{"id":174636,"date":"2010-09-02T00:00:00","date_gmt":"2010-09-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/niraj-chokhani-vs-the-oriental-insurance-company-on-2-september-2010"},"modified":"2019-02-03T13:10:37","modified_gmt":"2019-02-03T07:40:37","slug":"niraj-chokhani-vs-the-oriental-insurance-company-on-2-september-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/niraj-chokhani-vs-the-oriental-insurance-company-on-2-september-2010","title":{"rendered":"Niraj Chokhani vs The Oriental Insurance Company &#8230; on 2 September, 2010"},"content":{"rendered":"<div class=\"docsource_main\">State Consumer Disputes Redressal Commission<\/div>\n<div class=\"doc_title\">Niraj Chokhani vs The Oriental Insurance Company &#8230; on 2 September, 2010<\/div>\n<pre>  \n \n \n \n \n \n State Consumer Disputes Redressal Commission\n\n\n\n\n \n\n \n\n\n\n \n\nState Consumer Disputes Redressal Commission\n\n \n\nWest Bengal \n\n \n\nBHABANI BHAVAN\n(GROUND FLOOR) \n\n \n\n31, BELVEDERE\nROAD, ALIPORE \n\n \n\nKOLKATA  700 027 \n\n \n\n\u00a0 \n\n Case No-CC\/34\/2009  \n\n \n\n \u00a0 \n\n \n\nDate Of Filing :\n14.05.2009 Date Of Final Order: 02.09.2010  \n\n \n\n\u00a0 \n\n \n\nCOMPLAINANT : 1.\nMr. Niraj Chokhani. \n\n \n\n Director\nrepresenting M\/s Mahadeobari Tea Co.  \n\n \n\n Pvt. Ltd. 11E,\nEverest House, 46-C Jawaharlal Nehru Road, \n\n \n\n Kolkata- 700\n071.  \n\n \n\n  \n\n \n\nOPPOSITE PARTIES : 1. The Oriental Insurance Company Ltd. \n\n \n\n Orient House,\nA-25\/27 ASAF ALI Rd,  \n\n \n\n New Dellhi- 110\n002.  \n\n \n\n\u00a0 \n\n \n\n2.\u00a0\u00a0\u00a0\nSr. Divisional\nManager, \n\n \n\nThe Oriental Insurance Co. Ltd.  \n\n \n\nDivisional Office- VI, 2F, Everest House, \n\n \n\n46\/C. Jawaharlal Nehru Road, \n\n \n\nP.S- Park Street,  \n\n \n\nKolkata- 700 071.  \n\n \n\n  \n\n \n\n3.\u00a0\u00a0\u00a0\nManager \/ C.E.O \n\n \n\nRepresenting, M\/s International Blending\n&amp;  \n\n \n\nWarehousing corp. 1\/1 Taratolla Road, \n\n \n\nKolkata.  \n\n \n\n\u00a0 \n\n \n\n4.\u00a0\u00a0\u00a0\nSri Bhaskar Sen-\nBME.  \n\n \n\nLicensed Loss Assessor\/ Surveyor,  \n\n \n\n77 K.P. Roy Lane, Tollygunge,  \n\n \n\nKolkata- 33.  \n\n \n\n\n \n\n \n\n BEFORE: HONBLE MEMBER :\nSmt. Silpi Majumder. \n\n \n\n MEMBER : Sri. Shankar Coari.  \n\n \n\n\u00a0 \n\n \n\nFOR COMPLAINANT :\nMrs. Koyeli Mukhopadhyay,\nAdvocate.  \n\n \n\nFOR THE\nOPPOSITE PARTIES : (OP-1\n&amp; 2) Sri Debasish Bhandari, Advocate.  \n\n \n\n -ORDER- \n\n \n\nS. Majumder,\nMember. \n\n \n\n\u00a0 \n\n \n\n1.<\/pre>\n<p> This complaint has been filed by the Complainant<br \/>\nagainst the OPs alleging deficiency in service in respect of non-settlement of<br \/>\nan insurance claim.\n<\/p>\n<p>\u00a0 <\/p>\n<p>2. The brief facts of the case of the Complainant<br \/>\nare that the Complainant being the Director of M\/s Mahadeobari Tea Company<br \/>\nPrivate Limited used to produce and sell various types of tea as well as to<br \/>\nstore the production in the warehouses. One of those warehouses is situated at<br \/>\nTaratolla Road, Kolkata. As a precautionary measure the Complainant insured the<br \/>\ngoods under the OPs and obtained an Insurance Policy and the same was valid<br \/>\nfrom 31.03.2006 to 30.03.2007 and the assured sum was of Rs.2,92,50,000\/- and<br \/>\nthe insurance premium was of Rs.16,118\/- which was duly paid through cheque.<br \/>\nThe case of the Complainant was that due to heavy downpour from night of<br \/>\n21.09.2006 there occurred a semi-flood like situation in and around Kolkata and<br \/>\ndue to entry of accumulated water in the warehouse on 21.09.2006 and 22.09.2006<br \/>\ntea was damaged as the entire area was inundated. On 23.09.2006 the Complainant<br \/>\nintimated the incident to the OP-2 who received the letter on 25.09.2006 and<br \/>\nsubsequently the Complainant submitted all the necessary documents and papers<br \/>\nbefore the OP-2 in respect of the claim and the Complainant claimed a sum of<br \/>\nRs.7,04,179.65\/-. After lodging of the claim form the Complainant requested the<br \/>\nOPs on several occasions for settling of the claim, but to no effect. The<br \/>\nInsurance Company appointed one surveyor to assess the loss, who within a<br \/>\nreasonable period submitted a report, but inspite of the said report the<br \/>\nInsurance Company did not take any step to decide or settle the claim of the<br \/>\nComplainant. The said surveyor visited the warehouse of the Complainant where<br \/>\ndamaged stock of tea remained and after inspection thoroughly the surveyor has<br \/>\nopined in his repost that he inspected the damaged stock of tea jointly with<br \/>\nthe representative of M\/s Carritt Moram Company Private Limited and segregated<br \/>\nit in two categories a) total damage and b) partial damage. The Surveyor has<br \/>\nmentioned in his report that the full damage quantity of tea was of 4249.0 kgs<br \/>\nand the partial damage tea was of 6165.0 kgs. In the month of March, 2008 the<br \/>\nComplainant got information that every thing being ready, the cheque could be<br \/>\ncollected within a short period after signing the necessary vouchers, but the<br \/>\nComplainant was given to understand that the Insurance Company has lost his<br \/>\nclaim file. Thereafter the Complainant once again submitted another set of<br \/>\nphotocopies of all necessary documents and relevant papers for their perusal,<br \/>\nevaluation and finalization. On 16.03.2008 the Complainant was informed that<br \/>\nhis claim has been processed and the cheque could be collected after signing<br \/>\nthe voucher and again the Insurance Company told that the said file has been<br \/>\nmisplaced. Such missing episode was intimated to the Manager Sri Patnaik by<br \/>\nissuing letter-dated 22.05.2008, but the said Manager did not bother to respond<br \/>\nor acknowledge even. For the third time the Complainant was compelled to submit<br \/>\nthe necessary papers and documents in respect of his claim before the Insurance<br \/>\nCompany, but the Complainant did not get any fruitful result. Though the<br \/>\nComplainant was in constant touch with the Insurance Company, the Company all<br \/>\nalong gave him false assurance regarding settlement of his claim, but thereafter<br \/>\ndid not bother to respond to his requests. On 06.11.2008 in a meeting with Sri<br \/>\nPatnaik, where he again assured personally that claim would be settled within a<br \/>\nweek, but the assurance was false and vague. Due to financial hardship the<br \/>\ncomplainant was compelled to write a letter on 24.11.2208 requesting the OPs to<br \/>\nsettle the claim, in reply the OPs directed the Complainant to submit again the<br \/>\npremium adjustment statement and excise assessment for 2003-04 to 2006-2007 and<br \/>\naccordingly the same request was complied with by the Complainant promptly by a<br \/>\nletter dated 23.12.2008. Thereafter the OP issuing a letter dated 26.12.2008<br \/>\nupon the Complainant to send excise assessment which is non-existent as tea<br \/>\nis exempt from excise and hence asking for excise assessment was nothing, but<br \/>\nfurther harassment and just to avoid to settle the actual claim of the<br \/>\nComplainant. Such non-settling of the claim even after a lapse of more than a<br \/>\ncouple of years tantamounts to deficiency in service on behalf of the OPs, for<br \/>\nwhich no reason has not been assigned by the OPs till filing of the complaint. Thereafter<br \/>\nfinding no other alternative the Complainant filed the complaint before this<br \/>\nCommission praying for direction upon the OPs to pay a sum of Rs.7,04,179.65\/-<br \/>\ntowards the claim amount along with interest @12% from the date of claim till<br \/>\nfinal payment, compensation of Rs.5,00,000\/- due to deficiency in service and<br \/>\nunfair trade practice, further compensation of Rs.10,00,000\/- due to prolonged<br \/>\nharassment and unexplained mental agony and litigation cost of Rs.10,000\/- to<br \/>\nhim.\n<\/p>\n<p>\u00a0 <\/p>\n<p>3.The OPs have contested the petition of complaint<br \/>\nby filing written version wherein it is stated that the complaint is not<br \/>\nmaintainable before the Consumer Forum\/Commission because the complaint is not<br \/>\na consumer within the definition of Consumer of the Consumer Protection Act.<br \/>\nThe OPs have denied all the allegations made in the complaint by the<br \/>\nComplainant. The OPs have mentioned in their written version that there was no<br \/>\nheavy downpour from night of the 21.09.2006 by which a semi-flood like<br \/>\nsituation occurred in and around Kolkata as alleged, therefore question does<br \/>\nnot arise damage of tea due to entry of accumulated water in the warehouse on<br \/>\n21.09.2006 and 22.09.2006. The OPs have contended that the surveyor did not<br \/>\nmention anywhere that the damage has been caused out of flood which had taken<br \/>\nplace on 21.09.2006 and 22.09.2006 and the OPs never gave any assurance<br \/>\nregarding payment of the claim amount. It has been stated by the OPs that<br \/>\nrequest was made by issuing letter upon the Complainant to provide the premium<br \/>\nadjustment together with copy of the excise assessment for the seasons 2003-04,<br \/>\n2004-05, 2006-06 and 2006-07 and in another letter the claimant was further<br \/>\nrequested to supply a copy of excise assessment for the said period, but the<br \/>\nrepresentative of the claimant had only supplied a statement duly certified by<br \/>\nthe Executive of the claimant. As the Complainant did not comply with all<br \/>\nformalities, he is not entitled to get any amount towards claim as well as<br \/>\ncompensation as prayed for by him. Moreover the Complainant has failed to<br \/>\nfurnish a weather report from the appropriate authority showing that on<br \/>\nabove-mentioned days there was flood in the said area where the stock of tea<br \/>\nwas stored. The surveyor in his report did not mention occurrence of flood. The<br \/>\nOPs have further submitted that the claimant ought to have taken care to store<br \/>\nthe materials in a safe place which could have easily escaped from downpour.<br \/>\nAccording to the OPs the complaint for compensation and the claimed amount is<br \/>\nliable to be dismissed with cost.\n<\/p>\n<p>\u00a0 <\/p>\n<p>4. Both parties have adduced evidence on affidavit in<br \/>\nsupport of their pleadings, surveyors report has been annexed and both were<br \/>\ncross-examined by another as well as the<br \/>\nparties have also filed brief notes of argument and advanced elaborate<br \/>\narguments in favour of their contentions.\n<\/p>\n<p> DECISION WITH REASON <\/p>\n<p>\u00a0 <\/p>\n<p>5. At<br \/>\nthe very outset it is to be adjudicated that (a) whether the Complainant is a<br \/>\nconsumer or not, (b) whether this complaint is maintainable before this<br \/>\nCommission or not and (c) whether the Complainant is entitled to get any relief<br \/>\nor not.\n<\/p>\n<p>\u00a0 <\/p>\n<p>6. Regarding<br \/>\nthe submission of the OPs that the Complainant cannot be termed as a consumer<br \/>\nbecause insurance policy was taken for commercial purpose and for this reason<br \/>\nthe instant complaint is not maintainable before this commission. In this<br \/>\nrespect we would like to quote Harsolia Motors v. national Insurance Company<br \/>\nLimited, I(2005) CPJ 27 (NC), where it was held that It is apparent that even<br \/>\ntaking wide meaning of the words for any commercial purpose it would mean<br \/>\nthat goods purchased or services hired should be used in any activity directly<br \/>\nintended to generate profit. Profit is the main aim of commercial purpose. But<br \/>\nin a case where goods purchased or services hired in an activity, which is not<br \/>\ndirectly intended to generate profit, it would not be commercial purpose. In<br \/>\nthis view of the matter a person who takes insurance policy to cover the<br \/>\nenvisaged risk does not take the policy for commercial purpose. Policy is only<br \/>\nfor indemnification and actual loss. It is not intended to generate profit. Accordingly<br \/>\nthe contention of the Insurance Company is that the insurance policy was taken<br \/>\nfor a commercial purpose, is faulty and complaint is therefore, covered under<br \/>\nthe provisions of the consumer Protection Act. Hence the Complainant can be<br \/>\ntermed as consumer as per Consumer Protection Act, 1986 and this complaint is<br \/>\nmaintainable before this Commission.\n<\/p>\n<p>\u00a0 <\/p>\n<p>7. On careful consideration of all the papers and<br \/>\ndocuments and hearing of the arguments<br \/>\nadvanced by the parties it is seen by us that admittedly the Complainant<br \/>\nobtained one insurance policy from the OPs for the purpose of safety and<br \/>\nsecurity of the products and<br \/>\nthe sum assured was of Rs.2,92,50,000\/- for the<br \/>\nsaid goods. During hearing the Ld. Counsel for the Complainant has submitted<br \/>\nthat the warehouse of the Complainant is situated in taratolla where the Complainant<br \/>\nused to store their produce of tea and on 21.09.2006 and 22.09.2006 there was<br \/>\nheavy downpour in Taratola and its surrounded area, Kolkata, and the stored tea<br \/>\nof the Complainant got damage due to entry of accumulated water in the<br \/>\nwarehouse. Thereafter the Complainant intimated the incident to the Insurance<br \/>\nCompany, who after receipt of the intimation appointed one surveyor to assess<br \/>\nthe loss and damage; the said surveyor after inspection and thorough<br \/>\ninvestigation submitted a report. It is pertinent to mention that the<br \/>\ninspection and investigation was done in joint venture along with<br \/>\nrepresentatives of M\/s Carritt Moram &amp; Company Private Limited. The joint<br \/>\ninvestigation has segregated the damage into Two categories- Total Damage and<br \/>\nPartial Damage of stored tea. In the report it has been stated by the Surveyor,<br \/>\nSri Bhaskar Sen that during our survey on 03.10.2006 we noticed that the<br \/>\ninsureds godown situated at M\/s. I.B.W.C. Warehouse, 1\/1, Taratala Road,<br \/>\nKolkata, was under water logging. We noticed that the floor of warehouse was<br \/>\nlower than road level by one and half feet. Inside the godown from water<br \/>\nmarking on the walls we noticed that the rainwater rose one foot above the<br \/>\nfloor level. The godown in-charge of insured showed us the damaged stock on the<br \/>\nfloor; we have taken photographs of the same and have physically taken<br \/>\ninventory stock. We surveyed the damaged stock of tea jointly and segregated it<br \/>\ninto two categories-Total damage and Partial damage-(page-2 of the surveyors<br \/>\nreport). It has been mentioned in the said report of the surveyor that the<br \/>\ncause of loss and damage was due to rainwater logging as a result of heavy<br \/>\nrainfall. The surveyor has assessed the loss of full damage of tea as 4249.0<br \/>\nkgs, partial damage for an amount of 6165 kgs, and the tea in good condition<br \/>\nwas for an amount of 3245.0 kgs. It has been further mentioned that partial<br \/>\ndamaged tea can be sold in the market at a reduced rate in the auction and the<br \/>\nrate will be given by the tea broker M\/s Carritt Moram &amp; Company Private Limited<br \/>\nwho were also in the survey as joint surveyor. We have noticed that inspite of<br \/>\nthe survey report the Insurance company did not bother to settle the claim of<br \/>\nthe Complainant for a prolonged period even the Insurance Company did not<br \/>\nbother to reply to the letters of the Complainant. The Complainant requested<br \/>\nthe OPs and made several correspondences in this context, but to no effect. The<br \/>\nComplainant contacted the Manager and requested him for taking action, but all<br \/>\nin vain. After lapse of more than one and half years the Insurance Company<br \/>\nissuing a letter dated 26.11.2008 directed the Complainant to provide the<br \/>\npremium adjustment sheet duly certified by his statutory Auditors together with<br \/>\nthe certified copy Excise assessment for the season 2003-04 2004-05, 2005-06,<br \/>\nand 2006-07 within seven days from the date of communication of the letter. The<br \/>\nComplainant accordingly provided detailed crop insurance for the<br \/>\nabove-mentioned required periods on 03.12.2008, but the Insurance Company<br \/>\nissued another letter on 26.12.2008 directing him to submit the said documents.<br \/>\nIt is seen by us that on 10.01.2009 the Complainant issued a letter to the<br \/>\nInsurance Ombudsman wherein it is stated that it is well known fact that the<br \/>\ntea is exempt from excise and no excise is payable on tea yet they were asking<br \/>\nfor the same, which do not exists. Therefore it is clear to us knowing fully<br \/>\nwell only for the purpose of harassment and delaying the settlement the<br \/>\nInsurance Company sought for the said document. We are also convinced that<br \/>\ninspite of submitting entire papers and documents relating to the insurance<br \/>\nclaim before the Insurance Company, the insurance Company has failed to settle<br \/>\nor decide the claim till filing of this complaint before the Court of Law and<br \/>\nsuch inaction and non-deciding of a claim for more than two years tantamounts<br \/>\nto deficiency in service on the part of the Insurance Company. Even though the Insurance<br \/>\nCompany appointed the surveyor, the company did not show any respect to the<br \/>\nreport of the said surveyor or appointed any second surveyor to assess the loss<br \/>\nand damage. Due to such dilatory tactics the Complainant being compelled<br \/>\napproached before this Commission for redressal of his grievance. It is well<br \/>\nsettled law that the Insurance Company shall decided a claim within six months<br \/>\nfrom the date of lodgment of the claim by a claimant; otherwise such action<br \/>\nshall be termed as deficiency in service. In the instant case the Insurance<br \/>\nCompany has violated the Law of this land and did not bother to decide the<br \/>\nclaim for about more than two years. Such inaction and dilatory tactics cannot<br \/>\nbe entertained in the eye of Law and for such deficiency in service the<br \/>\nInsurance Company is under obligation to pay cost and compensation to the<br \/>\nComplainant. During hearing the ld. Counsel for the OPs has submitted that the<br \/>\nComplainant has failed to submit the weather report to prove that on 21.09.2006<br \/>\nand 22.09.2006 there was heavy downpour in Kolkata and adjacent places. In this<br \/>\nrespect we are of the view that the OPs did not submit any contra report and<br \/>\nwhere the Surveyor has stated that due to inundation the stock of tea in the<br \/>\nsaid warehouse has been damaged, the OPs did not file any contrary opinion or<br \/>\ndid not appoint the second surveyor. In our view as the surveyor was appointed<br \/>\nby the OPs, the said report is binding on the OPs. In our view the surveyors report or opinion is a<br \/>\nvaluable document to assess the loss of the insured. Admittedly the Insurance<br \/>\nCompany, who after due inspection, investigation and perusal of all the<br \/>\ndocuments has prepared the report, appointed the surveyor.\n<\/p>\n<p>\u00a0 <\/p>\n<p>8. In this respect we may mention to the judgment passed by the Honble Supreme Court in a case<br \/>\nbetween <a href=\"\/doc\/48619678\/\">United India Insurance Company Limited &amp; Others vs. Roshan Lal Oil<br \/>\nMills Limited &amp; Others,<\/a> (2000, 10, SCC, 19), wherein Their Lordships have<br \/>\nheld that Surveyors report is a very vital document. In the said case based<br \/>\non that report the Insurance Company has repudiated the claim of the<br \/>\nComplainant, but being aggrieved the complainant approached before the Honble<br \/>\nNational Commission, where the said Commission without considering the surveyors<br \/>\nreport though it was placed before the Commission, the Commission has passed<br \/>\nthe judgment in favour of the Complainant, the Honble Supreme Court sent the<br \/>\ncase back on remand to the Commission for a fresh hearing and held that non-consideration<br \/>\nof this important document resulted in serious miscarriage of justice. In<br \/>\nanother judgment passed by the Honble National Commission, (2009 CTJ 170 (CP)<br \/>\n(NCDRC), it has been<br \/>\nheld that the Surveyors report is an important document and cannot be wished aside without any compelling evidence to the<br \/>\ncontrary. In the next judgment which has been passed by the Honble National<br \/>\nCommission, (2010 CTJ 420 (CP) (NCDRC), wherein it has been held that the<br \/>\nreport submitted by the surveyor is an important piece of evidence and has to<br \/>\nbe given due weight and relied upon until and unless it is proved by some<br \/>\ncogent and reliable evidence that the report submitted could not be relied upon.<br \/>\nHaving regard to the above-mentioned judgments we are of the view that in the<br \/>\ninstant case apart from the surveyors report no such evidence has been put<br \/>\nforward before us, so that we can give entire<br \/>\nweightage to the surveyors<br \/>\nreport<br \/>\nand in our view the Complainant is entitled to get relief. Thus the<br \/>\nabove-mentioned three points (a, b and c) are disposed of in favour of the<br \/>\nComplainant.\n<\/p>\n<p>\u00a0 <\/p>\n<p> ORDERING PORTION <\/p>\n<p>\u00a0 <\/p>\n<p>\u00a0 <\/p>\n<p>9. In<br \/>\nview of the foregoing discussion hence it is ordered that the complaint be<br \/>\nallowed on contest. The OPs shall settle the claim of the Complainant as per<br \/>\ndirection or assessment of the surveyor within 60 days from the date of this<br \/>\njudgment and the OPs shall pay compensation of Rs.10,000\/- to the Complainant<br \/>\ndue to prolonged harassment and mental agony and cost of Rs.3,000\/-. The OPs<br \/>\nare further directed to pay the abovementioned amount within 45 days from the<br \/>\ndate of this judgment; in default the total amount shall carry interest @9%<br \/>\np.a. for the default period. In case of non-settlement of the claim within the<br \/>\nabove-mentioned period, the OPs shall pay Rs.100\/- per day as further<br \/>\ncompensation to the complainant till entire settlement of the claim as per<br \/>\nsurveyors assessment.\n<\/p>\n<p>\u00a0 <\/p>\n<p> Sri. Shankar Coari.\n<\/p>\n<p>Smt. Silpi Majumder.\n<\/p>\n<p> (Member)<br \/>\n(Member) <\/p>\n<p>\u00a0 <\/p>\n<p>\u00a0 <\/p>\n","protected":false},"excerpt":{"rendered":"<p>State Consumer Disputes Redressal Commission Niraj Chokhani vs The Oriental Insurance Company &#8230; on 2 September, 2010 State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 \u00a0 Case No-CC\/34\/2009 \u00a0 Date Of Filing : 14.05.2009 Date Of Final Order: 02.09.2010 \u00a0 [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-174636","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.4 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Niraj Chokhani vs The Oriental Insurance Company ... on 2 September, 2010 - Free Judgements of Supreme Court &amp; 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