National Consumer Disputes Redressal
Somati Bai Sondhia vs Oriental Insurance Co. Ltd. on 29 September, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2197 OF 2018 (Against the Order dated 31/01/2018 in Appeal No. 777/2017 of the State Commission Chhattisgarh) 1. SOMATI BAI SONDHIA W/O. PRAKASH CHAND SONDHIA,THROUGH LRS, ASHISH KUMAR SONDHIA R/O. WARD NO. 1 SAMATPURA, PATERATOLA PENDRAROAD, BILASPUR CHHATTISGARH ...........Petitioner(s) Versus 1. ORIENTAL INSURANCE CO. LTD. THROUGH THE BRANCH MANAGER, BRANCH OFFICE RAMA TRADE CENTRE, IN FRONT OF RAJEEV PLAZA, NEAR BUS STAND, BILASPUR CHHATTISGARH ...........Respondent(s)
BEFORE: HON'BLE MR. SUBHASH CHANDRA,PRESIDING MEMBER
For the Petitioner : Mr Pallav Mongia, Advocate with
Mr Tushar Srivastava, Advocate For the Respondent : Mr Sahil Pahwa, Proxy Counsel
Dated : 29 Sep 2022 ORDER
PER MR SUBHASH CHANDRA, PRESIDING MEMBER
1. This revision petition filed under section 21(b) of the Consumer Protection Act, 1986 (in short, the 'Act') assails the order dated 31.01.2018 of the Chhattisgarh State Consumer Dispute Redressal Commission, Raipur (in short, 'State Commission') in Appeal No. 777 of 2017 dismissing the appeal against the order of the District Consumer Disputes Redressal Forum, Bilaspur (in short, 'District Forum') in Consumer Complaint No. 346 of 2014 dated 16.08.2017.
2. The brief facts of the case as per the revision petitioner are that she had insured a poultry farm shed with the respondent under a Standard Fire and Special Perils Policy No. 193300/11/2016/31 issued by the branch office of the respondent insurance company for the period 23.04.2015 to 22.04.2016 (midnight). On account of a storm in the evening of 04.05.2015 at 06.30 pm the poultry farm shed suffered extensive damage. The respondent was informed on 05.05.2015 and a surveyor was appointed on 08.05.2015 who submitted his report on 23.06.2015 stating that "... the kinetic momentum of the wind was enough to over-throw the roof". She also filed a complaint before the Tehsildar, Pendra Road and informed the Police Station. The matter was investigated by the Tehsildar and the report of the Patwari dated 14.05.2015 confirms the incident of the storm and the loss suffered. The complainant submitted a claim form on 12.05.2015 including an assessment of loss prepared by an engineer on 23.06.2015. The respondent asked for a report from the Indian Meteorological Department regarding the storm which she obtained after much effort from the Regional Meteorological Center, Nagpur. However, the claim was rejected on the basis of a report dated 27.08.2015 by the same Surveyor and Loss Assessor on the ground that the report of the Regional Meteorological Centre, Nagpur does not confirm the occurrence of the storm at 6.30 pm on 04.05.2015 in the area of the petitioner's poultry shed. The petitioner contends that this report only mentions that weather related information is available for the period 8.30 am and 5.30 pm. Further, report mentions about dry thunder occurred from 05.00 p m to 07.15 p m. The rejection of the claim on the basis of no claim and data not being available has been challenged by the petitioner. It is averred that as the District Forum erroneously rejected her consumer complaint and her appeal was also dismissed by the State Commission, this revision petition has been filed. During the pendency of this petition, the petitioner expired and her legal representatives were brought on record.
3. The State Commission's order reads:
14. In contract, the surveyor report on behalf of the opposite party has been presented on 23.06.2015. The survey has been done by the surveyor Shri K C Mahpatra and the surveyor found in her report that the insured has submitted the weather report of Tehsildar, Pendra Road and there is a mention of a strong storm, but has estimated the loss of Rs.2,38,267/- but Shri K C Mahpatra has mentioned in her letter dated 24.09.2015 that no storm came on 04.05.2015. Only the cloud was road and therefore no claims should be claimed.
15. D C Gaikwad's (Assistant Metrologies Claimetological Section Nagpur) report has been submitted by the opposite party. This is mentioned in D C Gaikwad's report that:
"whether phenomena 1. A. Dry thunder from 1435 hours to 1440 hours, from 1450 hours to 1500 hours and from 1700 hours to 1915 hours IST. B. Rain from 1440 hours to 1450 hours IST. 2. Maximum Temperature 37.o1C and Minimum Temperature 21.8oC. 3. Relative humidity at 08.30 hours 46% and at 1730 hours 34%. 4. Cloud coverage at 0830 hours ½ and 1730 hours was ¾ part of the sky. 5. Continuous record of wind is not available hence maximum wind data cannot be provided. However, wind data recorded at different time of observation are as following:
Time (IST) Wind Wind direction (Coming) Speed (KMPH) 0830 South 08 1730 South 06
6. Rainfall in past 24 hours recorded at 0830 hours IST of date:
Dated Rainfall in mms 04.05.15 0.0 mms (nil mms) 05-05-15 0.4 mms (0.4 millimeters)
16. It is clear from the above report that on the date 04.05.2015 only dry roar occurred in the middle of 5 to 7.15 p m. At 4 the wind (06-KMPH) has been mentioned that there was no rain on that day. No report has been received from the Meteorological Department, Bilaspur or Raipur by the complainant in refuting the Meteorological Department report and surveyor reports submitted by the opposite party nor has the report of a meteorologist presented. From which to appear that on 04.05.2015 such a storm had occurred that the shipment of poultry farm was broken and since no evidence has been submitted in the rebate of the Meteorological Department, Nagpur on 27.08.2015. In such a situation only on the basis of the report of Tehsildar, it cannot be said that the poultry farm of the complainant has been shed due to the storm. Nor the engineer's report which is only an estimate, acceptable for assessment of compensation.
17. In view of the above explanation, the judgment order passed by the District Forum is a completely legitimate order. There is no irregularity in it.
18. Appeal submitted on behalf of appellant/ complainant is dismissed due to being immaterial. The extradition order passed by the District Forum is confirmed on 16.08.2017. The parties will bear their litigation cost themselves."
4. The District Forum had also dismissed the complaint on the same grounds of absence of any report of the Meteorological Department or a panchnama of the Tehsildar and the report of the Surveyor.
5. Heard the learned counsel for the petitioner. The arguing counsel for the respondent remained unrepresented despite notice. I have heard the arguments of the learned counsel for the petitioner and perused the records carefully. The petitioner argument is that he is entitled to the insurance claim of Rs. 9.24,000/- with compensation. Learned counsel for the petitioner argued that the report of the Tehsildar and the Patwari should have been considered by the lower fora and has relied upon the Hon'ble Supreme Court's judgment in Brij Mohan Singh Vs. Priya Brat Narain Sinha and Ors. 1965 SCR (3) 861 which upheld the likelihood of correctness of an entry by a public servant in the discharge of an official duty. The learned counsel also emphasized that the State Commission has failed to appreciate the facts in the report of the Surveyor appointed by the respondent where after noting the extent of damages it has been stated that the "...proximate cause of loss is 'storm'" and noted its "kinetic momentum". It has also been argued that the State Commission has erroneously interpreted the report of the Regional Meteorological Center, Nagpur which specifically mentions that while no continuous record of wind is not available and hence maximum wind data cannot be provided, data recorded at 08:30 hours and 7:30 hours has been mentioned. Reliance on this report is therefore stated to be incorrect. The learned counsel for the petitioner relied upon information on the website of the IMD that 'dry thunder' can also be accompanied by strong surface winds.
6. The respondent has relied upon the concurrent findings of the lower fora and stated in its reply that the fact of the storm was not proved in view of the report of the Regional Meteorological Center, Nagpur and therefore claim has been rightfully rejected by it. It is contended that the impugned order is therefore correct and the revision petition dismissed.
7. This Commission in exercise of its revisional jurisdiction Commission is not required to re-assess and re-appreciate the evidence on record and substitute its own conclusion on facts. It can interfere with the findings of the foras below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 26 (b) of the Consumer Protection Act, 1986 is therefore, limited to cases where some prima facie error appears in the impugned order and different interpretation of same sets of facts has been held to be not permissible by the Hon'ble Supreme Court.
8. The Hon'ble Supreme Court in Rubi (Chandra) Dutta vs United India Insurance Co. Ltd., (2011) 11 SCC 269, has that "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside...". This principle was reiterated in the case of Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors - (2016) 8 SCC 286 and it was held that "The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity...".
9. In the instant case, it is not disputed that the petitioner had insured the poultry shed. The damage to the shed is admitted by the respondent since the surveyor appointed by it has vide his report dated 23.06.2015 noted and itemised the list of damages due to what he has himself acknowledged to be the result of a storm as a proximate cause. The issue of whether the storm occurred or the time it reportedly damaged the poultry shed is moot. The report of the Revenue officials in matters of natural disasters is usually prepared by the Patwari and the Tehsildar. There is such a report available. The respondent has stated that no panchnama prepared by the revenue authorities is there to support the occurrence of the incident. The petitioner's reliance on Brij Mohan Singh (supra) is pertinent in this connection since the report of the Tehsildar and the Patwari is not challenged by the respondent. The State Commission has erred in not considering this fact.
10. The report of the Meteorological Department that the wind speed data was available for only 08:30 hours and 7:30 hours on the day of the incident is revelatory of the non-availability of data relating to wind velocity at other times of the day. Reliance on this report by the respondent to repudiate the claim on the ground that there was no storm is therefore perverse. The letter from the Regional Meteorological Center, Nagpur obtained by the petitioner at the instance of the respondent is clear in mentioning that there was 'dry thunder' in the evening on the day of the reported incident. In view of the report of the revenue authorities and the initial report of the surveyor of the respondent, the benefit of doubt, if any, should be in favour of the claimant. If the initial report of the surveyor was rejected, as per IRDAI guidelines, the reasons for the same should have been made available by the respondent which is not on record. For these reasons of perversity and material irregularity, the revision petition is liable to succeed even though there are concurrent findings of the lower fora.
11. In view of the foregoing reasons, it is apparent that in the impugned order, the State Commission has not considered all the facts. This order is also not based on appreciation of the evidence available on record. I therefore, find that the State Commission has failed to exercise the jurisdiction vested in it and has not properly considered the facts and evidence before it. The revision petition is, therefore, allowed and the order of the State Commission disallowing the insurance claim of Rs.9,24,000/- is set aside and the appeal is restored to its original number.
12. Resultantly, the matter is remanded back to the State Commission for afresh adjudication. The State Commission is directed to dispose of the matter within two months. Parties are directed to appear before the State Commission on 10th November 2022.
...................... SUBHASH CHANDRA PRESIDING MEMBER