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2010 DIGILAW 88 (JK)

Ab. Samad Shah v. New India Assurance Company

2010-02-25

B.L.Saraf, G.D.Sharma

body2010
Per Justice G.D.Sharma (Oral) 1. The complainant in this case is a migrant from Kashmir valley and his allegations are that he owned one residential building consisting of two storeys with attic in height in village Kandi Khas (Mohalla Hyderpora) Tehsil Handwara. He had obtained Insurance Policy from OP which was in operation from 04.12.2001 to 03.12.2002. The residential building with attic alongwith electric and sanitary fittings were covered under the insured risk for Rs. 6 lacs. House-hold articles including personal effects had an insured cover in the sum of Rs. 2,70,000/-. It is alleged that in the year 1994 some unknown militants killed his son, brother and father-in-law. Because of the above stated tragedies and danger to his life, he had to abandon his residence and migrated to Jammu. During his stay in Jammu, in the year 1998, he got his house, attic, house-hold articles including permanent fixtures insured from OPs and the last insurance policy as stated above was in operation from 04.12.2001 to 03.12.2002. His case is that on 02.12.2002, he came to know that his house had been set ablaze by militants during the intervening night of 26/27.11.2003 and it was raised to the ground. On 27.11.2002, his nephew Farooq Ahmad Shah reported the incident in the concerned Police Station Kupwara, where F.I.R No. 304/2002 for the commission of offence under section 436 RPC was registered and investigation was entrusted to Mohd. Aslam, Head Constable. The complainant also raised his claim with the OPs for his indemnification. Mr. A.J.Dhillon was appointed as a surveyor. The assessment made by the said surveyor was not intimated to the complainant. He was forced to file the complaint on 04.03.2005. The relief claimed is the refund of the whole of the insured liability in the sum of Rs. 8,70,000/- alongwith interest @ 18% p.a. 2. In the written version, OP has taken preliminary objection that the Commission has no jurisdiction to entertain the complaint, which pertains to Srinagar wing. It is denied that complainant got the knowledge of the incident on 02.12.2002 but it is admitted that on the same day, the claim had been raised. The delay was caused because the complainant had not submitted the claim form in time. 3. Heard the arguments of the counsel for the parties. 4. Mr. It is denied that complainant got the knowledge of the incident on 02.12.2002 but it is admitted that on the same day, the claim had been raised. The delay was caused because the complainant had not submitted the claim form in time. 3. Heard the arguments of the counsel for the parties. 4. Mr. A.K.Pandita, Administrative Officer of the OP in his deposition has admitted that the report of the surveyor was received in the year 2003 but as there existed discrepancies between his report and that of the preliminary surveyor with regard to the plinth area so recomputation of assessment was got done. In this process the delay was caused. It is found that surveyor was appointed on 23.12.2002 and he on the same day visited the spot in the company of one representative of the insured. The surveyor in his report at page 3 has stated that after perusing the record of Jamabandi, it was found that the Insured house had been erected in the year 1994. He has also stated that assessment of the house-hold articles could not be made because they were taken away by the complainant alongwith him while migrating to Jammu. The counsel of the complainant has stated that assessed amount was deposited by the OP in the Commission on 14.07.2006 and withdrawn by the complainant on 14.08.2006. He has also pointed out that the loss assessed by the surveyor was in the sum of Rs. 2,74,697/- while as, the OP deposited the amount in the Commission in the sum of Rs. 2,57,001/-. That unnecessarily the deduction of about Rs. 18,000/- was made which was not warranted under any circumstances and prays that interest may be paid on that amount of Rs. 18,000/- after two months from the date of the receipt of surveyor's report( received on 19.05.2003) by the OPs till 14.07.2006--the date on which the assessed amount was deposited in the Hon'ble Commission. 5. We find that the request made by the Learned counsel is legally tenable because without any rhyme and reason the deduction of Rupees about 18,000/- has been made by the OPs while making the payment of assessed amount. This fact has been admitted by Mr. 5. We find that the request made by the Learned counsel is legally tenable because without any rhyme and reason the deduction of Rupees about 18,000/- has been made by the OPs while making the payment of assessed amount. This fact has been admitted by Mr. A.K Pandita administrative officer of the OPs who in his cross-examination has stated:- "The loss was not paid because of clarification sought from two surveyors." It is thus established that complainants' assessed loss of about Rs. 18000/- was not deposited without any basis and he is entitled to be reimbursed for the same. In this view of the matter, we allow the appeal and direct the OPs to make the payment of Rs.18,000/- alongwith interest at the rate of 8% p.a after two months from 19.05.2003 till the payment is made alongwith cost of litigation quantified at Rs. 4,000/-. The complaint is consigned to records.