State Consumer Disputes Redressal Commission
The New India Assurance Co. Ltd. vs Sh. Aji Singh & Ors. on 4 January, 2010
H
H.P.STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
SHIMLA-9.
F.A. No. 397 of 2007 Decided on 4.1.2010.
The New India Assurance Co. Ltd.
Branch Office Yamuna Nagar,
Opposite Madhu Palace,
Jagadhari
Road.
Through its Senior Divisional Manager,
IIIrd Floor, Block No.7, SDA Complex, Kasumpti,
Shimla-171009.
....Appellant.
Versus
1. Sh. Ajit Singh S/o Sh. Sardar Singh,
R/o Badri Nagar, Paonta Sahib,
Distict Sirmour (H.P).
2. Sh. Baljinder
Singh
S/o Sh. Bhagat Singh R/o Devi Nagar,
Near DAV School,
Paonta Sahib,
District Sirmour (H.P).
(Deleted vide courts order dated 8.1.2009,
in this appeal).
...Respondents.
------------------------------------------------------------------------------------------------------
Honble Mr.
Justice Arun Kumar Goel (Retd.), President.
Honble Mrs. Saroj
Sharma, Member.
Honble Mr. Chander
Shekher Sharma, Member.
Whether approved for reporting ?
For the appellant.
Mr. Ratish
Sharma, Advocate
for the appellant.
For
the respondents. Mr. Hoshiar Kaushal, Advocate
vice
Mr. Karan Singh Kanwar,
Advocate for respondent No.1.
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ORDER
Justice Arun Kumar Goel (Retd.) President.
1. Appellant-Insurance Company is aggrieved from the order passed by District Forum, Shimla camp at Nahan on 6.6.2007. By means of this order, Consumer Complaint No. 85/2004 filed by respondent No.1 has been allowed and the appellant has been directed to indemnify respondent No.1 in the sum of Rs 1,10,107/- alongwith interest @ 9% per annum from the date of filing of the complaint, (i.e. 12.8.2004) till realization. Litigation cost has also been allowed in the sum of Rs. 2500/-. Appellant has been directed to pay this amount within 45 days from the date of receipt of copy of the said order. Hence this appeal.
2. M/s Tip Top Rubber Factory of which respondent No.1 is a partner having obtained insurance cover from the appellant vide Annexure-A to the extent of Rs. 15 lacs all is admitted between the parties. Fire having broken out during the subsistence of the insurance cover on 4.7.2004 is again established as well as is also not in dispute.
3. Now the dispute starts. According to respondent No.1 as a result of the fire, insured material of the value of Rs. 2.50 lacs was damaged whereas according to the appellant fire was the result of,Spontaneous Combustion which was not covered under the policy of insurance, as such it was not liable to indemnify the former.
4. Matter was reported to the Police by respondent No.1, and he also lodged his claim with the appellant. According to him the surveyor deputed assessed the loss in the sum of Rs. 1 lac. The claim was not settled, this resulted in filing of the complaint seeking directions against the appellant to pay Rs. 2.50 lacs on account of loss, alongwith Rs 10,000/- as compensation and litigation costs.
5. This complaint was contested by the appellant. According to it policy was a Standard Fire and Special Peril Policy (Material Damage), issued by it. Further according to the appellant, the surveyor assessed the loss to the tune of Rs. 16, 030/-. After deducting Rs. 4809-/ on account of depreciation, Rs. 1603/- as salvage and Rs. 10,000/- on account of excess clause, amount worked out to minus Rs. 379/-. As such, no amount was payale. Respondent No.1 was not owner of the building thus he has no insurable interest on furniture and building. Distict Forum below has allowed the complaint as aforesaid. Material was insured in the sum of Rs. 3 lacs. In this appeal parties are concerned with loss to the insured material only. Annexure R-II is the report of surveyor appointed by the appellant to assess the loss. Amongst other things, cause of fire given by him is, Spontaneous Combustion. For coming to this conclusion he has stated, The rubber crumb as informed is having very high flash point and known as hazardous material therefore the china clay is mixed to bring down the temperature in general, but since the factory was shut down for 3-4 days due to shortage of labour, so the finished material which was lying around the cutters, sieves in open caused fire and due to close shutters and no man available at the time of fire to control it cause the damage.
6. In support of this appeal Sh. Ratish Sharma, learned counsel for the appellant laid great emphasis on these findings recorded by the surveyor, and he urged for allowing this appeal. He also pointed out that the compensation awarded is extremely on higher side, so even if it be assumed that his client is liable to indemnify the respondent No.1, it needs to scaled down to a large extent. Though he hastened to add that his client is not liable to pay anything.
7. District Forum below in paragraph-6 of the impugned order has noted the estimated loss and the assessment made by the surveyor in his report Annexure R-II. For ready reference this is reproduced hereinafter :-
Sr. No. Description Estimate Assessed
1.
Main LT cable,3.5 core,19x18-150 meter @ 120/Mtr Allowed Market price @ 63 Mtr 18,000.00 9450.00
2. Volt meters 0-1440V 4 Nos @ 240/-(allowed 1 as damaged) 960.00 240.00
3. Ampere meter 4 Nos @ 250/- (allowed 1 as damaged) 1000.00 250.00
4. CT coils 12 Nos. @ 130/-
1560.00 1560.00
5. Bus Bar box 1 Nos 1500.00 1500.00
6. Main switch 200 Amp. 2Nos @ 5500/-
1000.00 6000.00
7. Main Switch 100 Amp.1 nos @ 3800/-
3800.00 2500.00
8. Cable wire Starters to Motors 7 x 16" (1 bundle) 2500.00 2500.00
9. Flexible pipe 2" (100 mtrs @ 12/- mtr) (new alterations) 1200.00 0.00
10. Indicator lamp 3 Nos @ 60/- each (3 phase) 180.00 180.00
11. Lights fitting 10@ 350/-
3500.00 2500.00
12. 25 No Asbestos sheet 3M x 1.05m @ 354/-
8850.00 0.00
13. 25 No Asbestos sheet 2.50 m x 1.05m @ 295/-
7375.00 0.00
14. Labour A.C.sheet fitting 4000.00 0.00
15. Rubber crumb (stock) Not Covered 39000.00 0.00
16.
Old
rubber cuttings Not covered
30,000.00
0.00
Total 1,34,425.00 26680.00
8. For what reasons
and on what grounds he has dis-allowed/reduced partly, the amounts claimed as per estimate, there is no reason given by him. Surveyor is an expert in the branch of assessment of loss.
Therefore, according to us he has to support his report by reasons, howsoever brief those may be so as to make his report acceptable. This is one aspect of the case. He has also dis-allowed sum of Rs. 39,000/- on account of Rubber Crumb (stock) as well as old rubber cuttings, both being not covered. In this behalf when reference is made to the cover note, copy whereof if Annexure-A, which is not disputed on behalf of the appellant-Insurance Company, it is evident that both these dis-allowed items were duly covered. Insurance cover in the sum of Rs. 3 lacs was given by appellant for old tyres, rubber crum (it should be crumb), and other such goods in connection with the trade at the factory premises. We fail to understand, how the surveyor has held that rubber crumb (stock) and old rubber cuttings were not covered. In these circumstances report of the surveyor cannot be accepted on its face value.
9. Faced with this situation Mr. Sharma, learned counsel for the appellant-Insurance company referred Annexure A-2 filed in this appeal. These are the terms and conditions of Fire and Special Perils Policy (Material Damage).
10. For the reasons to be recorded hereinafter, we are not looking into this document. In order to succeed on Annexure A-2 filed with the appeal, firstly it should have been placed on the complaint file. Why this was not done, learned counsel for the appellant had no answer. For acts of negligence/remissness on the part of the appellant while contesting the complaint, an opponent like respondent No.1 cannot be made to suffer. Other reason to ignore this is, that whether after issuance of cover note Annexure-A attached with the complaint, the insurance policy was ever delivered/sent to the respondent No.1 and or the partnership concern, again there is no material placed on record by the appellant. We specifically called upon Mr. Sharma to point out from the complaint file anything to establish this fact. There was nothing he could point out.
11. Best evidence in this behalf would have been either the receipt obtained after policy of insurance was delivered to the firm, and or the postal receipt with the entry in despatch register having sent policy complete in all respects including terms and conditions. Mr. Sharma wanted us to look Annexures A-2 to A-4, Annexure A-3 is the copy of report No. 34 dated 4.7.2003, made to Police Station Paonta Sahib, and Annexure A-4 is the letter dated 8.7.2003 purported to have been written by the appellant. We refuse to look into any of these documents as it will prejudice respondent No.1, if these are taken on record at this stage. No reason could be advanced for their non-production before the District Forum below more especially when Annexure A-2 as well as Annexures A-3 and A-4 were admittedly in the custody of the appellant when it contested the complaint before District Forum below. Infact in this appeal these are being produced by way of additional evidence which Mr. Sharma wanted us to take note of. Purpose of additional evidence is not to allow a litigant like appellant in this appeal to fill in the lacuna left in its evidence. A case has to be made out and further additional evidence is not to be permitted as a matter of course or at the askance of litigant at the appellate stage, as is the situation in this appeal
12. So far observations made in his report Annexure R-II by the surveyor and heavily replied upon by Mr. Sharma for allowing are concerned, these are without any basis as is evident from the relevant extract in para-5 above. As such it is rejected.
13. No other point was urged.
14. In view of the aforesaid discussion we find no merit in this appeal which is accordingly dismissed leaving the parties to bear their own cost, while upholding the order of Distict Forum Shimla, camp at Nahan, in Complaint No. 85/2004, dated 6.6.2007. No costs.
15. All interim orders passed from time to time shall stand vacated forthwith.
16. Learned counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary as per Rules.
(Justice Arun Kumar Goel) (Retd).
President (Saroj Sharma) Member Suneera (Chander Shekher Sharma) 4.1.2010. Member