This appeal Under Section 15 of CP Act, 1986 is preferred against the final order of Ld. DCDRF, Uttar Dinajpur at Raiganj dated 10.02.2020 in CC No. 21 of 2018.
The complainant was Abdul Kader who filed the case against Regional Manager, General manager and Branch Manager of SBI, General Insurance company.
The complainant case in brief is that complainant deals in a fertilizer business and insured his business stock of fertilizer amounting to Rs. 15,000/- . On 11.08.2017 on SME package insurance policy issued by OP/Ins. Co. in favour of him after receiving proper fees. His all business transaction are done through his bank account at SBI, Raiganj Branch, Uttar Dinajpur. His policy Number was 0000000006903644 and Customer ID number 0000000010195772 received from OP No. 3 which was issued by OP/ Ins. Co. In the month of August 2017 a severe flood effected Uttar Dinajpur and his business place Gorahar was also effected by flood and the godown under water in mid night of 14 August 2017 and total business stock amounting to Rs. 17,82,000/- become ruined. After recovery flood effected situation he lodged insurance claim towards SBI General insurance through OP No. 3 and all documents regarding business stock and damage of his stock handed over to the OPS on 13/09/2017. On 22/11/2017 one mobile message came from OP No. 3 by which he came to know that Rs. 5,03,119/- was credited in his bank account against his insurance claim. Thereafter, on 12/12/2017 he sent a letter to the Ops asking whether insurance Co. Paid Rs. 5,03,119/- as reimbursement of first installment or paid the total insurance claim by Rs. 5,03,119/- then he would face irreparable loss as because he was entitled to get total claim of Rs. 15,00,000/- which was insured. On 05.02.18 he sent an advocates’ letter to the O.P claiming Rs. 9,96,881/- after deducting Rs. 5,03,119/- from Rs. 15,00,000/-. But the OP did not send any reply.
Upon this back ground the complainant has filed this case praying for giving direction to the OPS to pay Rs. 9,96,881/- to the petitioner and compensation of Rs. 1,00,000/- along with Rs. 25,000/- as litigation cost.
The OP Nos. 1, 2 and 3 have contested the case by filing written version denying all the material allegation contending inter alia that the complainant has no cause of action for the case is barred by waiver, estoppels, acquiescence and law of limitation and that the complainant has to prove the case with documentary evidences strictly and that the case is false, fictitious, frivolous and only for wrongful gain.
The specific case of the OP Nos. 1 and 2 is that the claim of the complainant was fully and finally settled as per the final surveyor report of Kabi Das, surveyor and loss assessor appointed by OP No. 1 and 2 as per the insurance Act 1938 and loss was verified and assessed by the independent surveyor based in his joint physical verification loss. At the time of survey on 22/08/2017 the complainant failed to produce the stock register. The surveyor submit his report before OPS No. 1 and 2 on 07/11/2017 and as per the final settlement and assessment of loss was duly carried out as per policy terms and condition and more importantly to the extend office documentary compliances establishing his loss and insurable interest and in para 15 of WV the OP No. 1 and 2 mentioned the calculation chart of the damage and claim settlement formula.
Upon this background they prayed for dismissal of the case.
The OP No. 3 further submitted in his WV that the complainant has suppressed the material facts before the Hon’ble Forum and did not come to the forum with clean hands.
The Ld. Forum after hearing the case on merit came to a conclusion that the OP/Ins. Co. rightly surveyed and calculated the claim amount Rs. 5,04,728/- which has been paid to the complainant and the complainant received the same through his bank account and did not return the same by refusing the final settlement of the Ins. Co.
Ld. Forum further observed that on the part of OP no deficiency of service was there and for that reason the Consumer case was dismissed.
Being aggrieved with that order this appeal follows on the ground that the impugned order under appeal was illegal, irregular, not vested with law and subject to set aside.
The appeal was registered in due course and was admitted on merit. The OP/respondents after receiving notice of appeal has contested the same through Ld. Advocate Mr. P. Gurung who has filed WNA on behalf of respondent No. 1 and 2.
Ld. Advocate Mr. B. Roy and N. Mohpal has conducted the hearing on behalf of respondents.
Decision with reason:-
Having heard the Ld. Advocates of both sides it as established on admission that the complainant / appellant having a business of fertilizer for his livelihood, he purchased the insurance policy styled “SME Package” for one year commencing on 11/04/2017 till 10/08/2018 and sum assured Rs. 15,00,000/-. On 14/08/2017 the stock fertilizer in godown was such damaged in flood water resulting heavily down pour. He intimated the loss to the insurer on 18/08/2017 and insurer through surveyor had established the loss to the tune of Rs. 5,04,728,/- and that amount was credited and entered into the bank A/C of the complainant/appellant.
Now the question is whether the loss estimated by surveyor Kabi Das was correct or not and the second question is wether the complainant after accepting that settlement of claim at Rs. 5,04,728/- on the part of him on the basis of offer of settlement by the insurer, can the insured raised any further claim.
The lawyer’s letter addressing the insured dated 12/12/2017 speaks that the insured was not satisfied with the settlement amount and that was duly conveyed to the insurer. So we can not say that once the settlement accepted , no right was there to the insured to raise further claim.
Now we consider the loss assessment report of surveyor. We know very well that surveyor’s report is not the last and final word. It is not that sacrosanct that it can not be departed from.
On perusal of surveyor report the total stock of fertilizers was estimated on the closing hour of 14/08/2017 at Rs. 17,99,966/- and value of risk was estimated Rs. 21,49,483/-. The sum insured at the risk was Rs. 15,00,000/- on final analysis assessed loss which was allowed 85% which stood at RS. 11,90,000/- . That final analysis on the part of surveyor was not in apparent to be correct one as because the report of A.D. Agriculture ( page 31 of memo of appeal index) clearly mentioned that the balance stock of fertilizer contained in 2593 bags on 14/08/2017 which was more than the quantity of fertilizer assessed by the surveyor. So if we consider risk coverage of 69.76% upon the sum insured at risk of Rs. 15,00,000/- then the amount roughly comes to Rs. 10,50,00/- and adjusted loss 80% as per policy condition on Rs. 10,50,000/- then the amount comes down to Rs. 8,40,000/-.
The insurance company intended to settle to claim at Rs. 5,04,728/-. So they are liable to pay the rest amount (8,40,000 – 5,04,728).
The insurance company heavily relied upon the assessment of surveyor and they have paid the loss amount which was assessed by the surveyor. So insurance company should not be panelized more save and except the rest amount Rs. 3,75,272/- as calculated.
The Ld. Forum has accepted the view of the insurance company about the time of taking the policy. Ld. Forum approved the anticipation of insurer that the monsoon started in full fledge and at that point of time the insured purchased the policy so that he may prove the damage of the fertilizer in easy way. But fact remains that since 14th august, 2017 torrented rain and down pour till the end of August 2017 the District Uttar Dinajpur and entire North Bengal was affected with serious Flood. The Insurance Company was satisfied through inquiry by investigator that the appellant had endured huge suffering for loss of huge quantity of fertilizers. So the claim of the appellant/ complainant appeared to be genuine one. And the insurer has accepted the view of the complainant and has already paid the amount settled by the surveyor and the complainant/ appellant is entitled to get more amount than the settled amount for his loss of stocked fertilizers. So the order of Ld. Forum appears to be unjustified and is liable to be modified in the appeal.
Hence, it is ordered
That the appeal be and the same is hereby allowed on contest without cost. The final order OF Ld. DCDRF, Uttar Dinajpur at Raiganj dated 10/02/2020 in CC No. 21 of 2018 is here by set aside. The consumer complaint filed on 10/02/2020 before the Ld. DCDRF, Uttar Dinajpur, in dated 10/04/2018 Bearing No. CC 21 of 2018 Under Section 12 of CP Act, 1986 is hereby allowed.
The Ops/respondents are here by asked to pay Rs, 3,75,272/- to the appellant/complainant within two months as further amount of compensation failing which 6% p.a as interest to be imposed on the decretal amount.
Let a copy of this order be supplied to the parties of the case free of cost. The order to be communicated to the Ld. DCDRF, Uttar Dinajpur, Raiganj.
