APPEAL NO: 228/2008


M/s. Suvidha Medical Store

Hanuman Market, Phoolbagh chowk

Tanghatal Bhiwadi, Distt. Alwar

through Prop. Lalit Arora.

Complainant-appellant


Vs.


1. The New India Assurance Co. Ltd.

Br. Bhiwadi, Distt. Alwar.

2. Bank of Baroda,

Bhiwadi, Distt. Alwar.

Opposite parties-respondents


Date of judgment 8.7.09


Before:

Mr.Justice Sunil Kumar Garg-President

Mrs.Vimla Sethia-Member


Mr. Ajay Tantia counsel for the appellant

Mr.Amarnath Pareek counsel for respondent no.1

None present for respondent no.2


BY THE STATE COMMISSION


This appeal has been filed by the complainant appellant against order dated 21.9.07 passed by the District Forum, Alwar in complaint no. 563/02 by which the complaint of the complainant appellant was dismissed.

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2. It arises in the following circumstances-


That the complainant appellant had filed a complaint before the District Forum, Alwar on 9.12.02 inter alia stating that his medical store was got insured with respondent no.1 Insurance company for the period 1.11.2000 to 31.10.01 for a sum of Rs. 5 lacs and risk from fire and theft was covered under the policy. It was further stated in the complaint that since a theft had taken place in the shop of the complainant appellant on 25.8.01 and for that a report was lodged by the complainant with the Police Station Bhiwadi bearing FIR no. 202/01 on 26.8.01 and police had submitted FR bearing no. 87/01 inter alia stating that culprists were not found traceable and since due to theft the complainant had suffered loss to the tune of Rs. 1,28,000/-, therefore, claim was preferred by the complainant appellant before the office of respondent no.1 but that claim was repudiated by the respondent Insurance Co. through letter dated 14.8.02 in the following manner-


" Insured noncomplying with formalities as per surveyor"


Thereafter the present complaint was filed.


A reply was filed by the respondent no.1 before the District Forum, Alwar on 3.3.03 and they have taken the same pleas which were taken by them in the repudiation letter dated 14.8.02. Apart from that it was stated that the surveyor Mr. Rajendra Arya was appointed by respondent Insurance Co. who had submitted his report on 10.8.02 in

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which he had come to the conclusion that the complainant appellant had manipulated the accounts and he was not convinced that the loss was due to burglary. It was further stated in the reply that since Jagdish Chand Arora, the father of the complainant appellant had withdrawn the claim through Consent Letter dated 5.8.02, therefore, on both counts claim was not payable and it was prayed that complaint be dismissed.


After hearing the parties, the District Forum, Alwar through impugned order dated 21.9.07 had dismissed the complaint inter alia holding that since the father of the complainant appellant had given a consent for withdrawal of the claim, therefore, claim was not payable to the complainant.


Aggrieved from the said order dated 21.9.07 passed by the District Forum, Alwar this appeal has been filed by the complainant appellant.


3. In this appeal the main contention of the learned counsel for the appellant is that the findings recorded by the District Forum are erroneous one as the proprietor of Suvidha Medical Store is Lalit Arora and not his father Jagdish Chand Arora and if any consent was given by Jagdish Chand Arora, the father of the complainant, that had no meaning and further repudiation letter dated 14.8.02 is silent on the consent letter and the claim was repudiated by the respondent Insurance Co. as stated above and the District Forum had committed serious error and illegality in dismissing the claim as stated above. Hence the impugned order


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could not be sustained and liable to be quashed and set aside and this appeal be allowed.


4. On the other hand the learned counsel for the respondent Insurance Co. has supported the impugned order passed by the District Forum, Alwar.


5. We have heard the learned counsel appearing for the appellant as well as for respondent no.1 and have gone through the entire materials available on record.


6. In our considered opinion, taken into consideration the fact that the consent letter dated 5.8.02 was given by Jagdish Arora, the father of Lalit Arora and not by the insured person and further if for the sake of argument it was found that the claim had been exaggerated, even then the surveyor must have come to some conclusion about the loss and therefore, rejection of the claim on the ground that formalities were not made by the complainant appellant could not be said to be justified ground.


7. When this being the position, the impugned order dated 21.9.07 passed by the District Forum, Alwar could not be sustained and liable to the quashed and set aside and further an opportunity should be given to the respondent Insurance Co. to consider the claim of the complainant appellant afresh.


8. For the reasons stated above, the respondent Insurance Co. were not justified in repudiating the claim of the complainant appellant and the respondents have repudiated the claim of the complainant appellant without any basis and on wrong assumption

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and in an arbitrary manner and in view of this, the findings of the District Forum dismissing the complaint of the complainant appellant could not be sustained as they suffer from basic infirmity, illegality and perversity. Hence, this appeal deserves to be allowed and the impugned order is liable to be quashed and set aside .


9. Accordingly, this appeal filed by the appellant complainant is allowed and the impugned order dated 21.9.07 passed by the District Forum,Alwar is quashed and set aside and directions are given to the parties in the following manner-


(i) That the complainant appellant would submit a fresh claim alongwith relevant documents before the office of respondent no.1 within one month from today.


(ii) That thereafter the respondent Insurance Co. would pass appropriate orders on the claim of the complainant respondent after giving opportunity of hearing to the complainant appellant.


(iii) That the respondent Insurance Co. would decide the claim within three months from the date of presentation of the claim by the complainant appellant.


(iv) That in case the complainant appellant is not satisfied with the order passed by the respondent Insurance Co., he would have a fresh cause of action to file a fresh complaint.



Member President