NATIONAL INSURANCE COMPANY LIMITED Vs. MOHD RAFIQ MIR

JUDGEMENT

(1.) ORDER dated 18.12.2006, passed by the learned Divisional Forum, Kashmir (hereinafter to be referred to as the Forum) has been taken in appeal, whereby and whereunder the complaint of respondent No. 1 has been allowed and appellant has been directed to reimburse respondent No. 1 to the extent of Rs. 4,41,000 along with interest @ 6% per annum after six months from the date of loss till realization. Litigation expenses have also been awarded in the sum of Rs. 2,000.

(2.) THE brief facts of the case are that respondent No. 1 obtained Insurance Policy No.421006/48/03/9801411 from the appellant for insurance cover of his stocks in trade in the sum of Rs. 7 lacs; while -as, fixtures, furniture and fittings were insured for a cover of Rs. one lac. During the intervening night of 14.5.2004, fire broke out in the premises, where the stocks in trade were stored and they were reduced to ashes. Mr. Hari Om preliminary Surveyor was appointed for spot inspection and subsequently M/s. N. Kumar Surveyors Pvt. Ltd. was appointed to make final assessment who assessed the loss in the sum of Rs. 4,41,000 which the respondent had claimed and the Forum had granted by way of relief. Respondent No. 2 was the financier of respondent No. 1 who on its own accord, on 24.2.2004; had obtained insurance cover of Rs. 3 lacs from United India Insurance Company to cover the risk of the hypothecated stocks in trade. After the alleged loss, respondent No. 2 had also raised the claim with their insurer (United India Insurance Company). The Insurer had deputed Mr. S.M. Peerzada, Loss Assessor and Surveyor, who after inspecting the site showed estimated loss to the extent of Rs. 1,90,000. Respondent No. 1 raised the claim with the appellant, which was repudiated on the plea that there was suppression of material fact, as he had not disclosed the insurance cover obtained with his knowledge from "United India Insurance Company" by respondent No. 2. Respondent No. 2 in its written version though had taken the plea that their Bank being financier had obtained the insurance cover to secure their loan from United India Insurance Company with the knowledge of respondent No. 1; yet they did not substantiate their plea by leading any evidence during the trial. Respondent No. 1 had denied any knowledge about the said insurance cover and pleaded that he came to know about the said insurance cover when Mr. S.M. Peerzada, Loss Assessor and Surveyor of United India Insurance Company had visited the spot. Since wilful knowledge on the part of respondent No. 1 for the alleged suppression of earlier insurance cover from United India Insurance Company had not been proved by any evidence so the complaint was allowed and the above stated reliefs were granted by the Forum.

(3.) THE appellant has felt aggrieved of the order and challenged the same inter alia on the following grounds: