stock of finished goods, stock in process, raw materials, stored materials etc. insured (Standard Fire and Special Perils coverage) with the OP/Insurance Co. after observing all the formalities. It is the further case of the complainant that during subsistence of the insurance coverage on 18.11.2010 at about 3.05 a.m. a fire broke out in one of the godowns of the complainant causing damage to the stock of materials, namely, raw jute.
The local Fire Service Station was duly informed and at the intervention of the Fire Service Station personnel the fire was extinguished. The complainant, in due course of time, informed the incident of fire to the Insurance Company in writing. It is the further case of the complainant that on 21.11.2010 another fire broke out in the mill premises of the complainant and the said incident was also informed to the Insurance Company. The Insurance Company after receiving and collecting all the information and data from the complainant appointed a Government empanelled surveyor for the purpose of inspection and assessment of loss sustained by the complainant due to fire in the factory premises. Though the complainant has accommodated the surveyor in all respect, but in spite of the fact that the initially the surveyor estimated the loss to the tune of Rs. 65,12,360/-, it was subsequently reduced to Rs. 39,03,253/- and the OP/Insurance Co. was reluctant to handover the report of the surveyor to the complainant. According to the complainant, after great pursuance ultimately on 2.8.2011 the Insurance Co. handed over an unsigned document purported to be the Loss Voucher with a request to the complainant to endorse complainants willingness to accept the same and thereafter to send it back to the OP. According to the complainant, these acts and omissions on the part of the Ops/Insurance Co. tantamounted to gross negligence and deficiency in service. The complainant thereafter requested the Insurance Co. to settle the claim of the complainant at Rs. 46,37,640/-, which the Ops have refused to comply with. The complainant has further submitted that there is no basis in the Surveyors report, nor the assessment of loss was proper in terms of the established rules and norms. The complainant has also raised objection against the whimsical ad hoc deduction of 15% from the initial assessment of the surveyor to the tune of Rs. 43,31,132, which amounted to Rs. 6,49,670/-. According to the complainant, the Insuance Co. had violated the condition and warranty of the Insurance Policy including the relevant provisions of the Insurance Act and as such, the Insurance Co. is guilty of deficiency in service, as mentioned above and hence, the petition of complaint for proper redressal.
The OP/Insurance Co. contested the case by filing a written version thereby denying and disputing all the material averments mentioned in the petition of complaint contending, inter alia, that the loss was assessed by the Insurance Co. by engaging a government licensed A category surveyor as per provisions of the Insurance Act, 1938, Section 64 UM and Sub-sections thereto. The survey report is maintained at the office of the Insurance Co. in ordinary course of business and as such, the said report should be accepted being an official document. According to the OP, the claim of the complainant was finally settled at Rs. 23,57,960/- less reinstatement premium of Rs. 12,176/-. The complainant having put forward a dispute regarding quantification of the settled amount, the same cannot be adjudicated by instituting a Consumer Complaint and the same can only be settled through arbitration proceeding.
The petition of complaint having been filed on all false and fictitious grounds the same is liable to be dismissed.
Case laws referred to on behalf of the OP/Insurance Co.:
1. II (2013) CPJ 44 - Deepankar Ghosh Vs. Mokni Mala Palit
2. 1997 (1) CPR 22 - Shri Ganesh Spinners Vs. United India Insurance Co. Ltd.
3. 1(1995) CPJ 41 - Divisional Manager, LIC Vs. Smt. Saroj Lamba The following are the points framed for proper adjudication of the present complaint case:
1.
Is the complaint case maintainable?
2. Is the Insurance Co. guilty of deficiency in service, as claimed by the complainant?
3. Is the complainant entitled to the reliefs as prayed for?
DECISION WITH REASONS All the points are considered together for the same of convenience.
At the time of hearing it has been submitted by the Ld. Advocate for the complainant that in this case the complainant has produced all the cogent and material evidence before this Commission in support of its case. According to the Ld. Advocate for the complainant, since there is no dispute about breaking out of fire in the factory premises of the complainant and it is also not in dispute that during subsistence of the insurance coverage the fire broke out, the Insurance Co. is bound to compensate the complainant in respect of the damage sustained by the complainant due to such breaking out of fire in the complainants factory premises. While elaborating on this point, the Ld. Advocate for the complainant has submitted before us that initially the surveyor was appointed by the Insurance Co., who assessed much higher amount of loss sustained by the complainant due to fire than what has subsequently been furnished by the Insurance Co. According to the Ld. Advocate, there is no basis in diminishing the initial assessment of loss by the Insurance Co. Moreover, according to the complainant, the manner in which the quantification of final assessment has been made by the Insurance Co. is also not based on actual facts and state of affairs. While criticizing the conduct of the Insurance Co. the Ld. Advocate for the complainant has submitted before us that in a case of present nature where the complainant is very much armed with a legally valid and subsisting insurance coverage, there was no point on the part of the Insurance Co. to reduce the loss so assessed by the surveyor at the initial stage by incorporating some absurd and whimsical quantification, which is not at all permissible under the law.
The Ld. Advocate for the complainant has also submitted that there is no reason behind deducting 15% from the loss so assessed by the surveyor. While concluding his submissions the Ld. Advocate for the complainant has submitted before us that when there is no basis in reducing the initial loss so assessed by the surveyor, the complainant may kindly be granted relief(s) in terms of the initial assessment, which stands at Rs. 46,37,640/-, and also be awarded compensation and interest.
We have duly considered the submissions so put forward on behalf of the complainant and also have gone through the materials on record including the pleadings of the parties and the evidence adduced and also the surveyors report and find that in this case the complainant has come forward with a case to the effect that in spite of having insurance coverage in respect of stock of finished goods, raw materials, stored materials, etc. the Insurance Co. is not settling the claim of the complainant when an accidental fire broke out in the factory premises of the complainant causing severe damage and loss to the complainant and hence, the petition of complaint for proper redressal. The Insurance Co. has come forward with a case to the effect that the loss has been assessed by the Insurance Co. by appointing a government empanelled surveyor, who, in due course of time, assessed the loss, which, in spite of repeated requests at the instance of the Insurance Co., the complainant is reluctant to accept without any rhyme and reason and as such, there is no deficiency in service at the instance of the OP/Insurance Co. and that the petition of complaint should be dismissed.
On a careful perusal of the evidence on record including the report of the surveyor we find that the surveyor has inspected and visited the spot and after taking down various aspects of the incident of fire has prepared the report and in the process, has observed the norms and conditions as per provisions of the assessment of loss and has come to a final conclusion that the occurrence of fire was genuine and it was all on a sudden and beyond the control of the management. The surveyor has also observed that due to such fire, there was loss to the insureds stock and raw jute, as mentioned in the report and accordingly, he has concluded that the insured should be indemnified for Rs. 39,03,253/-. If that be the position, we do not find any substance in the submissions so put forward on behalf of the OP to the effect that the final assessment was Rs. 23,57,960/-, which was also the settled amount at the instance of the Insurance Co.
In our opinion, when the surveyor so engaged at the instance of the Insurance Co. assessed the loss to the tune of Rs. 29,03,253/-, there was no scope to reduce the said amount at the instance of the OP/Insurance Co. If the Insurance Co. was not satisfied with the surveyors report, they ought to have appointed another surveyor for better clarification, namely, reduction of the assessment of loss by the surveyor of the present case, and not by reduction of the assessment through official procedure. We have also gone through the decisions so relied upon by the OPs. But as the facts and circumstances of those decisions are quite different from the instant one, the principles laid down in those decisions are not applicable to the instant case. Having considered the present complaint case in the light of above discussion we are of the considered opinion that ends of justice will be met if the complainant is granted reliefs to the tune of Rs. 39,03,253/- towards the loss suffered due to fire and also Rs. 10,000/- towards litigation cost. All the points are accordingly disposed of. In the result, the petition of complaint succeeds in part.
Hence, it is ORDERED that the complaint case stands allowed in part on contest with cost of Rs. 10,000/-. The Ops/Insurance Co. are directed to pay Rs. 39,03,253/- to the complainant towards the loss suffered due to fire. The Ops are also directed to pay the said amounts within 45 days from the date hereof, failing which the same will carry an interest @ 8% per annum till realization in full.
MEMBER MEMBER