State Consumer Disputes Redressal Commission
Gopi Nath Pandita vs Oic on 19 April, 2010
22-12-2009 JK STATE CONSUMER DISPUTES REDRESSAL CONNISSION JAMMU Honble Mr. Justice (Retd) G.D.Sharma President And Mr. B.L.Saraf Member
Appeal no;- 2944 / 07 Date of Institution: -26-11-2007 Date of decision:
19-04-2010 Gopi Nath Pandita S/O Late Shri Sat Lal Pandita R/O Rafiabad(Sopore)Dist.
Baramullam Kashmir A/P Quarter No: 16-F Phase II Muthi Camp Jammu Appellant Versus
1. Divisional Manager, Oriental Insurance Co.Ltd.
Ganjoo House Batwara Srinager Kashmir through Divisional Manager.
2. Regional manager Oriental Insurance co. Ltd, Regional Office Ambala through Regional Manager Respondents Counsel for the parties:
Mr. C.J.Dhar Advocate for the appellant Mr. R.K.Jain Advocate for the respondents Whether to be reported in press/Media Whether to be reported in Digest/Journal PER JUSTICE MR. G.D.SHARMA Through the medium of this appeal, order dated 25-10-2007 passed by the Learned Divisional Forum Jammu (hereinafter to be as Forum) has been challenged. The Learned Forum after the appraisal of the facts of the case has held that in this case complicated questions with regard to the factum of covering the risk of insured house were involved, which could not be decided in a summary manner under the Consumer Protection Act. It was further held that an element of cheating and fraud was found inherent in the present case, so the complaint was not allowed and the appellant was advised to seek remedy in the court of competent jurisdiction. The appellant having felt aggrieved has challenged the order. Brief facts of the case are :-
Insurance policy no: 262300/11/1265 was obtained in respect of residential house belonging to the appellant situated in village Hardu Chanam Refiahad,, consisting of three storeys with attic, cow shed and a kothar.It was effective w.e.f 05-01-1999 to 04-01-2000 .The insured interest was of Rs 3 lacs. The policy was issued after the issuance of circular by the Government of India dated 04-04-1992 which envisaged that in the Kashmir Valley Insurance Policy had to be issued after a site inspection. The observance was shown to the said circular and after verification about its existence and assessment, the house was insured. This house was allegedly set on fire by the militants. The matter was reported to the police on 2-11-99 who lodged FIR No 133/99.A claim was raised with the respondent insured who deputed a surveyor to the spot. He assessed the loss to the extent of Rs. 282328/.
The insurer respondent, according to appellant, dilly-dallied and did not settle his claim. Consequently, the appellant approached the Learned Divisional Forum to seek redressal of his grievance. The Learned Forum enquired into the matter and came to pass the order mentioned at the outset. Hence the appeal. Heard Learned Counsel for the parties and perused file very carefully.
The Learned Divisional Forum did not entertain the plea of the appellant on the ground that having regard to the facts and circumstances of the case there was no deficiency in service on the part of the respondent. Besides, the complaint raised number of questions, which could not be decided in a summary manner by the Learned Forum. These questions called for a full-fledged trial in the court of competent jurisdiction. It was also observed that an element of fraud and cheating was inherrent in the present case.
A. Whether the house, subject matter of the dispute, was in existence when the alleged fire incident is said to have taken place, and ;
B. . Whether any fire occurrence took place in the locality in year 1999?
6.
To prove the first, the Learned which was effective from 5-01-1999 to 04-01-2000 and said that, unless the house in question was in the existence it could not be insured in view of guide lines issued by Government Of India. Ministry of Finance Department of Economics Affairs dated 4-4-1992 (Annexure C with the complaint). According to these guidelines a structure in the Kashmir valley could be insured only after ascertaining that the property was existent on the spot, and that it had not been already damaged or destroyed. Local officials of the Insurance Company had to verify the fact. Since the building was insured after issuance of these guidelines. Mr. Dhar appearing for the appellant says, it means that the construction in question was in existence when the insurance policy became effective from 05-01-99.
Next, he has referred to the statement of the Girdawar Sh. Mohammad Akbar .He has stated that he did visit the spot on the instructions of the Tehsildar concerned and found plinths of two gutted houses there. Both these houses were owned by Gopi Nath. On his enquiry he came to know that one house was gutted in year 1993 and the other in year 1999. . In cross-examination, he has said that he did not obtain a copy of the FIR, He had not verified from any revenue record how many houses were owned by the appellant. He did not record the statements of witnesses on the spot about the matter, nor was the statement of the appellant recorded. No title papers were demanded from him.
7. Mr. R.K.Jain appearing for the respondent has contended that there is no proof that the appellant had a 2nd house. He had one house, which was got gutted in year 1993 for which he had received exgratia relief of Rs one lac from the Government. According to the report of the Tehsildar, which formed the part of the record of the Learned Forum and refered to extensively in the impugned order, the appellant had only (two structures). One residential house and other Kothar Cum cowshed at village Hardo Chanam. His residential house was burnt in year 1993 and Kothar in the night of 8th January 1994. Mr Jain has further argued that the appellant can draw no support from the statement of the Girdhawar that he had seen plinths of burnt houses when he had visited the spot to conclude that the house was burnt in year 1993 and the other in the year 1999. There is substance in the argument .How could a Girdhawar who is not an expert in this particular field could describe age of burnt plinths. Not only that he was not sure that one plinth was of a house burnt in 1993 and other house burnt in year 1999. The Girdhawar had made the inspection on 31-8-2001 i,e two years after 1999.
8. Regarding question (b) it may be said that even Tehsildars report in the shape of a covering letter makes no reference to the fire incident having taken place in the year 1999, as alleged by the appellant. FIR No 133/1999 P.S.Panzla mentions that on 2-11-99 the appellant informed the police about the fire incident, which had gutted his house. The same FIR records the date of occurrence as 8th January 1994 and not in 1999.So this circumstance also does not advance the cause of the appellant. SSP Baramulla has reported to the investigator Shri A.M. Watali- appointed by the respondent that on the application of Gopi Nath- complainant FIR 133/199 U/S 436 was registered in P/S Panzalla wherein fire occurrence of 8-1-1994 is recorded in which three storeyed wooden Kothar of the complainant and ChamanLal was set ablaze by same unknown miscreants. These are the circumstances, which cannot be brushed aside. They alongwith those raised by the appellant call for close scrutiny, which, the Learned Divisional Forum has rightly described beyond the domain of the Forum as also of this, Commission In view of the above made discussion, we do not find any merit in this appeal, which therefore is dismissed. No order on to the costs. In case the appellant wants to take recourse to the appropriate remedy, the time spent in pursuing this matter may be excluded, if permissible under law.
PRESIDENT MEMBER.