GHULAM NABI Vs. NEW INDIA ASSURANCE CO LTD

JUDGEMENT

(1.) This common order will dispose of both the above stated appeals as they have arisen from the same order which is dated 8.7.2006 and have been passed by the learned Divisional Forum, Jammu (hereinafter referred to be as the Forum ). In terms of the order, the appellant Ghulam Nabi Khan was awarded a sum of Rs.1,70,000 for the loss suffered by him in a fire which burnt his two storey house. On the said amount, interest has been paid at the rate of 6% per annum made payable after six months from the date of the loss. Litigation charges in the sum of Rs.3,000 were also awarded.

(2.) The facts of the case in brief are that appellant Ghulam Nabi Khan insured his double storey residential building vide policy No.1135250300892 which became effective from 12.12.1994 and had to expire on 11.12.1995. The amount assured in the policy was Rs.3.00 lacs. On 15.2.1995 (during the currency of the policy), the said building got gutted in fire and appellant Ghulam Nabi Khan on 18.2.1995, informed the respondent insurer about the incident as well as request had been made for deputing a Surveyor. The respondent/insured vide letter dated 17.4.1995 acknowledged the receipt of the telegram and directed the appellant Ghulam Nabi Khan to visit its office for discussion and to accompany the Surveyor to the spot. He was directed to bring with him duly filled in claim form, estimate of loss, copy of the FIR and Fire Brigade Report, site plan, ownership proof and age proof of the building, Tehsildar's report and brief description of loss. The appellant completed all those formalities and had been approaching the respondent for settlement but all the efforts were being put off on one or the other pretext. In the year, 1998, he was directed to take the photographs of the burnt house and produce the same. The appellant obeyed the direction but subsequently those photographs were not accepted. The appellant upto January, 1998, twenty times approached the insurer at Udhampur or Jammu but his claim was not settled. Ultimately, the appellant served a legal notice through his Advocate and after that when visited its office he received a flat refusal regarding his claim and then he approached the Commission for seeking the relief. After appearance in the Commission, respondent agreed on an offer to enter into a compromise within three months. On the agreed compromise, the Commission consigned the complaint to the records and in the interim order dated 17.4.1998 specifically recorded that, "if no settlement is affected within the period given (of three months), the complainant is at liberty to approach Commission".

(3.) On 5.5.1998, respondent deputed Shri Shakeel Ahmed Bhat as a Surveyor to assess the loss who submitted his report on 20.6.1998 (No.1228/fir/nia ). In the report; it was stated that the appellant with his three brothers were residing jointly in the double storeyed building which showed that all the four brothers jointly owned that house. In such circumstances, insurance cover should have given description of all the owners. His categorical finding was that the said building was found safe and intact and no fire damage had occurred to it since construction. He had taken the photographs of the building and enclosed with the report. It is also mentioned in the report that the appellant had on the spot told him, that he had a separate double storeyed building on the upper back side of the existing building which was damaged in fire on 15.2.1995. That after the incident, the salvage was removed from the site. The Surveyor as per his version in the report conducted the inquiries and found that a single storeyed cow-shed cum godown had gutted in the said fire. On the alleged site of the gutted double storeyed building no evidence about the existing of such building was found. Rather maze crop had been sown there. The Surveyor had demanded the photographs of the alleged effected premises which were handed over by the appellant to him. His finding in the report was that on scrutiny those photographs did not resemble with the existing site of the alleged occurrence and they pertain to some other site. The respondent accepted that report and on 25.6.1998 repudiated the claim. The appellant was forced to approach the competent Forum again and this time pecuniary jurisdictional limit of the Forum had been increased by way of amendment in the Consumer Protection Act. Consequently, complaint was filed and the assured amount in the sum of Rs.3 lacs as damages caused to the building was claimed. Besides that Rs.35,000 were also claimed on account of rent paid by him to his landlord whose premises had been hired by him at a monthly rent of Rs.2,000. A sum of Rs.20,000 was claimed as travel and lodging expenses incurred by him to visit the office of the respondent at Udhampur and Jammu for getting his claim settled. Besides that interest at the rate of 18% per annum on the loss suffered was claimed. After the trial of the complaint, the Forum awarded the claim as stated above. The order has been challenged by both the parties. In ppeal No.2800/2006, the appellant Ghulam Nabi Khan has claimed that the repudiation of his claim was arbitrary and illegal. That by leading cogent and convincing evidence before the Forum he had proved that his double storeyed building had been gutted in fire but the Forum has accepted the report of Mr. Mahesh Badyal, Surveyor which stated that, "under this policy the under writer is not liable to indemnify the loss". He on the showing of the insured had taken the measurements of the remains of the damaged building and assessed the loss of Rs. l,70,000 on this report, the award was passed to the tune of Rs. l,70,000 which is not in accordance with law and he has claimed a sum of Rs.3 lacs against the total loss of the building along with the interest and other expenses incurred by him such as Rs.30,000 for mental torture and trauma, the actual expenses incurred by him by way of travel and lodging expenses to the tune of Rs.50,000. Lastly, Rs.15,000 were claimed as litigation expenses. On the whole amount; interest had been claimed @ 9% per annum. In Appeal No.2803/2006, the appellant insurer has prayed for setting aside the impugned order on the ground that the Surveyor report of Mr. Mahesh Badyal recites that only a cow-shed had been burnt and there was no evidence to establish that the respondent insured's double storeyed building was gutted in fire. The cow-shed was not insured by the appellant herein. The award of compensation to the tune of Rs.1,70,000 has been based on no evidence and it suffers from patent illegality.