NARENDRA KUMAR JAIN vs BRANCH MANAGER, NEW INDIA ASSURANCE CO. LTD

THIS petition has been filed under Section l7 of the Consumers Protection Act, 1986 for nonpayment of the claim by the Insurance Company, namely, the New India Assurance Company.

THE petitioner has a cloth shop at Nalbari Town which was insured for a sum of Rs. 3,06,374/- on account of stock in-trade. THE shop was financed by the State Bank of India Nalbari Branch through cash credit facility and the amount obtained was Rs. 1,10,000/-. An occurrence of devastating fire took place in the mid-night of 17.2.91 and as result 28 shops including shop of the petitioner were burnt down. It has been stated that petitioner could not recover any article from the shop. This fact was duly reported in various newspapers including the fact of non-payment of the present dues by the Insurance Company. Copies of the news-items have been annexed. THE loss sustained by the petitioner was Rs. 2,78,000/- for the stock-in-trade and Rs. 25,000/- for furniture etc. as stated in paragraph 6 of the petition. THE petitioner filed a claim for a sum of Rs. 2,80,000/- including necessary police report and report from the Fire Brigade Station. A certificate was made and report was submitted on 18.12.91 by the Surveyor, Tosniwal & Company. THE total damage was assessed at Rs. 2,66,374/-. A copy thereof has been annexed as Annexure-2 in the present petition and copies of the report of the police station together with the certificate from Director, Ass am Fire Service Force have also been annexed as Annexures-3 and 4. It has been stated that for all other shops which were gutted by fire the respective Insurance Company settled the claim but in the case of the present petitioner it was not done inspite of the report of the Surveyor. Several reminders were issued including registered letter with A/D dated 23.9.92. It has been stated that the action of the Insurance Company amounts to negligence in service and discriminatory trade practice. Ultimately; the Insurance Company offered a sum of Rs. 82,277/-, which according to the petitioner, was arbitrary and without any basis, in view of the first survey which was. conducted immediately alter the occurrence. THErefore the present petition has been filed. In the impugned objection filed on behalf of the Insurance Company, the facts that shop was covered by the insurance policy and that it was gutted by fire, have not been disputed. According to the Insurance Company, the shop was insured against the stock-in-trade, furniture and fixtures for a sum of Rs. 2,75,000/-and not Rs. ,3,06,374/-. Copy of the insurance policy is annexed as Annexure-''A'' to the counter. It has been denied that the shop of the petitioner was completely gutted though stock-in-trade was damaged and burnt to a great extent". According to Insurance Company the damage was partial and an investigator was deputed to assess the extent of damage after necessary assessment with facts and photo. According to the Insurance Company one Mr. P. Purkayastha was sent as a Surveyor and according to his report the value was assessed at Rs. 1,66,553.30 vide Annexure-B. The Insurance Company has further stated that the complainant wanted to take advantage of the, first survey report but the Insurance Company sent both Surveyor as well as Investigator when it was detected that the loss assessed by Mr. Tosniwal was not consistent. The report of the Investigator Mr.. A. Goswami was received on 14.7.92 and report of Mr. P. Purkayastha was received on 14.8.92. Therefore, there was no negligence on the part of the Insurance Company. It has been denied that the complainant is entitled to get Rs. 2,66,374/- and in fact he is entitled to only Rs. 82,277/-.

Heard Mr. D. Chaudhury, learned Counsel for the petitioner and Mr. S.K. Barkataky, Learned Standing Counsel, Insurance Company.

BY order dated 5.12.92, the petitioner was allowed to withdraw the agreed amount without prejudice to his present claim. This order was again reiterated on 19.12,93. On 6.5,93 it was recorded that the agreed amount of Rs. 82,277/- was paid to the complainant. In this case survey was made by three assessors. It is not disputed that the first surveyor who immediately went to the place of occurrence, assessed the total loss at Rs. 2,66,374/-. The second Surveyor Mr, N.K. Choudhury & Assessor, copy of has been made available to us, also assessed the loss at Rs. 2,60,740/-. We have perused his report which is an elaborate and extensive report. The third Surveyor Mr. P. Purkayastha assessed the amount of loss at Rs. 1,66,553.30. His report is available at Annexure-C to the present petition. In the survey report itself, it has been clearly stated that this Surveyor was sent for re-assessment after 15 months where nothing remained of the damaged condition nor stock etc. and the insured, namely the petitioner has already restarted his business with his own fund. We have perused his report and we find that only on assumption, the amount was reduced. The very fact that this Surveyor went to the place after 15 months, this report cannot be accepted. Moreover, the grounds on which the first two reports were, rejected, have not been proved by the Insurance Company by producing their records. We, therefore, reject the third surveyor'' report and accept the two, other survey reports and hold that the petitioner is entitled to get a sum of Rs. 2,60,740/- minus the, amount of Rs. 83,277/-, which has already been paid and received by the petitioner. In addition, the petitioner shall be entitled to get interest @ Rs. 10% after one month from the report of the second surveyor dated 28.1.92. In other words, the interest @ 10% shall be calculated from 28.2.1992. The balance amount shall be paid including the interest with in a period of three months from today in the joint name of the petitioner Shri Narender Kumar Jain and the State Bank of India, Nalbari Branch arid the State Bank of India, Nalbari Branch shall deduct from the said amount the dues payable to the Bank and shall return the remaining amount to the petitioner within a week failing which the Bank shall pay interest @ 15% per annum. With the above directions, the petition is disposed of. Complaint allowed.