AVTAR KRISHEN THAPLOO Vs. ORIENTAL INSURANCE COMPANY LIMITED

JUDGEMENT

(1.) This complaint has been filed by Sri Autar Krishen Thaploo, against the Oriental Insurance Company Ltd. , Branch Office Dehradun, for a claim of Rs.6,10,000/- along with interest. The complainant has alleged that he owns a residential house of Class-I construction, situate at Peer Bagh, Hyderpora, Srinagar (Jandk ). The complainant is in service and stationed at Rishikesh. He purchased a Fire Policy 'a' bearing No.252903/11/93/00043 from opposite party. The insurance cover was of Rs.6,10,000/- for the main building and cow shed-cum-store. The insurance was covered for risk of riots, strikes and attack of terrorists besides other perils. The period of insurance was from 4.10.1992 to 3.10.1993. The entire house was razed to ground due to fire caused by terrorists/miscreants and anti-social elements on or about 23.11.1992. An FIR of the incident was lodged with the Police Station Budgam in Kashmir. The opposite party, Insurance Company was informed of the incident on 23.11.1992. The complainant wrote to the Divisional Manager of the opposite party at Srinagar to settle the claim early. Regular claim of Rs.6,05,000/- was lodged with the opposite party. Verbal enquiries about the settlement of claim was made by the complainant but no tangible result has come out. A written notice was finally served on the opposite party on 27.10.1993. All these communications have not been acknowledged. The opposite party is liable to pay the compensation to the complainant because of its deficiency in service. The complainant has prayed for a grant of Rs.6,05,000/- being the amount of loss claimed along with interest @ 18% p. a. from 1st March, 1993 till the date of actual payment. Further amount of Rs.5,000/- has been claimed for harassment, inconvenience and cost.

(2.) Alongwith complaint, Fire Insurance Policy, copy of police report, copies of correspondence made to opposite party, are filed. Copy of claim and affidavit supporting the allegations of the complaint has also been filed. The opposite party filed written statement and objection. In the preliminary objection it was stated that the complaint is barred by principle of res-judicata as the matter directly and substantially in issue pertains to loss/damage sustained to the alleged property in a former Complaint No.175/1993 filed before District Consumer Forum, Lucknow and finally heard and decided on 18.8.1994. The dispute has already been decided upon and settled between the parties when the District Forum Lucknow vide its order dated 18.8.1996 has decided the complaint and the opposite party has complied with the order and an amount of Rs.1,00,204.10 p. including interest and cost has been received by the complainant towards full settlement. The complainant, therefore, is barred from making any further claim on the said issue which stands fully satisfied and settled between the parties. There has been no deficiency in service on the part of opposite party. The complainant himself has failed to furnish relevant information and documents to the opposite party and, therefore, the complaint has not maintainable. The complainant has not come with clean hands as he has concealed facts and stated wrong facts about the alleged date of loss. He has procured the insurance cover by concealing the facts about the insurable matter which had already been damaged prior to the alleged insurance and, therefore, the opposite party is not bound to cover the risk.

(3.) The opposite party further stated that inspite of the request of the opposite party's Surveyor the complainant had failed to produce and show the ownership over the alleged property. The facts about the nature of loss and damage have been concealed. The complainant had been procuring insurance from different places and was taking advantage of the post and authority. The alleged loss was sustained by the complainant on or before 17.7.1991 when the policy was taken on 20.10.1992. Fire loss as alleged was not reported by the complainant till the date of survey and preparation of survey report. He instead of complying with the necessary formalities and giving adequate information took recourse to proceedings before the Commission and has given wrong information to mislead the opposite party for unlawful gain. As per his own admission and statement the said loss to the property occurred on or about 17.7.1991 and, therefore, complainant knowingly and malafidely concealed at the time of procuring of the alleged insurance and made mis-representation that the said property was damaged thereafter. In the circumstances the opposite party cannot assume the risk for any event of loss occuring prior to the date of the start of insurance. The loss and damages surveyed by the Surveyor Javed Husain was to the extent of Rs.2,09,442/- without admission of any liability and the said damages and loss included the damages already claimed and settled between the parties as per order passed by the District Consumer Forum Lucknow on 18.8.1994 in Complaint Case No.175/1993. The complainant, therefore, cannot seek any compensation for the same loss or damage. The F. I. R. lodged by the complainant on 3.1.1993 is belated against the policy's terms and conditions.