FINAL ORDER / JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
This is an application filed by the complainant U/s 35 of the CP Act, 2019.
The fact of the case in brief is that complainant is a businessmen and proprietor of RM Enterprise, who obtained insurance policy from the OP-3 on payment of premium of policy being policy No. 101901111910000187 for the period on and from 30.10.2019 to 29.10.2020, premium amount of Rs.32,214/-. The sum assured of Rs.60,00,000/- out of actual sum assured of Rs.1,30,00,000/- for whole business and its type of business is wholesale and having running the said business complying all formalities and taking permission from concern authority of the said business. The policy certificate is annexed at Annexure – A.
It is further stated by the complainant that due to natural calamity namely “AMPHAN CYCLONE” enormous loss happened to the business of the complainant for which the complainant informed the matter to the OP/ Insurance Co. by submitting his revised claim of Rs.15,44,494/- + Tax Rs.85,137.61 for assessed the loss / damage of material vide letter dated 07.01.2021. Prior to that the complainant submitted a claim of Rs.14,28,417.33 only on 04.06.2020. The complainant further stated that prior to submit the revised claim as per the order of the surveyor the complainant audited his stock at his own cost and thereafter the stock audit report also submitted to the surveyor on 22.02.2021. The letter dated 22.02.2021 along with audit report dated 22.02.2021 is annexed with as Annexure–B. The stock list dated 04.06.2020 and revised claim stock dated 07.01.2021 respectively is annexed as Annexure-C and on receipt information the OP Insurance Co. appointed a surveyor namely “Proclaim Insurance Surveyor and Loss Assessors Pvt. Ltd., of 28B, Dr. Rajendra Road, 1st floor, PS.-Bhawaipore, Kolkata-700020 for assessment of lost damaged materials and its valuation. Accordingly the said appointed surveyor after inspection of the shop room on 26.05.2020 submitted a report dated 08.09.2021 and informed the matter to the complainant vide email dated 05.01.2022 just after service of legal notice. The photocopy of the surveyor report is annexed as Annexure-D1. The OP Insurance Co. sent email to the complainant on 09.12.2021 for offering the claim amount of Rs.4,08,450/- only and stated as full and final settled agreement in respect of subject Policy No. 101901111910000187 without any consultation with the complainant or without any justification. The photocopy of the letter dated 09.12.2021 sent by OP is annexed as annexure –E.
Thereafter the complainant sent a reply against the letter 09.12.2021 sent by the OP for reconsideration the claim of the complainant and also for reimbursement of the amount of Rs15,44,494/- as claimed by him but the OP insurance co did not pay any heed to the request of the complainant so cause of action arose on 21.05.2020 from the date of filing the claim and without having any other alternative the complainant serve legal notice upon the OP but the OP did not reply. The complainant alleged that such conduct of the OP should be considered as deficiency in service on the part of the OPs which caused negligence, harassment, mental pain and agony to the complainant. Hence the complainant filed the case against the OP with a direction to the OP to pay the claim amount of Rs.14,59,359/- along with interest @ 12% p.a. on the said amount to the complainant from the date of the claim till the realization. The complainant further prayed for giving direction to the OP to award compensation to the tune of Rs.2,00,000/- and litigation cost of Rs.1,00,000/-.
The OPs-1 to 3 have contested the case by filing WV denying all the material allegations leveled against them.
The OP-4 did not appear in this case even after getting notice hence the case do run ex parte against OP-04 vide dated 13.06.2022.
The OPs-1 to 3 in their WV have stated that the case is barred by principle of waiver, and estopples and also bad for mis joinder and / or non joiner of necessary parties. The contesting OPs-1 to 3 have further stated that the case is harassive malafied and baseless. The complainant has no cause of action to file this case thus the same is liable to be dismissed with exemplary cost.
It is admitted by the OPs-1 to 3 in their WV that the complainant took the “Standard Fire and Special Perils Policy” being policy No. 101901111910000187 as per policy effective from 16.00 hrs on 30.09.2019 till mid night on 29.10.2020 from the OPs Insurance Co. in the name of M/S. R.M. Enterprise of 7-C, Kiran Shankar Roy Road, Hastings Chamber, Room No. BA, Basement, Kolkata-700001. The photocopy of policy certificate is annexed as Annexure-A. The OPs further stated that due to inundation took place in the insured’s name /S. R.M. Enterprise premises on 20th May, 2020. They have appointed loss assessor, surveyor under the name and style M/S Pro Claim Insurance Surveyors and Loss Assessors Pvt. Ltd. herein OP-4 and they have submitted their final report on 08.09.2021 vide reference No. 20/400/14019/FSR to the insurer ‘without prejudice’. It is stated by the surveyor in the report that the loss is caused due to inundation of water within the risk premises during the policy period affecting insured property. Further the loss is not falling under any exclusion of the policy. Therefore, insurer is liable to indemnify the loss.
It is further recommended that the liability is admissible under the policy. It is recommended that an amount of INR 4,09,093/- be discharged in full and final settlement of the claim against the loss (Annexure – B).
The OPs stated that after receiving the surveyor report on 08.09.2021 the Deputy Manager of the OPs made a note wherein final claim payable is of Rs.4,08,450.00 has been informed to the complainant. The complainant did not comply the same then the OPs sent a mail date 17.09.2021 wherein mentioned that “without prejudice” that it has been more than two months since they sent the settlement voucher of the captioned claimed for submission. But no response was there from the end from the complainant. The OPs further stated that the file cannot kept open indefinitely in their system and the claim would be treated as “No claim ‘due to non submission of settled voucher even after reminder, as a result the claim was closed “as no claim”. Hence, the complainant has no cause of action to file the instant petition of complaint and the same is liable to the dismissed with exemplary cost.
In view of the facts as stated by the complainant it has to be considered by this Commission:
1. Whether the case is maintainable or not?
2. Has the complainant any cause of action to file this case?
3. Is the complainant consumer?
4. Is there any deficiency in service on the part of the OPs?
5. Is the complainant entitled to get the relief as prayed for?
Decision with reasons
All the points of considerations are taken up together for convenience of discussions and to avoid unnecessary repetition.
On a close scrutiny of the materials on record, facts and circumstances, and position of law it is found that the case is well maintainable in the eye of law and the Commission has got ample jurisdiction to try this case in all respect.
It is the case of the complainant that he obtained the “Standard Fire and Perils Training Policy” being policy No. 101901111910000187 as per policy effective from 16.00 hrs on 30.09.2019 till mid night on 29.10.2020 sum assured was of Rs.60,00,000/-. At the time of “AMPHAN CYCLONE” allegedly enormous loss happened in the said business of the complainant. The complainant informed the matter to the OP Insurance Co. to assess the loss / damage of materials vide letter dated 07.01.2021. Prior to the claim value the complainant submitted a claim of Rs.14,28,417.33 on 04.06.2020 as per their audit of stock and cost thereof. On receipt of the information from the complainant admittedly the OP Insurance Company appointed one surveyor to assess the loss. Thereafter the appointed surveyor submitted a report on 08.09.2021 after inspecting the shop room of the complainant on 26.05.2020 which was informed to the complainant vide e-mail dated 05.01.2022.
From the evidence as well as materials on record it is found that the OP insurance Co. sent a letter dated 09.12.2021 to the complainant through email offering the claim amount of Rs.4,08,450/- as per surveyor report and stated a full and final settlement vide the subject policy. The complainant alleged it in his evidence that he is entitled to get the reimbursement of Rs.15,44,494/- for the loss but it is well known to us that in case of loss or damage due to natural calamity under a policy “Standard Fire and Special Perils Policy” the surveyor report is the fulcrum of the claim and it is settled principle of law that both the parties i.e. the insured and the insurer are bound by the surveyor’s report without any prejudice. In the instant case also it is not the complainant’s case that the appointed surveyor as appointed by the OPs did not visit the premises of occurrence and submitted the report without making any required inspection in the subject premises where the complainant incurred the loss rather the complainant admitted in his petition of complaint and evidence as well as in the written argument that surveyor appointed by the OP insurance Co. inspected the shop room on 26.05.2020 and the complainant shown all the stocks and other reports to the surveyor after considering all those matters. The surveyor submitted the report on 08.09.2021 which was informed to the complainant through email.
So it is palpably clear that after getting the information of loss and damage in the shop premises of the complainant due to “AMPHAN CYCLONE” the OP insurance Co. immediately took steps and appointed the surveyor to inspect the premises of the subject shop room and to assess the loss incurred by the complainant accordingly the surveyor made inspection in the subject shop premises and assessed the loss incurred by the complainant amounting to Rs.4,08,450/- and submitted report to that effect which was also informed to the complainant through email. So nothing was done behind the complainant. The complainant made his claim as per his own assessment and will but that cannot be, both the complainant and the OPs are bound by the surveyor’s report. Accordingly the OPs by showing their good gesture offered the complainant to submit a revised claim of Rs.4,08,450/- as full and final settlement agreement of the subject policy and informed him through email vide letter date 09.12.2021.
But the complainant did not reply the same and denied the offer of the OPs that cannot be. In fact on a close scrutiny of the materials on record and evidence as adduced by the parties to this case, it is found that there was no deficiency in service on the part of the OPs. Rather the complainant wants to deny the surveyor’s report which cannot be done by him. It has already been discussed above that if there is no allegation from any corner in respect of surveyor’s report then the parties to this case are bound to surveyor’s report in respect of the assessment of loss as alleged by the complainant.
In the instant case also the surveyor’s made inspection and assessment in the premises in question without any prejudice to the interest of the either of the parties of the case and assessed the loss of Rs.4,08,450/- as incurred by the complainant. The complainant is bound by that report and is entitled to receive the same as his claim.
Hence, in view of the discussions made above it is held by the Commission that the complainant is entitled to get Rs.4,08,450/- as claim as full and final settlement agreement in respect of the subject policy from the OPs and as there was no deficiency in service on the part of the OPs rather the delay has been caused due to non action of the complainant. So the complainant is not entitled to get any compensation.
On the basis of the discussions made above, the Commission is opined that the points of consideration are considered and decided accordingly. The complainant is entitled to get Rs.4,08,450/- instead of Rs.14,59,359/- as full and final settlement agreement in respect of the subject policy.
The case is properly stamped.
Hence,
Ordered
that the case be and the same is decreed on contest against the OPs-1 to 3 and ex parte against the OP-4 with cost of Rs.5,000/-.
The OPs are directed to pay Rs.4,08,450/- only to the complainant as his claim either jointly and or severally as full and final settlement agreement in respect of the subject policy with interest @ 9% p.a. on the said amount from the date of filing of this case till realization within 45 days from the date of this order.
The OPs are further directed to pay litigation cost of Rs.30,000/- to the complainant either jointly and or severally within 45 days from the date of this order, i/d the complainant will be at liberty to execute the same as per law.
Copy of the judgment be uploaded forthwith on the website of the Commission for perusal.
