NATIONAL INSURANCE COMPANY LIMITED Vs. BRIJ MOHAN KOUL

JUDGEMENT

(1.) ORDER dated 13.11.2006 passed by the learned Divisional Consumer Protection Forum, Jammu (hereinafter to be referred to as Forum) has been challenged in the above stated appeals. In terms of the impugned order; two complaints bearing number i.e. 24/04, and 25/04 have been decided. The appeals were filed on 25.1.2007 and they were time -barred by 42 days. They were accompanied by application for condoning the delay. The applications were accepted vide order dated 29.2.2008 and consequently the appeals were registered against the above stated numbers.

(2.) THE brief facts of the case are that respondents namely, Brij Mohan Koul, Pyare Lal Koul (of appeal No. 2966/A and respondent Bal Krishen Koul of appeal No. 2967A are real brothers. Their fourth real brother is Avtar Krishen Koul. All the brothers jointly owned insured house situated in village Katpora, Palhalan Tehsil Pattan,District Baramulla. Respondents of appeal No. 2966/A had jointly got their shares of the house covered under the insurance policy issued by the appellant. It is a fire risk policy covering the terrorist act and malicious damages. The insured risk was to the extent of Rs. 4 lacs. In the same way, respondent of appeal No. 2967/A had got his share in the house insured for similar type of insurance risk to the extent of Rs. 2 lacs with the appellant. The fourth brother namely, Avtar Krishen Koul got his share in the said house insured for a risk of Rs. 1 lac but with Oriental Insurance Company. The case of the respondents herein before the Forum was that during the intervening night of 16/17th March, 2001, the insured house was set ablaze by some miscreants and it was razed to ashes. The claims which are the subject matter of the appeals were referred to M/s. Sharma Surveyor and Loss Assessor for assessing the loss. In appeal No. 2966/A, the Surveyor assessed the loss in the sum of Rs. 405,20, and in appeal No. 2967/A, the loss assessed by him was to the tune of Rs. 20,260. The amounts of the assessed losses were sent by the appellant company through two cheques but they were not accepted by the respondents. On the same kind of loss the brother of the appellants namely, Avtar Krishen had been paid the claim of Rs. 85,06 by his insurer namely, Oriental Insurance Company on the basis of the loss assessed by their Surveyor and Loss Assessor namely, Alak Consultant (Mr. Ravi Dhar). The Forum below has placed reliance on the report of M/s. Alak Consultant by calling the record from the Oriental Insurance Company Ltd. and indemnified each of the respondents to the extent of Rs. 85,061. His assessment report was preferred on the ground that Mr. Ravi Dhar assessor and loss Surveyor of Alak Consultant had visited the spot 20 days earlier to the visit of Mr. Sharma Surveyors. The other ground was that the assessment made by Sharma Surveyor and Loss Assessor was on the lower side. Aggrieved by the order, the appeals have been filed which shall be disposed of by this common order. The grounds of appeal are that M/s. Sharma Surveyor (Mr. Kuldeep Sharma) was a duly licensed Loss Assessor and Surveyor and had assessed the loss according to the prescribed procedure. That the respondents have disputed the quantum of the loss and the only remedy available to them was either to settle their disputes through arbitrator or file a civil suit in a Court of a competent jurisdiction. The learned Forum had no power or authority to accept the report of M/s. Alak Surveyors because he was appointed by a different Insurance Company and his report had evidential value, only in the case filed by Mr. Avtar Krishen Koul who had an insurance cover of only Rs. 1 lac. That exaggerated claim had been given to him in the sum of Rs. 81049. The respondents had refused to accept the above said amounts of their settled claims and as such there was no deficiency on the part of the appellant to render the service. The Forum without any jurisdiction has placed reliance on the report of the Surveyor and loss Assessor namely, Mr. Ravi Dhar of Alak Consultant who was an alien to the proceedings which were pending in the Forum. In rebuttal, Mr. Jugalthe Counsel appearing for the respondents has submitted that vide interim order dated 7.2.2005, the Forum in complaint No. 24/04 had called the record of the surveyor s report through Divisional Manager of Oriental Insurance Company, Gandhi Nagar, Jammu and that report became a part and parcel of the proceeding and rightly have been accepted by the Forum. He has produced a copy of the order and we have placed the same on the record of appeal No. 2966 -A.

(3.) WE have considered the respective contentions of the Counsel appearing for the parties and gone through the record. Mr. Sharma Surveyor in his report under the heading Insured premises has admitted that insured building had been badly damaged. He has also admitted: "that some of its portion was found damaged by fire and some portion appeared to have been damaged maliciously by some persons and material had been taken away". Under the heading the incident; he has admitted: "the exact cause of loss could not be confirmed by us during our visit. However, militant activities cannot be ruled out. Thus, the loss took place". He has referred to fire brigade report and has stated that it was a case of fire loss to the insured building due to heat and smoke of fire. Under the heading Position at survey, he has admitted: "That respondents have suffered maximum damage to their building due to fire, malicious acts and burglary". As he could not find the damage/undamaged wooden trusses and its members like rafters, purlings, etc., on the roof of the building, so he believed that they may be burgled. He has made "substantial deduction from loss assessed by him by believing that the loss was due to burglary/theft. After going through the report of Mr. Alak Consultant (Mr. Ravi Dhar); we find that he has given a clear findings after taking into consideration the contents of the FIR and then final investigation made by the police as under heading Police report, he has stated that, "police had investigated and established that the houses of minority community were set ablaze and the house of respondents herein had been gutted in the occurrence". Though in that case insured Mr. Avtar Krishan have not submitted the estimates of loss yet on spot the Surveyor had found that the entire building had been damaged and it required dismantling up to plinth level for reconstruction. Both the surveyors are qualified and licensed experts. They had visited the spot independently after the occurrence. We do not find even an iota of evidence on the record in support of the presumption and assumption drawn by Mr. Sharma Surveyor to establish his view that in absence of some material of the roof it could be established that it was also a case of theft/burglary. Such type of presumption and assumptions can be rebutted reasonably by stating that their removal from the spot could also be due to the result of malicious act on the part of some militants. It is an admitted fact that the claims of the respondents were covered under the risk of insurance policies for fire loss, act of militancy and malicious act. The investigation made by the police on the basis of registration of FIR has independent evidential value and Mr. Ravi Dhar of Alak Consultant has in his report stated that on his inquiry being made on spot as well as after taking into account the police report and the fire service report it was an established case of total loss of the building. That the loss was due to an act of militancy. When two expert reports are available before a Consumer Forum for the determination of a genuine claim, the one, which is of credulous nature and favours the Consumer, acquires preferential acceptance. Accordingly we place reliance on the report of M/s. Alak Consultants and find no illegality or impropriety in the impugned order. In this view of the matter, the arguments advanced on the behalf of the appellant that it was a dispute purely regarding the quantum of compensation and required decision either through arbitration or civil Court pales into insignificance. For the above made discussion, we dismiss both the appeals with cost of Rs. 4,000 each and uphold the finding of the Forum. The appeals are consigned to record and the record of the Forum be returned at once.