State Consumer Disputes Redressal Commission
National Insurance Company Limited vs M/S Royal Poultries, on 8 November, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.559 of 2008.
Date of Institution: 09.06.2008.
Date of Decision: 08.11.2012.
National Insurance Company Limited, Regional Office, SCO No.332-33-34,
Sector 34-A, Chandigarh, through its Constituted Attorney.
.....Appellant.
Versus
M/s Royal Poultries, through its Partner Sh. Sanjeev Bansal, Rampura
Thalesa Road, Sangrur.
...Respondent.
First Appeal against the order dated
07.05.2008 of the District Consumer
Disputes Redressal Forum, Sangrur.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Baldev Singh Sekhon, Member.
...................................
Present:- Sh. Rajesh Verma, Advocate, counsel for the appellant.
None for the respondent.
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INDERJIT KAUSHIK, PRESIDING MEMBER:-
National Insurance Company Limited, appellant (In short "the appellant") has filed this appeal against the order dated 07.05.2008 passed by the learned District Consumer Disputes Redressal Forum, Sangrur (in short "the District Forum").
2. Facts in brief are that M/s Royal Poultries, respondent/ complainant (hereinafter called as "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellant, narrating that poultry sheds of the respondent were insured with the appellant vide insurance policy no.404200/11/06/3100000/62. The building was insured for Rs.25 lacs. Due to storm and heavy rains, the double story shed of the respondent was damaged on 24.07.2007. Immediately, the First Appeal No.559 of 2008 2 appellant was informed telephonically and a letter was also written on 27.07.2007 and the estimated loss was approximately Rs.3.00 lacs, which was also intimated to the appellant. The appellant demanded the report of Metrological Department and paper news. The respondent in reply informed the appellant on 16.08.2007 that there is no office of Metrological Department at Sangrur and news of storm was not published in the paper. The respondent submitted the necessary papers including the report of Sarpanch, Nambardar, Patwari, counter-signed by the Tehsildar.
3. The respondent received a letter dated 03.10.2007 from the appellant, wherein it was stated that the loss occurred due to settlement of earth and not because of insured peril i.e. storm and heavy rains. The respondent submitted detailed reply on 10.10.2007. Savdesh Goel and D.M., Sangrur visited the spot on 25.07.2007. The appellant unilaterally repudiated the claim vide letter dated 12.10.2007 on the ground that the report of the Metrological Department as well as news paper clipping was not submitted, which amounts to deficiency in service on the part of the appellant. The respondent suffered harassment.
4. It was prayed that the appellant be directed to pay Rs.1,25,000/- along with interest @ 12% till realization, Rs.15,000/- as compensation and Rs.5,000/- as litigation expenses.
5. In the written reply filed on behalf of the appellant, preliminary objections were raised that the respondent has no cause of action or locus standi to file the present complaint and the complaint is not maintainable in the present form. The respondent has not come to the Forum with clean hands and suppressed the true facts. The respondent is estopped by his act and conduct from filing the complaint. Complicated questions of the law and facts are involved which cannot be decided in summary manner and the civil court is competent. The respondent has alleged that the respondent is a partnership firm and Sanjeev Bansal is partner of the firm. Under the law, the complaint can be filed by at least two partners and not by one partner. The First Appeal No.559 of 2008 3 respondent firm is not registered firm and the same cannot sue and the Form A & C has not been produced. The respondent has dragged the appellant into unnecessary litigation and the appellant is entitled to special costs of Rs.10,000/-.
6. On merits, it was admitted that the poultry sheds were insured with the appellant. It was also admitted that the respondent was asked to submit report of Metrological Department and the report of paper news and even registered letters were sent to him, but he failed to produce the said documents. On receipt of information from the respondent, the surveyor was appointed and Er. Ajesh Kumar visited the spot and submitted his report, stating that the loss occurred to the building not due to heavy storm and rains, but due to processing of earth settlement under foundation of pillar which might be a building defect. The surveyor reported that there was no loss in the surrounding areas on 24.07.2007. The actual loss was assessed to the tune of Rs.37,400/- by the surveyor, but the appellant is not liable to pay the same. The report was to be submitted by the respondent. The respondent submitted the estimate of the loss to the tune of Rs.1,25,275/-, but the same is incorrect. Other allegations of the complaint were denied and it was prayed that the complaint may be dismissed with costs.
7. Parties led evidence in support of their respective contentions by way of affidavits and documents.
8. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the evidence as to the shed having been damaged due to storm and heavy rains on 24.07.2007, remains almost uncontroverted, more so, when as against evidence of the respondent, the appellant failed to bring on record any document much less Metrological Report to show to the contrary. The appellant relied upon the survey report Ex.R4, who opined that the loss occurred due to earth settlement of foundation of affected pillars, but this is only an opinion of a person, who is not a qualified building engineer or First Appeal No.559 of 2008 4 architect and is not sufficient to rebut the evidence of the respondent, and allowed the complaint, directing the appellant to pay to the respondent a sum of Rs.1,25,275/- , Rs.3,000/- as compensation and Rs.1,000/- as litigation expenses.
9. Aggrieved by the impugned order dated 07.05.2008, the appellant has come up in appeal.
10. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the appellant.
11. Neither the counsel for the respondent nor anybody else on behalf of the respondent appeared at the time of arguments.
12. It was contended on behalf of the appellant that as per the terms and conditions, the loss, destruction or damaged directly caused by storm, cyclone etc. was covered under Clause-6, but in the present case, there was no storm or typhoon or heavy rains. The respondent pleaded that the loss was caused due storm and heavy rains, but there is no evidence to prove the same. No report of the Metrological Department has been placed on record. The District Forum has relied upon the oral evidence led by the respondent which is supported by the affidavit of Bachittar Singh, Sarpanch; Jagdev Singh, Nambardar, who are interested witnesses and the oral evidence led by the respondent is not sufficient to prove that the loss was caused due to storm and heavy rains. It has been contended that the appellant immediately appointed Er. Ajesh Kumar, Surveyor, who visited the spot and submitted the report Ex.R-4 as per which, the earth under foundation of one of the affected pillars settled down which developed major cracks in pillar at roof level and damaged the other part of the building. Ex.R6 is the report as per which the loss was due to the same reasons. It has been contended that the District Forum has shifted the onus upon the appellant to prove the storm and rain, whereas it was for the respondent to prove. First Appeal No.559 of 2008 5
13. We have considered the submissions made by the learned counsel for the appellant and have thoroughly examined the entire record placed on the file.
14. The District Forum has relied upon only the oral version of the respondent, which is supported by two affidavits of co-villagers, who are Sarpanch and Nambardar and they are interested witnesses. It was for the respondent to prove that the loss was caused to the building by storm and heavy rains, but he has not brought on record any cogent evidence in the shape of any report of the Metrological Department or any newspaper report or the affidavit of the person, who was also affected by the said storm and heavy rain on 24.07.2007. The mere preparation of estimate is not sufficient to claim the insurance benefit. As per Clause-6 of the policy, the loss or destruction due to storm, typhoon etc. was covered, but not the loss due to other reasons. As per the report of the Patwari Ex.C-5, which was sought by the Tehsildar, two pillars of the shed were damaged and as per the attestation of Jagdev Singh, Nambardar, the damage was caused on 24.07.2007 due to fast wind. In the affidavit Ex.C-3, said Jagdev Singh, Nambardar stated that there was heavy rain and storm on 24.07.2007 in the midnight. The report of the Patwari as well as the affidavit of Jagdev Singh, Nambardar are contradictory and as stated above, both these witnesses are interested witnesses and the respondent has procured their evidence, just to enrich himself and to make a claim, whereas in fact there is no evidence to prove that there was storm and heavy rain on 24.07.2007. The respondent even has not produced the photographs, showing the destruction caused by heavy rain and the storm. The oral version of the respondent is not supported by any cogent evidence and the District Forum has passed the order on the basis of conjectures and surmises and, as such, the same is not sustainable in the eyes of law.
15. In view of above discussion, the appeal filed by the appellant is accepted and the impugned order under appeal dated 07.05.2008 passed by First Appeal No.559 of 2008 6 the District Forum is set aside. Consequently, the complaint filed by the respondent/complainant is dismissed with special costs of Rs.10,000/-, which shall be paid by the respondent/complainant to the appellant within one month of the receipt of copy of the order.
16. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal and another sum of Rs.12,400/- vide receipt dated 25.08.2008 in compliance of the order dated August 01, 2008 of this Commission. Both these amounts with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days.
17. The arguments in this appeal were heard on 02.11.2012 and the order was reserved. Now the order be communicated to the parties.
18. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Baldev Singh Sekhon) Member November 08, 2012.
(Gurmeet S)