BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD. vs E.A.VAVACHAN

THE opposite party in O.P. No. 602/94 on the file of the Consumer Disputes Redressal Forum, Idukki is the appellant.

THE complainant''s case before the District Forum was that he is the proprietor of Anugraha Textiles at Kanjar; he had taken Exbt. A1, insurance for the shop and stocks for an amount of Rs. 2,25,000/- the insurance coverage was for the period from 24.12.1992 to 23.12.1993. While so in the night of 13.8.1993 the stock furniture and the shop were destroyed by fire whereby he sustained a loss of Rs. 1,48,258/-. He intimated the matter to the Insurance Company and also the police. On the basis of the information given by him the police registered a crime as 208/93 on the basis of Exbt. A2 FIR. THE fire force visited the spot, the copy of the report prepared by them is Exbt. A3 series. As per the information given by him the opposite party appointed D.W. 1 Surveyor, who filed Exbt. B1 survey report. In spite of his claim for an amount of Rs. 1,48,258/- the opposite party sent a voucher settling the claim for Rs. 13,448/-. Since the said amount was too low he signed the said voucher under protest. He alleged that the failure of the opposite party to honour the claim would constitute deficiency in service. THErefore, he wanted redressal. In the version filed by the opposite party they sought to maintain that the actual loss suffered by him was assessed by D.W. 1 in Exbt. B1 report wherein D.W. 1 assessed the loss only at Rs. 13,447.50 and, therefore, the complainant is eligible only for that amount. The District Forum rendered an order on 20.2.1996 directing the opposite party to pay an amount of Rs. 1,48,258/- with interest at 12% from 13.8.1993. Aggrieved by the said direction the opposite party preferred an Appeal No. 672/96. By the order in the said appeal the order of the District Forum was set aside and the matter was remanded for fresh disposal. The complainant gave evidence as P.W. 1, a neighbour was examined as P.W. 2. Complainant produced Exbts. A1 or A3. On the side of the opposite party D.W. 1 was examined who proved Exbt. B1 survey report. They have also produced Exbt. B2 FIR.

On a consideration of the said material the District Forum made a direction to the opposite party to pay a compensation of Rs. 40,000/- with interest at 18%, challenging the said direction against the opposite party has come up in appeal. The learned Counsel for the appellant submitted that the view taken by the District Forum that there is deficiency in service and, therefore, the complainant is entitled to an amount of Rs. 40,000/- by way of compensation cannot be sustained, particularly in the context of Exbt. B1 survey report. The learned Counsel alternatively maintained that at any rate interest awarded by the District Forum is (sic.) cannot be supported. On the other hand the learned Counsel for the respondent sought to support the direction maintaining that it is not as if there was no material for arriving at the conclusion reached by the District Forum. The very observations in Exbt. B1 would show the bias nature of the report and hence the conclusion reached by the Surveyor cannot be treated as acceptable.

THE main thrust of the argument by the learned Counsel for the appellant is as to the quantification of the loss. As already noted the point urged by the learned Counsel is, the District Forum went wrong in not accepting the report of the D.W. 1, and there was no material to support the conclusion that the complainant is eligible for Rs. 40,000/- as according to the learned Counsel the order under appeal does not disclose any basis for quantification; the reliance was made by the learned Counsel on the decisions of the National Commission in National Insurance Co. Ltd. v. S. Sandhya Raj, III (1995) CPJ 36 (NC), as well as National Insurance Company Ltd. v. Thiruvalluvar Silk Cotton Industries, III (1995) CPJ 82 (NC). As already noted the respondent''s learned Counsel maintained that Exbt. B1 since is biased cannot be accepted, and with due regard to the data furnished by the evidence of P.W. 2 as well as Exbt. A2, FIR and Exbt. A3 series, would furnish enough material for the conclusion reached by the District Forum. With due regard to the aforesaid argument we have to first go into acceptability of Exbt. B1. One of the arguments urged by the learned Counsel for the respondent is, Exbt. B1 has an inherent weakness because the same was belatedly prepared. The learned Counsel made reliance on the decision of the National Commission in United India Insurance Company Ltd. v. Mrs. Pooja Gunchandra Joshi, II (1996) CPJ 56 (NC). The National Commission held that settlement of claim based on belated report received after 14 months would amount to deficiency of service. It was urged by the learned Counsel for the appellant that the delay in submitting the report as revealed was inspite of to the fact that the complainant was required to produce documents, he failed to produce the same. But the National Commission in the decision in Oriental General Insurance Co. Ltd. v. M/s. Karnal Card Board Industries, 1999 NCJ 342, held that plea of Insurance Company that the delay in non-settlement of the claim was due to inaction of complainant is not sustainable. The question is, whether the report in fact is delayed. Of course Exbt. B1 would say that the Surveyor visited the scene on 14.8.1993 and succeeded days whereas the fire occurence was on 13.8.1993. It was urged by the learned Counsel for the appellant, then it cannot be said that there was any delay. But it will be noted that though the report is dated on 20.3.1994, the same was filed before the Forum only on 15.7.1997. The delay in filing it before the Forum has to be adverted in the context of an observation in the first order of the District Forum wherein it is stated that inspite of oral direction by the District Forum to produce the survey report the appellant/opposite party did not produce the same.

SURVEYOR''s reports usually are accepted on the basis that the same comes from independent source, but certain remarks in Exbt. B1 by the SURVEYOR were both irrelevant as well as are capable of throwing light as to the acceptability of the report because the said remarks of the SURVEYOR reveals a condition of mind which cannot be stated to be unbiased. In the report he says, P.W. 1 the complainant is said to be mentally not well, and that his wife is immoral. A scrutiny of the evidence of P.W. 1 would show he stood the cross-examination it does not support a conclusion that P.W. 1 was mentally not well. The remark about the wife of P.W. 1 also has to be noted as not relevant for assessing the loss; in the context, with these features appearing in Exbt. B1 itself, it is difficult to accept the appellant''s case that as a matter of fact the report was ready on 20.3.1994 and was filed before the Authority. This is particularly so in the context of the fact that inspite of the direction by the District Forum before remand to file the report it was not filed and the same was filed before the Forum only after remand on 15.7.1997. These circumstances would support the case of the respondent that the production of report was delayed, and the report itself being biased cannot be relied on. The question now for consideration is, whether there was material for quantification of the loss. It is not a case where there were no material at all for quantification. The District Forum, of course does not specifically state as to the material relied on by it for coming to the conclusion that the loss could be Rs. 40,000/-. It will be noted, the FI Statement itself the complaint stated that the loss was Rs. 45,000/-. It was urged by the learned Counsel that the FI Statement since related to both the shop rooms, the said amount should relate to both the shop rooms. It will be noted, whereas the other shop room belonged to the wife of the complainant, the one involved in the instant case belong to the complainant. Therefore, the amount mentioned by him should ordinarly relate the materials in his shop room. It is true that a mere statement in the FI Statement by itself could not furnish evidence as to the loss sustained by the complainant. Once it is found that Exbt. B1 conclusion is not reliable, as it is admitted that loss was sustained in the fire we have to see whether there is evidence to support the quantification made by the District Forum. In that regard alongwith the FI Statement the statement by the fire force in Exbt. A3 has to adverted. The fire report mentions that the loss due to loss of textiles is Rs. 50,000/-. P.W. 2 the neighbouring shop owner swears that the shop in question was having good business and that at his visit of the shop on the previous day of the occurence as per his assessment there was furniture and the stock worth Rs. 1,25,000/-. When these materials are taken together, it would show that it is not a case where there was no material at all for making an assessment as to the compensation to which the complainant is eligible. Taking into account the said material, it cannot be said that the compensation fixed by the District Forum is without any basis or that the compensation is on the higher side. The learned Counsel for the appellant then raised a contention that at any rate the interest at 18% should not have been awarded. In the decision of the Supreme Court in United India Insurance Co. Ltd. v. M.K.J. Corporation, III (1996) CPJ 8 (SC), the Supreme Court held that the interest payable by the Insurance Company can be 12%. Therefore, that part of the direction has to be modified and the interest on the aforesaid Rs. 40,000/- shall be only at 12%; subject to the said modification, the appeal is liable to be dismissed, we do so. In the circumstance of the case there will be no order as to costs. Appeal partly allowed.