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2017 DIGILAW 479 (JK)

Ghulam Nabi Khan v. New India Assurance Co. Ltd.

2017-07-28

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Alok Aradhe, J. 1. In this intra Court appeal, the appellant has assailed the validity of order dated 30.10.2007 passed by the learned Single Judge in OWP No.424/2007 by which the writ petition preferred by respondent No.1-Insurance Company was allowed and order of the Divisional Consumer Forum, Jammu has been maintained. 2. Facts giving rise to the filing of this appeal, briefly stated are that the appellant, namely, Ghulam Nabi Khan insured his double storied residential building with respondent No.1-Insurance Company for a period from 12.12.1994 to 11.12.1994 for a sum of Rs.3.00 lakh. On 15.02.1995, the aforesaid building got gutted in fire and the appellant on 18.02.1995 informed respondent No.1 about the incident as well as made a prayer for deputing a Surveyor to assess the loss. Respondent No.1 by communication dated 17.04.1995 acknowledged the receipt of the telegram and directed the appellant to visit the office for discussion and to accompany the surveyor to the spot. However, notwithstanding the fact that the appellant had repeatedly approached respondent No.1, respondent No.1 did not take any action for appointment of the surveyor whereupon a legal notice was served by the appellant. The appellant thereafter filed a complaint before the State Consumer Commission. After appearance in the commission, respondent No.1 agreed to enter into a compromise within a period of three months. On the basis of the aforesaid assurance made by respondent No.1, the Commission consigned the file to the record and passed an order stating that if no settlement is arrived at between the parties within three months, the complainant would be at liberty to approach the Commission. On 05.09.1998, one Shakeel Ahmed Bhat was appointed as Surveyor to assess the loss, who has submitted his report in which it was stated that the building in question was found safe and intact and has not suffered any damage on account of the alleged incident. Respondent No.1 in view of the report submitted by the Surveyor, on 25.06.1998 repudiated the claim of the appellant. 3. Thereupon, the appellant filed a complaint before the Divisional Consumer Forum, Jammu (for brevity, “the Divisional Forum”) in which a sum of Rs.3.00 lakh was claimed as damages. Respondent No.1 in view of the report submitted by the Surveyor, on 25.06.1998 repudiated the claim of the appellant. 3. Thereupon, the appellant filed a complaint before the Divisional Consumer Forum, Jammu (for brevity, “the Divisional Forum”) in which a sum of Rs.3.00 lakh was claimed as damages. Besides that, a sum of Rs.35,000/- was also claimed on account of rent paid by the appellant to his landlord and a sum of Rs.20,000/- was also claimed on account of travelling expenditures incurred by him along with interest @ 18%. The respondent No.1 filed the reply and resisted the claim on the ground that the claim of the appellant is utterly misconceived and has been made with a view to mislead. It is pertinent to mention here that during pendency of the proceedings before the Division Forum, on an application being made by the appellant vide order dated 28.04.2005, a Surveyor was appointed, who submitted his report and assessed the loss sustained by the appellant in the alleged incident at Rs.1,70,000/-. The Divisional Forum on the basis of the report submitted by the Surveyor, assessed the loss sustained by the appellant in the alleged incident at Rs.1,70,000/- and directed the payment of the aforesaid amount along with interest @ 6% per annum from September, 1995 till the amount is realized. 4. Being aggrieved, the appellant preferred an appeal before the Jammu & Kashmir State Consumer Protection Commission (for brevity “the State Commission”). The State Commission by order dated 09.03.2007 enhanced the amount of compensation to Rs.3.00 lakh along with interest @ 6% per annum from 08.01.1999, i.e. from the date of filing of the complaint before the Divisional Forum till its realization. The State Commission has also quantified the litigation charges at Rs.5,000/- and awarded a sum of Rs.15,000/- on account of mental and physical agony. Being aggrieved, respondent No.1 filed a writ petition before the learned Single Judge. Learned Single Judge vide order dated 30.10.2007 allowed the writ petition preferred by the respondent-Insurance Company and set aside the order passed by the State Commission and restored the order passed by the Divisional Consumer Forum by which the appellant was awarded a sum of Rs.1,70,000/- by way of compensation. In the aforesaid factual background, this intra court appeal has been filed. 5. In the aforesaid factual background, this intra court appeal has been filed. 5. Learned counsel for the appellant submitted that the appellant had led evidence to show that he had sustained loss to the tune of Rs.3.00 lakh in the incident and the learned Single Judge ought not to have re-appreciated the evidence in exercise of powers under Section 103 of the Constitution of Jammu & Kashmir and should not have interfered with the order passed by the State Commission, which was based on a sound principle of law. It is further submitted that the order passed by the learned Single Judge suffers from legal infirmity, inasmuch as the learned Single Judge has exceeded his jurisdiction and has acted like an appellate Court in appreciating the evidence. On the other hand, learned senior counsel appearing for respondent No.1 has submitted that on the basis of the prayer made by respondent No.1 himself, Surveyor was appointed during pendency of the proceedings before the Divisional Consumer Forum, who had quantified the loss at Rs.1,70,000/- and accordingly, the respondent Company has paid the aforesaid amount to the appellant and the appellant is not entitled to any further enhancement of the amount in the fact situation of the case. 6. We have considered the submissions made by learned counsel for the parties and have perused the records. It is not in dispute that initially one Surveyor was appointed, who had found that in fact the building of the appellant has not suffered any damage in the incident and on the aforesaid basis, the claim of the appellant was repudiated by respondent No.1. Thereafter, appellant filed a complaint before the Divisional Consumer Forum and during pendency of the proceedings in the aforesaid complaint; appellant himself moved an application for appointment of Surveyor. On the basis of the application moved by the appellant the Divisional Consumer Forum vide order dated 28.04.2005 directed respondent No.1 to depute second surveyor to assess the loss caused to the building of the appellant in the incident. On the basis of the application moved by the appellant the Divisional Consumer Forum vide order dated 28.04.2005 directed respondent No.1 to depute second surveyor to assess the loss caused to the building of the appellant in the incident. The relevant extract of the order reads as under:- “To ascertain the truth about the claim of the complainant it is proper in the circumstances of the case to appoint another surveyor so that clear position may come out about the claim of the complainant, as the complainant has not relied upon the surveyor appointed by the company on the ground that he has submitted a wrong report. The application moved by the complainant is allowed and OP is directed to depute second surveyor from the panel who shall go on spot in presence of complainant and submit detailed report about the claim of the complainant within three months from today.” The aforesaid surveyor, admittedly, carried out the survey in presence of the appellant and submitted his report in which quantum of loss was assessed at Rs.1,70,000/-. Thereupon Divisional Consumer Forum awarded the aforesaid amount in favour of the appellant. However, aforesaid aspect of the matter was not considered by the State Commission and State Commission has enhanced the amount of compensation to Rs.3.00 lakh without there being any material on record. The learned Single Judge has rightly interfered with the order passed by the State Commission and has held that the appellant is entitled to compensation to the tune of Rs.1,70,000/- along with interest @ 6% per annum. 7. The order passed by the learned Single Judge does not suffer from any legal infirmity warranting interference by this Court in this intra court appeal. The appeal, therefore, fails and is hereby dismissed. The records be sent back.