Ghulam Nabi vs NEW INDIA ASSURANCE CO. LTD.

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.

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". 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.

Heard the arguments.

MR. Ajay Gandotra, Advocate of the appellant has contended that the insured double storeyed house of the appellant was gutted in fire on 15.2.1995 and vide telegram dated 18.2.1999 Annexure P-6 (annexed with the complaint), respondent insurer had been requested to depute a Surveyor in time, the receipt whereof had been acknowledged vide registered letter dated 17.4.1995 wherein the appellant was required to do formalities stated therein. The appellant had completed all the formalities but respondent refused to settle the claim, whereupon the appellant was compelled to approach the Commission by filing the complaint. That during the pendency of the proceedings, the parties arrived at a settlement and the complaint was dismissed on 17.4.1998 but there was the permission that in case the parties do not arrive at a settlement within three months, the appellant could again approach the Commission. After the passing of that order, the respondent insurer deputed the Surveyor Sh. Shakeel Ahmed Bhat to assess the loss on 5.5.1998 who submitted his report bearing No. 1228/FR/NIA dated 20.6.1998 and on its basis the claim of the appellant was repudiated on 25.6.1998. In terms of the order of the Commission dated 17.4.1998, the appellant again filed the complaint on 8.1.1999 before the Forum and not in the Commission because by virtue of amended law, the Forum had become the Forum of the first instance.

THE complaint was resisted by the respondent on the plea that it was utterly misconceived and he had set up a cock and bull story with mala fide intention to usurp the public money by hook or crook. THE Surveyor in his inquiry had found that a single storey cow-shed cum godown was damaged by fire in incident which was not covered by insurance policy. That appellant had not co-operated for deputing a Surveyor on spot. That the appellant had challenged the veracity of the report of the Surveyor Mr. Shakeel Ahmed Bhat through the medium of an application before the Forum which was opposed by the respondent. THE Forum accepted that application on 28.4.2005 with the following findings : "To ascertain the truth about the claim of the complainant it is proper in the circumstances of the case to appoint another Surveyor so that clear position may come out about the claim of the complainant, as the complainant has not relied upon the Surveyor appointed by the Company on the ground that he has submitted a wrong report. THE application moved by the complainant is allowed and O.P. is directed to depute Second Surveyor from the panel who shall go on spot in presence of complainant and submit detailed report about the claim of the complainant within three months from today."

Mr. Sandeep Singh, the learned Counsel of the respondent has contended that the appellant himself did not cooperate with the insured to get the alleged loss verified from the Surveyor and when the Surveyor Mr. Shakeel Ahmed Bhat assessed the loss on 5.5.1998 he had found it as a fraudulent case, because the appellant had burnt his cow shed in order to usurp the insurance of insured double storeyed building which did not belong to him in exclusive ownership as has been reflected in the report of the Surveyor Mr. Shakeel Ahmed Bhat. The delay for the appointment of the Surveyor on the part of the insured stood mitigated on 17.4.1998 when appellant had entered into a compromise with insurer in the Commission and his complaint stood dismissed. The doctrine of waiver applies to the facts of the case and it cannot be now said that insured itself was negligent in not promptly settling the claim. He has also argued that a Second Surveyor which on the direction of the Forum was appointed to visit the spot and assess the loss in his report under the head of "assessment of loss" recites, "in our opinion under this policy, the under writer is not liable to indemnify the loss." He has also shown to us the photographs of the alleged burnt building which had been handed over to the insurer by the insured and were in the record file of the insurer. Those photographs did not tally with the photographs attached with the report of Second Surveyor namely, Shri Mahesh Badyal. We have considered the respective contentions of the Counsel of the parties and gone through the record. The plea of waiver raised by Mr. Sandeep Singh, Advocate of respondent is not legally tenable, because the order of the Commission dated 17.4.1998 (Annexure P-9 with the complaint) had given three months'' time to affect a compromise and there was a super-imposed condition in this order that, "if no settlement is effected within the period given (three months) the complainant is at liberty to approach the Commission." It is only after the passing of this order dated 17.4.1998, the respondent woke-up from the slumber and on 5.5.1998 appointed the surveyor Mr. Shakeel Ahmed Bhat to assess the loss. The alleged incident had taken place on 15.2.1995, the information whereof as per the admission of the insurer itself had been received on 18.2.1995. Thereafter, the appointment of the Surveyor was made after a period of more than three years and this culpable negligence speaks volumes against the fair working of the insurer. The statutory duty imposed on the insured was to immediately assess the alleged loss after 18.2.1995 and in case the appellant/insured had not co-operated, the insurer should have repudiated the claim with a reasoned order but unfortunately we have not found any such order on the record. It was only on 25.6.1998, when the repudiation of the claim was made but that too after receiving the report of Mr. Shakeel Ahmed Bhat and that report was not accepted by the appellant and on his application the Forum had asked the insurer to get the loss assessed by another Surveyor and accordingly Mr. Mahesh Badyal, Surveyor inspected the site on 18.7.2005 i.e. after a gap of more than 10 years. In the opinion of Mr. Mahesh Badyal, Surveyor the insurer was not liable to indemnify the loss but on the saying of appellant the insurer took the measurements of the remains of the alleged damaged building and assessed the loss to the tune of Rs. l,70,000. On the basis of this report the Forum has indemnified the appellant to make good the loss.

THE evidence led by the appellant consists of affidavit of Mr. Mohd Abdullaha, Chowkidar of the village who has deposed that in the year 1995 residential house of the appellant got damaged by fire and the whole immovable property inside the house got damaged. Mr. Ghulam Mohd Zargar who is the Sarpanch of that village had deposed in his affidavit that appellant in the year 1986 had constructed a house which was damaged in fire on 15.2.1995 and was reduced to ashes. Mr. Ghulam Nabi Malik who is the Numberdar of that village has also deposed alike. THEre is a copy of the report on the record of the case which was lodged on 10.4.1995 in the concerned police station. THE report recites that on 15.2.1995, the house of the appellant consisting of two storeyed building and where the cattle also used to be sheltered was gutted in fire. THE reason for delay in lodging the report is given that appellant was sick and there was rain and heavy snow during that period which prevented his moments to lodge the report. THEre is a report (Annexure P-4) of the Tehsildar Doda which states that on the basis of inquiry being conducted by the Naib Tehsildar of Bhagwah circle the house of the appellant was gutted in fire on 15.2.1995 and he was not entitled to any relief from the Government as the same had been insured. THEre is also a certificate (Annexure P-5) issued by the Station Officer, Fire Station, Doda which says that on 15.2.1995 one residential house of the appellant was involved in the accidental fire and the fire station was unable to render any service as there was no motorable road in the village. THEre is also a report of concerned Patwari of the village placed on the record (Annexure P-6) which states that the house of the appellant had been constructed in Khasra No. 1650/440 min which had been constructed in the year 1986 and was burnt in fire in the year 1995. THEre is the report of assessment of loss prepared by Mr. S.S. Pati Garoo, Engineer of Road and Building Department (Annexure P-7) who has assessed the value of the appellant''s building at Rs. 4.00 lacs. THE appellant had got this loss assessed in terms of the directions contained in letter dated 17.4 1995 written by the insurer. THE author of this report was not produced as a witness, hence this report does not have any evidentiary value. THEre is also certificate issued by Mr. C.L. Thakur, Advocate of Doda which recites that the building of the appellant was gutted in fire in the month of February, 1995. A similar type of certificate has been issued by Ghulam Hassan, Advocate and Ajay Kumar, Advocate of Doda. THEn there is a joint declaration of ten natives of the village of the appellant and surrounding villages which also supports the alleged incident of fire. THE appellant in his affidavit has supported the allegation made in the complaint.

AGAINST the evidence of the appellant/insured, the insurer has produced an affidavit of Suman Gupta who is the Divisional Manager of New India Assurance Company and she has deposed that immediately after getting the intimation regarding the alleged occurrence the insurer had deputed M/s. Alak Consultant Pvt. Ltd., Surveyor for assessment of loss, but appellant did not cooperate with him and for about three years nothing could be done. That after the report of the Surveyor Mr. Shakeel Ahmed Bhat, the claim of the appellant was found frivolous which was repudiated. Mr. Mahesh Badyal Surveyor has deposed on affidavit that the insured had arranged photographs of the alleged gutted building on spot which were totally in variance with the existing position on the spot. He had not found any trace of burnt bricks on the site. The arranged photographs of the insured depicted a cluster of houses including a mosque in the vicinity but site of the building was found at an isolated place and the insured had also claimed that only one house of his brother was adjacent to his house at the time of loss. The report as well as the evidence of Mr. Mahesh Badyal, Surveyor do not corroborate the story of the appellant with regard to the burning of his double storeyed insured house in fire. They are not to be taken seriously for the determination of the controversy because he has visited the spot after a gap of more than 10 years. There was no legal binding on the insured to keep all the burnt material in safe custody for such a long period. Mr. Shakeel Ahmed Bhat Surveyor of the insurer in his report has stated that insured on spot had narrated to him that after the alleged occurrence the salvage was removed from the site. He after spot inspection and local inquiries has in his report stated that a single storeyed cow-shed/godown had been damaged in the said fire incident. Mr. Mahesh Badyal, Surveyor does not support him on this aspect of the incident but totally contradicts him. Thus, both the Surveyors cancel each other''s version. The insurer was statutorily bound under the provisions of the Insurance Act and the terms of the insurance contract to immediately get the alleged loss verified from its Surveyor/Surveyors but to our utter surprise and horror, we find that there was culpable negligence on its part for more than three years for not deputing any Surveyor on spot. Mrs. Suman Gupta, Divisional Manager of the Insurer Company in her deposition has spoken about the deputation of M/s. Alak Consultant Pvt. Ltd. as Surveyor for assessment of loss but this story does not find any place in the objections filed by the insurer on 10.9.1999 which were filed five years earlier to the period of deposition of Mrs. Suman Gupta. She deposed on 20.1.2006. In para 5 of the objections, the insurer has stated that immediately after getting the information from the complainant regarding the alleged occurrence, action was taken by the Insurance Company, and request was made to the complainant vide letter dated 17.4.1995, to assist the surveyor which request was not acceded by him. Here we find no place of M/s. Alok Consultant Pvt. Ltd., Surveyor. It thus becomes crystal clear that Mrs. Suman Gupta is concocting a false story to stave off the indolent conduct of the concerned colleagues which practice is deplorable. The plea raised by Mr. Sandeep Singh, Advocate regarding the waiver of delay on the part of the insured is devoid of any legal force because the Commission had not scuttled the right of the insured in its order dated 17.4.1998 but by virtue of that order three months time was given to the parties to effect the compromise. Rather, they were allowed to approach the Commission again in case no settlement could be affected (Annexure P-9). The doctrine of "waiver" has been discussed by the Hon''ble Supreme Court in the case of Associated Hotel of India Ltd. V. S.B. Sardar Ranjeet Singh, AIR 1968 SC 933, wherein it is held that, "a waiver is intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights". Similarly, the Apex Court in the case of Mademsetty Satyanarayan v. G. Yelloji Rao and Others, AIR 1965 SC 1405, has held that, "waiver means agreement to release or not to assert right". In the case of Jaswant Singh Mathura Singh and Another v. Ahmedabad Municipal Corp. and Others, (1992) Suppl. (1) SCC 5, the Apex Court has held, "issue of notice essentially to ascertain waiver of the benefit conferred." Adverting to the facts of the present case, we do not find any ingredient of the doctrine of waiver existing in the factual matrix of the case. The argument of the learned Counsel is thus neither factual nor legally correct and is rejected.

In view of the above made discussion, we find that the appellant Mr. Ghulam Nabi Khan has succeeded in proving his case by adducing documentary and oral evidence which has preponderant evidentiary value. On the other hand, respondent insured has failed to establish its plea that it is totally a false case put up by the insured in order to grab the insured amount. In case this was the scheme then the insurer should have become more alert and cautious in acting with utmost alacrity by deputing a Surveyor on the spot without allowing any grass to grow under its feet. Rather, insurer had become a mute spectator for more than three years. It neither deputed any Surveyor nor settled the claim in any way. In the circumstances of the case it becomes obligatory on the part of the higher ups in the administrative hierarchy of the insurer to locate the delinquent/delinquents who for three years has/have slept over the claim by not taking any effective action. Such a lapse should not be allowed to re-occur which is the demand of its bona fide consumers whose hard earned money is always at the stake. In this view of the matter, we accept appeal No. 2800/2006 of Mr. Ghulam Nabi Khan whose claim to the extent of Rs. 3 lacs is accepted with interest @ 6% per annum from 8.1.1999 (the date of filing the complaint before the Forum) till its realization and the litigation charges of Rs. 5,000 . For mental and physical agony compensation is awarded in the sum of Rs. 15,000. The appeal filed by the insurer bearing No. 2803/2006 is accordingly dismissed. The record of the Divisional Forum be sent back. Appeal by complainant allowed. Appeal by OP dismissed.