NATIONAL INSURANCE COMPANY LTD Vs. DAVOOD ALI DAR

JUDGEMENT

(1.) THROUGH the medium of this appeal, order dated 28. 3. 2007 has been challenged. The learned Divisional Consumer Protection Forum (herein referred to as the Forum), had accepted the complaint of the respondent and allowed him an amount of Rs. 29,400 by way of indemnification of the insured liability along with interest @ 6% p. a. payable after six months from the date of loss till realization. Besides that, an amount of Rs. 10,000 has been awarded as compensation for financial loss and mental agony. Litigation charges have also been made payable for a sum of Rs. 2,000.

(2.) THE brief facts are that the respondent in order to earn his livelihood had purchased Carbon Copier from M/s. Raja Photostat and this firm also runs the business of preparing photostat copies, besides sale of Photostat machines. Mr. Rashid Haroon is the proprietor of the firm and he is assisted in the business by his son. They had originally purchased the photocopier from Delhi and sold it to the respondent for a consideration of Rs. 80,000 and issued the sale invoice. The respondent had insured the photocopier in the liability of Rs. 70,000 under policy No. 42010006/44/2001/6000002 and the insurance policy was effective from 17. 4. 2001 to 16. 4. 2002. It is averred that on 10. 4. 2002, the photocopier got damaged and the appellant deputed Mr. Nayeem Khan as Surveyor to assess the loss. He examined the machine twice and at the last occasion had got it dismantled in the office of M/s. Canon India at Regal Chowk, Srinagar in the presence of the Surveyor who had found it completely damaged and irreparable. The Surveyor had noted down all the damages caused to the photocopier and opined that the photocopier had been damaged beyond repairs and accordingly framed the survey report and submitted the same to the appellant in the year 2002. In the complaint, it was further averred that respondent's business got closed and he was not in a position to earn his livelihood but the claim was not settled and that was the deficiency on their part and actionable under the provisions of Jandk Consumer Protection Act. On 12. 4. 2003 a letter was written by the respondent to the appellant to settle the claim but there was no response. This was followed by personal visits but no settlement was made. In these circumstances the complaint was filed and after trial the above said relief was awarded in favour of the respondent.

(3.) IN the written version it was pleaded that after the raising of the claim, the appellant had immediately deputed the Surveyor namely, Mr. Nayeem Khan, to assess the loss who had twice inspected the photocopier and discussed the damages with the Engineer in the sub-office of the manufacturers located in Lal Chowk. He was satisfied that the machine was non-functional and had asked the respondent to submit claim documents but he had not cooperated. It is also admitted that during the discussions the Surveyor had made an offer to the respondent to settle the claim on total loss basis but he had insisted to settle it on repair basis. The respondent had failed to submit the documents like repair bills and sale letters, etc. and since the model of the photocopier had become out-dated and spare parts were not available in the market so on that ground the respondent could not get it repaired and produce the repair bills for assessment of loss. That after a gap of considerable time, the respondent had submitted the estimate of repairs bills and the total loss was assessed to the tune of Rs. 29,000 less by salvage value at Rs. 5,000 and on repair basis to the tune of Rs. 29,713 less by salvage value at Rs. 313 and submitted his assessment report in the office of the appellant on 27. 5. 2004. The appellant had also approached the respondent to submit repair bills and the sale letter in support of his claim so that the claim could be settled but that was not done and the claim could not be settled. The respondent had submitted photocopy of that bill which did not bear the signatures of the proprietor and that bill was bearing No. 833 dated 25. 2. 1998 which was found as fake and frivolous by their Inspector namely, Mr. Mohd. Ashraf Bhat. On these counts the claim was denied and there was no deficiency in service.