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2010 DIGILAW 70 (JK)

National Insurance Co. Ltd. v. Mehbooba Shabnam

2010-02-18

BARIN GHOSH, GH.HASNAIN MASSODI

body2010
1. The present appeal is against an award passed by the Jammu & Kashmir State Consumers Protection Commission. By the award, claim under a Fire Policy has been allowed. Before the Commission, the claimant contended that she had taken out a policy of insurance from the appellant covering the peril of fire in respect of a house and household articles lying therein. It was contended that a fire broke out which gutted not only the house but also all household articles lying inside the house. The claim was on the basis of total loss of the insured properties. According to claimant, despite lodgement of the claim with the appellant under the policy, appellant did nothing and, accordingly; the claimant had been forced to approach the Commission. 2. Appellant contested the claim and contended that on receipt of the claim, it had appointed Andrabi Associates as Surveyor, who surveyed and reported that the house was not complete, as many a necessary ingredients of a complete house, were not reportedly found but whatever was there suffered total destruction by fire due to terrorism. It was contended in the counter that on the basis of said report of the Surveyor, the loss was assessed by another Surveyor and, in terms thereof, a sum of Rs. 3, 39, 736/- was payable under the policy. Appellant informed the same to the claimant by a communication but the same returned undelivered with postal remark that the addressee is not available at the address. 3. Before the Commission, the appellant did not produce anyone representing Andrabi Associates nor did it produce the person who assessed the loss on the basis of the report of Andrabi Associates. Before the Commission, witnesses, who deposed on behalf of the claimant, asserted that no one representing Andrabi Associates ever visited the house which was destroyed. Taking into account the evidence on record, the Commission has made and published the award. 4. Before us, learned counsel for the appellant contended that in the instant case, the dispute was pertaining to the quantum of the loss, which according to the policy of insurance, was required to be referred to Arbitration and, accordingly, the Commission ought not to have gone into the matter. 4. Before us, learned counsel for the appellant contended that in the instant case, the dispute was pertaining to the quantum of the loss, which according to the policy of insurance, was required to be referred to Arbitration and, accordingly, the Commission ought not to have gone into the matter. In addition to that, it was contended by the appellant that the house was an incomplete house, incapable of keeping household goods, and, accordingly, no award could be made in respect of household goods and, at the same time, it was required to establish what were infact lost and, the value thereof, to ascertain the claim payable under the policy. It was submitted that the same having not been done, the award is in any event interferable. 5. The fact remains that the appellant did not contend before the Commission that the dispute inter se the parties is in regard to the quantum of loss suffered and that the same is required to be referred to Arbitration, in terms of the Arbitration clause contained in the policy of insurance. Appellant having had not asserted the same before the Commission, cannot take the said plea for the first time in the appeal. 6. Whether the house was a fully constructed house or a semi finished house, not fully constructed, was a question of fact to be ascertained on the basis of evidence tendered. The report of Andrabi Associates was produced before the Commission but no one was produced to prove the contents thereof. The report of Andrabi Associates in no uncertain terms held out total destruction due to fire of what was in existence. However, the report did not make any endeavour to ascertain what was in existence. Be that as it may, in the absence of a person proving the contents of the said report, no part of the said report could be treated to be a piece of evidence acceptable in law. Similar is the case pertaining to the report prepared by yet another person about the loss said to be on the basis of the report of Andrabi Associates. In any event, unless the report of Andrabi Associates is proved and the contents thereof are acceptable, the second report has no value. Similar is the case pertaining to the report prepared by yet another person about the loss said to be on the basis of the report of Andrabi Associates. In any event, unless the report of Andrabi Associates is proved and the contents thereof are acceptable, the second report has no value. On the other hand, the evidence on record suggested assertions after assertions that the house was complete, household goods were lying there and the house was being used. In that background, the Commission has proceeded on the basis that the insurable value of the properties lost was so much, as has been awarded, and, it being not contended before us that the loss has been assessed by the Commission in excess of the liability of the appellant under the policy of insurance, there is no scope of interference. 7. The appeal fails and the same is dismissed.