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J&K High Court · body

2010 DIGILAW 27 (JK)

National Insurance Co. Ltd. v. Ab. Razaq

2010-01-19

B.L.Saraf, G.D.Sharma

body2010
Per Justice G.D. Sharma, J. (Oral) Appeal No. : 2913/07 1. Order dated 31.07.2007 passed by the Learned Divisional Forum Jammu (hereinafter referred to as Forum) has been taken into appeal. The Learned Forum in terms of the impugned order has allowed the complaint of the respondent and directed the appellant herein to make a payment of Rs. 1,15,025/- (Rupees One lac, Fifteen Thousand and Twenty Five only) alongwith interest @ 6% p.a with effect from November 2000 till realization. The cost of litigation were awarded in the sum of Rs. 10,000/-. The appellant has felt aggrieved and challenged the order inter alia on the following grounds:- (i) That the surveyor has assessed the loss in a fair manner and his report was not controverted before the learned Forum in accordance with the Law and procedure. The surveyor was not called in the witness box to challenge his findings. The Learned Forum suo moto enhanced the assessed amount without there being any legal basis. (ii) That the appellant had offered the assessed amount of Rs. 9,990/- to the respondent, but he declined to receive the same, and thus there was no deficiency on the part of the appellant. (iii) That there is no deficiency in service and only the quantum of the assessed loss is in dispute. The only legal remedy available to the respondent was to go for arbitration in terms of the Contract of Insurance in question. Appeal No. : 3095/09 Through the medium of this appeal, the appellant has challenged the award as being inadequate in quantum. The appeal was time barred and accompanied by the application for condoning the delay which was allowed and appeal registered as stated above. 2. By this common order both the above stated appeals shall be decided as both of them have arisen from the common order passed therein and impugned herein. 3. In Appeal No 2913/07, Mr. Baldev Singh Adv. as reiterated the grounds of the memo of appeal stated above and reiterated that in view of law laid down by the Hon'ble High court of J&K in the case of National Insurance Company Ltd. v. Lone Pharmaceuticals, 2003 (Supp.) JKJ 380 [(HC) (DB)] as well as held by the Commission in the case of Muzaffar Ahmad Ganie v. United India Insurance Co. Ltd. 2003 (2) JKJ 183 (Cons. Ltd. 2003 (2) JKJ 183 (Cons. PC), as well as the Law laid down by Andhra Pradesh State Consumer Disputes Redressal Commission Hydrabad, in the case of Mahadev Tiles Industries & Timber Depot v. The New India Assurance Co. Ltd. & Ors. II (1996) CPJ 464. The assessment made by the surveyor could not be altered by the Learned Forum. Mr. O.P.Thakur, the learned opposing counsel in support of his cross-appeal no. 3095/09 has contended that the Forum has committed an apparent error appearing on the face of the report of the surveyor by not awarding full indemnification of Rs. 2 lacs which amount was on the lower side than the actual loss assessed. That since, the assured risk was only upto Rs. Two lacs so justice demanded that the addition of Rs. 42,237/- which the surveyor had allowed after deducting 25% for non-submission of accounts books in favour of the insured appellant herein should not have been deducted by the Forum. 4. We have considered the respective contentions of the counsel appearing for the parties and gone through the law cited at the bar. It is an admitted legal proposition of law that finding of a surveyor which are just, fair and reasonable cannot be brushed aside. But a report which lacks above stated elements cannot be accepted as it does not help in the administration of justice as has no credibility. A bare perusal of the report in question reveals that the amount which has been made payable in the sum of Rs. 9,990/- is unconscious because the surveyor in his report himself has accepted that the average stock lying in the shop valued in lacs. He has admitted that the average purchase of earlier 2 and a half months made by the appellant insured herein were of the value of Rs. 8,78,548/- and the closing stocks were of the value of Rs. 1,68,592/-. The Learned Forum has rightly deducted an amount of Rs. 42,238/- for non submission of account books and the balance was accepted at Rs. 1,26,714. The salvage has been assessed and the amount of partially damaged items has been assessed by the surveyor himself at Rs. 11,198/-. The contention of the learned counsel, Mr. O.P.Thakur that the amount of Rs. The Learned Forum has rightly deducted an amount of Rs. 42,238/- for non submission of account books and the balance was accepted at Rs. 1,26,714. The salvage has been assessed and the amount of partially damaged items has been assessed by the surveyor himself at Rs. 11,198/-. The contention of the learned counsel, Mr. O.P.Thakur that the amount of Rs. 42,238/- should have been given to the insured and no deduction for the partially damaged items should have been made does not appeal to reason. When the assessment arrived by the surveyor is of doubtful nature then a Consumer Forum as a court of equity acquires the Jurisdiction to make a fair assessment on the available record from the report of the surveyor in the absence of any record produced by the parties by making a critical but judicial appraisal thereof. In the case in hand, the parties have not produced any evidence in respect of their respective rival contentions. The contention of Mr. Baldev Singh advocate that insured should have got a new surveyor appointed had by the lapse of time become an irrelevant exercise. This can be said so because the surveyor had submitted his report on 04.07.2000 which means within two months from the date of occurrence but the complaint was filed on 31.05.2005. During this long gap of time neither the claim was settled in a just and fair manner nor it was repudiated lawfully because no such order was ever served upon the insured appellant. In such circumstances, a consumer Forum is left with no option either to interpret the report reasonably in case it is capable of doing so or in the alternative to adopt the method of approximation by deducting some percentage from the risk assured by taking a value of the factual matrix with regard to the age of the insured building. On the basis of the value of the insured articles or stocks in trade etc. some-time, deducting of 30% from the assessed amount can be made from the alleged loss or even more or less. From this angle also, the learned Forum has made reasonable deductions and allowed the approximate indemnification. In this view of the matter, we find no cogent reason to interfere with the findings at this belated stage after a gap of about one decade from the date of loss. Hence, both the appeals are dismissed. From this angle also, the learned Forum has made reasonable deductions and allowed the approximate indemnification. In this view of the matter, we find no cogent reason to interfere with the findings at this belated stage after a gap of about one decade from the date of loss. Hence, both the appeals are dismissed. A copy of this order be placed on the record of each appeal. The parties are left to bear their own costs. The record of the Forum be returned at once.