BALJI RAINA vs ORIENTAL INSURANCE CO LTD

-ON 22. 10. 1997, Balji Raina (now dead) filed this complaint herein inter alia alleging therein that he owned a residential house in Village Akoora which was made of burnt bricks and had roofing of CGI sheets. The said house had been insured for "fire Policy" with the OP and the risk was covered upto Rs. 15,00,000. The policy had been in currency from 30. 3. 1995 to 29. 3. 1996. Unfortunately, the house had been destroyed by fire and the incident took place during the intervening night of 29. 2. 1996 and 1. 3. 1996. After receiving the information immediately report was lodged in Range Police Headquarters, Jammu where he had been living as "a migrant from Kashmir Valley". Case was registered under FIR No. 90 of 1996 for the commission of offences falling under Sections 436, RPC read with Sections 3/25 of the Indian Arms Act in Police Station, Anantnag. The complainant also got certificate in respect of the incident from the Asstt. Director, Jandk Fire Services Command, Anantnag. Simultaneously, he raised claim with the OP and it appointed Surveyor information thereof was given to the complainant. The Surveyor asked the complainant to furnish the requisite documents for making the assessment of the alleged loss. On 15. 5. 1996, the complainant received a communication from OP whereby his claim was settled at Rs. 6,32,292 and he was required to send "the discharge voucher" duly signed by him. The complainant was in dire need of money and under compulsion had signed the "discharge voucher" which was sent back but no action was taken by the OP. After waiting for sometime, the complainant filed the complaint wherein indemnification for the assured amount in the sum of Rs. 15,00,000 has been claimed along with interest at the rate of 18%. In addition to that Rs. 1,00,000 has been claimed as damages for harassment and physical discomfiture. During the pendency of the proceedings, the complainant has died and his sons namely, Chaman Lal Raina and Rajinder Kumar Raina have been substituted as LRs. Vide ex parte order dated 7. 12. 98, the complaint was allowed by the Commission and claim to the extent of Rs. 6,32,292 along with interest thereon at the rate of 12% per annum was given from the date of loss till the date of making the final payment. OP challenged that order in the Hon''ble High Court and vide order dated 5. 2. 2002, passed in Appeal No. CIMA 57/ 2002 that order was set aside and remanded to the Commission with a direction that OP should be heard.

AFTER this, OP filed its written version wherein issuance of insurance policy for the period commencing from 30. 3. 1995 to 29. 3. 1996 was admitted but alleged withholding of agreed payment was denied. The appointment of a Surveyor and assessment of loss to the extent of Rs. 6,32,292 was also denied. Rather it was pleaded that Mr. K. L. Joshi who few years ago was the Senior Divisional Manager of the Divisional Office, Srinagar had in a fraudulent manner committed many irregularities by allowing baseless claims and his such misdeeds were got investigated by the CBI. He was arrested and is being tried under law. The receipt of the alleged information regarding the raising of claim in question by the complainant was also denied. The claim was of suspicious nature as there was no description of the insured house. However, letter dated 24. 2. 2003, is admitted whereby complainant was informed that a Surveyor would be appointed in case he agreed about his appointment. Complainant did not respond to this offer. The complainant Chaman Lal appeared as his witness and OPs examined Sayeed Abu Bakar as a witness. The complainant in his statement has stated that the claim was lodged by his father (late Sh. Balji Raina) but it was not settled on the false plea that it was never raised. The OP had appointed Mr. Mohd. Shafi Malik from Anantnag, as an investigator and subsequently appointed Mr. Parveen Agarwal of Cannon and Company Delhi as a Surveyor. He produced original copy of the Annexure F which was already filed along with the complaint as a photostat as an authentic proof of the intimation given to his father by the Senior Divisional Manager regarding the approval of the settlement of claim at Rs. 6,32,292, he further stated that there was official record showing the fact that payment of requisite fee had been made by the OP to the Surveyor regarding the assessment of the claim. In his cross-examination, he stated that all the requisite documents which included copy of the FIR were given to the Surveyor. That he had not produced any record showing that he had entered into correspondence with the Surveyor. OPs witness namely Sayeed Abu Bakar who is its legal assistant had admitted the currency of the policy in question from 30. 3. 1995 to 29. 3. 1996. He denied that any fire claim was lodged by the complainant with the OP and consequently any Loss Assessor was appointed. No assessment was made in the amount of Rs. 6,32,292. That the document marked AB which was produced in original by the complainant during his deposition was though admitted by him to have been issued by the then Sr. Divisional Manager, Srinagar yet it was fake because he had not been authorized in his official capacity to do so and it was an individual act done on his behalf. He admitted that investigator Mr. Mohd. Shafi and Surveyor Mr. Parveen Agarwal of Cannon and Co. , Delhi were in the panel of the OP but now they were not. According to him, during the investigation CBI had seized record of some cases and that record has been returned but feigned his ignorance regarding the seizure of the record of the case in hand. He had then clarified that he did not see any letter written by CBI regarding the case in hand. At the end of his statement, he stated that the necessary documents for the settlement of the case in hand were with the OP and on the direction of the Commission, the case can be settled within 3-4 months which is normal time taken for the settlement of a case. Heard the arguments.

The learned Counsel appearing for the complainants has pleaded that regarding the issuance of the offer of claim which has been marked AB and is under the signatures of Sr. Div. Manager dated 8. 5. 1996 the explanation has come from the OPs witness namely, Sayeed Abu Bakar and it was the result of an unauthorized act done by Mr. K. L. Joshi but has himself admitted the record of the case was neither seized by the CBI nor any letter was in the record of the OP which showed that it was also required like the record of other cases which were being investigated. He was also categorical in stating that the record in question was still available in the company which could be produced in the Commission if a direction was issued. He has not rebutted the specific allegation made by Mr. Chaman Lal Raina in his deposition that OP had paid the fee to the Investigator Mr. Mohd. Shafi and Surveyor Mr. Parveen Agarwal of Cannon and Co. , Delhi. He evaded the reply by stating that both of them later on were not kept in the panel of the OP. He has admitted that OP had the necessary documents to settle the claim. Concluding his arguments he stated that it was a case of total loss and should be indemnified to the full extent as it was a case of wilful mala fide act to withhold the genuine claim.

IN rebuttal Mrs. Z. S. Watali has reiterated the stand taken in the written version by the OP and added that no receipt had been produced by the complainant for raising his claim with the OP. That there is no record produced by the complainant which shows that there was communication between him and the surveyor regarding the claim and the omission shows that there was no such claim. That an offer was made to the complainant to accept the appointment of a new surveyor but he gave no reply. That no "signed discharge voucher" was received by the OP on the basis of which claim could be settled. We have considered the respective contentions of the Counsel for the parties. The defence taken by the OP in the written version that no such claim had been assessed by the Surveyor appointed by them has fallen like a house of cards in the presence of the evidence tendered by the witness of the OP namely, Sayeed Abu Bakar, legal assistant who has admitted that necessary documents of the present case to settle the claim are with the O. P. The OP has failed to rebut the allegations made by the complainant Chaman Lal on oath that even fee had been paid to the investigator Mr. Mohd. Shafi Malik as well as to Mr. Parveen Agarwal of Cannon and Co. , Delhi by the OP. He has admitted that document marked AB dated 8. 5. 1996 is a "claim letter" written by Mr. K. L. Joshi as he recognized his signatures but has given the explanation that it is an unauthorized document. He could not prove how it is an unauthorized document when he has admitted that he has not seen any case or letter containing allegations regarding the case in hand said Mr. Joshi. There is always a legal presumption that every official record is correct unless proved otherwise. At such an admitted position now remains nothing to be determined. All the objections raised by the learned Counsel for the OP pales into insignificance. Had there been a case of false claim being raised by the complainants, it was the duty of the OP to prove the falsehood of the claim and withholding of the settlement of the claim amounts to wilful denial of the legal liability and deficiency in service. Mr. Sayeed Abu Bakar had admitted that all the necessary documents to settle the claim are with the OP. The offer allegedly shown in the written version regarding the appointment of a new Surveyor could not be accepted by the complainants because occurrence had taken place 11 years ago. There is no evidence led by the OP in rebuttal to deface the evidentiary value of letter written by Mr. K. L. Joshi then Sr. Divisional Manager, Srinagar marked "ab". A similar controversy had arisen in the case of Oriental Insurance Co. v. Amar Nath Brat, where request for appointment of a new Surveyor had been denied and the Commission had overruled the contention of the OP. The matter was taken in appeal before the Hon''ble High Court (CIMA No. 7/99) and the said appeal was dismissed on 29. 1. 1999. In this view of the matter, we accept the complaint of the complainant and. direct the OP to make the payment of the assessed amount by the Surveyor to the tune of Rs. 6,32,292 along with interest @ 9% per annum from 8. 5. 1996 till the final payment is made. The OP has also to bear the cost of litigation in the sum of Rs. 8,000. The payment should be made within one month from today. The contention raised by Mr. P. N. Raina for the reimbursement of the whole insured amount in the sum of Rs. 15,00,000 is not acceptable in view of the admission made by the complainant (deceased) to accept an amount of Rs. 6,32,292 which fact cannot be overlooked. The complaint be consigned to the records. Complaint allowed.