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2010 DIGILAW 650 (HP)

Dhani Ram v. The Oriental Insurance Co. Ltd.

2010-03-31

ARUN KUMAR GOEL, CHANDER SHEKHAR SHARMA, SAROJ SHARMA

body2010
ORDER (Arun Kumar Goel, J. (Retd.), President (Oral). - This appeal is directed against the order passed by District Forum, Shimla, in Consumer Complaint"-No.149/2006 on 20.7.2009. By means of impugned order, complaint filed by the appellant has been dismissed. Hence this appeal. 2. Admitted facts giving rise to this appeal are, that house of the appellant situated at Village Seri (Khalawan), P.O. Pujarli No.3, Tehsil Rohru, District Shimla, was insured with the respondent alongwith household goods lying in it. Everything was insured for Rs.5,00,000/-. 3. It was also not disputed at the time of hearing that as a result of fire on 14.11.2004, house was gutted as well as the household goods which were lying inside in it were also destroyed. Matter was brought to the notice of the Insurance Company, who deputed Shri Manuj Doger, Surveyor, to assess the loss. Report of the Surveyor .is Annexure R1 and per him, loss caused was in the sum of Rs.2,75,630/-. He, on 10.9.2005, obtained acceptance of claim amount vide Annexure R3. This letter is signed by the attorney of the appellant, whereby he had agreed for settlement of amount in the sum of Rs.2,75,630/-. 4. After receipt of the report Annexure R.1 from the Surveyor, and Annexure R.3 consent letter from the attorney of the appellant, the matter was not settled as no amount was paid by the respondent. In this behalf, we may also point out that the agreed amount of Rs.2,75,630/ - was not offered to the appellant. Reason for not paying this amount as well as for repudiating his claim is that he was not having insurable interest in the property which as per policy terms and conditions and principles of fire insurance should be absolute and indisputable. 5. In the aforesaid background, alleging deficiency in service against the respondent, consumer complaint was filed. Repudiation of claim was justified by the respondent on the plea that the appellant had no insurable interest in the building as well as the household goods lying in it which were subject matter of the insurance, therefore repudiation of his claim by the respondent was legally justified. 6. Mr. Jamalta, learned Counsel for the appellant submitted that so far report of the Surveyor Annexure R1 is concerned, it is not worth the paper on which it is written. 6. Mr. Jamalta, learned Counsel for the appellant submitted that so far report of the Surveyor Annexure R1 is concerned, it is not worth the paper on which it is written. According to him, in case the respondent wanted to accept the report as well as the consent letter, Annexure R.3, money should have come forth then and there. Instead of doing the needful, claim has been rejected on wholly irrelevant and untenable ground. By upholding the same, District Forum committed grave error per Mr. Jamalta. 7. On the other hand, Mrs. Sharma on behalf of the respondent while contesting the claim of the appellant in this appeal, submitted that unless the appellant had absolute insurable interest as its exclusive owner, her client was not liable to indemnify him for the loss suffered as a result of the fire to the building as well as to the household effects lying in it. Regarding Surveyor's report, submission of Mrs. Sharma was that he is an independent person duly appointed by the Insurance Regulatory Development Authority and as such his report cannot be brushed aside lightly. In the alternative, but without admitting or conceding the claim of the appellant, she submitted that if any amount is payable it cannot be more than Rs.2,75,630/- as assessed by the Surveyor for which the appellant through his attorney had consented to accept this amount vide Annexure R.3. Though she hastened to add that by making this submission she is neither admitting the liability nor conceding the claim of the appellant in any manner, whatsoever. 8. After having given our thoughtful consideration to the facts existing on the complaint file, we are of the view that the impugned order is liable to be set aside and consequently complaint allowed. Reason being that when insurance was undertaken it is presumed that the Agent/Development Officer of the respondent had satisfied himself regarding the insurable interest of the person qua the property that he was getting insured. If he was not satisfied, he could have refused to undertake the insurance. It is the statutory duty of the Agent/Development Officer under the Insurance Regulatory and Development Authority (Protection of Policy Holders' Interests) Regulations, 2002, to have explained all the merits and demerits including exclusions and exceptions etc. to the person seeking insurance so that he could understand what is best in his interest. It is the statutory duty of the Agent/Development Officer under the Insurance Regulatory and Development Authority (Protection of Policy Holders' Interests) Regulations, 2002, to have explained all the merits and demerits including exclusions and exceptions etc. to the person seeking insurance so that he could understand what is best in his interest. A duty is cast upon the insurer like the respondent in this appeal to have followed the provisions of Regulations, 2002 (supra). It hardly needs to be emphasized that when law requires a particular thing to be done in a particular manner, it has to be shown to have been done accordingly and in its absence, presumption would be otherwise. There is nothing placed on record by the respondent showing compliance with these Regulations of 2002. 9. Faced with this situation Mrs. Sharma submitted that once the appellant accepted through his attorney to settle the claim in the sum of Rs.2,75,630/-, other things become secondary. This is a plea being noted to be rejected. Reason for rejecting this submission of Mrs. Sharma is, that the consent letter was obtained by the Surveyor as far back as on 10.9.2005. All that appellant has got thereafter is shuttling from one Court to another. In case the Insurance Company wanted to take advantage of this document, money should have come forth within reasonable time. It was never offered and there is nothing on record to that effect. Ground taken for rejecting the claim of the appellant is that he had no insurable interest. If that was factually the correct position, then why the insurance was done by the respondent, Mrs. Sharma had no answer. This is also not the case of the respondent that the appellant had obtained the insurance policy by suppression of any fact. 10. So far report of Mr. Manuj Doger, Surveyor is concerned, we have gone through it. Its examination shows that against most of the amounts claimed by the appellant, he has disallowed or has substantially reduced those. For what reasons such reduction/deletion has been made by him in his report, there is nothing in it. He is an expert in the branch of loss assessment being a licensed Surveyor. With a view to support his report as an expert, he is supposed to assign reasons howsoever brief those may be. For what reasons such reduction/deletion has been made by him in his report, there is nothing in it. He is an expert in the branch of loss assessment being a licensed Surveyor. With a view to support his report as an expert, he is supposed to assign reasons howsoever brief those may be. There is nothing to suggest why he has either reduced or disallowed most of the amounts claimed by the appellant. Once this conclusion is arrived at and the entire building with household effects having been gutted as a result of the fire, we are of the view that the appellant is entitled to the sum insured. Ordered accordingly. 11. Catching last straw on behalf of the respondent, Mrs. Sharma submitted that no amount beyond Rs. 2,75,630/- be allowed in favour of the appellant since he had agreed to accept the same through his attorney vide Annexure R.3.Respondent cannot be allowed to take this plea when it did not choose to pay the amount to the appellant at any point of time from 15.10.2003 till date. 12. No other point was urged. In view of the aforesaid discussion while allowing 124 2010(2) Cur.L.J.(H.P.) this appeal, order passed by District Forum, Shimla, in Consumer Complaint No. 149/2006 on 20.7.2009 is set aside and as a consequence of it, said complaint is allowed thereby directing the respondent to indemnify the appellant in the sum of Rs.5,00,000 / - alongwith interest @ 9% per annum with effect from 1.6.2005 till the date of payment/ deposit whichever is earlier. This date we have fixed allowing 6 months to the respondent for the settlement of the claim. Appellant is also held entitled to compensation for harassment etc. which is quantified at Rs. 10,000/ - besides cost of this appeal as well as of the complaint in the lumpsum of Rs.6,000 /-. Learned Counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary as per rules. M.R.E. 124 2010(2) Cur.L.J.(H.P.) this appeal, order passed by District Forum, Shimla, in Consumer Complaint No. 149/2006 on 20.7.2009 is set aside and as a consequence of it, said complaint is allowed thereby directing the respondent to indemnify the appellant in the sum of Rs.5,00,0001- alongwith interest @ 9% per annum with effect from 1.6.2005 till the date of paymentl deposit whichever is earlier. This date we have fixed allowing 6 months to the respondent for the settlement of the claim. Appellant is also held entitled to compensation for harassment etc. which is quantified at Rs.1 0,000 1 - besides cost of this appeal as well as of the complaint in the lumpsum of Rs.6,000 1-. Learned Counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary as per rules. M.R.B.