National Consumer Disputes Redressal
Raveendran Nair vs Divisional Manager, United India ... on 25 August, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1454 OF 2016 (Against the Order dated 18/08/2016 in Complaint No. 02/2013 of the State Commission Kerala) 1. RAVEENDRAN NAIR SARITHA MANDIRAM, VELIYANOOR P.O. VELLANADU, TRIVANDRUM-695543 ...........Appellant(s) Versus 1. DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD. & 2 ORS. UNITED INDIA INSURANCE CO. LTD., MALANKARA BUILDING, VJT HALL ROAD, PALAYAM, TRIVANDRUM KERALA 2. MR. GEORGE THATTIL (INSURANCE INSPECTOR), TC-35/2563, 3RD FLOOR, NEHRU BAZAR, TRISSUR-680001 3. MR. K. RETNAM SCANSEA SERVICES (KERALA) XIV/430, CHULLIKKAL, COCHIN-680225 KERALA ...........Respondent(s)
BEFORE: HON'BLE MRS. JUSTICE DEEPA SHARMA,PRESIDING MEMBER
For the Appellant : Mr.C N Sree Kumar,Sr. Advocate with
Ms.Anupama Kumar, Mr.Arjun Varma and
Mr.Amit Sharma, Advocates For the Respondent : Mr.Rajesh K. Gupta, Advocate
Dated : 25 Aug 2022 ORDER
JUSITCE DEEPA SHARMA, PRESIDING MEMEBR
The present Appeal has been filed by the complainant challenging the order dated 18.08.2016 in CC No. 02/2013 whereby the complaint was dismissed.
2. The brief facts of the case are that complainant is doing the textile business under the name and style of Prabha Textiles at Arayanad Junction in Nedumangad Taluk in a rented building. He had a valid insurance policy for the stocks, furniture, fixtures, fittings and he had insured sum of Rs.48,00,000/- and the policy was valid for the period 31.03.2010 to 30.03.2011.
3. The case of the complainant was that on 02.03.2011 at about 21: 15 hour there was a fire in his shop and his entire stock of fittings, fixtures and furniture got engulfed and building was also damaged. The fire was extinguished with the help of fire and rescue team from Nedumangad and Kattakkada Fire Stations. FIR No. 189 of 2011 under section 436 IPC was registered at Arayanad Police Station. It is submitted that complainant had suffered a loss of Rs.54,34,487/- in the incident. The complainant also submitted that he reported the incident to the insurance company i.e. the opposite party ( hereinafter referred to as 'respondents'). Preliminary inquiry at the site was done and a report was filed. Vide letter dated 07.03.2011 complainant was asked to submit 26 documents and vide letter dated 12.04.2011 complainant was asked to submit 14 documents. The complainant had replied to those letters. It is contended that all the documents which were not destroyed in the fire were duly supplied to the respondents. He had alleged that he was not in a position to submit all the documents which were asked for since documents got destroyed in the fire. He had also contended that chemical examination report was not received by the him. He later on had received copy of the forensic science laboratory report. He had contended that he had lost his lifetime savings in the fire incident and he also owned money to his creditors and pay interest on that amount at commercial rate and he was not in a position to indefinitely wait for settlement of his claim. The respondents did not settle the claim, hence he filed the complaint alleging deficiency in service on the part of the opposite party. He prayed that sum of Rs.54,34,487/- be awarded to him with interest @ 18% p.a. from the date of order and compensation of sum of Rs.15.00 lacs shall also be awarded to him for mental agony and harassment.
4. The claim was contested by the respondents. They have filed their written version. The preliminary objection taken was that building in which the complainant was doing his business was rented property and, therefore, owner of the property was a necessary party and that owner of the property had filed suit OS No. 227 of 2012 before the Sub Court Nedumangad against the complainant regarding the same subject matter. It was further contended that Prabha Textiles is a partnership firm in which the complainant and one Prathibha Manoj are partners and this fact has been suppressed by the complainant. It was further contended that as per the investigation report, it has come to the notice of the respondents that complainant had deliberately set his shop on fire to get the insurance benefit. The chemical analysis report further confirms that a kerosene was detected in parcel numbers 1 & 6 collected from the shop room for analysis. The electrical engineer had certified that there was no electric short circuit in the shop room and so electric short circuit was not the cause of fire. The complainant had also not produced any document to substantiate the position of stocks at the time of incident and he had also failed to supply any document for claiming the insurance cover under the policy. He had also violated the terms and conditions of the policy. It is contended that a window glass of the shop had been broken 5-6 days before the incident and by not getting it replaced, the complainant had put the shop at the risk of ensuring security and thus it had violated the terms and conditions of the policy. It is further contended that there were allegations that complainant had burnt his two textile shops earlier and this was the third shop he had put on fire. On these contentions, it was submitted that complaint was liable to be dismissed.
5. The parties led their evidences before the State Commission. The complainant had examined himself and exhibited the documents A-1 to A-25 and respondents had examined five witnesses and exhibited C-1 to C-3 and X-1 and X-2 and after hearing the arguments of the parties, the State Commission after considering the evidence on record, rejected the claim on the ground that evidence clearly show that shop was deliberately set on fire and that cause of the fire was due to some extraneous reasons having not been substantiated by the complainant since he had failed to establish cause of fire and for the reasons beyond his control, he had failed to prove the case and, therefore, dismissed the complaint. The State Commission had also relied on the evidence of two independent witnesses DW-2 and DW-3 who were examined by the respondents.
6. It is argued on behalf of the complainant that DW-2 is the owner of the commercial complex wherein his shop was situated and since had already filed a case against him, he had grievances against him and that is why he had deposed falsely against him. It is also argued that DW-3 was having personal grievance against him as he had made complaints against him. It is submitted that DW-3 used to entertain people of doubtful characters in his shop and also used to serve liquor to them and because of complaint to this effect made by the complainant against him, he had deposed against him and, therefore, both these witnesses are unreliable. It is argued that since the entire record was destroyed in the fire, he could not produce any document to substantiate the value of stocks lying in the shop. It is submitted that State Commission has failed to appreciate these facts and, therefore, findings are liable to be set aside.
7. It is argued on behalf of the respondents that findings of the State Commission are duly based on the evidence on record and cannot be found fault with. It is argued that shop was deliberately set on fire either by the complainant or on his behalf by pouring kerosene over the stocks which fact stands corroborated by the forensic report. DW-3 has clearly stated that as soon as the complainant had left his shop, after some time, there was a fire in his shop and this fact clearly shows that he had himself set his shop on fire. It is submitted that State Commission had rightly dismissed the complaint.
8. I have perused the file and heard arguments of the learned counsel for the parties. It is settled proposition of law that initial burden is upon the complainant to substantiate the cause of the fire. In this case, the complainant had failed to give any cause of fire. There was no short circuit as is clear from the report of electrical engineer. There is also no other evidence to prima facie suggest that fire had happed for the reasons which were beyond the control of the complainant.
9. On the other hand, the respondents have relied on the forensic report and testimony of independent witnesses which clearly show that fire had taken place because kerosene had been sprinkled inside the shop which was closed from outside at the time when complainant left his shop and fire had happed due to burning of stocks by using kerosene. The State Commission on the basis of record had clearly held as under :
"15. On being informed about the fire incident the Arayanad Police registered Crime No.189/2011 under section 306 IPC Ext. A5 is the copy of the FIR. The First Information statement was furnished by the complainant himself. According to him, as usual on 02.03.2011 at about 8.45 pm. he closed the textile shop and went home. At about 9.15 pm while he was sitting at his house complainant's son Sarish informed him over telephone that fire was spreading in the textile shop and his son was so informed by someone over phone. On reaching the textile shop he saw a gathering of local people police and fire force engaged in extinguishing fire. He did not know how the fire occurred in the textile shop. He had no suspect to name. It is seen that the police after investigation filed report before the Judicial First Class Magistrate 1, Nedumangad to the effect that investigations till then did not reveal who was responsible for the fire incident. More investigation was necessary to identify the accused. Hence the case was to be transferred to the list of unidentified cases. Ext.A6 is the copy of UN report in Crime No.189/2011 of the Aryanad Police Station. Ext. A25 is the copy of the same report dated 05.02.2012. From Ext.A6 it is seen that the District Electric Inspector, Thiruvananthapuram had given report to the Sub Inspector of Police, Arayanad that there was nothing to reveal that electric short circuit was the reasons for the fire incident. Though the single digit finger print bureau expert Thiruvananthauram inspected the premises no useful finger print was obtained. Six samples were collected from the sport of fire incident, out of which in sample numbers 1 & 6 presence of kerosene was revealed on examination in the Forensic Science Laboratory. The investigating officer after investigation arrived at the conclusion that during the night on 02.03.2011 between 8.45 pm and 9.15 pm through the broken window pane on the western side of the building, somehow after pouring kerosene some accused set on fire the collection of textile items and as a result loss was caused to the complainant to an extent of about Rs.50,00,000/-. But investigation till then did not reveal the identity of the accused.
16. The copy of the report of analysis of parcels collected from the spot issued from the forensic science laboratory, Thiruvnanthapuram is produced and marked as Ext.A13. It is seen that traces of kerosene was detected in item numbers 1 & 6 sent for analysis. No inflammable material could be detected in the other items. Item No.1 parcel contained two plastic packets each containing two wet partially burnt cream coloured cotton cloth with golden coloured borders having brand label as "Uathayam Dhoties Shirtings Qlty Pavilla Set Size 120cm x 4.50 ml B and B Textile". Item No.6 parcel contained one polythene cover containing some burnt and charred remnants Ext.A14 is the copy of report prepared by the Station Officer, Kerala Fire Force. The report isnot a detailed one. But yet estimates loss of readymade textile items, other textile goods furniture and fixtures at Rs.75,00,000/-. But no details are given. The loss to the building is estimated atRs.5,50,000/-. Electric short circuit is mentioned as the possible cause of fire. But it maybe reminded that detailed investigation bythe police as well as the opinion of the District Electric Inspector ruled out electrical short circuit as a possible reason for the fire.
18. According to DW-3,who is doing business in the nearby shop soon after DW3 closed his shop, the complainant also closed his shop. A minute afterwards fire and smoke spread inside the textile shop. But the complainant did not attend the call when telephoned in the number shown on the board of the shop. It was one woman who attended the call. Before leaving after closing the shop waste items were collected and set on fire outside the shop. Bills were among the items set on fire.
19. Veracity of the version of DWs 2 & 3 apart there is sufficient material to suspect the genuineness of the fire incident and there is reasonable possibility of the complainant himself setting his shop on fire to claim insurance benefits. On appreciating the circumstances available in evidence it is not reasonably possible to take a view different from that of the insurance company. So it cannot be said that by not repudiating or accepting the claim immediately after the incident the insurance company had committed any deficiency in service. It is natural for any insurance to hesitate to accept such a claim immediately. There is no other deficiency in service alleged or proved in this case. Hence, point no.1 is answered against the complainant."
10. The evidences which has been discussed by the State Commission in the above said paragraphs clearly show by preponderance that fire had not naturally occurred but had been deliberately caused. The argument of the complainant is that DW-3 is an interested party and he had deposed against him because he had filed a complaint against him. It is apparent that no copy of any such complaint has been placed on record by the complainant to substantiate his contention that DW-3 is an interested witness and so had deposed against him. It is also apparent from the cross examination of DW-3 that no suggestion was even given to him by complainant that any police complaint had been filed against him. The complainant, therefore, has failed to prove even by preponderance of evidence that DW-3 has any vested interest to depose against him. The testimony of DW-3 who is an independent witness thus cannot be rejected.
11. It is, therefore, apparent that findings of the State Commission are based on evidence on record.
12. I found no illegality or infirmity in the impugned order. The Appeal has no merit and same is dismissed.
......................J DEEPA SHARMA PRESIDING MEMBER