NEW INDIA ASSURANCE COMPANY LIMITED Vs. SALEEMA BEGUM

JUDGEMENT

(1.) THROUGH the medium of this appeal order dated 28.11.2006 passed by the learned Divisional Forum, Srinagar (hereinafter to be referred as Forum) has been challenged. The brief facts of the case are that the respondent had obtained a fire policy along with other buildings jointly and the building under dispute was shown in the insurance cover as two storeyed in height including electric and sanitary fittings". The policy number was 48 -95572. The policy came into force on 29.8.2002 and had to expire on 28.8.2003. During the currency of the insurance policy on 17.4.2003 a devastating fire broke out in the rented out rooms of the insured building which was brought under control with the help of fire tenders. The case of the respondent was that household goods as well as the other insured portion of that building were damaged. The cause of fire was leakage of gas cylinder. The claim was raised with the appellant and Mr. Shabir Ahmed Rizvi was appointed as final Surveyor, who assessed the loss for single storeyed portion in the sum of Rs. 80,232 and for double storeyed portion in the sum of Rs. 13,348. The appellant repudiated the claim on the ground that only two storeyed building had been insured under the policy cover, whereas the Surveyor has found that loss has been caused to a building which was partly single storeyed and partly double storeyed. There was thus variation in the subject matter of the insurance policy and the claim was not payable. The respondent in her complaint alleged that it was the same building which had been insured for a risk of Rs. 5.00 lakh, but it was constructed in such a manner that part of it was single storeyed and part of it was double storeyed. The respondent herself has appeared in the witness box and has stated that the loss caused to the building and the household goods was in the sum of Rs. 2,72,890. Mr. Bashir Ahmed who was the insurance agent of the appellant for getting the building in question insured has also been examined as a witness by her and he supported the case that the damaged building was the same which has been insured by him under the policy cover in question. Besides that, she had also examined Mr. Abdul Hamid, Civil Engineer who had prepared her estimate, but the learned Forum has discarded his statement on the plea that he had deposed that his evidence stated to be on affidavit was no signed by him. No evidence was produced by OP in rebuttal.

(2.) ON this factual matrix of the case, the learned Forum allowed the complaint of the respondent and allowed her the assessed amount to the tune of Rs. 95,580 along with interest @ 9% per annum after six months from the date of loss till realization. Besides that, an amount of Rs. 10,000 was awarded as compensation for mental agony and deficiency in service. The litigation expenses were awarded in the sum of Rs. 3,000.

(3.) THE appellant has felt aggrieved of the order and challenged the same inter alia on the ground that there is misappreciation of evidence because the Forum has fallen into error by holding that the damaged building was the same which had been insured under the insurance cover, but that was a different building. That the defence taken by the appellant before the Forum has not been appreciated properly.