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2017 DIGILAW 397 (JK)

Oriental Insurance Company Ltd. v. Gopal Singh

2017-07-20

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Alok Aradhe, J. 1. In this appeal, the appellants have assailed the validity of the order dated 28.09.2010 passed by the J and K State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the Commission’) by which the claim of the respondents to the tune of Rs.8,52,844/- along with interest @ 8 per cent has been awarded. 2. Facts giving rise to the filing of the appeal briefly stated are that the respondents are real brothers and are owners of nine shops situated at ‘Nashri Batote” on the Jammu-Srinagar National Highway. The respondents insured four shops against Policy No.262102/2005/252 for covering the risk of Rs. 6,00,000/- for a period from 29.09.2004 to 29.08.2005. Similarly, two shops were insured under Policy No.262102/05/251 and the risk was insured for a sum of Rs. 3,00,000/- for the same period. The remaining three shops were insured for an amount of Rs.1.5 lac for the same period. The respondents filed a complaint before the Commission on the ground that between 13.02.2005 to 15.02.2005, the surrounding area as well as area where the shops were situated suffered heavy land slides due to earthquakes and the insured shops were totally damaged. The incident was reported to the officers of the Insurance Company who appointed one Er. Sanjay K Tagotra, Surveyor and loss assessor to assess the loss caused to the shops of the respondents. The Surveyor assessed the loss to the shops of the respondents in respect of Policy No.262105/05/252 to the extent of Rs.4,75,425 for the risk covered to the tune of Rs. 6,00,000/- and also assessed the loss in respect of the shops covered under the Policy No.262102/05/251 to the tune of Rs. 2,27,419/-. In respect of 3rd Policy, the Policy No.262402/05/253 for an amount of Rs.1.5 lakhs, the claim of the respondents was not assessed. Thereupon the respondents approached the Commission claiming the compensation as aforesaid as well as a sum of Rs. 25,000 as mental torture and Rs. 15,000/- by way of litigation expenses were also claimed. 3. In the reply, the appellants raised a preliminary objection with regard to the maintainability of the complaint on the ground that the three cause of action were joined in the single complaint with regard to the three incidents which have taken place at three different points of time. 15,000/- by way of litigation expenses were also claimed. 3. In the reply, the appellants raised a preliminary objection with regard to the maintainability of the complaint on the ground that the three cause of action were joined in the single complaint with regard to the three incidents which have taken place at three different points of time. It was further averred that no certificate with regard to rains and floods during the alleged period was obtained either from the Meterological Department or from the concerned local authority. It was averred that as per the FIR lodged by the respondents, the loss was caused to the tune of Rs.1.5 lacs and exaggerated amount has been claimed before the Commission. 4. The respondents filed their own affidavits by way of evidence and they are cross examined by the appellants. The appellants examined the surveyor Mr. Sanjay K Tagotra and Mr. Dhuni Singh Motten Branch Manager as their witnesses and also submitted the investigation report of the investigator. The Commission vide impugned order dated 28.09.2010 awarded a sum of Rs. 8,52,844/- along with interest @ 8 per cent per annum from the date of the filing of the complaint till the final payment is made. Being aggrieved, the aforesaid appeal has been filed. 5. Learned counsel for the appellants submitted that the respondents have failed to adduce any evidence with regard to either earthquake or floods and rains and therefore the Commission has grossly erred in awarding the compensation. It is further submitted in respect of the shops covered under the third policy, Policy No.262402/05/253, no intimation was given by the respondents to the appellant-Insurance Company, as a result of which, it could not appoint the Surveyor and loss assessor to assess the loss which was caused to the property covered under the Insurance Policy namely Policy No.262402/05/253. However, the Commission has failed to appreciate the aforesaid aspect of the matter and has awarded compensation to the tune of Rs.1.5 lacs even in respect of the third policy. On the other hand, learned counsel for the respondents has supported the order passed by the Commission. However, the learned counsel for the respondents was unable to point out from the records that any intimation with regard to the third incident in respect of shops covered under the third policy was given to the officers of the Insurance Company. 6. On the other hand, learned counsel for the respondents has supported the order passed by the Commission. However, the learned counsel for the respondents was unable to point out from the records that any intimation with regard to the third incident in respect of shops covered under the third policy was given to the officers of the Insurance Company. 6. We have considered the submissions made by the learned counsel for the parties and have perused the record. Admittedly, in respect of the policy covered under Policy No.262102/05/251, and Policy No.262102/2005/252, the respondents had submitted an intimation to the officers of the Insurance Company. Thereupon, the Surveyor was appointed who has quantified the loss in respect of policy No. 262102/2005/252 to the tune of Rs.4,75,425/- and in respect of another policy No. 262102/05/251 to the tune of Rs.2,27,419/-. From the report prepared by the Surveyor, it is evident that the property belonging to the respondents covered under the aforesaid insurance policy has suffered damage on account of the incident which took place between 13.02.2005 to15.02.2005. Therefore, in our considered opinion, the Commission has rightly awarded the aforesaid amount to the respondents in so far as the claim of the respondents under the third policy i.e. policy No. 262402/05/253 is concerned, it is pertinent to note that the respondents did not submit any intimation to the officers of the insurance company with regard to shops covered under the aforesaid policy, as a result of which, no surveyor could be appointed to assess the loss caused to the respondents. Besides that, the respondents have failed to place on record any material to show that the shops covered under the third policy i.e. Policy No. 262402/05/253, had suffered any damage on account of either earthquake or rains or floods. Therefore, we set aside the award insofar as it pertains to the award of claim to the tune of Rs.1.5 lacs along with interest @ 8 per cent per annum in respect of the shop covered under the policy No. 262402/05/253. To the aforesaid extent, the award passed by the Commission is modified. Needless to state that the amount deposited by the appellant being in respect of the amount covered under the policy No. 262102/2005/252 and Policy No.262102/05/251 shall be disbursed to the respondents along with interest by the Registrar Judicial and the balance amount shall be refunded to the appellant. To the aforesaid extent, the award passed by the Commission is modified. Needless to state that the amount deposited by the appellant being in respect of the amount covered under the policy No. 262102/2005/252 and Policy No.262102/05/251 shall be disbursed to the respondents along with interest by the Registrar Judicial and the balance amount shall be refunded to the appellant. With the aforesaid directions, the appeal is disposed of.