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WEST BENGAL STATE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLKATA
Sri Debasis Bhattacharya and Sri Jagannath Bag, Members
Nawsad Sk. —Appellant
versus
New India Assurance Co. Ltd. & Anr. —Respondents
S.C. Case No FA/499/2013
Decided on 4.7.2014
For the Appellant: :Mr. Barun Prasad, Ld. and Mr. Subrata Mondal, Ld. Advocates
For the Respondent Nos. 2:Mr. Sourav Chakraborty, Ld. Advocate.
IMPORTANT POINT
A frivolous complaint based on conjecture and surmise cannot be allowed.
Headnote:Consumer Protection Act, 1986—Sections 15 and 17—Insurance—Dmagae to Hotel due to flood—Complaint dismissed by District Forum—Complainant has no knowledge of any premium paid as also about any insurance policy—Case of Complainant is not at all believable one and sustainable one—There is no proof that Complainant purchased such items/articles at a total price of Rs.1,01,061/- only after taking loan from Bank and thereafter he lost all the same by cause of flood—Case is not at all a sustainable one—It is based merely and purely on presumption and assumption—It is a frivolous complaint based on conjecture and surmise—There is nothing to show as to amount of insurance and date thereof as also coverage—Appeal dismissed. (Paras 9 and 10)
Result: Appeal dismissed.
Sri Debasis Bhattacharya, Member—This appeal is directed against the order dated 17.04.2013 passed in the case No. 129/2005 by the Ld. District Forum, Murshidabad, by which the case has again been dismissed on contest against the OPs after remand also.
2. Highly aggrieved and dissatisfied as such by the said impugned order, the Complainant thereof has come up with this appeal.
3. It is the case, in short, of the Complainant that he has been carrying on hotel business on Plot No. 6653 of Mouza Gopejan, P.S. Berhampur Town, Murshidabad. Accordingly, he purchased 32 (thirty two) wooden chairs, 08 (eight) dining tables, 04 (four) pieces of cots, pillow, mattress, etc., and cooking utensils at a total price of Rs.1,01,061/- (Rupees one lakh one thousand sixtyone) only with financial assistance from the OP No.2, being Loan Account No. N/D/SSI/188/98. But, in the month of September, 2000, by a devastating flood, all the cooking utensils, pillows, mattress, chairs, tables, dining tables, cots, etc., were washed away, causing thereby a loss of Rs.1,01,061/-. Such items/articles were insured with the OP No.1 covering risk of flood, fire, theft, burglary, riot, etc., which was done by the OP No.2 on his behalf, and the premium was so paid to the OP No.1 by the OP No.2. And, the insurance policy and the receipts of the premium were with the OP No.2. Accordingly, he lodged an F.I.R. with I/C, Berhampur P.S., made under G.D.E. No. 1517 dated 24.11.2000. As he came to learn that the OP No.1 negligently did not pay the premium, the OP No.2 would not be liable to pay the compensation and refused the claim of insurance for such laches of the OP No.1, and in such an event, the OP No.2 would be liable to pay the compensation for the loss. Accordingly, the case.
4. On the other hand, the case of the OP No.1 is that there was no existence of policy or coverage, whatsoever, by the OP No.1 and the Complainant never claimed anything from the OP No.1. So, the claim against it be rejected.
5. Further, the case of the OP No.2 is that the Complainant is a habitual defaulter from the inception of the loan account, and the loan account has gone under the N.P.A. A/c for a considerable time. Initially, the insurance premiums were paid by the OP No.2, i.e., on 08.07.1998 and 08.07.1999 for Rs.2,150/- (Rupees two thousand one hundred fifty) only each, respectively. As, in spite of repeated request and demand, the Complainant failed to pay/file the instalments, the interest, and the stock statements, it was not possible for the OP No.2 to pay the insurance premium. Accordingly, the case be dismissed against the OP No.2.
6. It is to be considered if the impugned order suffers from any incongruity as to facts and in law so as to make an interference by this appellate forum.
Decision with reasons.
7. Ld. Advocate for the Appellant has submitted that when firstly the case was dismissed by an order dated 27.07.2006, it was remanded back to the said Ld. District Forum by this Commission vide order dated 28.06.2007 on Appeal by the Complainant being No. 317/A/2006, for consideration of the two new documents filed by the Appellant/Complainant. So, the setting aside of the said impugned order of the Ld. District Forum was only effected merely to consider the two new documents. It was, as such, not an open remand and the Ld. District Forum has no jurisdiction to again go through the whole spectrum of the case, but only to consider the two new documents. Also, the cause of action has been a continuing one, in the absence of any written intimation by the Insurance Company. Further, the whole liability have fell on the bank, but the most important decision, as referred, reported in I (2007) CPJ 270 (NC), was not considered by the Ld. District Forum in disposing of the case by the impugned order.
8. Ld. Advocate for the Respondent No.2, who only contested in the appeal, has submitted that there is no document to show as to when any such claim was made to the said Insurance Co
