H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA

Appeal No. 392/2008.

Date of Decision 22.5.2009.

Oriental Insurance Company Ltd. Mythe Estate Kaithu,

Shimla-3 through its Divisional Manager.

……..Appellant.

Versus



Moti Ram S/o Shri Chhatta Ram R/o Village Pujarli No.4,

Sub Tehsil Tikkar, District Shimla, HP.

…….Respondent.

Hon’ble Mr. Justice Arun Kumar Goel, President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether Approved for reporting? No.



For the Appellant. Dr. Lalit K. Sharma, Advocate.



For the Respondent. Mr. B. N. Sharma, Advocate.





O R D E R:



Per Mr. Chander Shekher Sharma, (Member)



This appeal is directed against the order of District Consumer Disputes Redressal Forum, Shimla in Consumer Complaint No. 27/2006 dated 11.11.2008 whereby the District Forum below has allowed the complaint of the respondent (Banka Ram) and directed the appellant-Insurance Company to indemnify the respondent to the extent of Rs. 8 lacs being sum insured alongwith interest @ 9% per annum with effect from the date of filing of the complaint, i.e. 17.1.2006 till making full payment of the aforesaid amount. In addition to this appellant-Insurance Company was also burdened with litigation costs of Rs. 3000/-. Hence this appeal.

2. Facts of the case are within narrow compass. Respondent who was owner of three storied residential house situated at village Pujarli, Sub The Tikkar, District Sirmaur had got insured his house alongwith household articles with the appellant-Insurance company for a sum of Rs. 8 lacs, vide policy No. 11/2005/3002. Risk covered was from 23.3.2005 to 22.3.2006. Record further shows that on 12.4.2005 the insured building and household articles were completely reduced to ashes in a fire which broke out in the said house, as such the present complaint was filed to indemnify the respondent to the tune of Rs. 8 lacs alongwith 18% interest from the date of filing of the complaint till realization and in addition to this compensation amounting to Rs. 60,000/- was also claimed for illegal withholding of the insured amount.

3. Appellant-Insurance Company contested and resisted the complaint by not accepting the claim submitted by the respondent on the ground that it was on the higher side. Respondent relied upon the report of the surveyor who assessed the loss to the tune of Rs. 1,66,550/-.

4. The brief resume of evidence led by the appellant/respondent in nutshell will now be discussed. Appellant in support of his case has led evidence by way of affidavit of Shri B.S. Negi, Divisional Manager and report of surveyor Annexure R-1, policy schedule Annexure R-2 and letter dated 17.2.2005 Annexure R-3 addressed to respondent by the appellant.

5. Respondent in the present case has placed on record his own affidavit and has also relied upon copy of insurance policy cover Annexure C-1 which reveals that he had insured his house for Rs. 7 lacs, and the household articles for a sum of Rs. 1 lac, total Rs. 8 lacs. Annexure C-2 newspaper clipping, Annexure C-3 report of patwari halqua relating to the loss sustained by the respondent to the tune of Rs. 8,36,600/-, Annexure C-4 copy of the jamanandi for the year 2003-2004. Annexure C-5 is tatima. Respondent has also placed on record Annexures C-6 to C-9 letters sent by the appellant to him, Annexure C-10 report regarding fire incident which was made to the police, PP Tikkar. Annexure C-11 certificate of Fire Officer, Annexure C-12 list of articles which were gutted in the fire, alongwith their costs. This has been duly countersigned by the SDM, Rohru. Annexure C-13 copy of certificate issued by patwari hulqua wherein it has been reported that the house of respondent was built over khasra No. 296 at village Tikar (Pujarli). Annexure C-14 is the abstract cost of the house of respondent which was assessed to the tune of Rs. 12,78,125/- by the Assistant Engineer (B & R) PWD.

6. We have heard the arguments of learned counsel for the appellant Dr. Lalit K. Sharma and Mr. B.N. Sharma learned counsel for the respondent.

7. Dr. Sharma has laid great emphasis, that District Forum below has not at all discussed the report of the surveyor Annexure R-1 in its order which was a valuable piece of evidence and in support of his contention he has also placed reliance on a decision of National Commission in the case of Atul Nanda & Anr. Vs. Reserve Bank of India & Ors., III (2008) CPJ 159 (NC). Per him the respondent has insured the two storied building, whereas the building gutted into fire was of three storied. Dr. Sharma further submitted that the house was old one which was of “DHAJJI”, wall and the claim submitted by the respondent was exaggerated one and as per him jewellery, television and tool equipments which have been destroyed in the fire are beyond the scope of cover of the policy. He further submitted that the respondent is not the sole owner of the house and it is in joint ownership of three brothers.

8. On the other hand learned counsel for the respondent has forcefully argued that the claim which has been submitted by his client has been duly verified by the Revenue Authorities and as per report of the patwari halqua Annexure C-3 loss of Rs. 8,36,600/- has been sustained by his client and the entire house alongwith household articles was reduced to ashes due to fire. Mr. B.N. Sharma also strenuously argued, that the report of surveyor Annexure R-1 cannot be relied upon since it is not supported by reasons.

9. After hearing the arguments of both the parties, as well as after going through the record of the case, we are convinced that the order of the District Forum below does not suffer from any infirmity and thus it calls for no interference and there is no force in the argument of learned counsel for the appellant. Reason being that the surveyor in his report Annexure R-1 has not spelt out what was the life span and what was the age of the building in question when it was gutted into fire. Suffice it to say in this behalf, that when the building was insured vide Annexure C-1, the Insurance Agent/Development Officer of the appellant-Insurance Company was duty bound to have satisfied himself about the nature of the building and its quality of construction and after being satisfied regarding both he was to undertake the insurance in the sum of Rs. 7 lacs qua the building and Rs. 1 lac for the household articles. As such the appellant can be allowed to say that for insurance purposes the value of the building is not to be taken in case of mishap, as was urged by Dr. Sharma.

10. We have also examined the report of surveyor Annexure R-1. In the said report under the heading “assessment of loss”, this fact is clear that the building had totally demolished due to the fire and there were complete destruction of the house/household articles. The surveyor in his report which is at page 103 of the complaint file has further observed, “however the captioned building insured as residential house two storied, was quite old and the estimates have no relevance for reproduction of the building while preparing estimate the insured have claimed the said building as three storied.” Hence the report of the surveyor whereby the loss was assessed to the tune of Rs. 1,66,550/- is not based on sound and cogent reasons, as such it cannot be made basis for indemnifying the respondent to the aforesaid loss sustained by him in fire. As such we do not accept the report of the surveyor relating to the loss assessed by him in his report pertaining to the building/household effects those were destroyed in the fire. Surveyor should have also enquired/checked up with the person who had undertaken the insurance vide Annexure C-1 as to how the value of the building was fixed for insurance purpose. In the present case affidavit of Shri Mahinder Kumar Sharma, Surveyor and Loss Assessor has not been filed by the appellant. Only affidavit of Shri B.S. Negi, Divisional Manager has been filed which was a material piece of evidence in the present case.

11. It has been observed by the Apex Court that Insurance Company being in a dominant position, often act in an unreasonable manner and after having accepted the value of a particular insured goods disown that very figure on one pretext or the other when they are called upon to pay compensation. This ‘take it or leave it’ attitude is clearly unwarranted not only as being bad in law but ethically indefensible. See the case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC. There is sufficient, cogent and convincing/relevant evidence brought on record by the respondent viz certificate Annexure C-3 whereby patwari halqua had reported that the respondent has sustained loss to the tune of Rs. 8,36,600/- which is duly countersigned by the SDM concerned. Patwari halqua in his report Annexure C-3 has reported that house of Moti Ram was constructed on khasra No. 296 in Abadi Deh. Since the Revenue Officer are the first one to have reached the spot as the part of District Administration when any incident caused due to natural calamity and as such the certificate issued by the revenue authority, i.e. patwari halqua concerned which is duly countersigned by the SDM concerned cannot be excluded for the purpose of considering insurance claim of the respondent. On this point, we are also supported by a decision of this Commission in Oriental Insurance Company Ltd. Shimla Vs. Shri Bhupinder & Ors. latest HLJ 2006 (HP) 421.

12. Now doubt in the present case the District Forum below has not discussed in its order about surveyors report Annexure R-1, but this report cannot be relied upon since it is not based on sound reasons as already discussed hereinabove. Moreover in the present case the respondent has got the building and household articles insured with a view to get himself indemnified in case of mishap and not for being dragged into litigation as is apparent from the evidence on record, as the genuine claim of the respondent has been turned down by the appellant by assessing the claim to the tune of Rs. 1,66,550/- which is not legally warranted since stand of the respondent to offer a sum of Rs. 1,66,550/- was completely illegal and unjustified, as such this is a clear cut case of deficiency in service.

13. No other point is urged.

Hence keeping in view the aforesaid facts, circumstances and evidence which have been discussed above, we are of the considered view that there is no reason to interfere with the order passed by District Forum Shimla, in Consumer Complaint No. 27/2006, dated 11.11.2008, as such the same is upheld, consequently this appeal 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.



Shimla.

22nd May, 2009 (Justice Arun Kumar Goel) Retd.

Karan* President.





(Saroj Sharma)

Member.



(Chander Shekher Sharma)

Member.