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2003 DIGILAW 250 (UTT)

NEW INDIA ASSURANCE CO. LTD. v. SHANTI DEVI

2003-11-07

K.D.SHAHI, LUXMI SINGH, SURENDRA KUMAR

body2003
ORDER Mr. Justice K.D. Shahi, Chairman—This is an appeal against the judgment and order dated 14.8.2002 passed by the District Forum, Uttarkashi whereby the complaint of complainant was allowed for recovery of Rs. 20,000/- along with interest @ 9%. 2. The brief facts of the case are that the complainant Smt. Shanti Devi has opened a Parchoon Shop after taking loan from the Bank. The Bank has released only a part of the loan amounting to Rs. 31,500/-. It did not release Rs. 18,500/-. The State Bank while giving the loans has got the insurance of the shop for Rs. 60,000/-. On 14-15.5.2001 there was a storm and a tree fell down on the shop. It was reported to the Insurance Company. The Insurance Company appointed the Surveyor who came to survey the shop and assured that she shall be paid the loss. In spite of letters dated 6.6.2001 and 18.7.2001, the Insurance Company did not pay any compensation. The Insurance Company on baseless grounds has detained the payment. This is deficiency in service of the Insurance Company. The complainant is unable to pay the debt of the Bank. In para 13 of the complaint it was alleged that the complainant has suffered financially and mentally due to deficiency in service by O.P. No. 1. i.e. Insurance Company. She filed the complaint for relief against Insurance Company only for a sum of Rs. 60,000/- along with interest. No relief whatsoever has been asked for against the State Bank which is O.P. No. 2. 3. The Insurance Company filed the written statement and admitted the insurance of the shop on 20.4.2001 for a sum of Rs. 40,000/-. It alleged that on receipt of the information on 22.5.2001 a Surveyor was sent to survey the shop but in spite of letters of the Surveyor dated 6.6.2001, 18.7.2001 and 11.9.2001 the complainant did not produce any papers to the Surveyor. She did not co-operate in the investigation. By letter dated 12.9.2001 she was again called for to produce the papers but no paper was produced during the investigation. It was revealed that only a loss of Rs. 2,023/- was caused to the complainant. Her total stock was of Rs. 3,678/- only. The complainant is entitled to receive the compensation of Rs. 2,023/-. There is no deficiency of service on the part of the Insurance Company. The complaint was liable to be dismissed. 4. It was revealed that only a loss of Rs. 2,023/- was caused to the complainant. Her total stock was of Rs. 3,678/- only. The complainant is entitled to receive the compensation of Rs. 2,023/-. There is no deficiency of service on the part of the Insurance Company. The complaint was liable to be dismissed. 4. After taking the evidence of the parties and hearing the Counsels for the parties, the learned Forum held that since the complainant has taken a loan of Rs. 50,000/- and no direct payment was given to the complainant but it was given directly to the dealers from where the articles were purchased. The real payment has been made to Sh. R.C. Chamoli of Chamoli General Store. The learned Forum has found that the cheque has been issued in the name of Sh. R.C. Chamoli. This fact is also proved from the papers of the Bank and letter of Sh. R.C. Chamoli. It justifies that articles of these amounts must have been in the shop. 5. The learned Forum further held that admittedly there was storm in Uttarkashi on 14/15.5.2001. The learned Forum found that according to the evidence of the complainant, there were articles of Rs. 68,000/- in the shop. According to the Surveyor the loss was only of Rs. 2,023/-. The learned Forum held that the payment was made to the dealer and the vouchers have been submitted to the Bank. There is deficiency of the Bank if the vouchers were not submitted to the Insurance Company. The only evidence of the Insurance Company is said to be that of the Surveyor Sh. Satish Kumar who visited the shop on 22.5.2001. The learned Forum has said that the report of the Surveyor is ex parte and there is no signature of anybody to show that the Surveyor has actually visited the shop. Therefore, the report of the Surveyor is not reliable. The Forum further held that there was no delay on the part of the complainant because the entire information was given to the Insurance Company through the Bank. From the photograph, the learned Forum held that it does not only testify the loss but it also testifies that there were enough articles in the shop. The Forum further held that there was no delay on the part of the complainant because the entire information was given to the Insurance Company through the Bank. From the photograph, the learned Forum held that it does not only testify the loss but it also testifies that there were enough articles in the shop. The learned Forum held that it could be presumed that 50% of the articles could have been damaged and in that way the Forum awarded the compensation of Rs. 20,000/-. 6. Being aggrieved by that order the present appeal has been filed. We have heard the learned Counsel for the Insurance Company. On behalf of Smt. Shanti Devi, Mr. Kailash Joshi, her Advocate has filed Vakalatnama but nobody appeared. On 14.2.2003 the complainant appeared in Commission and applied for time on the ground that she is busy in election. On 19.3.2003 she again applied for time on the ground of election. On 24.4.2003 also she applied for time and thereafter she became regularly absent on 27.5.2003, 11.7.2003, 15.9.2003. All of a sudden on 16.9.2003 again she applied for time and again 30.10.1993 was fixed for hearing. On 30.10.2003 she again became absent and the appeal was heard on behalf of the appellant by Sh. M.K. Kohli and on behalf of the Bank Sh. S. Parasan appeared. There was none from complainant Smt. Shanti Devi. 7. We have gone through the records and found that Smt. Shanti Devi did not take any interest in the proceedings rather she was interested more in Panchayat Elections. She did not produce any papers here and it is difficult for us to give a fool-proof judgment in the absence of the papers. But still looking to the reluctance of the complainant in taking part in the proceedings we have to hear the appeal ex parte. There is report of the Surveyor on the one hand. There is nothing on behalf of the complainant. The learned Forum has come to the conclusion that since the payment was made by the Bank to the dealer, therefore, the articles have definitely been purchased but even if the articles are presumed to have been purchased then also there is no evidence that those articles have not been sold by the complainant and if she has sold any article, she has rather produced it. The learned Forum has given a conjectural finding that since the tree has fallen on the shop, 50% of the articles might have been damaged. From where he got this percentage is not at all clear. It was a village side shop. The loan has been given for a sum of Rs. 31,500/- and if the articles had been purchased for a sum of Rs. 31,500/- only and the loss is said to be 50% then also it cannot be more than Rs. 15,750/-. There is no evidence or allegation at all that she has also paid anything to any dealer from her own account. It may be true to some extent that the report of the Surveyor is ex parte, he did not take statement of any witness. But even if said formula is adopted then also some portion of the loss must be borne by the complainant as well. In these circumstances we find that the complainant was not at all entitled for a compensation for a sum more than Rs. 10,000/-. The order and the appeal is to be modified accordingly. ORDER The appeal is partly allowed and partly dismissed. The award of compensation is to be modified that the complainant is to be given only a sum of Rs. 10,000/- as compensation. The order of payment of cost of Rs. 500/- is also set aside. Both the parties shall bear their own costs throughout. Appeal partly allowed.