State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 Case No-CC/34/2009 Date Of Filing : 14.05.2009 Date Of Final Order: 02.09.2010 COMPLAINANT : 1. Mr. Niraj Chokhani. Director representing M/s Mahadeobari Tea Co. Pvt. Ltd. 11E, Everest House, 46-C Jawaharlal Nehru Road, Kolkata- 700 071. OPPOSITE PARTIES : 1. The Oriental Insurance Company Ltd. Orient House, A-25/27 ASAF ALI Rd, New Dellhi- 110 002. 2. Sr. Divisional Manager, The Oriental Insurance Co. Ltd. Divisional Office- VI, 2F, Everest House, 46/C. Jawaharlal Nehru Road, P.S- Park Street, Kolkata- 700 071. 3. Manager / C.E.O Representing, M/s International Blending & Warehousing corp. 1/1 Taratolla Road, Kolkata. 4. Sri Bhaskar Sen- BME. Licensed Loss Assessor/ Surveyor, 77 K.P. Roy Lane, Tollygunge, Kolkata- 33. BEFORE: HONBLE MEMBER : Smt. Silpi Majumder. MEMBER : Sri. Shankar Coari. FOR COMPLAINANT : Mrs. Koyeli Mukhopadhyay, Advocate. FOR THE OPPOSITE PARTIES : (OP-1 & 2) Sri Debasish Bhandari, Advocate. -ORDER- S. Majumder, Member. 1.
This complaint has been filed by the Complainant
against the OPs alleging deficiency in service in respect of non-settlement of
an insurance claim.
2. The brief facts of the case of the Complainant
are that the Complainant being the Director of M/s Mahadeobari Tea Company
Private Limited used to produce and sell various types of tea as well as to
store the production in the warehouses. One of those warehouses is situated at
Taratolla Road, Kolkata. As a precautionary measure the Complainant insured the
goods under the OPs and obtained an Insurance Policy and the same was valid
from 31.03.2006 to 30.03.2007 and the assured sum was of Rs.2,92,50,000/- and
the insurance premium was of Rs.16,118/- which was duly paid through cheque.
The case of the Complainant was that due to heavy downpour from night of
21.09.2006 there occurred a semi-flood like situation in and around Kolkata and
due to entry of accumulated water in the warehouse on 21.09.2006 and 22.09.2006
tea was damaged as the entire area was inundated. On 23.09.2006 the Complainant
intimated the incident to the OP-2 who received the letter on 25.09.2006 and
subsequently the Complainant submitted all the necessary documents and papers
before the OP-2 in respect of the claim and the Complainant claimed a sum of
Rs.7,04,179.65/-. After lodging of the claim form the Complainant requested the
OPs on several occasions for settling of the claim, but to no effect. The
Insurance Company appointed one surveyor to assess the loss, who within a
reasonable period submitted a report, but inspite of the said report the
Insurance Company did not take any step to decide or settle the claim of the
Complainant. The said surveyor visited the warehouse of the Complainant where
damaged stock of tea remained and after inspection thoroughly the surveyor has
opined in his repost that he inspected the damaged stock of tea jointly with
the representative of M/s Carritt Moram Company Private Limited and segregated
it in two categories a) total damage and b) partial damage. The Surveyor has
mentioned in his report that the full damage quantity of tea was of 4249.0 kgs
and the partial damage tea was of 6165.0 kgs. In the month of March, 2008 the
Complainant got information that every thing being ready, the cheque could be
collected within a short period after signing the necessary vouchers, but the
Complainant was given to understand that the Insurance Company has lost his
claim file. Thereafter the Complainant once again submitted another set of
photocopies of all necessary documents and relevant papers for their perusal,
evaluation and finalization. On 16.03.2008 the Complainant was informed that
his claim has been processed and the cheque could be collected after signing
the voucher and again the Insurance Company told that the said file has been
misplaced. Such missing episode was intimated to the Manager Sri Patnaik by
issuing letter-dated 22.05.2008, but the said Manager did not bother to respond
or acknowledge even. For the third time the Complainant was compelled to submit
the necessary papers and documents in respect of his claim before the Insurance
Company, but the Complainant did not get any fruitful result. Though the
Complainant was in constant touch with the Insurance Company, the Company all
along gave him false assurance regarding settlement of his claim, but thereafter
did not bother to respond to his requests. On 06.11.2008 in a meeting with Sri
Patnaik, where he again assured personally that claim would be settled within a
week, but the assurance was false and vague. Due to financial hardship the
complainant was compelled to write a letter on 24.11.2208 requesting the OPs to
settle the claim, in reply the OPs directed the Complainant to submit again the
premium adjustment statement and excise assessment for 2003-04 to 2006-2007 and
accordingly the same request was complied with by the Complainant promptly by a
letter dated 23.12.2008. Thereafter the OP issuing a letter dated 26.12.2008
upon the Complainant to send excise assessment which is non-existent as tea
is exempt from excise and hence asking for excise assessment was nothing, but
further harassment and just to avoid to settle the actual claim of the
Complainant. Such non-settling of the claim even after a lapse of more than a
couple of years tantamounts to deficiency in service on behalf of the OPs, for
which no reason has not been assigned by the OPs till filing of the complaint. Thereafter
finding no other alternative the Complainant filed the complaint before this
Commission praying for direction upon the OPs to pay a sum of Rs.7,04,179.65/-
towards the claim amount along with interest @12% from the date of claim till
final payment, compensation of Rs.5,00,000/- due to deficiency in service and
unfair trade practice, further compensation of Rs.10,00,000/- due to prolonged
harassment and unexplained mental agony and litigation cost of Rs.10,000/- to
him.
3.The OPs have contested the petition of complaint
by filing written version wherein it is stated that the complaint is not
maintainable before the Consumer Forum/Commission because the complaint is not
a consumer within the definition of Consumer of the Consumer Protection Act.
The OPs have denied all the allegations made in the complaint by the
Complainant. The OPs have mentioned in their written version that there was no
heavy downpour from night of the 21.09.2006 by which a semi-flood like
situation occurred in and around Kolkata as alleged, therefore question does
not arise damage of tea due to entry of accumulated water in the warehouse on
21.09.2006 and 22.09.2006. The OPs have contended that the surveyor did not
mention anywhere that the damage has been caused out of flood which had taken
place on 21.09.2006 and 22.09.2006 and the OPs never gave any assurance
regarding payment of the claim amount. It has been stated by the OPs that
request was made by issuing letter upon the Complainant to provide the premium
adjustment together with copy of the excise assessment for the seasons 2003-04,
2004-05, 2006-06 and 2006-07 and in another letter the claimant was further
requested to supply a copy of excise assessment for the said period, but the
representative of the claimant had only supplied a statement duly certified by
the Executive of the claimant. As the Complainant did not comply with all
formalities, he is not entitled to get any amount towards claim as well as
compensation as prayed for by him. Moreover the Complainant has failed to
furnish a weather report from the appropriate authority showing that on
above-mentioned days there was flood in the said area where the stock of tea
was stored. The surveyor in his report did not mention occurrence of flood. The
OPs have further submitted that the claimant ought to have taken care to store
the materials in a safe place which could have easily escaped from downpour.
According to the OPs the complaint for compensation and the claimed amount is
liable to be dismissed with cost.
4. Both parties have adduced evidence on affidavit in
support of their pleadings, surveyors report has been annexed and both were
cross-examined by another as well as the
parties have also filed brief notes of argument and advanced elaborate
arguments in favour of their contentions.
DECISION WITH REASON
5. At
the very outset it is to be adjudicated that (a) whether the Complainant is a
consumer or not, (b) whether this complaint is maintainable before this
Commission or not and (c) whether the Complainant is entitled to get any relief
or not.
6. Regarding
the submission of the OPs that the Complainant cannot be termed as a consumer
because insurance policy was taken for commercial purpose and for this reason
the instant complaint is not maintainable before this commission. In this
respect we would like to quote Harsolia Motors v. national Insurance Company
Limited, I(2005) CPJ 27 (NC), where it was held that It is apparent that even
taking wide meaning of the words for any commercial purpose it would mean
that goods purchased or services hired should be used in any activity directly
intended to generate profit. Profit is the main aim of commercial purpose. But
in a case where goods purchased or services hired in an activity, which is not
directly intended to generate profit, it would not be commercial purpose. In
this view of the matter a person who takes insurance policy to cover the
envisaged risk does not take the policy for commercial purpose. Policy is only
for indemnification and actual loss. It is not intended to generate profit. Accordingly
the contention of the Insurance Company is that the insurance policy was taken
for a commercial purpose, is faulty and complaint is therefore, covered under
the provisions of the consumer Protection Act. Hence the Complainant can be
termed as consumer as per Consumer Protection Act, 1986 and this complaint is
maintainable before this Commission.
7. On careful consideration of all the papers and
documents and hearing of the arguments
advanced by the parties it is seen by us that admittedly the Complainant
obtained one insurance policy from the OPs for the purpose of safety and
security of the products and
the sum assured was of Rs.2,92,50,000/- for the
said goods. During hearing the Ld. Counsel for the Complainant has submitted
that the warehouse of the Complainant is situated in taratolla where the Complainant
used to store their produce of tea and on 21.09.2006 and 22.09.2006 there was
heavy downpour in Taratola and its surrounded area, Kolkata, and the stored tea
of the Complainant got damage due to entry of accumulated water in the
warehouse. Thereafter the Complainant intimated the incident to the Insurance
Company, who after receipt of the intimation appointed one surveyor to assess
the loss and damage; the said surveyor after inspection and thorough
investigation submitted a report. It is pertinent to mention that the
inspection and investigation was done in joint venture along with
representatives of M/s Carritt Moram & Company Private Limited. The joint
investigation has segregated the damage into Two categories- Total Damage and
Partial Damage of stored tea. In the report it has been stated by the Surveyor,
Sri Bhaskar Sen that during our survey on 03.10.2006 we noticed that the
insureds godown situated at M/s. I.B.W.C. Warehouse, 1/1, Taratala Road,
Kolkata, was under water logging. We noticed that the floor of warehouse was
lower than road level by one and half feet. Inside the godown from water
marking on the walls we noticed that the rainwater rose one foot above the
floor level. The godown in-charge of insured showed us the damaged stock on the
floor; we have taken photographs of the same and have physically taken
inventory stock. We surveyed the damaged stock of tea jointly and segregated it
into two categories-Total damage and Partial damage-(page-2 of the surveyors
report). It has been mentioned in the said report of the surveyor that the
cause of loss and damage was due to rainwater logging as a result of heavy
rainfall. The surveyor has assessed the loss of full damage of tea as 4249.0
kgs, partial damage for an amount of 6165 kgs, and the tea in good condition
was for an amount of 3245.0 kgs. It has been further mentioned that partial
damaged tea can be sold in the market at a reduced rate in the auction and the
rate will be given by the tea broker M/s Carritt Moram & Company Private Limited
who were also in the survey as joint surveyor. We have noticed that inspite of
the survey report the Insurance company did not bother to settle the claim of
the Complainant for a prolonged period even the Insurance Company did not
bother to reply to the letters of the Complainant. The Complainant requested
the OPs and made several correspondences in this context, but to no effect. The
Complainant contacted the Manager and requested him for taking action, but all
in vain. After lapse of more than one and half years the Insurance Company
issuing a letter dated 26.11.2008 directed the Complainant to provide the
premium adjustment sheet duly certified by his statutory Auditors together with
the certified copy Excise assessment for the season 2003-04 2004-05, 2005-06,
and 2006-07 within seven days from the date of communication of the letter. The
Complainant accordingly provided detailed crop insurance for the
above-mentioned required periods on 03.12.2008, but the Insurance Company
issued another letter on 26.12.2008 directing him to submit the said documents.
It is seen by us that on 10.01.2009 the Complainant issued a letter to the
Insurance Ombudsman wherein it is stated that it is well known fact that the
tea is exempt from excise and no excise is payable on tea yet they were asking
for the same, which do not exists. Therefore it is clear to us knowing fully
well only for the purpose of harassment and delaying the settlement the
Insurance Company sought for the said document. We are also convinced that
inspite of submitting entire papers and documents relating to the insurance
claim before the Insurance Company, the insurance Company has failed to settle
or decide the claim till filing of this complaint before the Court of Law and
such inaction and non-deciding of a claim for more than two years tantamounts
to deficiency in service on the part of the Insurance Company. Even though the Insurance
Company appointed the surveyor, the company did not show any respect to the
report of the said surveyor or appointed any second surveyor to assess the loss
and damage. Due to such dilatory tactics the Complainant being compelled
approached before this Commission for redressal of his grievance. It is well
settled law that the Insurance Company shall decided a claim within six months
from the date of lodgment of the claim by a claimant; otherwise such action
shall be termed as deficiency in service. In the instant case the Insurance
Company has violated the Law of this land and did not bother to decide the
claim for about more than two years. Such inaction and dilatory tactics cannot
be entertained in the eye of Law and for such deficiency in service the
Insurance Company is under obligation to pay cost and compensation to the
Complainant. During hearing the ld. Counsel for the OPs has submitted that the
Complainant has failed to submit the weather report to prove that on 21.09.2006
and 22.09.2006 there was heavy downpour in Kolkata and adjacent places. In this
respect we are of the view that the OPs did not submit any contra report and
where the Surveyor has stated that due to inundation the stock of tea in the
said warehouse has been damaged, the OPs did not file any contrary opinion or
did not appoint the second surveyor. In our view as the surveyor was appointed
by the OPs, the said report is binding on the OPs. In our view the surveyors report or opinion is a
valuable document to assess the loss of the insured. Admittedly the Insurance
Company, who after due inspection, investigation and perusal of all the
documents has prepared the report, appointed the surveyor.
8. In this respect we may mention to the judgment passed by the Honble Supreme Court in a case
between United India Insurance Company Limited & Others vs. Roshan Lal Oil
Mills Limited & Others, (2000, 10, SCC, 19), wherein Their Lordships have
held that Surveyors report is a very vital document. In the said case based
on that report the Insurance Company has repudiated the claim of the
Complainant, but being aggrieved the complainant approached before the Honble
National Commission, where the said Commission without considering the surveyors
report though it was placed before the Commission, the Commission has passed
the judgment in favour of the Complainant, the Honble Supreme Court sent the
case back on remand to the Commission for a fresh hearing and held that non-consideration
of this important document resulted in serious miscarriage of justice. In
another judgment passed by the Honble National Commission, (2009 CTJ 170 (CP)
(NCDRC), it has been
held that the Surveyors report is an important document and cannot be wished aside without any compelling evidence to the
contrary. In the next judgment which has been passed by the Honble National
Commission, (2010 CTJ 420 (CP) (NCDRC), wherein it has been held that the
report submitted by the surveyor is an important piece of evidence and has to
be given due weight and relied upon until and unless it is proved by some
cogent and reliable evidence that the report submitted could not be relied upon.
Having regard to the above-mentioned judgments we are of the view that in the
instant case apart from the surveyors report no such evidence has been put
forward before us, so that we can give entire
weightage to the surveyors
report
and in our view the Complainant is entitled to get relief. Thus the
above-mentioned three points (a, b and c) are disposed of in favour of the
Complainant.
ORDERING PORTION
9. In
view of the foregoing discussion hence it is ordered that the complaint be
allowed on contest. The OPs shall settle the claim of the Complainant as per
direction or assessment of the surveyor within 60 days from the date of this
judgment and the OPs shall pay compensation of Rs.10,000/- to the Complainant
due to prolonged harassment and mental agony and cost of Rs.3,000/-. The OPs
are further directed to pay the abovementioned amount within 45 days from the
date of this judgment; in default the total amount shall carry interest @9%
p.a. for the default period. In case of non-settlement of the claim within the
above-mentioned period, the OPs shall pay Rs.100/- per day as further
compensation to the complainant till entire settlement of the claim as per
surveyors assessment.
Sri. Shankar Coari.
Smt. Silpi Majumder.
(Member)
(Member)