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M/s. Durga Colour and Chem Pvt. Ltd. v/s M/s. New India Assurance Co. Ltd.

    Complaint Case No. 327 of 2013

    Decided On, 30 May 2016

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, MEMBER

    For the Complainant: Alok Mukhopadhyay, Souvik Chatterjee, Tanusree Dhar, Advocates. For the Opposite Party: S. N. Ganguly, Advocate.

Judgment Text

Jagannath Bag, Member

The complaint case has been filed under Section 17 of the Consumer Protection Act, 1986, alleging unfair trade practice and deficiency in service on the part of the OP Insurance Company.

The Complainant purchased a Standard Fire and Special Perils Policy for consideration by way of paying premium to the OP /Insurance Company. The policy was in force from 21.02.2012 to 20.02.2013. On 23.09.2012 at about 4.30 p.m. there was a massive fire at the paint factory of the insured. The fire was devastating that destroyed the entire factory. 25 fire engines were put into service for continuous 18 hours. The incident of fire was reported to the fire brigade , local police station and the insurance company. The insurance company appointed one preliminary Surveyor, Mr. Subrata Bose , Chartered Accountant, who visited the spot. The preliminary survey was followed by a final survey conducted by Mr. Dilip Kr Saha at the instance of the insurance company. The final survey recorded that the happening of the incident was genuine and there arose a clear liability on the part of the insurance company to

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indemnify the loss for Rs. 69,45,984/-. The insurance company vide their letter dated 03.12.2013 asked for submission of the final police report and final forensic report though it was never a condition precedent contractually, legally or otherwise that a claimant in case of fire loss has to procure final police report themselves along with forensic report. The act of not paying the insurance claim of the insured as per recommendation of the independent surveyor and keeping the claim unsettled on that ground was an unfair trade practice and deficiency in service on the part of the insurance company. In the said circumstances, the Complainant prays for direction upon the OP Insurance company to pay a compensation of Rs. 89,75,984/- including the compensation for harassment and delay, and litigation cost.The Complaint has been contested by the OP Insurance Company by filing W.V. It has been contended by the OP Insurance Company that though the Complainant in their claim form stated that the cause of loss was unknown, the surveyor observed that the high risk building was without any valid licence and storage of huge quantity of inflammable articles caused the alleged fire. The Surveyor submitted their report on 12.08.2013 without substantiating the exact cause of fire by material documents like final police report and the forensic report. The Insurance Company observed that though the officials of forensic department visited the place of occurrence, they could not collect sample for laboratory examination as it was difficult to get access to the place of fire and they requested the police authority to collect the same and to send the same to the forensic laboratory but thereafter there was no endeavour by the Complainant to submit the same to the OP. As per terms and condition of the insurance policy the Complainant was under obligation to provide such report in order to prove and substantiate the claim. In the absence of the forensic report the claim could not be settled. Without submission of the requisite police and forensic report , the Complainant has come with the allegation against the OP. The claim application was premature and the complaint was not maintainable. Accordingly, the complaint is liable to be dismissed in the absence of any proof against deficiency in service on the part of the OP Insurance Company.Both the Complainant and the OP insurance Company have filed their respective evidence .Questionnaire being put by the OP, the Complainant’s replies have been furnished . The Complainant as well as the OP have submitted BNAs.Ld. Advocate appearing for the Complainant submitted that the OP Insurance Company failed to settle the insurance claim inspite of filing of all necessary documents over a long period which by itself is a deficiency in service as observed by the Hon’ble Supreme Court in a catena of cases where the Insurance Company sitting tight over the claims on unreasonable ground caused sufferings to the insured. In spite of submission of final survey report before the Insurance Company giving therein the details about occurrence and cause of fire with estimation of loss to the tune of Rs. 69,45,984/- , dated 10.08.2013 , no decision has been taken by the Insurance Company in the matter of the claim. In fact, the plea taken by the Insurance Company that the final police report and the final forensic report have not been received by them, is unnecessary in so far the Surveyor in his report has clearly dealt with the issues, holding the management of the insured not responsible for the fire in the factory and again the fire report has been issued without mentioning anything about the negligence on the part of the management of the insured. The Surveyor’s report being a very important piece of evidence as a matter of settled principle of law, the Insurance Company ought not to disbelieve or discard the observation and findings of the Surveyor unless cogent counter evidence is put forth. Ld. Advocate relied upon the decisions of the Hon’ble National Consumer Disputes Redressal Commission as reported in (1999) NCJ (NC) and the order of the Hon’ble Supreme Court as reported in III (1996) CPJ 8 (SC) . It was asserted that delay on the part of the Insurance Company in regard to the settlement of claim is a deficiency in service for which the Insurance Company must compensate.Ld. Advocate appearing for the OP Insurance Company submitted that there was no lapse on the part of the Insurance Company as immediately after receiving information about the alleged incident of fire , a preliminary Surveyor was appointed and thereafter a final Surveyor was appointed. It has been gathered from the report of the final Surveyor that the Fire Brigade authority filed an FIR against the insured and charge sheet was filed. In fact, cause of fire could not be finally ascertained which was very much vital in connection with settlement of the claim. Ld. Advocate referred to clause 6(b) of policy conditions and argued that in case of claim full facts of the incident were necessary. The Complainant suppressed the fact of filing of FIR by the WBFS Department with Chitput P.S. apart from the fact that the high risk building was without any valid licence and the space for storage of huge quantity of inflammable articles was not sufficient. Though the Complainant was asked vide letters dated 20.12.13 and 08.01.2014 to provide the final police report and the forensic laboratory examination report, the Complainant neither took any initiative to collect and forward such report to the Insurance Company nor gave any reply to those letters which act on the part of the Complainant shows that they had no proof to produce any evidence as to the actual cause of fire. It was the fault of the Complainant which was at the root of the pendency of the Insurance claim. The complaint does not have any merit and hence, is liable to be dismissed.Decision with Reasons :The Complainant obtained an insurance policy covering the risk of fire in their premises for a consideration and accordingly their status as a consumer can not be disputed.The point for consideration is whether the Complainant is entitled to the compensation for the loss as alleged in the petition of complaint and also the cost of litigation as prayed for.The final survey report has been furnished which inter alia states as follows:There was a massive fire at insured’s paint factory on 23.09.2012 at about 4.30 p.m. The cause of fire according to eye witness working in the factory was lightning which struck the roof of the mezzanine floor of processing shed. According to him there was a huge sound with sudden breaking out of fire which got spread rapidly to the factory’s all points.The Surveyor’s report concluded with the observation that there arose a clear liability on the part of insurance company to indemnify the loss assessed at Rs. 69,45,984/- .It is an admitted fact that there was a massive fire at the paint factory of the Complainant which was enquired into by a preliminary Surveyor and the final Surveyor. The fire was devastating in nature as evident from the the report of the Surveyor that 25 fire engines fought the fire for approximately 18 hours or so to control and extinguish the fire .It has been observed by the Final Surveyor in his report that the insured was having a fire licence which was valid from 01.08.2012 to 31.07.2013 and such other documents which are associated with the operation of the factory. Regarding the cause of fire it has been observed that the fire and the consequent destruction of the factory was possibl lightning. The Surveyor also mentioned in his report that the fire authority could not hold the management of the insured responsible for the fire. Again, it was learnt from the concerned police station that the Complainant of the FIR being the Section Officer of B1,C. R. Avenue Fire Station issued the fire report as clean without mentioning the negligence or the like on the part of the insured and the case against the insured does not stand. The report of the Surveyor appears to be a comprehensive one with details pertaining to the facts and figures associated with the alleged incident of the fire and estimated loss.It is important to note that the final survey report has not been questioned in any manner . Nor has the Surveyor been asked to provide any clarification as to any point pertaining to the observations recorded in the survey report and recommendation made towards indemnification of the loss assessed.The OP Insurance Company knowing fully well that the final surveyor contacted the concerned police station in the matter of the FIR and the forensic report before recording their observations and no adverse report could be gathered from the said police station, asked the Complainant to file the final police report and the final forensic report which, in our view, is a desperate attempt on the part of the Insurance Company to take advantage of Clause 6(b) in a motivated way to repudiate the claim of the Complainant. If they had any doubt about the correctness of the observation of the Surveyor, they could have contacted the police station or the Forensic Department for their views in a direct manner in the matter of the alleged incident . Nothing being done on that line it can be presumed that the Insurance Company has been delaying the settlement on a very untenable ground which is purposive in nature . The deficiency in service on the part of the Insurance Company is explicit. The complaint succeeds in the result, Hence,Orderedthat the complaint be and the same is allowed on contest . The OP Insurance Company is directed to pay the sum of Rs. 69,45,984/- to the Complainant with interest @ 8% p.a. upon the said amount from the date of filing the claim till full realization. The OP Insurance Company is also directed to pay a cost of Rs. 10,000/- to the Complainant within a period of 40 days. In case of failure to comply with the order, the Complainant shall take recourse to legal action as provided under the Consumer Protection Act , 1986.

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