Appeal No. FA-07/84

(Arising out of Order dated 08-12-2006 passed by the District Consumer Forum(North) Tis Hazari, Delhi in Case No. 468/2006)





Oriental Insurance Co. Ltd. … Appellant

Divisional Office-25, Through

G-8, Hauz Khas Market, Mr. G.L. Chawla,

New Delhi-110016. Advocate

Versus

Ms. Pooja Enterprises … Respondent

Through Partner Sachin Jain,

F-15/A, Jindal Complex,

Subhash Chowk, Delhi.

CORAM
Justice Barkat Ali Zaidi … President

Mr. M.L. Sahni … Member


1. Whether Reporters of local newspapers be allowed to see the judgment?

2. To be referred to the Reporter or not?



Justice Barkat Ali Zaidi(Oral)

1. While dismissing an appeal bearing No. F.07/84 filed by the appellant Oriental Insurance Co. Ltd. against respondent Pooja Enterprises the State Commission had held as under;

“Photographs have been produced by the appellant and the report of the surveyor is of an extensive details. Merely because the photographs were not produced, does not mean that the surveyor report should have been brushed aside. However, there was no detailed report of the repair in respect of the estimate prepared by him and those items that have been shown intact, might have been shown damaged. Furthermore, the respondent had accepted the amount of cheques offered by the appellant in respect of his claims.”



2. The appellant has come up here again with an application for rectification/modification of the order and to allow the appeal of the appellant on basis of the aforenoted funding.



3. We have heard Sh. G.L. Chawla, counsel for the applicant on this application.

4. His grouse is that as will appear from the afore-mentioned funding that the Commission has noted two contradictory things firstly, that the report of the surveyor is extensive and that merely because of the photographs were not produced would not mean that the surveyor report should have been brushed aside, and that there was no detailed report of the repairs in respect of the estimate prepared by him and that the respondent had accepted the amount by cheques in respect of his claims, therefore the appeal should have been allowed instead of dismissing it.

5. This prayer of the appellant applicant being in nature of the review we asked his counsel whether this Commission has power of review? The counsel stated that this Commission does not possess the power of review and this all happened due to typographical error.

6. We are not inclined to agree with the submission of the Ld. Counsel and the applicant may raise it before the appellate Forum. This Commission has no power to revise or review its own order, except to rectify the typographical or mathematical error.

7. Application rejected.



8. Bank Guarantee/FDR, if any furnished by the appellant, be returned forthwith.

9. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record room.

10. Announced on 6th day of November, 2009.

FIRST APPEAL NO.574/2007.

Oriental Insurance Company through its Senior Divisional Manager, Mythe Estate, Kaithu, Shimla, H.P

… … Appellant.
Versus

Sh. Sandeep Kumar S/O Sh. Roshan Lal, R/O Vill. Mairi, Tehsil Amb, District Una, H.P.

… … Respondent.

Present: Mr. J.S. Bagga, Advocate, vice Counsel

For the appellant.

Mr. Y.P. Sharma, Advocate,

For the respondent.

FIRST APPEAL NO.581/2007.

Oriental Insurance Company through its Senior Divisional Manager, Mythe Estate, Kaithu, Shimla, H.P

… … Appellant.

Versus

Sh. Sandeep Kumar S/O Sh. Roshan Lal, R/O Vill. Mairi, Tehsil Amb, District Una, H.P.

… … Respondent.

Present: Mr. J.S. Bagga, Advocate, vice Counsel

For the appellant.

Mr. Y.P. Sharma, Advocate,

For the respondent.

… … Appellant.

Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekhar Sharma, Member. on’bl;e Ho





Whether approved for reporting? No

O R D E R



Justice Arun Kumar Goel (Retd.), President (Oral).



1. Since identical questions of law and facts are involved in both these appeals, as such they have been heard together and are being disposed of by this common order.



2. Vehicle bearing Registration No.HP-19A-4446 was admittedly insured under a valid policy of insurance with the appellant-Insurance Company is not in dispute. It met with accident twice. Appeal No.574/2007 pertains to accident dated 19.8.2003 and Appeal No.581/2007 pertains to accident dated 31.7.2003. Learned Counsel for the parties were not at variance on this factual aspect of the case at the time of hearing. After both the accidents, claim was lodged by the respondent with the appellant-Insurance Company. However, on the same being not settled despite his personal visits as well as reminders, he filed two separate complaints qua these accidents alleging deficiency of service against the appellant-Insurance Company. When put to notice in these complaints, stand of the appellant-Insurance Company was that the driver who was on the wheel at the time of both the accidents, namely Shri Manoj Kumar was not holding a valid and effective driving licence as it was found to have not been issued by the concerned Licensing Authority at Mathura, as such it was not liable to indemnify the respondent. District Forum below while allowing Complaint No.77/2004 has held the appellant liable for payment of Rs.46,503/- with interest @ 9% per annum from the date of filing of the complaint i.e. 30.4.2004 till realization of this amount alongwith cost of Rs.1,000/-. Against this order, Appeal No.574/2007 has been filed by the Insurance Company.



3. In the like manner while allowing Complaint No.76/2004, appellant has been held liable to pay a sum of Rs.31,900/- with interest @ 9% per annum from the date of filing of the complaint i.e. 30.4.2004 till realization of this amount together with Rs.1,000/- as costs. Appeal No.581/2007 is directed against this order of the District Forum below.



4. At the time of hearing of these appeals, learned Counsel for the appellant-Insurance Company raised only plea claiming that the driver Manoj Kumar was not holding a valid and effective driving licence at the time of accident. It was not disputed on behalf of the respondent that the original licence purports to have been issued by the concerned Licensing Authority at Mathura. Appellant had requested the Licensing Officer, A.R.T.O., Mathura vide Annexure R.5 for verification regarding genuineness of the driving licence No.710/MTR/97, dated 11.3.1997 issued in favour of Manoj Kumar. In this letter it has been mentioned in Hindi which, when translated into English, reads, “said licence has not been issued by the office”. It bears the stamp of Assistant Regional Transport Officer (Licensing Authority), Mathura. Alongwith this Annexure R.5, there is also copy of the communication addressed by Shri Sunil Kumar Saraswat, Surveyor/Loss Assessor, Annexure R.6 which has reinforced what is contained in Annexure R.5. Faced with this situation, learned Counsel for the respondent-owner submitted that his client as a prudent owner while engaging the driver had seen the licence of Manoj Kumar and further found him to be good at driving which he further observed to be flawless. Thus, he employed the driver who was driving the vehicle at the time of accident. Further according to him, his client was not supposed to run from Licensing Authority to Licensing Authority to verify the genuineness regarding the driving licence of the driver, Manoj Kumar. Another submission urged on behalf of the respondent by Mr. Sharma was that as per application, copy whereof is at page-29 of the complaint file No.76/2004, his licence while being renewed was got verified by the Registering & Licensing Authority, Amb, District Una, H.P. For ready reference, the endorsement of the said Authority is extracted hereinbelow:-



“Retd. In original with the remarks that the D/L No.710/Mathura/97 Dt. 11/3/97 LTV/HTV issued in the name of Sh. Manoj Kumar S/O Sh. Sher Singh R/O Chhater, Mathura at present VPO Baatehar Tehsil Amb……illegible….issued by the R&LA Mathura dt. 11/3/97 to 10/3/2000 was endst. to HTV w.e.f. 11/11/2k to 17/11/2003 as per MVI test report & O/C copy replaced on 1/1/2001 by the R&LA Amb and also Renewed upto 9/6/2007 as per office record vide No.599/2001”.



5. While challenging Annexures R.5 and R.6, Mr. Sharma submitted that they are not worth the paper on which they have been written as those have not been proved in accordance with law. Thus, according to him, these need to be excluded from the zone of consideration while deciding these appeals.



7. Now we have to determine both these appeals on the basis of the above material as to whether Manoj Kumar was holding a valid and effective driving licence at the time of both the accidents. In case answer is in affirmative, both these appeals must fail otherwise consequence is obvious.



8. We may at the very outset mention that strict rules of evidence and procedure do not govern the proceedings before the Fora constituted under the Consumer Protection Act, 1986. Proceedings being summary in nature, preponderance of evidence has only to be seen. As such, submission of Mr. Sharma that Annexures R.5 & R.6 have not been proved in accordance with law is being noted to be rejected. At this juncture we specifically called upon the learned Counsel for the respondent that despite having been put to notice in the reply that the licence in favour of Manoj Kumar has not been issued by the concerned Authority from Mathura, what steps his client took to verify the facts. He submitted that some time may be allowed to him to do the needful that too in appellate proceedings. We were agreeable for granting time in case respondent was willing to get appointed Commission in order to verify the genuineness of the driving licence of Manoj Kumar, driver issued by Licensing Authority, Mathura on the basis of record, on instructions received from his client Mr. Sharma submitted that this is not acceptable to respondent. In these circumstances prayer to allow time is hereby rejected. Besides this, it is too late in the day after a gap of 6 years to ask for time to verify the genuineness of licence of Manoj Kumar from Licensing Authority, Mathura.



9. Further submission of Mr. Sharma that his client had seen the driving license of the driver while employing him. In the case of National Insurance Co. Ltd. Versus Swaran Singh and Others, (2004) 3 Supreme Court Cases 297, this question came up before the Hon’ble Supreme Court and subsequently in the case of National Insurance Co. Ltd. Versus Laxmi Narain Dhut, 2007 CTJ 445 (Supreme Court) (CP) what was held and is relevant for the purposes of present appeals was to the following effect:-

“40. In view of the above analysis the following situations emerge:

1. The decision in Swaran Singh’s case (supra) has no application in cases other than third party risks.

2. Where originally the licence was a fake one, renewal cannot cure the inherent fatality.

3. In case of third party risks the insurer has to indemnify the amount and if so advised to recover the same from the insured.

4. The concept of purposive interpretation has no application to cases relatable to Section 149 of the Act.



41. The High Courts/Commissions shall now consider the matter afresh in the light of the position in law as delineated above”



10. To similar effect is a recent decision of the Hon’ble Supreme Court in the case of National Insurance Company Limited Versus J. Maheshwaramma, II (2009) CPJ 89 (SC).



11. Once we have accepted the plea of the Insurance Company that the driving licence of the driver Manoj Kumar who was on the wheel at the time of both the accidents was fake, its subsequent renewal will not validate it. What was non-existent in the eyes of law will not become valid by mere renewal. Nothing to the contrary has been brought to our notice.



11. No other point was urged.



In view of the aforesaid discussion, orders passed by District Forum below in Consumer Complaint No.76/2004 on 8.11.2007 and in Consumer Complaint No.77/2004 on 31.8.200, both are set aside and as a result of it, both the complaints are dismissed while allowing Appeal Nos.574/2007 and 581/2007.



All interim orders passed from time to time in these appeals shall stand vacated forthwith.



Office is directed to place authenticated copy of this order on the file of Appeal No.581/2007.



Mr. Bagga submitted that he shall collect copy of this order free of cost from the Court Secretary at Shimla as per rules and Shri Sharma submitted that the same may be sent to him at his address, Sub Divisional Courts, Amb, District Una. This prayer is allowed and office is directed to do the needful.



Una,

November 21, 2009.

Hon’ble Mr. Justice (Retd.) G.D. Sharma …President

and Mr. BL Saraf …Member
File No. 2758 of 2006

Date of institution: 15.3.2006

Date of decision: 27.11.2009



1. M/s Malik Construction Company. A partnership firm having its Head Office at Dharmund Batote through its Managing Director- partner Sh Mohd. Arshad Malik.



2. Sh Mohd Arshad Malik S/o Sh. Abdul Gani Malik R/0 Village Dharmund Tehsil Ramban, District Doda.



3. Sh. Abdul Gani Malik S/o Sh Khazir Malik R/0 Village Dharmund Tehsil Ramban, District Doda.



4. Sh Mohd Akram Malik S/0 Abdul Gani Malik R/0 Village Dharmund Tehsil Ramban, District Doda.



5. Sh. Mohd Rafiq Malik S/o Abdul Gani Malik R/0 Village Dharmund Tehsil Ramban, District Doda.



6. Sh. Mohd Nasar Malik S/0 Sh. Mohd Akram Malik R/0 Village Dharmund Tehsil Ramban, District Doda.

…Complainants

Versus



Oriental Insurance Company Limited, through its Branch Manager, Branch Office Dhar Road Udhampur

…OP

Counsel for the parties:.

Nemo for the complainants,

Mr. SS Khajuria Advocate for the OP.
(i) Whether to be reported in Press/Journal/Media. …No

(ii) Whether to be reported in Digest/Journal. …No ORDER
Per Mr. Justice G.D. Sharma

ORAL

1. Complainant No. 1 is a private partnership firm having its Head Office at Dharmund Batote and one of the partner Mohd Arshad Malik is its Director. The firm purchased Paver Finisher in the year 2002 and got the same insured with the OP. After the expiry of the period of insurance policy it was renewed for another one year with effect from 19.3.2003 and had to expire on 18.3.2004. The risk insured was in the sum of Rs 4,83,000/-. It is alleged that complainants had hired the services of Jamal Din S/o Sh. Mir Hussain as driver of the Paver Finisher who was holding a valid driving Licence till its expiry on18.12.2005. During the currency of the Insurance Policy the accident took place on 18.6.2003 at Battery Chashma which is situated at 168 K.M on the National Highway. The cause of accident was failure of brakes. The Paver Finisher rolled down 500 feet deep and rested in a gorge. It was a case of total loss. Mr. Mahesh Badyal surveyor was deputed by the OP as a Preliminary surveyor. He went on spot and certified that it was a case of total loss. The incident was reported in the police station Ramban on the same day and FIR No. 55/2003 was registered. The claim was raised with the OP which was rejected.Vide its letter dated:25.5.2005, the OP informed the complainant about the rejection on the Twin Grounds viz the damage was caused due to over turning which was not covered under the insurance policy. The other ground was that Paver Finisher was being driven by the driver who was not having a valid driving Licence. Aggrieved by the rejection of rightful claim the complainants have filed complaint and claimed the relief for being reimbursed for the insured’s value of Paver Finisher in the sum of Rs 4,83,000/- along with the interest in the sum of Rs 1,87,500/- ( total RS 6,70,500/). Future interest is also claimed.



2. The complaint is resisted by the OP on ground that the alleged driver Jamal Din was not holding a valid driving Licence and the accident had occurred due to over turning of the insured Paver Finisher which was not covered under the policy of insurance.



3. The complainant Mohd Arshad Malik has appeared his own witness as well as examined his driver Jamal Din S/o Mir Hussain as a witness. The OP has produced the copy of the surveyor’report by way of documentary evidence. The surveyor and loss assessor through Sh. Arun Kumar has assessed the loss in the sum of Rs 3,13,585/- towards the full and final settlement of insured’s claim. No evidence has been led in support of objections raised by the OP that the cause of accident did not fall under the terms and conditions of insurance policy and the driver Jamal Din was not holding a valid driving Licence. On the contrary, the complainant in his deposition on oath has proved the allegation that the cause of accident was failure of brakes and driver Jamal Din was holding a valid driving Licence. The driver Jamal din has also stated on oath that he was possessing a valid driving Licence at the time of accident.



4. We have gone through the record with the assistance of Mr.SS Khajuria Advocate for OP. The counsel of complainants had generally been appearing in proxy at that different dates but at today’s hearing nobody is present. From the perusal of the record, it is found that the cause of the accident was due to failure of brakes and that the driver Jamal Din was holding a valid driving Licence. In cross-examination; one of the complainant Mohd. Arshad Malik has admitted that Bill Vouchers and salvage of insured Paver Finisher was lying with him at the office of the firm at Batote. The loss assessors and surveyor Mr. Arun Kumar has assessed the net loss of the insured Paver Finisher in the sum of Rs 3,13,585/- towards the full and final settlement of insured’s claim. We accept his findings regarding the assessment. In this view of the matter, we allow the complaint and direct the OP to indemnify the complainants through complainant No.1 to the tune of Rs 3,13,585/- along with interest at the rate of 8% p.a from the date of the receipt of surveyor’s report. On the facts and in the circumstances of case, no order is made regarding the costs of litigation. The complainant is consigned to records.

FA.No.1176/2006 AGAINST C.D.No.92/2004 DISTRICT FORUM, GUNTUR

Between:
1. M/s.Pavan Enterprises

Rep. by its Proprietor Sri Vupputuri Ayyanna

S/o.Subbaiah, R/o.Pulladigunta Village

Vatticherukuru Mandal, Guntur District.

2. Sri Vupputuri Srinivasa Rao,

S/o.late Ayyanna,

R/o.Pulladigunta Village

Vatticherukuru Mandal, Guntur District. Appellants/

Complainants

And
The Oriental Insurance Co. Ltd.,

Rep. by its Branch Manager,

Branch Office-II, Main Road,

Lakshmipuram, Guntur. Respondent/

Opp.party
Counsel for the Appellants: Mr.A.Rajendra Babu



Counsel for the Respondent:Mr.K.Laxmi Prasad.



QUORUM: SMT.M.SHREESHA, MEMBER

&

SRI K.SATYANAND, MEMBER

TUESDAY, THE TENTH DAY OF NOVEMBER,

TWO THOUSAND NINE

(Typed to the dictation of Sri K.Satyanand, Hon’ble Member).
This is an appeal filed by the unsuccessful complainant, the repudiation of whose insurance claim, came to be rather upheld by the District Forum by dismissing his complaint challenging the repudiation.

The facts of the case are briefly as follows:

The complainant is a proprietorship firm of one Vupputuri Ayyanna the father of the second appellant. The proprietorship firm in question was dealing in cotton. It seems they have got their own ware house as also a practice of keeping the stocks for further processing in pressing mills. So the original proprietor, Vupputuri Ayyanna obtained insurance coverage for his business including in the risk address, M/s Srinivasa Pressing Company Private Limited also. The insurance was taken for Rs.10,00,000/-. It was issued to remain valid from 28-11-2001 to 27-11-2002. While things stood thus, the complainant and the proprietor claimed to have purchased cotton stock from a company by name Sri Sambasiva Lakshmi cotton Ginning Mill in two lots for a total consideration of Rs.8,64,324/-. Admittedly the said stock was parked in the authorized premises i.e. M/s Srinivasa Pressing Company Private Limited for some further processing. While things stood thus, a fire broke out in the said M/s Srinivasa Pressing Company Private Limited on 8-5-2002 in which the entire stock belonging to the complainant firm was gutted. It seems the fire accident was duly recognized and the factum of the accident was duly recorded by various public authorities as A.P. Fire Services, Assistant Electrical Inspector and others. Thus the factum of the fire accident and the loss of cotton worth Rs.8,00,000/- and odd were not in controversy. After sustaining loss, the proprietor filed a claim before the insurance company. The insurance company sent a surveyor and did all the spade work in the course of processing the claim. Ultimately the insurance company repudiated the claim holding that the complainant failed to prove their title to the property and the so called documentation calculated to establish their acquisition of the said stock was not genuine. Aggrieved by the said repudiation, the complainant firm filed the consumer complaint. During the pendency of this complaint, the original proprietor, Ayyanna, died on 24-6-2004. In the wake of his death, the son of the deceased proprietor came on record as complainant No.2 in his capacity as L.R. and proceeded to prosecute the complaint [as could be seen from the impugned order, the District Forum lost sight of this fact and proceeded under the impression that the son of the deceased proprietor carried on with the case on the strength of a power of attorney issued by his father as per Ex.A18. But Ex.A18 is not power of attorney and on the other hand, it is a will executed by late Ayyanna bequeathing the insurable interest in favour of complainant No.2.]

This claim of the complainants came to be resisted by the insurance company reiterating the reasons that they relied upon in the repudiation letter and, in addition, trying to make out a case of fraud against Ayyanna saying that he accommodated Sambasiva Lakshmi Cotton Ginning Mill, who did not hold any insurance policy and thus the complainant failed to have title to the property and therefore much less insurable interest. The opposite parties relied upon the surveyor’s report to substantiate their repudiation.

In support of their case, the complainants filed the affidavit of the second complainant and also relied upon documents marked as Ex.A1 to A20. On the other hand, the opposite party also got filed affidavit and relied upon documents Exs.B1 to B4.

On a consideration of the evidence adduced by both the parties, the District Forum came to the conclusion that the complainant failed to prove his ownership of the cotton bales destroyed in the fire accident and the transaction that was sought to be propounded in that regard was not valid and genuine and consequently that there was no deficiency of service proved against the opposite party. On the basis of these findings, the District Forum dismissed the complaint.

Aggrieved by the said order, the complainant filed the present appeal contending inter-alia that the District Forum erred in thinking that the transfer of stock proved by the complainant was merely brought into existence for the purpose of claiming compensation on behalf of Sambasiva Lakshmi Cotton Ginning Mills as the transaction was neither genuine nor true and merely propounded to accommodate the uninsured Sambasiva Lakshmi Cotton Ginning Mill. The District Forum failed to give proper credence to the extensive documentary evidence tendered by the complainant and on the other hand erroneously relied upon the surveyor’s report Ex.B2 and Ombudsman’s decision in Ex.B4. It failed to see that Ex.B1 policy clearly covered the stocks in dispute. The District Forum failed to see that the commercial tax department would not have accepted tax of Rs.34,575/- paid by the insured appellant towards this transaction if the transaction was really false and was meant merely to accommodate Sri Sambasiva Lakshmi Cotton Ginning Mills. It failed to take into account Ex.A3 letter by the said Sri Sambasiva Lakshmi Cotton Ginning Mills to M/s Srinivasa Pressing Company Private Limited to transfer lots 61 and 62 of cotton bales to the appellant as per the permit issued by the Agricultural Market Committee, Guntur in Ex.A4. It also failed to see that the sale consideration for the goods was conclusively shown as having been received by the seller of the cotton Sri Sambasiva Lakshmi Cotton Ginning Mills. Instead of acting on this concrete evidence, the District Forum erroneously relied upon the findings of surveyor based on surmises and conjectures.

Heard both sides.

The points that arise for consideration are:

1) Whether the cotton admittedly destroyed in the fire accident belonged to the complainant or not?

2) Whether the repudiation by the opposite party is justified.

3) Whether the opposite party is guilty of any deficiency of service?

4) Whether there are any good grounds to interfere with the order of the District Forum?

5) Whether the complainant is entitled to any relief?

In this case majority of basic facts are not at all in dispute. The first complainant was a proprietor firm represented by its proprietor, who subsequently died during the pendency of the proceedings and his own son had come on record as L.R. and consequently became the new proprietor of the firm in question on the strength of the will executed by his father in favour of him in respect of the present subject matter of this claim. Unfortunately the District Forum thought that the complainant No.2 proceeded to prosecute the claim on the strength of a General Power of Attorney that was executed few days before his death and continued to represent the firm even after his death. This is factually incorrect and if really that was merely a G.P.A. the District Forum ought to have dismissed the complaint on that ground itself as the general power of attorney would not survive the person who executed the instrument and the agency gets automatically terminated. But the actual facts are otherwise. As already pointed out, the second complainant continued the litigation in his own right as the beneficiary under the will as L.R. of the deceased proprietor. The main plank upon which the District Forum dismissed the complaint is the want of complainant’s title to the cotton bales in question. In order to assail the title of the complainants, the District Forum relied upon two circumstances. The first and foremost was that the sale of cotton bales otherwise evidenced by Exs.A1 to A7 cannot but be characterized as false for the reason that even on their own showing was not supported by consideration in as much as, as on the date of accident, the consideration for the sale did not pass on to the seller Sri Sambasiva Lakshmi Cotton Ginning Mills and it was paid few days after this accident on 14-5-2002 no doubt as per other documents. This conclusion the District Forum reached obviously labouring under the impression that for a conclusion of the contract of sale of goods, the instantaneous passing of consideration is sign Quo non but the law in this regard is otherwise. Any contract of sale of goods for that matter in any contract, the consideration could be not necessarily down payment and it could also be a payment on the spot or promise or part payment and part promise. It is unmistakably shown that ultimately Sri Sambasiva Lakshmi cotton Ginning Mill received the consideration and the factum was testified to even by the bankers as per Ex.A10. Over and above, the parties to the transaction obtained permit of the Agricultural Market Committee, Guntur and also paid tax as per Ex.A20 for covering this very same transaction. This overwhelming evidence gives a lie to the contention that the transaction in question was fake and was brought into existence for the purpose of accommodating Sri Sambasiva Lakshmi Cotton Ginning Mill. Curiously the District Forum placed any amount of emphasis on the fact that the complainants failed to produce any insurance procured by Sri Sambasiva Lakshmi cotton Ginning Mill to displace their theory that Sri Sambasiva Lakshmi cotton Ginning Mill was not having insurance and therefore had taken accommodation from this complainants. This is rather a very far fetched articulation and cannot be accorded any serious note. Likewise in order to condemn this transaction as false, the District Forum also embarked upon a conjecture that Sri Sambasiva Lakshmi Cotton Ginning Mills was not in the habit of getting its cotton pressed by M/s.Srinivasa Pressing Company Private Limited as it was the customer of Balaji pressing Mill and that the said Sri Sambasiva Lakshmi cotton Ginning Mill diverted its stocks to M/s Srinivasa Pressing Company Private Limited only to lend colour of truth to this transaction allegedly owned by the complainant by way of accommodation. This again is an argument that suffers from the vice of double presumption. Such conjectural argument without the basis of first conclusively proving that the cotton in truth only belongs to Sri Sambasiva Lakshmi Cotton Ginning Mills and then that it temporally switched loyalty to M/s Srinivasa Pressing Company Private Limited only to take advantage of the insurance coverage readily available with the complainant. It has already been conclusively shown that the transaction pleaded by the complainants that constituted the basis for this claim has been amply proved. Thus the grounds upon which the title to the cotton of the complainants is sought to be challenged do not carry any conviction and in fact they are contrary to the weight of evidence especially documentary evidence available in the case in favour of the complainant.

It is very obvious from the tenor of the repudiation that the insurance company mainly reputed the claim of the complainants on the very ground that the complainants failed to prove their title to the movable property and therefore not entitled for the insurance coverage by the policy in question. But the opposite party failed to establish it by tendering cogent evidence instead of helping itself with conjectures and surmises culled out from the surveyor’s report issued without any supporting material. Thus the repudiation appears to have been actuated for untenable reasons. In other words, there is nothing that is adverse to the claim of the complainants, inspite of that the insurance company repudiated on flimsy grounds, this marks the deficiency of service for which the redressal is very much available.

For the reasons stated above, the order of the District Forum is unsustainable and deserves to be reversed. Accordingly the appeal is allowed setting aside the order of the District Forum. Consequently the complaint is allowed directing the opposite party to pay to complainant No.2 a sum of Rs.8,64,376/- with interest at the rate of 6% p.a. from the date of repudiation i.e. 28-3-2003 till the date of realization and also an amount of Rs.5,000/- representing costs. As interest is awarded, we do not think that this is a fit case for granting any separate compensation. Time for compliance six weeks from the date of receipt of this order.

FIRST APPEAL NO. 180 OF 1999 Date of order : 12/11/2009

IN CONSUMER COMPLAINT NO. 146 OF 1995

DISTRICT CONSUMER FORUM : NASHIK

1. M/s.Ganesh Roadways

3, Mathura Hotel, Near Agra Road,

Dwarka Point, Nashik.

1a. Shri Vinay Gulshanlal Mago

1b. Shri Vishal Gulshanlal Mago

1c. Shri Amit Gulshanlal Mago

1d. Smt. Shantadevi S. Mago (Deceased)

1e. Smt.Shankuntaladevi Gulshanlal Mago

All r/o. Datta Bhavan, N.D. Patel Road,

Ground floor, Nashik. … Appellants/org. O.Ps.

V/s.

1. The Oriental Insurance Co. Ltd.

Regd. office, Oriental House,

Asafalli Road, New Delhi

Office at Merchant Chambers

Tilak Road, Nashik.

2. Bharat Distilleries Pvt. Ltd.

At Post- Talegaon, Tal. Igatpuri,

Dist. Nashik. … Respondents/org. complainants


Quorum : Shri S.R. Khanzode, Hon’ble Presiding Judicial Member
Mrs. S.P. Lale, Hon’ble Member

Present: Mr.P.V. Sawant, Advocate for the appellants.

None for the respondents.

- : ORDER :-
Per Mrs. S.P. Lale, Hon’ble Member

This appeal is directed against the order dated 23/12/1998 passed by District Consumer Forum Nashik in consumer complaint No.146/1995 wherein the Forum below directed O.P. to pay Rs.43,440/- within three months from the date of the order.

The case of the complainants before the Forum below was that the complainant No.1/Insurance Company had insured the vehicle, goods in transit of the complainant No.2 and complainant No.2 is the manufacturer in quality liquors and they had taken marine insurance in transit from complainant No.1 for period 15/10/1993 to 14/10/1994. Sum insured was Rs.20 Lakhs. According to the complainant, goods were sent on 21/06/1994 through Truck bearing No.HR-30-4703. Said vehicle met with an accident on Devas Maksi Road on 22/06/1994. According to the complainants, said accident took place due to negligence of O.P.No.1. The complainant No.1 appointed a Surveyor who assessed the loss and reported to complainant No.1. The loss was reported damage of 1126 bottles. The insured value of 7200 bottles is Rs.2,47,708/-. Value of one bottle comes to Rs.34.40. So, value of 1126 bottles comes to Rs.38,734.40 plus additional service fee of Rs.2,637/-. Thus, the complainant calculates its total loss to Rs.41,371/-.

Certificate of damage is also given to complainant No.2. The amount of Rs.41,371/- was paid to the complainant No.1 vide cheque No.0032484 dated 19/10/1994 at Nashik which was duly received by the complainant No.2. However, complainant No.2 executed a letter of subrogation and special power of attorney in favour of complainant No.1 on 26/10/1994 relinquishing the claim for compensation to be recovered from the common carriers i.e. O.P. Total claim is of Rs.43,400/- including interest on Rs.41,371/- i.e. Rs.2,069/-. The complainant No.2 demanded the aforesaid amount from the O.P. O.P. failed to pay to complainant No.1. Therefore, complainant No.1 filed consumer complaint for recovery of Rs.41,371/- from O.P.

O.P. filed written statement and contested the claim of the complainants. It pleaded that complainants have not made a party to the truck owner and complaint of the complainants is purely a commercial nature. There is absence of relation between consumer and service provider and the complainant is not informed about assessment and survey report to the O.P. and finally prayed for dismissal of complaint.

After hearing both the parties and considering the documents, the Learned District Consumer Forum allowed the complaint and passed the impugned order.

We heard Mr.P.V. Sawant, Advocate for the appellants. None present for the respondents.

The complainant No.1 has filed a letter of subrogation and special power of attorney along with consent letter. The complainant has also placed on record, Certificate given by the O.P./M/s.Ganesh Roadways, wherein it is mentioned that Truck No.HR-30-4703 met with an accident at Devas-Maski Road on 22/06/1994 and due to said accident 209 bottles were broken and 1277 bottles became short. Therefore, they delivered 5740 bottles out of 7200 bottles. It clearly go to show that 1126 bottles were reportedly damaged and the complainant has rightly claimed Rs.41,371/- as compensation. The Forum below has rightly decided that there was deficiency in service on the part of O.P. The Forum below has relied on case law of 1996 (i) CPR-216 (S.C.D.R.C. Rajasthan-Jaipur) in which it is held that in complaint if consigner made a complaint along with Insurance Company and consigner assigned its right to the Insurance Company for payment of compensation, the complainant can file case before the Consumer Fora. The facts in the above case are squarely applicable to the instant case. We ourselves find in agreement with it, therefore, the Insurance Company can file case against M/s.Ganesh Roadways i.e. O.P. Under the circumstances, we find that the order passed by the Forum below is just, proper and sustainable in law. The appeal is devoid of any substance. In the result, we pass the following order :-

-: ORDER :-

1. Appeal stands dismissed.

2. No order as to costs.

3. Copies of the order be furnished to the parties free of costs.

S.C. CASE NO.: FA/2009/336 DATE: 29.12.2009

DATE OF FILING: -07.09.2009

APPELLANT : The Oriental Insurance Company Limited,

Represented by its Manager, Raiganj Branch,

Bidhannagar, Raiganj, Uttar Dinajpur.

RESPONDENT : Sri. Biswajit Banik, S/o Late Ashok Kumar Banik,

Village-Milanpara, P.O. & P.S.-Raigunj,

Dist-Uttardinajpur.


BEFORE: HON’BLE JUSTICE : Sri. Aloke Chakrabarti, PRESIDENT.

MEMBER : Sri. A.K. Ray.

MEMBER : Smt. Silpi Majumder.


FOR THE APPELLANT : Sri. Debasis Bhandari, Advocate.

FOR THE RESPONDENT : Sri. Amitava Bhattacharya, Advocate.

-ORDER-

S. Majumder, Member.


This appeal has been directed against the judgment passed by the Ld. District Forum,Uttar Dinajpur, on 24.07.2009, in its case no-27/2008, wherein the Forum allowing the complaint on contest has directed the OP to pay a sum of Rs.5,48,144.60/- along with a litigation cost of Rs.1000/- and compensation of Rs.10,000/- to the Complainant within a period of 30 days from the date of passing the judgment, failing which the entire amount of Rs.5,49,144.60/- would carry interest @6.5% p.a. till full satisfaction.



The fact of the case of the Complainant is that his six-wheeler vehicle was insured with the OP and on 20.05.2007 there was collision between the said vehicle and another on NH-31 at Samuktala, Jalpaiguri. The vehicle of the Complainant was fully damaged and he lodged a claim for discharge of the amount, which is required for repairing of the damaged vehicle. The Complainant has alleged that he sent one letter along with a list of the parts required for the repairing of the vehicle to the OP on 06.06.2007 and one surveyor was appointed by the OP accordingly for assessing the loss and damage and the surveyor surveyed the condition of the vehicle on 28.06.2007 at the repairing workshop named and style as ‘The Siliguri Motor Body Builders’. In course of investigation of the damaged vehicle the surveyor separated parts by parts of the vehicle and thereby caused further damaged to the vehicle. Inspite of survey of the damaged vehicle, the Op did not come to any settlement. Thereafter the Complainant made several representations stating of his inability to repair his vehicle at his own cost and requested for disbursement of the bill prepared by the garage authority. The OP on the other hand asked for final bill along with money receipt etc, which the Complainant failed to provide, as he had no money to release his vehicle from the garage. The Complainant purchased the said vehicle in the year 2006 on higher purchase scheme and he has to pay a huge amount per month as installment to the Financier. As the settlement of the claim has not been reached between the parties the Complainant filed the complaint before the Forum below praying for direction upon the OP to pay him a sum of Rs.5,66,468/- towards repairing charge of the damaged vehicle along with a compensation of Rs.4,00,000/- as well as other reliefs.



Being aggrieved by the above-mentioned judgment the OP-Appellant has preferred the present appeal before this Commission contending that the Forum below has committed a gross error in granting compensation for a sum of Rs.5,49,144.60/- without supporting any bill and voucher presented neither before the Divisional Manager not to the Surveyor, thereby it is totally illegal in assessing the compensation. The Appellant has further mentioned in the memorandum of appeal that the Forum did not consider the terms and conditions of the Insurance Policy as the claimant is entitled to get compensation only after furnishing the proper money receipt, bill and voucher which ought to have been furnished in support of such settlement of the claim by the Claimant and in the instant case as the claimant did not furnish any papers the insurer is not bound to make any advance payment as per law. The Forum has failed to consider that though the insurer repeatedly requested the claimant to supply full documents with money receipts in support of his claim by issuing several letters, but the Complainant-Respondent never furnished the required documents for settling the claim and with ill motive and without any cogent reason filed the complaint against the insurer. According to the Appellant the judgment passed by the Ld. Forum below is erroneous and liable to be set aside and the Appellant has prayed for dismissal of the present appeal. The Appellant has stated that the complaint is liable to be dismissed on the score in not furnishing the bill, voucher, receipts etc by the Complainant.



It is seen by me on careful perusal of the record that there is no doubt that the present Respondent-Complainant is the owner of the vehicle which was insured with the Appellant-Insurance Company. It is also an admitted fact that the said vehicle got damage due to an accident. After getting information of the accident from the Respondent the Insurance Company appointed a surveyor for assessing the loss and damage of the said vehicle. The surveyor visited the garage where the said damaged vehicle was kept for repairing and made assessment. So it is the only point to decide whether the Respondent is entitled to get the repairing cost of the said vehicle from the Insurance Company or not. It is also to be decided that the Appellant is under obligation to reimburse the bill of repairing cost as per policy condition. I have noticed that the Complainant filed entire documents i.e. 29 documents before the Forum below in favour of his complaint. After examining the said documents the Forum has held that as per the surveyor’s report the value of certain parts of the vehicle is 90% to the maximum and 50% to the lowest and in some cases 100% also. The Complainant made several correspondences with the Appellant to disburse the repairing cost, but to no effect, on the contrary the appellant kept pending his claim for a long period, which in my view is not fair. The Appellant took the plea that due to non-submission of the relevant papers and documents before the Insurance Company, the Appellant was not in a position to settle his claim, but the Appellant has failed to show us any cogent evidence in support of such contention The fact is that after the accident the Complainant informed the Insurance Company and lodged claim by filing entire papers and documents and based on the said claim application the Appellant appointed surveyor to assess the loss and damage, who also assessed the loss. In the meantime the garage owner has prepared a bill in the name of the Complainant. So it is clear to me that nothing was done behind the knowledge of the Appellant. The garage owner raised two bills one for the required parts and other for labour charges i.e. totaling Rs.5,66,468/-. It is evident from the Insurance certificate that the vehicle was insured for a sum of Rs.7,25,000/- and according to the terms and conditions of the commercial vehicle packages the Insurance Company is entitled to deduct depreciation value to a certain percentage according to the year of its make. As per policy the vehicle is of the year 2006 and it faced the accident in 2007 and it is an admitted fact that it was one year old. Considering this the Forum has decided to deduct 5% of the principal amount and I am also agreed with the view as taken by the Forum below. So along with the Forum below I am of the view that the Complainant has been able to prove his case and the OP-Appellant cannot avoid its responsibility to discharge the claim on the ground of non-submission of the documents. In my opinion the Ld. Forum passed a well reasoned judgment and I am inclined to affirm the same as it does not suffer from any infirmity.



Hence it is ordered that the appeal be dismissed on contest without any cost and the judgment passed by the Forum below is hereby affirmed. The office is directed to send down the copy of this judgment to the Forum below and issue the same upon the recorded Advocates/parties free of cost forthwith.

RP No. 118 Of 2009
(Arisen out of order dated 27/07/2009 of Case No 25/2007 of District Cooch Behar DF , Cooch Behar)
1. The Divisional Manager, The Oriental Insurance Co. Ltd. Siliguri Divisional Office, (Allahabad Bank Building) Hill Cart Road. Siliguri., Siliguri Divisional Office, (Allahabad Bank Building) Hill Cart Road. Siliguri.
....Appellant
Versus
1. Prasenjit Chakder. S/O Sitendra Ch. Chakder. PS. Kotwali, Dist. Cooch Behar. , S/O Sitendra Ch. Chakder. PS. Kotwali, Dist. Cooch Behar.

2. Dr. Saswata Ghosh. S.O.J.D. Hospital, C/O Miracal Medicine, S.N. Road. (West) Minibus Stand, PS. Kotwali, Dist. Cooch Behar. , S.O.J.D. Hospital, C/O Miracal Medicine, S.N. Road. (West) Minibus Stand, PS. Kotwali, Dist. Cooch Behar.

3. Dr. Pampi Bhattacharya. C/O Bhattacharya Labotary, Silver Jubilee Road.PS. Kotwali, Po & Dist. Cooch Behar. , C/O Bhattacharya Labotary, Silver Jubilee Road.PS. Kotwali, Po & Dist. Cooch Behar.

....Respondent

BEFORE :
HON'BLE JUSTICE ALOKE CHAKRABARTI , PRESIDENT
MR. A K RAY , Member
MRS. SILPI MAJUMDER , Member

PRESENT: Mr. Prasanta Banerjee., Advocate for the Petitioner 1
None for the Respondent
*JUDGEMENT/ORDER

No. 1/14.12.2009.



HON’BLE JUSTICE SRI A. CHAKRABARTI, PRESIDENT.



Heard Mr. P. Banerjee, the Ld. Advocate for the Revision Petitioner. It appears that by the impugned order the present Revisionist was added as party during pendency of the proceeding on an application after service of copy of the same upon the present Revisionist. The Revisionist did not appear and the application was allowed. This Revisionist was added as a party. The question raised by the Revisionist before us as regards their liability and also maintainability of the proceeding against them. In the facts and circumstances we do not express any opinion on merit on the said contention as the question of addition once was decided upon notice and the same will be decided at the time of final hearing of the proceeding.



With the above observation the revision is dismissed No order as to costs.

APPELLANT : The Divisional Manager,

Oriental Insurance Company Limited,

40/2, Jessore Road, Duck Bunglow More,

P.O. & P.S.- Barasat, Dist-24-Parganas (North).



RESPONDENTS : 1. Smt. Bharati Bose, 278/2, Durgabari Road,

P.O.- New Barrackpore, Dist-24-Parganas (North).



2. The Claim Executive Officer,

Heritage Health Services Private Limited,

Nicco House, 5th Floor, 2, hare Street, Kolkata-700 001.





BEFORE: HON’BLE JUSTICE : Sri. Aloke Chakrabarti, PRESIDENT.

MEMBER : Sri. A.K. Ray.

MEMBER : Smt. Silpi Majumder.



FOR THE APPELLANT : Sri. Prasanta Banerjee, Advocate.

FOR THE RESPONDENTS : 1. Miss. Sumita Roychowdhury, Advocate.





-ORDER-



S. Majumder, Member.



This appeal has been preferred by the OP-Appellant being aggrieved by the judgment passed by the District Forum, 24-Parganas (North), on 16.04.2009, in its case no-68/2007, wherein the Forum below allowing the complaint on contest with cost and directed the OP-1 to pay a sum of Rs.45,666/- along with a n interest @10% p.a. on the claim amount with effect from 01.07.2006 till the date of realization. The Forum has awarded cost of Rs.1000/- in favour of the Complainant payable by the OP-1. The Forum has further directed the OP-1 to pay the aforementioned entire amount within a period of 30 days from the date of communication of the judgment, failing which the Complainant would be at liberty to execute the decree as per provision of law.



The brief facts of the case of the Complainant before the Forum below were that she obtained medical insurance policy from the OP-1 on payment of requisite premium. It was mentioned in the said policy that in case of any query regarding claim the insured would contact with the OP-2. The Complainant suffered from cardiac problem in the last week of March, 2006 and visited local physicians. After thorough investigation and examination the Complainant was advised to report to advanced hospital for better treatment. The Complainant was admitted at R.N. Tagore International Institute of Cardiac Sciences on 17.04.2006. After successful treatment the Complainant was discharged from the Hospital on 19.04.2006. On being released the Complainant applied for mediclaim to the OP-1 who asked the Complainant to report to the OP-2 being the authorized agent of the OP-1 in the matter of settlement of claim and accordingly the Complainant filed her claim to the OP-2. The OP-2 by letter-dated 04.06.2006 addressed to the OP-1 recommended repudiation of the claim of the Complainant on the ground of pre-existing disease. The opinion of the OP-2 was accepted by the OP-1 as final and the Insurance Company formally repudiated the claim of the Complainant and hence the Complainant filed this complaint praying for direction upon the OPs to reimburse her claim and to pay cost and compensation.



In the grounds of memorandum of appeal the Appellant has stated that the Forum has erred to consider that the Complainant suppressed the material facts to the Insurance Company at the time of taking the policy, which has been revealed from the opinion of the doctor. The Complainant has failed to produce any evidence that the disease occurred all on a sudden and she had no problem earlier. The Appellant has further contended that without considering any expert report the Forum has passed its judgment while it was written in the report of Ecocardiography of Rabindranath Tagore International Institute of Cardiac Sciences that ‘severe mitral valve stenosis (Rheumatic). For this reason the disease from which she was suffering and was within her knowledge, had intentionally suppressed the actual statement in the proposal form at the time of obtaining the said policy and hence under exclusion clause no-4.1 the Complainant is not entitled to get any relief. According to the Appellant the judgment passed by the Forum below is not liable to be sustained and it has prayed for allowing the present appeal.



During final hearing none was present on behalf of the Respondent-2 inspite of receipt of notice. So we took up the hearing of this appeal of this appeal exparte against it.



On careful perusal of the record it is seen by me that there is no dispute that the present Respondent-1 purchased a mediclaim policy from the Appellant, which was valid for the period from 28.02.2006 to 27.02. 2007. Within validity of the said policy the Responden-1 being ill due to cardiac problem visited local physicians and after conducting several tests and perusal of the same the Responden-1 was advised to be admitted at R.N. Tagore Hospital for better treatment and accordingly she was admitted on 17.04.2006 and discharged from there on 19.04.2006. Thereafter she filed claim form on 23.05.2006 for medical reimbursement for a sum of Rs.45,666/- as per the policy condition and along with the application she filed all the relevant treatment papers before the Appellant, but the Respondent-2 has repudiated her claim by issuing a letter-dated 04.07.2006 due to pre-existing disease. The Appellant has accepted such view of the Respondent-2 as final and the Appellant formally repudiated the claim of the Complainant. The contention of the Appellant is that the said disease being pre-existing one and the Complainant having deliberately and intentionally suppressed the material fact at the time of taking out the policy the claim was rightly repudiated and in this repudiation there is no laches, negligence and deficiency in service on the part of the Appellant as it has been repudiated after applying its mind and due care. It has contended by the Appellant that as per the opinion of the Respondent-2 the disease of the Respondent-1 has been developed since her early childhood and severe mitral stenosis is a consequence of rheumatic heart disease, which takes long time to develop. The treatment papers were forwarded to Dr.Vineet Kumar Mittal, a panel doctor of the OP-1 by the Insurance Company and in his report Dr. Mittal has stated that ‘after scrutinizing the claim documents it is noted that the claimant was suffering from Rheumatic Heart Disease with severe mitral stenosis and underwent present hospitalization for BMV operation. It is to be noted that rheumatic heart disease is sequel of rheumatic fever in early childhood and the condition RHD itself developed in the late teens and its clinical manifestation is in the form of dyspnoea etc. but this state of severe MS due to RHD could not possibly develop within the period of only 13 months in this 57 years female. The chief complaint of dyspnoea on exertion was not an acute one detecting MS at one go but there must have been previous similar episode requiring medical consultation. The claimant has not furnished any of the previous treatment records. The present condition of RHD with severe MS is pre-existing condition in this just 13 months old policy and the present claim related to its management should be considered as non-admissible one.’



In respect of the opinion given by the panel doctor of the Appellant and repudiation based on the said report I am to say that the present Appellant has failed to produce any such document in support of its argument and repudiation that the Respondent-1 was ever admitted in any hospital in India or consulted any doctor prior to obtaining the policy for treatment of the same ailment. It is evident from the prescription and certificate issued by Dr. Panchanan Shaoo dated 17.06.2006 that the patient suffered from symptoms of rheumatic heart disease, mitral stenosis since 23.03.2006 while the patient reported to Dr.S.C. Roy on the said date for the first time for treatment of certain complications and as per his advise the patient reported to the R.N. Tagore Hospital on 23.03.2006 and admitted to the said Hospital and discharged from there on 17.04.2006 and 19.04.2006 respectively. The OP-1 did not examine the said doctor who treated the patient. It is the policy condition that before acceptance of the proposal form, the intending insured is thoroughly examined by the panel doctor of the Insurance Company and based on the report of the said doctor the Company may or may not accept his/her proposal form. But in this case the Insurance Company has made out no such case that at the time of submission of the proposal form the panel doctor has indicated that the insured was suffering from the said disease. The Appellant –1 has alleged that the insured had intentionally concealed her state of health in the proposal form, but the Insurance Company in favour of its contention has produced no cogent document. I am of the opinion that the Ld. Forum has rightly held that in absence of medical report conducted by the doctor of the Insurance Company it does not appear to be reasonable to infer that the insured suffered from RHD prior to obtaining the policy, so as a matter of fact the nature of ailment appears to be not only unknown to the insured and the insurer but even to the doctor of the Insurance Company. Therefore I cannot agree with the decision in repudiating the claim of the Respondent-1 on the ground of pre-existing disease.



Going by the foregoing discussion I am agree with the decision as taken by the Ld. Forum below as it does not suffer from any infirmity and the Forum below has passed a well reasoned judgment. Hence it is ordered that the appeal be dismissed on contest against the Respondent-1 and exparte against the Respondent-2. The office is directed to send down the copy of this judgment to the Ld. Forum below and issue the same upon the recorded Advocates/parties free of cost forthwith.

APPEAL NO. 365/2008.
Decided on 23/12/2009.

In the matter of:

Shri Mohan Chand Chauhan, S/o Shri Shankar Dass,

Resident of Village Manjholi,

Tehsil Kotkhai, District Shimla (HP).

Appellant.
Versus
The Oriental Insurance Company Ltd.,

Kaithu, Shimla-171003 (HP),

Through its Manager.
Respondent.

Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Member Mr. Chander Shekhar Sharma, Member.

Whether approved for reporting ? Yes.

For the appellant: Mr. Raman Jamalta, Advocate

Vice Mr. Ranvir Chauhan, Advocate.

For the respondent: Mr. J.S. Bagga, Advocate with

Regional Manager of the Insurance Company at Ambala and Mr. Balbir Singh Negi, Senior Divisional Manager at its Shimla office.

O R D E R

Justice Arun Kumar Goel (Retd.), President (Oral).

1. Appellant is aggrieved from the order passed by District Forum, Shimla whereby his complaint No.525/2004 has been dismissed. At the time of hearing it was not disputed that the building of the appellant was insured in the sum of Rs.12.75 lacs, whereas household effects were insured against fire loss in the sum of Rs.2,25,000/-. It is also not in dispute that as a result of the fire on 16.10.2003 the insured building as well as household effects were substantially damaged. On receipt of information, respondent appointed surveyor to carry out preliminary survey and for this purpose Er. Rajneesh Kumar Dhiman (B.E. Mechanical), was appointed. He carried out preliminary survey and his report is Annexure:R-4-A to R-4-F. Thereafter final survey was got done by the respondent from Shri D.K. Gulati of Dee Kay Consultants, Engineers. Again Shri Gulati is a B.E.(Mechanical). Both these surveyors are duly licensed surveyors and loss assessors by the competent authority. Vide Annexure R-6-B, dated 8.7.2004, appellant informed the respondent and submitted his consent letter as desired by the Insurance Company for its consideration, Annexure R-6 dated 9.7.2004 is the consent letter which reads as under:

“With due respect that the survey report for 8,53,117/- Rs. is acceptable to me as insurance claim.”



2. On the basis of the aforesaid consent letter, amount was paid to the appellant and discharge voucher in this behalf dated 9th July, 204, Annexue:R-7, is there.

3 According to the respondent with the payment of this amount, appellant’s claim against it stood fully satisfied as this amount was received in full and final settlement regarding fire which occurred on 16.10.2003.

4. Record of the complaint file shows that after receipt of the amount vide Annexure R-7, appellant got legal notice issued to the respondent explaining the circumstances whereunder he had to accept the amount of Rs.8,53,117/-. This was duly replied to on behalf of the respondent by its Counsel. Its stand as contained in this was, that the amount was received by the appellant in full and final satisfaction of his entire claim without any protest in the presence of witness after being fully satisfied. This notice was sent on 20.7.2004 as is evident from Annexure R-11, and was replied to on 27.7.2004 vide Annexure R-9.

5. In the aforesaid background complaint was lodged by the appellant. Amongst other things, his stand before the District Forum below was, that his entire building was gutted in the fire and it was a case of total loss. His family was on the road without any shelter. Surveyor had assessed the loss that no part of the building was left. Further according to the appellant he was entitled to get the compensation from the respondent as per benefit given in the policy in question, but only half amount was paid which was received by him on the assurance that remaining amount will be paid after settling his claim. Being on the road at that time without any shelter he was in urgent need of money. Therefore, he received the amount offered vide Annexure R-7, but the remaining amount has

been withheld to which he was also entitled to. Respondent had no right, title and interest to pressurize the appellant to receive the inadequate amount which is against the policy. This stand of the complainant was denied by the respondent while dealing with paragraph-4 of the complaint wherein these allegations had been made.

6. In the aforesaid background Mr. Jamalta, learned Counsel for the appellant forcefully urged that his client was in no win situation and it was under compelling circumstances as his family was on the road without any shelter as also the entire household effects having been burnt besides the insured building, it was under these compelling circumstances that he furnished the consent letter Annexure R-6 and as a consequence of it accepted the amount and executed the discharge voucher, Annexure:R-7. Further according to him if either he had not given the consent letter or not accepted the amount pursuant to it, plight of his client can be better imagined than explained. As such it cannot be said that Annexures R-6, R-6/B and R-7 were executed of free will and volition, much less can be said to have been submitted by the appellant voluntarily to the respondent.

7. All these pleas were seriously contested and resisted by Shri Bagga learned Counsel for the respondent. He submitted that appellant is trying to become wiser after having pocketed the money. If this amount was not acceptable to him, he could have very well refused or at least have objected to it at that stage. In these circumstances, according to him, complaint was rightly dismissed by the District Forum below and he prayed for upholding the said order while dismissing this appeal with punitive cost. Further according to Shri Bagga, his client has acted in a very fair, just and reasonable manner when the claim was not only settled but was paid immediately after the appellant had consented and thereafter legal notice was duly replied to by the respondent.

8. Looking to the peculiar facts and circumstances of this case, as also the two survey reports – preliminary as well as final, on which great emphasis was laid by Shri Bagga, on behalf of the respondent, we are satisfied that the submission of Mr. Jamalta is well founded that his client was in no win situation. Reason being that due to fire, his dwelling house, which was insured, was a case of total loss, household effects were also destroyed. In these circumstances, his client had no option but for succumbing to offer made by the respondent by submitting Annexure R-6/B, followed by consent letter Annexure R-6, and discharge voucher Annexure R-7. In this behalf according to him refusal to accept this amount would have multiplied the miseries of the appellant further. Therefore, no benefit can be derived by the respondent from the discharge voucher Annexure R-7, qua its stand regarding full and final settlement of his claim in its entirety. In this behalf dates of these documents assume significance. Annexure R-6/B is dated 8.7.2004. This is accompanied by consent letter, Annexure R-6. Pursuant to it cheque was received by the appellant. The date of the discharge voucher is 9.7.2004. Immediately thereafter i.e. on 20th July, 2004 legal notice was got served by the appellant which was received in the office of the respondent on 21.7.2004. As such submission of Mr. Bagga that the full and final payment was made by his client, vide Annexure R-7, stands repelled. For taking this view reliance is being placed on a decision of the National Commission in the case of United Insurance Company Ltd. – Appellant vs. S. Jagganath Singh – Respondent, 2009 STPL(CL) 1150 NC. Nothing to the contrary has been brought to our notice.

9. A perusal of both the reports of the surveyor also supports the submission of Mr. Jamalta to a large extent, that this was virtually a case of total loss though it has been observed by the final surveyor in Annexure R-5-D that the value of the debris of house was Rs.80,000/-, of other household effects Rs.63,750/- and salvage of household effects was assessed at Rs.1,500/- by him. This supports the claim of the appellant that this is a case of total loss. If the house was in habitable condition and/or the household effects were useable, then in the final surveyor’s report, the above amounts would have been shown accordingly and not as value of debris/salvage that was found at the spot. In the light of these circumstances, we are of the view that this appeal deserves to be allowed. Ordered accordingly.

10. In this case the reports of both the surveyors cannot be accepted on which great emphasis was laid by Shri Bagga, for the respondent for rejection of the appeal. Reason being that admittedly the survey that was to be carried out was in respect of civil works because of the insured house which was gutted due to fire. We are of the view that for assessing loss in such case, a Civil Engineer was the appropriate person who should have been deputed. Whereas not only for preliminary survey, but even for final survey, a Mechanical Engineer was deputed by the respondent. We have no doubt in our mind that the qualification, as well as expertise of a Civil Engineer and of a Mechanical Engineer are totally different. The expertise is not inter-changeable, neither one can be a substitute for the other.

11. There is another reason to reject this appeal. In this behalf reference is being made to a decision of this Commission in Original Complaint No.4/2007 decided on 25.6.2008, M/s. Hotel Woodrina vs. United Insurance Company Ltd.. In this case report of a Mechanical Engineer in respect of civil works was rejected. The order of this Commission was challenged before the National Commission in Revision Petition No.3591/2008. While disposing of this revision, on this aspect, National Commission held as under:-

“…………..Good reasons have been assigned by the State Commission for discrediting the report of Umesh Kumar Sood, Surveyor appointed by the Insurance Company. The State Commission preferred to put credence on the survey report of Mr. Saini who was a Civil Engineer than the report of Mr. Sood who was obviously Mechanical Engineer.



One can take notice of the fact that regard being had to the nature of the job which the survey was required to accomplish, the surveyor should have possessed expertise in the Civil Engineering…………”



12. No other point was urged.

In view of the aforesaid discussion, while allowing this appeal-, it is ordered that the appellant is entitled to be indemnified by the respondent in the following manner:-

a) Against total sum of Rs.12,75,000/- Rs.11,95,000/-

for building: (Rs.12,75,000/- – Rs.80,000/-)



b) For household effects: Rs.1,59,750/-

(Rs.2,25,000/- - Rs.65,250/-)



i.e. to a total sum of Rs.13,54,750/-. The appellant has already received a sum of Rs.8,53,117/-. Thus the balance amount payable by the respondent to the appellant works out to Rs.5,01,633/-, it is on this sum that the appellant is held entitled to interest @ 9% per annum from the date of filing of the complaint, i.e. 23.11.2004 till the date of payment/deposit, whichever is earlier, besides Rs.10,000/- as costs of this appeal as well as of the complaint below.

Ld. Counsel for the parties have undertaken to get copies of this order free of costs as per rules from the Court Secretary.

Appeal No. 18/2009.
Date of Decision 16.12.2009

In the matter of:

The Oriental Insurance Company, Branch Office, Dalhousi Road,

Pathankot, HP through its Senior Divisional Manager, Divisional

Office, Mythe Estate, Kaithu, Shimla-3, HP.

… … Appellant.

Versus

1. Sh. Sunil Kumar son of Shri Ved Prakash Mahajan,

Mahajan Flour Mills, Damtal; deceased through his legal representatives:

(i). Smt. Kiran Mahajan wife of late Shri Sunil Kumar;

(ii). Rahul Mahajan son of late Shri Sunil Kumar;

(iii). Smt. Nitu Mahajan daughter (married) of late Shri Sunil Kumar;

(iv). Smt. Shital Mahajan daughter (Married) of late Shri Sunil Kumar;

(v). Smt. Rajni Mahajan daughter (Married) of late Shri Sunil Kumar;

2. The State of Himachal Pradesh through its Collector, Dharamshala, HP

Registration and Licensing Authority, Hamirpur, HP.



… … Respondents.

Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.

Whether approved for reporting? Yes.

For the Appellant.: Mr. Jagjeet S. Bagga, Advocate

For the Respondents 1(i) to (v): Mr. Dushyant Dadwal, Advocate.

For the Respondent No.2: Mr. Anoop Sharma, ADA.

O R D E R

Justice Arun Kumar Goel (Retd.), President (Oral).

This appeal is directed against the order passed by District Forum, Kangra at Dharamshala, in Consumer Complaint No. 30/2006 on 5.11.2008. While allowing the complaint, appellant has been directed to pay Rs. 53,122/- within 30 days after the receipt of copy of the order failing which this amount is to carry interest @ 9% per annum from the date of complaint (i.e. 20.1.2006), till its realization. In addition to this, appellant has also been directed to pay Rs. 2,000/- as compensation for causing mental pain, agony and inconvenience, besides Rs. 1,000/- as cost.

2. Vehicle bearing registration No. HP-38-5955 being duly insured with the appellant under a valid policy of insurance in the sum of Rs. 2,10,000/- is admitted between the parties. It met with accident on 2.52005. On receipt of information regarding accident, surveyor was appointed by the appellant who according to respondent No.1 assessed the loss at Rs. 1,50,000/-. Joginder Singh was the driver of the vehicle at the relevant point of time when accident took place.

3. Complaint was contested by the appellant mainly on the ground, that the driver Joginder Singh was not holding a valid and effective driving licence at the time of accident. Its further stand was that his licence was fake. In this behalf reliance was placed on the report of the surveyor Shri S.K. Sharma, Annexure OPW-1 as well as on photostat copy of the information given by Licensing Authority, MV Dehradun, (Uttaranchal) Annexure OPW-5. While challenging the impugned order, Mr. Bagga learned counsel for the appellant submitted that District Forum below fell into error by ignoring these documents on purely too technical ground that the originals were not placed on record. Therefore according to him, this appeal deserves to be allowed on this ground alone. This position was seriously contested by Mr. Dadwal, learned counsel for the respondents-claimants.

4. Before proceeding further it may be appropriate to mention here that complaint was filed by late Shri Sunil Kumar. It was decided in his favour. When notice was issued to him in this appeal, it was reported that he had died, as such respondents (i) to (v) were ordered to be substituted in this appeal on the application of the appellant-insurance company.

5. In the light of the above circumstances, Mr. Dadwal learned counsel for respondents (i) to (v) further submitted that deceased owner of the vehicle in question had engaged the driver after satisfying himself with his driving licence, copy whereof is Annexure C-3 on the complaint file. It was not disputed by him that the licence in question had been issued by the Licensing Authority at Dehradun. Though he submitted that it was endorsed for heavy goods vehicle, and was renewed from time to time by the authorities for State of Himachal Pradesh. Further according to Mr. Dadwal, his client was not supposed to go from authority to authority, more especially when the licence was renewed from time to time in the State of HP. In addition to this, driver Joginder Singh was driving the vehicle in question expected of a vigilant and alert driver flawlessly, therefore according to him the impugned order suffers from no infirmity. He thus prayed for upholding the same.

6. This submission according to us is being made on the basis of the decision of Hon’ble Supreme Court in the case of National Insurance Company Ltd. Vs. Swaran Singh & Ors., (2004) 3 Supreme Court Cases 297. However no benefit can be derived from this decision of the Hon’ble Supreme Court, in the face of subsequent decisions of the said court. In this behalf in the case of National Insurance Company Ltd. Vs. Laxminarain Dhut, 2007 (CTJ) 445 (SC) (CP), the controversy has been set at rest, wherein amongst other things while allowing the appeal of the insurance company it has been held that the ratio of the decision in the case of National Insurance Company Ltd. Vs. Swaran Singh (Supra), is applicably only in cases of third party claims and not applicable in the cases of own damage claim as is the situation in the present case. To similar effect are the other decisions of the Hon’ble Supreme Court in the case of National Insurance Company Ltd. Vs. J Maheshwaramma II (2009) CPJ 89 (SC) and United India Insurance Company Ltd. Vs. Davinder Singh, 2008 CTJ 11 (SC)(CP).

7. We may also observe in this behalf what is fake will not become valid by its renewal as was submitted by Mr. Dadwal while praying to uphold the order of the District Forum below. In our opinion fake document has no existence in the eyes of law. In fact it is non-est. And its such character is not taken away by any subsequent act like renewal of licence in the present appeal. Once this conclusion is arrived at, then the decision of this appeal need not detain us.

8. Faced with this situation Mr. Dadwal, drew our attention to the affidavit of Mr. Er. Aruneesh Gautam, Investigator which is at page 25 of the complaint file Ext. OPW1-5, and submitted that the licence being fake has not been stated in this affidavit. This is factually correct. A perusal of this affidavit shows that he has only verified the renewal of licence from Registering and Licensing Authority, RTO, Hamirpur and his report is Ext. O-3. At the risk of repetition in this behalf it may be noted that Mr. S.K. Sharma, surveyor in Ext. OPW1-4 has clearly stated that LA, Department, Dehradun stated that the licence in question Annexure OP1-4 and Annexure OP1-5, that driving licence No. 15736/D/94 was not issued from that office in the name of Joginder Singh.

9. Again we are constrained to observe here that it is not the case of the respondent that there was any other licence besides Annexure C-3 issued by the Licensing Authority, Dehradun, as such no benefit can be derived by respondents (i) to (v) from the affidavit of Mr. S.K. Sharma on which great emphasis was laid by Mr. Dadwal.

10. No other point is urged.

In view of the aforesaid discussion there is no escape but for allowing this appeal. Ordered accordingly, and as a result of it while allowing this appeal the order passed by District Forum Kangra, at Dharamshala in Consumer Complaint No. 30/2006, on 5.11.2008 is set aside and as a result of it, the said complaint is dismissed, leaving the parties to bear their own costs.

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Learned counsel for the parties have undertaken to collect copy of this Order from the Court Secretary free of cost as per rules.

FIRST APPEAL NO.358/2008.

DATE OF DECISION: 10-12-2009.
In the matter of:

Oriental Insurance Company Limited, Mythe Estate, Kaithu, Shimla-3 through its Divisional Manager.

… … Appellant.

Versus
M/S Krishna Coal Company, near HPMC Bridge Parwanoo, Tehsil Kasauli, District Solan, H.P. (A partnership firm through its one of the partner Sh. Yoginder Pal Sood S/O late Sh. Raghu Nath Sood.

… … Respondent.
Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekhar Sharma, Member.



Whether approved for reporting? No



For the Appellant: Dr. Lalit Sharma, Advocate, with

Ms Anupma Sharma, Advocate.

For the Respondent. Mr. Vivek Negi, Advocate.

O R D E R
Justice Arun Kumar Goel (Retd.), President (Oral),

M.A. No.825/2008.



1. This is an application for condonation of delay in filing the appeal as it is barred by time.



2. As per averments made in the application, Consumer Complaint No.131/2005 was decided on 22.8.2008 by the District Forum, Solan. Copy was supplied on 26.9.2008. It was sent by the Counsel to its Branch office at Solan on the same day. Before noting other facts set out in this application, we may point out that till 26.10.2008 appeal could be maintained and if 26th happened to be a holiday it could be filed on the very next day i.e. 27.10.2008 under law. Appellant was not supposed to say anything upto the last date of limitation because till then it had a right and could file the appeal. Thus, it is only after 26/27th October, 2008 that a reasonable explanation is required from the appellant making out sufficient cause so as to enable us to consider its prayer for condoning delay in filing the appeal. Branch Office sent the file to the Divisional office on 30.9.2008. After having been processed the case, it was decided to refer the matter to the Regional Office at Ambala, as such it was sent to the said office on 10.10.2008. Strangely enough, from 10.10.2008 to 20.11.2008, the matter remained pending at Ambala Regional Office of the appellant. How it was dealt with and why delay was there after 26/27.10.2008, there is not a murmur in this application muchless any plausible cause given in it. File was sent to the Counsel for the purpose of filing appeal on 20.11.2008. Appeal has been filed on 2.12.2008. In this background, a prayer is made for condonation of delay in filing the appeal.



3. This application is seriously contested and resisted on behalf of the respondent. According to it, application makes out no cause, much less a sufficient cause for condonation of delay. According to the respondent, right has accrued to it by lapse of time on the part of the appellant. Its further stand is that this is a case of deliberate inaction on the part of the appellant in not filing the appeal within time. It is claimed by the respondent that from 20.11.2008 till the date of filing the appeal i.e. 2.12.2008 also, delay has not been explained. According to it, on the totality of the facts and circumstances as set out in the application as well as in the rejoinder filed in reply to the application for condonation of delay, this application deserves to be dismissed as facts even remotely do not make out a case for allowing this application. He thus prayed for accordingly.



4. We are alive to the situation that while considering prayer for condonation of delay, too technical as well as pedantic approach is not to be adopted by the Courts. We are sanguine of the fact, that a litigant does not stand to gain by filing a time barred lis. At all times, approach of the Court has to be justice oriented with a view to set at rest the controversy between the parties for all times to come. However, in order to enable the Court to consider its prayer for condonation favourably, a litigant like appellant in this appeal is expected to plead and place on record sufficient facts as well as other material for making out sufficient cause for its condonation. How the matter was dealt with after 26/27th October, 2008 till 20.11.2008 and thereafter between 20.11.2008 to 2.12.2008, there is no explanation any whatsoever and also no cause, much less sufficient cause shown in the application and the rejoinder filed by the appellant. Thus on the basis of material placed on record in support of M.A. No. 825/2008, we are satisfied that this application does not disclose sufficient cause for condoning the delay in filing the appeal. For taking this view, we place reliance on a Four-Member Bench decision of the National Commission in the case of Catvision Products Limited Versus Nagpur Entertainment and News Network and Another, 2005 (1) CPC 357 and of the Hon’ble Supreme Court in P.K. Ramachandran Versus State of Kerala and another, AIR 1998 SUPREME COURT 2276. We are alive to the earlier decision of the Hon’ble Supreme Court in the case of Collector, Land Acquisition, Anantnag and another Versus Mst. Katiji and others, AIR 1987 SUPREME COURT 1353. However, both the decisions i.e. of 1987 and 1998 being by Co-ordinate Benches, so on the question of judicial propriety and discipline, latter decision needs to be followed. That being the position, we are of the view that this application for condonation of delay is liable to be dismissed. Ordered accordingly.



Appeal No.358/2008



Since the delay in filing the appeal has not been condoned, therefore this appeal is ordered to be consigned to records as time barred.



All interim orders passed from time to time in this appeal stand vacated forthwith.



Learned Counsel for the parties have undertaken to collect copy of this order free of cost as per rules from the Court Secretary.

F.A.No.742 OF 2007 AGAINST C.C.NO.426 OF 2002 DISTRICT CONSUMER FORUM KURNOOL

Between

The Secretary,
The Primary Agricultural Co.Op Credit Society
Bedinehal Village, Kowthalam Mandal,
Kurnool Dist.
Appellant/opposite party no.2

A N D

1. Smt Boya Basamma W/o late Boya Dubbanna @ Eranna
R/o Thovi Village, Yeregeri Post, Kurnool District

Respondent/complainant

2. The Divisional Manager,
Oriental Insurance Co. Ltd.,
Kurnool
Respondent/opposite party no.1



Counsel for the Appellants Sri M.Venkata Ramana Reddy
Counsel for the respondent No.1 Sri S.Raj Kumar

Counsel for the Respondent No.2 Served
F.A.No.839 OF 2007 AGAINST C.C.NO.426 OF 2002

Between
Smt Boya Basamma W/o late Boya Dubbanna @ Eranna
R/o Thovi Village, Yeregeri Post, Kurnool District

Appellant/complainant

A N D
1. The Divisional Manager,
Oriental Insurance Co. Ltd.,
Kurnool



2. The Secretary,
The Primary Agricultural Co.Op Credit Society
Bedinehal Village, Kowthalam Mandal,
Kurnool Dist.


Respondents/opposite parties



Counsel for the Appellants Sri S.Raj Kumar
Counsel for the respondent No.1 Served

Counsel for the Respondent No.2 Sri M.Venkata Ramana Reddy



QUORUM:

THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT

&

SRI R.LAKSHMINARSIMHA RAO, MEMBER



WEDNESDAY THE SECOND DAY OF DECEMBER

TWO THOUSAND NINE



Oral Order ( As per R.Lakshminarsimha Rao, Member)
***



These two appeals arise out of the order passed in C.D.No.426 of 2002 by the District Forum Kurnool. The opposite party no.2 has preferred F.A.No.742 of 2007 whereas the complainant filed F.A.No.839 of 2007.

Briefly stated the facts of the case are that the husband of the complainant Boya Dubbanna @ Erranna during his life time was a member of the opposite party no.2 society. The opposite party no.2 obtained Group Insurance Policy for coverage of risk for a sum of Rs. One lakh each to its Members. The husband of the complainant died on 2.9.2001 due to snake bite. The complainant being the nominee of her husband under the insurance policy lodged claim by submitting a certificate issued by Grampanchayat along with other relevant documents through the opposite party no.2 to the opposite party no.1.The matter was not reported to the police nor any case was registered as the death was not a medico-legal case. The complainant has got issued notice through her Advocate on 4.7.2002. The opposite party no.1 had given reply denying its liability.

The opposite party no.1 filed written version contending that the complainant failed to submit claim form within one month from the date of death of her husband. According to the terms of the policy the claim will be settled subject to submission of claim form, FIR, Panchanama report of Postmortem examination, a certificate from Government doctor, list of members, GL Number, Loan Account No., and chemical analysis report etc. The complainant failed to submit the documents. The complainant has not intimated about the death of her husband on or before 2.10.2001. The opposite party no.1 is not liable to pay any compensation to the complainant in the absence of lodging any claim.

The opposite party no.2 resisted the claim. It was contended that the complainant has not submitted the relevant documents along with the claim form. The complainant has not produced any evidence to show that her husband died in an accident. The opposite party no.2 had forwarded the claim to the opposite party no.1. The opposite party no.1 made correspondence with the opposite party no.2 for furnishing of relevant document. The opposite party no.2 informed the complainant to submit the document required by the opposite party no.1. The complainant has not submitted FIR, PME report, Chemical Analysis Report to the opposite partyno.1. Therefore, the opposite partyno.1 repudiated the claim of the complainant. There was no fault on the part of the opposite party no.2. The opposite party no.2 is a society registered under the societies Registration Act; any dispute between society and its members will be settled before a Cooperative Tribunal only.

The complainant has filed her affidavit as also the affidavits of Boya Erranna and G.Narsappa. Exs.A1 to A4 have been marked on her behalf. On behalf of the opposite parties Exs.B1 to B5 are marked.

The District Forum has allowed the complaint against the opposite party no.2 directing it to pay a sum of Rs.one lakh with costs.

The opposite party no.2 has filed the appeal contending that the complainant has not submitted relevant certificates as stated in the Janata Personal Accident Insurance Policy as also that the District Forum earlier dismissed the case holding that there was no deficiency in service on the part of the opposite parties no.1 and 2. Further, it is made a ground of appeal that the opposite party no.2 informed the opposite party no.1 about the death of the husband of the complainant. The complainant had not submitted the documents as required by the opposite party no.1.

The complainant has filed the appeal contending that the District Forum had erroneously dismissed the complaint against the opposite partyno.1.

The point for consideration is whether there had been mis-appreciation of fact or law by the District Forum?

The case of the complainant is that her husband Boya Dubbanna was a member of the opposite partyno.2 society in whose favour as also the other members, the opposite partyno.2 obtained a Group Janata Personal Accident Insurance Policy from the opposite party no.1. The husband of the complainant died on 2.9.2001. According to the complainant he died due to snake bite. Ex.A4, death certificate issued by Mandal Revenue Officer, Kowthalam, Kurnool Dist. evidences snake bite as the cause of death of the husband of the complainant. The complainant informed the opposite party no.2 immediately with a request to pay the benefits under the insurance policy. In addition to the certificate issued by the Mandal Revenue Officer, Kowthalam, the complainant has filed the affidavits of G.Narsappa and Boya Erranna to lend support to her contention that her husband died due to snake bite. Eranna and Narsappa stated that Dubbanna died due to snake bite as also that no FIR was lodged nor any postmortem or inquest conducted in view of the fact that he died due to snake bite. Therefore, we are inclined to accept the contention of the complainant that her husband died due to snake bite.

The contention of the opposite party no.2 is that they have informed the opposite party no.1 about the death of the complainant’s husband. In this regard, letter dated 22.9.2001 shows that the opposite party no.2 informed the complainant that the opposite partyno.1 required them to submit death certificate, certificate issued by the doctor, inquest, report of PM examination, medical bills and chemical analysis report. Prior to the date of Ex.B5, the opposite party no.2 issued letter dated 3.9.2001 requesting for submission of the documents referred to in Ex.B5.

In compliance of the request of the opposite partyno.2, the complainant has submitted death certificate issued by the Mandal Revenue Officer, Kowthalam and expressed her inability to produce the other documents in view of the fact that no FIR was lodged nor inquest and PM were conducted on the body of her husband for the reason that he died due to snake bite. It is incumbent on the part of the opposite party to forward the document as also any message received from the complainant to the opposite party no.1 for settlement of her claim. The opposite partyno.2 has not submitted the death certificate nor conveyed the statement of the complainant that other documents except the death certificate could not be produced on account of her husband meeting his end not for any other reason except on account of a cause which is a snake bite. The opposite party no.2 had committed deficient service by retaining the document with them and thereby making the opposite party no.1 incapable of settling the claim. The opposite party no.1 cannot be fastened with the liability in the absence of any deficiency in service on its part. The District Forum has rightly allowed the complaint fixing liability on the opposite partyno.2. We do not find any reason to interfere with the well reasoned order of the District Forum.

In the result F.A.No.742 of 2007 filed by the opposite party no.2 is dismissed. Time for compliance four weeks. F.A.No.839 of 2007 is also dismissed. No costs.

Appeal No. 39/2009.

In the matter of:

M/s Gurpreet Traders Mahajan Bazar Mandi Town,

District Mandi, HP through its partner Sh. Sukhvinder

Singh son of Sh. Gurbachan Singh R/o Ram Nagar,

Mandi, Town, Mandi, HP.

… … Appellant.

Versus

The Oriental Insurance Company Ltd., through

Divisional Manager, Hospital Road, Mandi Town, Mandi, HP.

… … Respondent.

Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekhar Sharma, Member.

Whether approved for reporting? No.

For the Appellant: None.
For the Respondent. Mr. Anil Tomer, Advocate vice counsel

Mr. Narinder Sharma, Advocate.

O R D E R
Justice Arun Kumar Goel (Retd.), President (Oral).

This appeal is directed against the order passed by District Forum Mandi, in Consumer Complaint No. 92/2008, dated 31.12.2008. By means of impugned order while partly allowing the complaint filed by the appellant, respondent has been directed to indemnify the appellant in the sum of Rs. 1,71,606/- as assessed by the surveyor. This amount stands already paid, as is evident from the order of the District Forum below. Interest has been allowed on this sum from 2.4.2008, i.e. the filing of the complaint, till 2.12.2008 when payment was made.

2. Respondent is satisfied with this order passed by the District Forum below as it has not challenged the same. Appellant has filed this appeal for enhancement of compensation.

3. On the intervening night of August 11 and 12,2007, godown of the appellant inundated due to flood in Suketi Khad. Stock-in-trade in it being insured in the sum of Rs. 4 lacs is not in dispute. As a result of the flood, articles like rice, sugar, jaggery etc. having been badly damaged is also established on the basis of material produced by both the parties. As such we are not noting other facts, and those having been noted in detail in the order of District Forum below. Besides this, only question involved in this appeal is whether the compensation awarded by District Forum below needs to be enhanced or not.

4. According to the appellant, he had sustained loss to the extent of Rs. 2,57,784.05 paise. He had given the particulars of this loss in the comparative statement of actual quantity damaged with rates and quantity and the rates assessed by the Oriental Insurance Company Ltd., District Forum below while considering the case set out by the parties, has placed reliance on Annexure R-4, the report of the Surveyor, M/s Kumar Raj & Associates–Chartered Accountant, as well as on the affidavit of Sh. R.K. Bhola, Prop. of this concern. This affidavit is at pages 55 and 56 of the complaint file. Another affidavit of Er. Vishal Kumar Gautam, who had carried out preliminary survey after having been deputed by the insurance company is also there on file.

5. Chartered Accountant in his report Annexure R-4, has disallowed cost of 1 quintal of rice, the amount of VAT Rs. 9275/-. He has allowed 5% of average rate etc., and thereafter deducted 2.5% for dead stock, as well as another 2.5% for the possible variance of rates. Finally after applying less clause as per policy, he has worked out at Rs. 1,71,987/- this amount has been allowed by the District Forum below and was paid on 2.12.2008 to the appellant.

6. From the material on record damage having been caused, as already observed is clearly proved. On what basis Rs. 9275/- the VAT amount, as well as Rs. 1800/- has been disallowed there is no reason assigned by the surveyor. In the like manner, on what basis 2.5% for dead stock, as well as for possible variance of rates identical amount has been ordered to be deducted. We are unable to find anything muchless any reason/ground from the report of the surveyor. Unless we find some reason in the report to uphold it we can’t accept his ipsi-dixit.

7. We specifically called upon learned counsel for the respondent-insurance company to justify these deductions. He could not satisfy us. Only answer given by him was that expert’s opinion needs to be accepted. Suffice it to say in this behalf, that surveyor is an expert in the branch of assessment of compensation. He is expected to give reasons to support his conclusions, howsoever brief those may be. There is no reasons given by the expert i.e. Sh. R.K. Bhola, Chartered Accountant in this case in support of his report Annexure R-4. In these circumstances, we are of the view that the impugned order deserves to be modified and compensation deserves to be enhanced. Ordered accordingly.

In view of the aforesaid discussion while allowing this appeal the compensation is enhanced from Rs. 1,71,987.05 to Rs. 2,01,966/-, out of this sum of Rs. 1,71,606/- had already been received by the appellant on 2.12.2008, thus now a sum of Rs. 30,360/- as principal is payable by the respondent to the appellant. Interest @ 9% per annum would be payable on the sum of Rs. 2,01,966/- from 2.4.2008 to 2.12.2008 and thereafter interest payable will be on the sum of Rs. 30,360/- from the date of filing of the complaint, i.e. 2.4.2008, till the date of payment/deposit whichever is earlier. Order of District Forum, Mandi in Consumer Complaint No. 92/2008, dated 31.12.2008 is modified in these terms. Appeal is disposed of subject to these terms, leaving the parties to bear their own costs.

Learned counsel for the respondent has undertaken to collect copy of this order from the Court Secretary free of cost as per rules, and office is directed to send the same to the appellant in the like manner.

Appeal No. 108/2009.

Date of Decision 5.1.2010.

In the matter of:

Shri Vijay Ram son of Shri Lakhu Ram R/o Samog,

Post Office Namhol, Tehsil Sadar, Distt. Bilaspur, HP.

… … Appellant.

Versus

1. The Oriental Insurance Company Limited, Main Market,

Bilaspur, Distt. Bilaspur, Himachal Pradesh, through its Branch Manager,

2. The State Bank of India, Branch Office Namhol, Tehsil Sadar,

Distt. Bilaspur, HP through its Branch Manager.

… … Respondents.

Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.

Whether approved for reporting? No.

For the Appellant.: Mr. Jai Dev, Advocate vice counsel

Mr. Tara Singh Chauhan, Advocate.

For the Respondent No.1. Mrs. Seema Sood, Advocate.

For the respondent No.2 None.

O R D E R

Per Mr. Chander Shekher Sharma, Member.


This appeal is directed against the order passed by District Forum, Bilaspur, in Consumer Complaint No. 12/2007, decided on 18.2.2009 whereby the complaint of the appellant was allowed and respondent No.1-insurance company was directed to pay a sum of Rs. 1,00,000/- (one lac) to the appellant with interest @ 9% per annum from the date of filing of the complaint, i.e. 17.1.2007 till realization. Besides this, litigation cost has also been quantified at Rs. 2000/-.

2. Facts of the case as they emerge from the record are, that the appellant got his house insured for sum of Rs. 3 lacs situated at village Samog, Tehsil Sadar, District Bilaspur with respondent No.1. This policy was effective w.e.f. 4.2.2005 to 3.2.2015. This was a Standard Fire and Special Perils Policy. On 17.1.2006 there was heavy rain and lightening, due to which the house of the appellant was badly damaged and some portion of the lintel of the insured house was damaged, heavy cracks being developed due to earthquake. Thereafter the appellant lodged claim with the respondent who had repudiated the same on the ground that the appellant has not used the proper mixture in the building and due to improper ratio of R/R Masonry used during the construction of slab as the mixture contained high ratio of sand in comparison to standard ration normally used, thus the claim is not covered under the fire policy. In this background complaint under Section 12 of the Consumer Protection Act, 1986 was filed by the appellant.

3. Respondent No.1 contested and resisted the complaint before the District Forum below on the ground, that there is no deficiency of service on its part, since building was not damaged due to earthquake/heavy rains, but due to improper ratio of R/R masonry used during the construction of the slab, as there was high ratio of sand in comparison to standard ratio normally used.

4. Appellant in support of his case filed his own affidavit and also placed reliance upon various documents Annexures C-1 to C-8, photographs Annexure C-9 (1 to 4), and also affidavits of S/Sh. Kamlesh Sharma and Jai Lal, Annexures C-10 to C-12

5. Respondent in the present case placed reliance upon the averments made in the reply which is duly supported by affidavit of Balbir Singh, its Divisional Manager, and tendered various documents Annexures R-1 to R-4, besides photographs Annexure RV-1 to RV-15.

6. We have heard learned counsel for the parties and have also gone through the record of the case file minutely.

7. Mr. Jai Dev learned counsel for the appellant argued, that the District Forum below had not rightly appreciated the evidence on record and awarded a very less sum of Rs. 1 lac, whereas he should have been awarded sum of Rs. 2,15,000/-. Thus per him there is sufficient evidence on record for making enhancement of compensation in this appeal.

8. On the other hand Mrs. Seema Sood, learned counsel for respondent No.1 argued that no case for enhancement is made out and the sum awarded by the District Forum below is also on higher side and prayed for dismissal of the appeal as well as complaint.

9. After hearing the learned counsel for the parties, as well as after going through the record of the case, we are satisfied that the order of the District Forum below does not suffer from any infirmity as it had rightly awarded a sum of Rs 1 lac alongwith interest @ 9% from the date of filing of the complaint till its realization after due appreciation of evidence on record which is just and reasonable amount. No case of enhancement in this appeal is made out. Reason being that as per Annexure C-5 which is report of Engineer K.K. Sharma which is duly supported with his affidavit Annexure C-11, that total damage has not been caused to the building. To the contrary the appellant has not placed on record the detail of actual expenditure incurred by him on the construction of building.

10. In the present case appellant No.1 had also filed the appeal before this Commission against the impugned order which was dismissed on 30.9.2009 as per order in Appeal No. 97/2009.

11. No other point was urged.

In view of the aforesaid discussion, we find no reason to interfere with the well reasoned order passed by District Forum, Bilaspur in Consumer Complaint No. 12/2007, decided on 18.2.2009 and the same is upheld, leaving the parties to bear their own costs.

Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.