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J&K High Court · body

2010 DIGILAW 587 (JK)

Naranjan Nath v. Regional Manager

2010-11-25

B.L.Saraf, G.D.Sharma

body2010
Per Justice G.D.Sharma 1. The complainant is a resident of village Vessu Chak Tehsil Dooru District Anantnag and owned one three storeyed tin roofed house in the same village. Because of spurt in militancy related incidents, he was forced to migrate from his village and took refuge in a migrant camp at "Garhi Udhampur". In the year 1995, he obtained insurance policy and thereafter had been continuously renewing the same. Annexure A filed with the complaint shows that his house was insured under Policy No.110200225 which was valid upto 21.06.2002. It was standard Fire and special Peril Policy which covered the risk of the insured house to the extent of Rs. 6 lac. Annexure D filed with the complaint shows that the Insurance cover regarding the above said house remained in currency from 22.06.2004 to 21.06.2005. The case of the complainant is that his house was set on fire by some subversive miscreants in the year 2001 and the incident had been suo motto registered by the Police in Police Station Qazigund. The complainant being a migrant and living in Udhampur came to know about the alleged loss after about four years. He lodged the complaint and on its basis on 24.06.2005, FIR No. 116/05 was registered in Police Station Qazigund. The complainant raised the claim with the OPs which was not settled. Vide annexure D, he approached the grievance cell of the OPs and when no action was taken; he was compelled to give legal notice to the OPs (annexure E). Despite all this, the claim was repudiated vide Annexure-F dated 18.01.2006. The complainant has claimed his indemnification to the extent of Rs. 6 lac alongwith interest @ 9 % per annum and compensation of Rs. 10,000/- for mental harassment. 2. The OPs have contested the complaint and in the written version have pleaded that complaint is not maintainable because the alleged incident took place in the year 2001 and the complainant lodged the claim with the OPs on 18.07.2005 which is time .barred as violative of condition No 6 (b) II of the standard fire and special perils policy. The OPs had sent the claim to their Regional office situated in Ambala which was not admitted. According to them, there is no deficiency in service. On facts, the premium receipts of the year 2001- 2002 and of the 2004-2005 (Annexure A&B respectively) have been admitted. The OPs had sent the claim to their Regional office situated in Ambala which was not admitted. According to them, there is no deficiency in service. On facts, the premium receipts of the year 2001- 2002 and of the 2004-2005 (Annexure A&B respectively) have been admitted. That FIR regarding the incident was registered in the concerned Police Station in the year 2005 and not in the year 2001. It is also alleged that the complainant was aware of the alleged loss in respect of the insured house one year earlier and thus he was late in raising the claim and thus violated condition no.6 (b) II of the Insurance Policy. The complainant did not inform the Ops in time about the alleged loss though he had the knowledge of it. Under these circumstances, the OPs were prevented from appointing any investigator/surveyor cum loss assessor. As there was a delay of more that 4 years so his claim rightly was not admitted. 3. The complainant has deposed on affidavit in support of the claim as well as examined Ghulain Mohd. Mir and Maharaj Krishen Dhar as his witnesses. On behalf of the OPs; Dr. S.K.Bhagat has appeared as a witness. 4. Heard the arguments. 5. Mr. C.M.Koul, the learned advocate of the complainant has referred the evidence of the complainant wherein he has categorically stated that he had been insuring his residential house situated in village Vessu Chak Rajwali Tehsil Dooru District Anantnag. That premium receipt annexure A has established the fact that the said house had insurance cover from 22.06.2001 to 21.06.2002. Annexure B has also established the fact that last insurance cover was from 22.06.2004 to 21.06.2005. He had been remitting the annual premium of the Insurance Policy through his friend G.M.Mir and the payments were being made in Srinagar office of the OP. The complainant had no knowledge when the insured house was set on fire. He informed the OPs about the burning of his house when he got the copy of the F.I.R dated 24.06.2005 from Police Station Qazigund. Complainant's witness G.M.Mir has supported him that he had been paying the premium on his behalf in Srinagar and in the month of June 2004 when he paid the last premium in the sum of Rs. He informed the OPs about the burning of his house when he got the copy of the F.I.R dated 24.06.2005 from Police Station Qazigund. Complainant's witness G.M.Mir has supported him that he had been paying the premium on his behalf in Srinagar and in the month of June 2004 when he paid the last premium in the sum of Rs. 480/- some person informed him in the office of OP no.l that the house of the complainant had gutted in fire in the year 2004. Thereafter, he informed the complainant. His other witness Maharaj Krishen Dhar has also stated that the complainant had been getting his house insured since 1995. Firstly, he stated that in the year 2001; he and the complainant had learnt that insured house had been gutted in the same year but in cross examination stated that since this was not his personal case so he did not know about the details of the case. Continuing his arguments Mr. Koul advocate has stated that the complainant got the knowledge regarding the burning of his house in the year 2005 when he lodged the report on 02.06.2005 in Police Station Qazigund. He has placed on record the copy of the FIR (Annexure C) wherein the concerned Police had given the information that on 20th of August 2004 already the information about the I incident had been furnished to the District Police Office Kulgam. That this Commission vide its interim order dated 10.08.2010, had called copy of the said report from the office of SSP Kulgam which was received in the Commission on 15.09.2010. He has referred the contents of the report wherein it is admitted that according to the information gathered by the Police that as soon as the security personnel of 9 RR vacated the residential house of the complainant, it was set ablaze in the year 2002 by some miscreants and the house was raised to ashes. Investigation was conducted but the miscreants could not be traced out. While concluding his arguments .he has contended that the complainant being a migrant had lost his contacts in his village because of militancy and got the information from his witness namely G.M.Mir who in the year 2004 was informed by somebody while being in the Office of the Insurance Company in Srinagar. While concluding his arguments .he has contended that the complainant being a migrant had lost his contacts in his village because of militancy and got the information from his witness namely G.M.Mir who in the year 2004 was informed by somebody while being in the Office of the Insurance Company in Srinagar. Thereafter, the complainant took steps to get the report dated 02.06.2005 lodged in the concerned Police Station Qazigund which was accepted on 24.06.2005 and case was registered under FIR no. 116/05. The correct information regarding the gutting of the house in question has been disclosed by the Police in its report which was received in the Commission on 15.09.2010. The Commission had directed the SSP Kulgam to send the said report. The report is based on investigation carried regarding the incident and it has clinched the issue by holding that the insured house was burnt in the year 2002. That there is no evidence on the record to prove the fact that the complainant had knowledge either in the year 2001 or in the year 2002 or even up to the year 2005 about the gutting of his house in fire. He got the authentic information when copy of FIR no. 116/05 (Annexure C) was received by him. In this view of the matter; there cannot be any violation of the terms and conditions of the Insurance Policy. Since it is a case of total loss so the complainant becomes entitled to the extent of the whole insured liability in the sum of Rs. 6 lac alongwith interest and the costs. 6. Mrs. Zainab Watali advocate for the OPs has contended that there is unexplained delay of 4 years for raising the claim resulting in the violation of policy condition no. 6 (b) II of the standard Fire Insurance Policy in question. According to her the complainant had the knowledge that the occurrence had taken place in the year 2001. That there was a delay of more than 4 years. Despite such unexplained delay of 4 years, the claim was referred to the Regional Office Ambala for seeking directions. In that office,' the claim was not entertained because there was violation of the terms and conditions of the Insurance Policy. In order to buttress her arguments; Mrs. Zainab Watali advocate has urged that the complainant had the knowledge of the loss in the year 2004. In that office,' the claim was not entertained because there was violation of the terms and conditions of the Insurance Policy. In order to buttress her arguments; Mrs. Zainab Watali advocate has urged that the complainant had the knowledge of the loss in the year 2004. She has referred annexure C attached with the written version, wherein complainant had admitted that he had the knowledge of the loss caused to the insured house in the year 2004 because annexure C is dated 01.07.2005 and it is a letter addressed to the Manager of the OP wherein it is stated that he had returned from Delhi last year (i.e in the year 2004) and heard that his house had been gutted. He thus was late by I year in raising his claim with the concerned Branch Manager of the OPs. This is an admission on the part of the complainant and he cannot wriggle out from it. He has not come with the clean hands in the Commission because he has not annexed all the copies of premium receipts barring of the years 2001-2002 and 2004-2005 (Annexures A and B). That averments made in para 2 and 3 of the complaint have established the fact that complainant's house had no insurance cover from 22.06.2002 to 21.06.2004. The report submitted by the SHO P/S Qazigund on 15.09.2010 on the direction of the Hon'ble Commission is not specific that the occurrence had taken place before 21.06.2002. The house in question must have been put on fire after 22.06.2002 because the complainant had discontinued his insurance cover up to 21.06.2004. The conduct of the complainant shows that when he became aware about the burning of his house in the year 2004 he renewed his policy thereafter. The learned counsel has referred to the cross examination of the complainant wherein he has stated that the insured house had 3 storeys with attic whereas his witness G.M.Mir has admitted that he had been getting the house insured from the OPs and the house was 4 storeyed with attic. He has admitted that his affidavit was prepared at Jammu and got attested by the complainant as he himself was busy. He has admitted that his affidavit was prepared at Jammu and got attested by the complainant as he himself was busy. He had met a person from the village of the complainant who had informed him that the house was gutted in the year 2004 and he had accordingly informed the complainant on telephone and prepared the report in his own hand writing and gave it to the concerned SSP who was Mr. Parihar by name. This shows that the complainant had the information in the year 2004 about the alleged incident and he waited for one more year in lodging the claim with the company. Even the witness of the complainant namely, Maharaj Krishen has stated that the complainant and he knew that the insured house had been gutted in the year 2001. Whil concluding her arguments, the learned counsel has contended that it is not clear whether the complainant himself or his witness G.M.Mir had lodged the report in the year 2005 in the Police. Since it is a false and concocted claim so rightly it has not been admitted. In support of her contentions she has cited the case of HP State Forest Co. Ltd v. M/S United India Insurance Co. Ltd (AIR 2009 SC, 1407) wherein it has been held that claim which was filed 3 years after disclaimer was found barred by time. Similarly she has also cited the case of National Insurance Co. Ltd. v. Sujir Ganesh ( AIR 1997 SC 2049 ). In this case, it has been held that after 12 months from the happening of loss or damage the claim is barred. She has also cited the case of Rajendar Kour v. United India Insurance Co. Ltd. (SLJ 2000, 456). 7. We have considered the respective contentions of the counsel appearing for the parties and perused the record. It is an admitted fact that the house of the complainant was covered under the insurance policy for fire risk from 22.06.2001 to 21.06.2002. It is also admitted fact that the house had insurance covers (vide annexures A and B) from 22.06.2001 to 21.06.2002 and 22.06.2004 to 21.06.2005. It is also legally settled that in case the claim is raised after 12 months from the happening of loss or damage, the claim becomes unenforceable. It is also admitted fact that the house had insurance covers (vide annexures A and B) from 22.06.2001 to 21.06.2002 and 22.06.2004 to 21.06.2005. It is also legally settled that in case the claim is raised after 12 months from the happening of loss or damage, the claim becomes unenforceable. It is also admitted fact that the insured house of the complainant had been completely raised to the ground by fire by some subversive elements.. The only controversy which requires consideration and adjudication is whether or not the house was burnt during the period when it had insurance cover. 8. The complainant is a migrant and had no access to visit his village where the insured house was situated. He had been getting his house insured from Srinagar branch of the OPs through his friend Mr. G.M.Mir. On his written complaint dated 02.06.2005, made to Dy.SP Kulgam which was forwarded to S.H.O Police Station Qazigund case under FIR No. 116/2005 was registered on 24.06.2005 (annexure C) attached with the complaint. The Police in this report has stated, "In the year 2001, some miscreants had set ablaze all the two houses besides the cow-shed and no FIR stands lodged in this Police Station so far". In that connection separate report had been submitted by the Police to District Police Office, Kulgam on August the 20th, 2004 vide their communication 275/5A/QZD. This Commission vide interim order dated 10.08.2010 had directed the SSP Kulgam to send the copy of the above stated report. In response to this direction, report from SHO Police Station Qazigund was received in this office on 15.09.2010 which states that the house of the complainant and one Ratan Lal S/O Neel Kant residenst of village Chek Vessu Rajwali were lying vacant after their migration from the year 1990 and in the year 2001 the security forces occupied both the houses. That in the year 2002, the personnel off security forces (9RR) vacated those houses and took refuge in their own camp. 9. In the year 2002, few unknown miscreants set those houses on fire and they were raised to ground. Because of abnormal law and order situation the miscreants could not be traced out. The argument advanced by Mrs. That in the year 2002, the personnel off security forces (9RR) vacated those houses and took refuge in their own camp. 9. In the year 2002, few unknown miscreants set those houses on fire and they were raised to ground. Because of abnormal law and order situation the miscreants could not be traced out. The argument advanced by Mrs. Zainab Watali advocate to the effect that insured house in question may have been burnt on or after 22.06.2002 when there was no insurance cover and as such the complainant is not entitled.to any relief because there was no insurance policy in operation requires appreciation while taking into account, the ground realities of the place where the insured house was situated as well as the intent and import of the Consumer Protection Act. As per the record produced by the complainant (annexure B attached with the complaint) a fresh insurance policy had been obtained by him regarding the said house for a period from 22.06.2004 to 21.06.2005. Her other contention is that the claim was raised in the year 2005 and it was time barred by four years. This argument has to be viewed in the context that there is no explanation on the record from OP's side as to why after raising of the claim by the complainant in the year 2005, they did not get the claim verified or assessed from any competent investigator/surveyor and loss assessor. 10. It is an admitted fact that the house in question was not in existence in the year 2003 but still OPs issued the insurance policy in favour of the complainant for the years 2004 and 2005. The J&K Consumer Protection Act is a benevolent piece of legislation enacted for the redressal of the genuine grievances of bonafide consumers without observing the strict rules of procedural laws and the Evidence Act. The Consumer Fora of-course are under legal obligation to follow the principles of natural justice being the courts of equity. Under the Act, they have to follow the procedure as prescribed under S.ll of the Act. It was humanely impossible for the complainant to prove the exact date of loss when the investigating agency of the state namely, the Police had even failed to arrive at any conclusion as to on what date and during which month of the year 2002, the insured house was set ablaze. It was humanely impossible for the complainant to prove the exact date of loss when the investigating agency of the state namely, the Police had even failed to arrive at any conclusion as to on what date and during which month of the year 2002, the insured house was set ablaze. The discrepancies shown in the evidence of the complainant's witnesses namely G.M.Mir and Maharaj Krishen with regard to the alleged occurrence; thus loses their significance. It is not understandable how the OPs issued the insurance policy in the year 2004 (vide annexure B) when the house in question was not existing on the spot. 11. In case there is a doubt with regard to the happening of a certain fact having bearing on the insurance risk the benefit of doubt has to flow in favour of the insured. In this case, the complainant is a poor school teacher who had to flee away from the place of his birth leaving his insured house at the mercy of subversive and anti national elements. Admittedly his insured house alongwith house of one Rattan Lal were set ablaze by those elements. This fiendish act was perpetuated against the complainant at an opportune time when the house was lying vacant after security personnel had vacated it. There can be possibility that the insured house was set ablaze on or before 21.06.2002 when the Insurance Policy was in currency. The burden was on the OP's to prove that it was burnt at a time when there was no Insurance Policy in operation and that burden has not been discharged. Equally it is not conclusively proved by the OPs that complainant had failed to raise the claim within one year from the date of knowledge of the occurrence. 12. The complainant is categorical in stating that after getting the copy of F.I.R he raised the claim. In such circumstances there could be no infringement of condition no. 6 (b) 11 of the contract of Insurance. In this view of the matter, we allow the complaint and direct the OPs to reimburse the complainant by making him the payment of Rs. 6 lacs with interest @ 8% per annum from the date of lodging the complaint till the final payment is made. He is also entitled to the cost of litigation quantified in the sum of Rs. 6,000/-. The complaint is consigned to records.