State Consumer Disputes Redressal Commission
Nia vs Surinder Kumar on 5 January, 2011
29-12-10 J&K STATE CONSUMER DISPUTES REDRESSAL COMMISSION JAMMU Quoram: Honble Mr, Justice (Rtd) G.D.Sharma .President Mr. B.L.Saraf .....Member
Appeal No: - 3111/2009 Date of Institute: - 31/12/2009 Date of Decision: - 05/01-/2011 New India Assurance Co. Ltd.
Shalimar Road, Jammu Appellant Versus Surinder Kumar S/O Sh. Bahadur Singh R/O 214/C. Ram Vihar ,Old Janipur, Jammu Respondent
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Counsel for the parties Mr. Jugal Kishore Advocate for the appellant Mr. K.S.Parihar Advocate for the respondent Whether to be reported in press /Media Whether to be reported in Digest/Journal..
Per Justice G.D.Sharma O R A L This appeal is directed against the order dated 18-7-07 passed by the Learned Divisional Forum Jammu (hereinafter to be referred as Forum). According to the appellant, the impugned order is bad in law and against the facts; and that the matter has not been properly appreciated by the Learned Forum. The appellant has prayed that the impugned order may be set aside and the complaint requires dismissal.
The facts of this case, put forth briefly, are that the complainant had obtained loan to start Computer institute styled as M/s NIDT Computer Education .Loan had been obtained from citizen Cooperative Bank Branch Office New Plot, Jammu against hypothecation of stocks in the nature of computers, furniture and fixtures etc.The above said financier Bank on their own, had got the stocks in trade insured with New India Assurance Co. Ltd. under policy No;- 4835070606478 for a value of Rs 5.84 lacs and debited an amount of Rs 5416/- towards the, payment of the premium of policy which was effective from 30-4-2001 to 29-4-2002 The complainant has alleged that during the intervening night of 16-17/4/2002 fire broke out in the said institute, resulting in total loss of the computers., furniture fixtures and accessories, valuing Rs 5 lac. The respondent raised the claim with the appellant whereupon the appellant deputed M/S Sharma surveyors and loss assessor. Mr. Sharma vide his report dated 15-1-2004 assessed the loss of computers seven in number and three UPS at Rs 1,06,920/. The loss caused to furniture, fixture, fittings and air conditioners was assessed at Rs 30150. Since the respondent had obtained earlier policy from National Insurance Company Ltd. as well so they too had appointed a surveyor namely, M/S Sai Consultants and they had assessed the loss to the tune of Rs 55430/- regarding the loss caused to the computer system and Rs 15577/- for furniture, fixture, fittings and equipments (total Rs 71007). Accordingly, the said surveyor had made recommendation for the reimbursement of loss to the tune of Rs 71007/-, to be paid by the National Insurance Company. The Forum in the impugned order has directed the appellant to make the payment of Rs 227467 (Rs two lac twenty seven thousand four hundred and sixty seven) alongwith interest at the rate of 6% per annum from May 2003 till the final payment is made. The litigation expenses were awarded to the extent of Rs 2000/.The appellant have pleaded that respondent had lodged two different claims with two different companies for one and the same occurrence, which is not permissible.
Despite the opportunities be granted to the Counsel of the respondent to be heard. He has not appeared for the last three dates. We have heard the arguments for Mr. Jugal Kishore advocate for the appellant and he has referred to guideline no-11 regarding the Fire tariff of New India Assurance Co. Ltd which is reproduced as under :- If at the time of any loss or damage happening to any property hereby insured there be any other subsisting insurance or insurances, whether effected by the Insured or by any other person or persons covering the same property, this company shall not be liable to pay or contribute more than its rateable proportion of such damage. His further submissions that when the suppression of material facts regarding the estimate of losses submitted by the respondent before the loss assessor and surveyor appointed by National Insurance Co, Ltd. came to the knowledge of the loss assessor and surveyor M./S Sharma Surveyors appointed by the appellant, the said loss assessor and surveyor Mr. Sharma again assessed the loss because the estimate of loss provided to him by the respondent was at variance with the estimate submitted to M./S Sai surveyors . He changed the assessed amount of his report dated 31-10-2002 of Rs 2,27,467/ to Rs 1,62,350/ in his report which was submitted subsequently on 15-01-04.According to him, the latter report of M/S Sharma surveyor dated 15-1-04 is of the correct report of actual loss suffered by the respondent The guidelines issued by the Tariff Regulatory Authority of India are of binding nature for all the Insurance companies. While concluding his argument he has submitted that half of the assessed amount in the sum of Rs 1, 62350/ be ordered to be recovered from New India Assurance Co. Ltd. It was a duty of the National Insurance Company to appear in the proceedings because they had got the proportionate loss assessed which was to the tune of Rs 71007/ from the surveyor M/S Sai Consultants. The Learned Forum has not discussed this aspect in the impugned order despite the fact that application was made by the appellant to impleaded National Insurance Co. as O/P in the complaint and that application was dismissed vide order dated 5-3-07.
We have considered the facts of the case and the arguments advanced by Mr. Jugal Kishore Advocate. We find that there is legal force in the arguments. The guidelines issued by the Tariff Regulatory Authority of India enjoins that liability to reimburse the loss of the same incident having two Insurance covers from two different Insurance companies is proportionate and not singular. Hence, the learned Forum has been found to have fallen into error while ignoring the loss assessed by M/S Sharma surveyor in his report dated 15-1- 04 which was to the extent of Rs 162350/. The proportionate liability comes to Rs. 81175/; whileas the loss which had been got assessed by M/S National Insurance Co. Ltd from their surveyor namely, Sai Consultant was to the tune of Rs 71007/.According to our considered view, we allow the appeal and modify the relief to the extent that the appellant as well as M./S National Insurance Co. Ltd. shall indemnify the respondent to the extent of Rs 81175/ each as their proportionate liability. The interest payable by the Learned Forum as well as the litigation expenses shall remain intact and there shall be no order as to costs in the appeal. The excess amount, if any, deposited by the appellant before the Forum be released in its favour. The appeal is consigned to records and the record of the Forum be returned at once.
President Member