Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 292 (JK)

National Insurance Co. Ltd. v. Mian Mohd. Ismaiel

2018-05-11

RAMALINGAM SUDHAKAR, SANJEEV KUMAR

body2018
JUDGMENT : Sanjeev Kumar, J. In this petition, the petitioner-Company has called in question the order of J&K State Consumers Protection Commission Srinagar (hereinafter referred to as the 'Commission') passed in Appeal No. 40/2002 titled 'National Insurance Company Ltd. vs. Mian Mohammad Ismail and another' whereby the Commission, while disposing of the aforesaid appeal filed by the petitioner-company has modified the order of the Divisional Consumers Protection Forum, Srinagar (hereinafter referred to the 'Forum'). 2. Brief facts, giving rise to the filing of the instant petition, are that respondent No. 1 insured his residential house along with household goods for a sum of Rs. 2.50 lacs with the petitioner-Company. The insurance was valid from 06.02.1991 to 05.02.1992. On 07.03.1991, the insured property got destroyed in floods. Respondent No. 1 raised claim through respondent No. 2. The petitioner-company deputed one Mr. Zahoor Hussain as Surveyor to visit the spot and assess the loss. It is stated that the aforesaid Surveyor assessed the loss, but did not submit his report on the ground that he had demanded certain documents from respondent No. 1, but he did not cooperate with him. The petitioner-company did not settle the insurance claim lodged by respondent No. 1 and, accordingly, respondent No. 1 filed a complaint before the Forum. 3. On being put on notice, the petitioner-company appeared and submitted its written version. The claim of respondent No. 1 was resisted on the ground that the complaint was barred by limitation. It was submitted that the insurance claim of respondent No. 1 was closed as 'no claim' on 20.06.1993 and the complaint was filed in the year 1999 which was inordinately delayed and, therefore, was not maintainable. On merits, the claim was resisted by the petitioner-company on the ground that the actual loss could not be assessed due to non-cooperation by respondent No. 1, who despite repeated requests had failed to submit the requisite documents. 4. The Forum considered all the issues including the issue of maintainability of the complaint on the ground of limitation. On the basis of evidence, the Forum noted that though there was some repudiation on the part of the petitioner-company when it closed the insurance claim of respondent No. 1 as 'no claim' on 20.06.1993, but this repudiation was not conveyed to respondent No. 1. On the basis of evidence, the Forum noted that though there was some repudiation on the part of the petitioner-company when it closed the insurance claim of respondent No. 1 as 'no claim' on 20.06.1993, but this repudiation was not conveyed to respondent No. 1. On facts, the Forum found that there was no evidence, oral or documentary, brought on record by the petitioner-company to satisfy the Forum that the repudiation had actually been intimated to respondent No. 1. On the aforesaid premise, the plea of limitation raised by the petitioner-company was rejected. On merits, the Forum found that admittedly, the petitioner-company had appointed Mr. Zahoor Hussain as Surveyor, who after visiting the spot, had also assessed the loss, but had not submitted the report on the pretext that respondent No. had failed to submit the requisite documents demanded by him. 5. In the facts and circumstances of the case, the Forum assessed the damage by declaring the insurance claim as sub-standard on account of non-furnishing of requisite details of loss and directed that deduction shall be made 30% and 10% on account of notional salvage. The Forum, thus, found respondent No. 1 entitled to be indemnified by payment of Rs. 1.50 lacs along with interest at the rate of 9% per annum payable from two years after the occurrence till realization. 6. The petitioner-company took the matter before the Commission in Appeal No. 40/2002. The Commission concurred with the findings of the Forum, but, taking note of the fact that there was no evidence led by respondent No. 1 regarding the quantum of loss caused to him, found it appropriate not to remand the case back to the Forum and instead modified the order of the Forum by providing that instead of deduction of 40%, the loss shall be assessed by applying the deduction of 55%. The appeal filed by the petitioner-company before the Commission was, thus, disposed of with the aforesaid modification. The operative portion of the judgment of the Commission impugned in this petition is reproduced hereunder: “We have gone through the whole record. There is no evidence of the complainant regarding the quantum of loss caused to him. It is a fact that the insurance is admitted. It is also a fact that the loss is admitted but quantum of loss has not been proved. There is no evidence of the complainant regarding the quantum of loss caused to him. It is a fact that the insurance is admitted. It is also a fact that the loss is admitted but quantum of loss has not been proved. It was incumbent on the complaint to give the details of loss and to prove it. Merely saying that he lost household goods and total damage was caused to the house will not suffice for the Commission or the Forum to allow for indemnification on the basis of approximation theory. We could have remanded the case back to the Forum but we apprehend that no purpose will be served because enough time has elapsed since the date of occurrence. Occurrence has taken place in March 1991. More than 12 years have elapsed since then. In these circumstance, we feel that we must enhance the deduction from 40 to 55% so the order of the DF is modified to the extend that the appellants shall pay 45% of the insured claim to the respondent. There will be no change with regard to interest. The whole payment be made to the respondent/complainant through JK Bank within a period of four weeks.” 7. Having heard learned counsel for the parties and perused the record, it is apparent that the plea of limitation raised by the petitioner-company has been negated by the Forum as well as the Commission. There is concurrent findings of fact recorded by the Forum as well as the Commission that though the petitioner-company had repudiated the claim of respondent No. 1 on 20.06.1993, but there was no proof that the same had been conveyed to respondent No. 1. On facts, the Forum as well as the Commission found that in the absence of proper evidence, it was a case of sub-standard claim on account of non-furnishing of requisite details of loss. 8. The Forum applied the deduction of 30% and 10% on account of notional salvage and awarded a sum of Rs. 1.50 lac as compensation along with interest at the rate of 9% per annum. The Commission, however, enhanced the deduction from 40 to 55% and, accordingly, modified the award passed by the Forum. 9. Before us also, learned counsel for the petitioner-company raised the similar pleas. The plea of limitation has already been dealt with by the Forum as well as the Commission. The Commission, however, enhanced the deduction from 40 to 55% and, accordingly, modified the award passed by the Forum. 9. Before us also, learned counsel for the petitioner-company raised the similar pleas. The plea of limitation has already been dealt with by the Forum as well as the Commission. We do not find any reason to differ with the aforesaid view taken by the Forum as well as the Commission, more so, when at the time of presentation of the complaint, there was no period of limitation provided under the Jammu and Kashmir Consumer Protection Act 1987 for filing of a complaint. Regarding the admissibility of the claim as awarded by the Commission, the same being in the realm of factual adjudication also does not call for any interference by this Court in exercise of Writ Jurisdiction. 10. For all these reasons, we do not find any merit in this petition and the same is dismissed as such.