State Consumer Disputes Redressal Commission
Oriental Insurance Company Limited vs Shri Rajesh Verma on 19 July, 2010
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA-9. FIRST APPEAL No.148/2010. DECIDED ON 19.07.2010. In the matter of: Oriental Insurance Company Limited, through its Senior Divisional Manager, Mythe Estate, Kaithu, Shimla-3. Appellant. Versus Shri Rajesh Verma son of late Shri Om Parkash, Proprietor M/s Saransh Communications, Naya Bazar, Village and Post Office, Theog, Tehsil Theog, District Shimla, Himachal Pradesh. Respondent. Hon'ble Mr. Justice Arun Kumar Goel (Retd.), President. Honble Mrs. Saroj Sharma, Member.
Honble Mr. Chander Shekhar Sharma, Member.
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Whether approved for reporting? Yes.
For the Appellant: Mrs. Anupama Sharma, Advocate vice Dr. Lalit Kumar Sharma, Advocate.
For the Respondent: Mr. Shashi Bhushan Singh Chandel, Advocate.
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O R D E R:
Justice Arun Kumar Goel (Retd.), President (Oral).
We have heard the learned counsel for the parties and have also gone through the record of the complaint file. Learned counsel for the appellant raised twofold prayer in support of this appeal for setting aside the impugned order and consequently dismissing the complaint. These are;
a) that the report of Surveyor was wrongly excluded from consideration by District Forum below; and
b) at the same time it further fell into error when report of the Investigation that was got carried out by the appellant while repudiating the claim of the respondent was ignored.
Both these pleas were seriously contested and resisted by Mr. Shashi Bhushan Singh Chandel, learned counsel for the respondent. Per him what is being urged for allowing this appeal is not supported by the record, i.e. the complaint file. He thus prayed for dismissal of this appeal with costs.
2. Shopkeepers policy covering the risk of Rs.10,20,400/- having been obtained by the respondent from appellant is not in dispute. It is further admitted case of the parties that on 20.03.2005, when damage due to fire was caused to the insured stock lying in the shop of the respondent, the risk was covered under a valid policy of insurance.
3. Now the dispute starts. According to the appellant since the fire incident had taken place, causing damage to the insured stock was within close proximity of the date of insurance, as well as the date of fire, it was got investigated by the appellant on its basis the claim was not tenable. Reason for repudiation given by the appellant in Annexure C-5 is, that the respondent had mentioned, he buyed (bought?) the insurance cover for the shop contents, after the same had already been damaged in fire, as such malafide intention was involved in this case which amounts to willful concealment of facts material to the claim/policy. Its reply by the respondent is Annexure C-6. Respondent had explained each and every facts while replying the letter Annexure C-5. This was followed by Annexure C-7 the legal notice on behalf of the respondent.
4. When the claim of the respondent was not settled, Consumer Complaint No.156/2007 was filed by him. This has been allowed by the District Forum below, vide its order dated 06.01.2010.
While allowing this complaint, appellant has been directed to indemnify the respondent in the sum of Rs.1,09,150/- alongwith interest @ 9 % per annum from the date of filing of complaint, i.e. 29.05.2007, till the payment of the entire amount. In addition to this, a sum of Rs.2,500/- has been allowed as cost of litigation. Appellant has been directed to comply with this order within 45 days of receipt of the same, failing which it has been held liable to pay punitive damages to the tune of Rs.20,000/-. Impugned order shows that copy of order was issued on 3rd March, 2010, and the appeal was filed on 24.04.2010.
5. In the aforesaid background, learned counsel for the appellant submitted that once the report of Surveyor as well as Investigator are looked into by us, there will be only one and irresistible conclusion, that the order of District Forum below was a result of completely ignoring from consideration these material documents. If this fact is borne from the record, then we shall have to further examine the submission of learned counsel for the appellant in-depth.
6. However before proceeding in that direction, we called upon the learned counsel for the appellant to refer to the complaint file and point out to us copy of Surveyors report as well as the Investigators report. None could be pointed out. We have ourselves also examined the complaint file. None of these documents have been placed by the appellant on record. Why these documents were not placed, learned counsel for the appellant has no explanation, though she made an attempt to seek adjournment, for placing such documents by way of additional evidence.
This prayer is being noted to be rejected. Reason being that additional evidence is not to be allowed either routinely or as a matter of course. Admittedly it is not the case of the appellant, that it was not aware about the existence of these documents. It is also not the case of the appellant that it made an attempt to prove them in evidence, but the District Forum below refused to take these on record. In the face of this situation, an adverse inference is being drawn against the appellant to the effect that in case these documents had produced then those would not have supported its case. Consequently both the pleas urged on behalf of the appellant are rejected.
7. Faced with this situation, learned counsel for the appellant, without conceding or admitting submitted, that the compensation awarded is on higher side as according to her Surveyor had assessed the loss in the sum of Rs.37,000/-, as such she prayed that compensation awarded may be reduced to this amount, but without any interest, cost or punitive damages.
8. Question again arises that where is the such report, on which this submission is based. We are also aware that Surveyors report cannot be lightly brushed aside, if it is otherwise supported by any material on record. Admittedly no such report could be pointed out on behalf of the appellant, therefore submission on behalf of the appellant for reducing compensation is without basis, as such is rejected.
9. Learned counsel for the appellant also made another submission to reduce the compensation allowed. Reference was made to affidavit of Shri Rajneesh Kumar Dhiman, Engineer and Loss Assessor. In his affidavit he has deposed that survey was done by him and according to him, Annexure OP-2 is true and the contents of this report are true and correct to his personal belief, no part of it was false and nothing material had been concealed from it. It further reads;
The contents part of the said report are not being there in word to word for the sake of brevity, but the same may be read part and parcel of may present Affidavit.
There is no document muchless Annexure OP-2, on the complaint file.
10. Learned counsel for the appellant submitted that punitive damages should not be levied upon the appellant and at-least to this extent the impugned order may be modified. For the view we have taken on the face of evidence, and the appellant could have at-least complied with the direction of District Forum below by depositing the amount with this Commission within stipulated period, we do not find any substance in this submission, hence rejected.
11. No other point was urged.
12. In view of aforesaid discussion, we find no merit in this appeal, which is dismissed accordingly, while upholding the order of District Forum below passed in Consumer Complaint No.156/2007, on 06.01.2010.
13. All interim orders passed from time to time in this appeal shall stand vacated forthwith.
14. Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.
SHIMLA 19.07.2010 ( Justice Arun Kumar Goel ) (Retd.) President.
(Saroj Sharma) Member.
(Chander Shekhar Sharma) Member.
/dinesh/