Hind Auto Center vs NATIONAL INSURANCE CO. LTD.

PETITIONER /complainant firm is a dealer in the business of selling tyres of various manufacturers like MRF, Birla, J.K., Bridgestone, etc. It had insured its stock with the respondent Insurance Company/OP for the period from 21.1.2003 to 20.1.2004. In the midnight of 17/18th January, 2004, 217 tyres worth Rs. 3,83,000 were stolen from the godown of the petitioner. The petitioner lodged an FIR bearing No. 21 on 22.1.2004 with the local police station. Thereafter, the petitioner/complaint approached the respondent Insurance Company but his claim was repudiated by the Insurance Company vide its letter dated 10.12.2004 on the basis of survey report. The petitioner/complainant, therefore, filed a consumer complaint under Section 12 of the Consumer Protection Act, 1986 with the District Forum which was opposed by the OP/respondent Insurance Company by filing its reply in which it was stated that the surveyor M/s. Duggal Gupta Associates has submitted their survey report in which it has been brought out that only an attempt for theft had been made but there was no actual theft committed and as such the claim of the petitioner was repudiated by the Insurance Company. On appraisal of the pleadings of the parties and the evidence adduced on the record, the District Forum vide its order dated 9.3.2012 accepted the complaint by granting the following reliefs: "In view of the above mentioned discussion the impugned repudiation letter is set aside and consequently the opposite party is directed to pay Rs. 3,83,000 to the complainant along with costs and compensation to the tune of Rs. 5000 to the complainant within 30 days of the receipt of this order by the opposite party or its duly authorized agent failing which an interest @ 18% per annum shall accrue thereon from the default date till its payment to the complainant."

Aggrieved of the aforesaid order of the District Forum, the respondent/opposite party Insurance Co. filed Appeal No. 519 of 2012 whereas the petitioner/complainant filed Appeal No. 720 of 2012 for grant of interest @ 18% p.a. on the awarded amount. The State Commission vide its impugned order dated 19.7.2012 allowed the Appeal No. 519 of 2012 filed by the respondent/opposite party, set aside the order of the District Forum and dismissed the complaint. Simultaneously, it dismissed Appeal No. 720 of 2012 filed by the complainant. It is against this impugned order that the present revision petition has been filed by the petitioner/complainant.

WE have heard learned Mr. Sanjay Sharma, Advocate for the petitioner and learned Mr. Yogesh Malhotra, Advocate for the respondent. We have also perused the record of the case. It has been contended by the Counsel for the petitioner that the State Commission has failed to appreciate the contention of the petitioner that there was no fault on its part with respect to the safety of the insured goods and that suitable precautions in storing the goods had been taken by the petitioner. He submitted that the petitioner had filed his affidavit evidence and before the State Commission non -suited petitioner''s case it ought to have appreciated that the contents of the report of the surveyor had not been proved by filing an affidavit by the surveyor. In view of this, the State Commission gravely erred in relying and adhering to the report of the surveyor. He further submitted that the State Commission should have appreciated that there was no evidence on record to show that the petitioner had not maintained any stock record as alleged by the surveyor in his report. Finally, he submitted that there was no occasion for the petitioner to lead any cogent and convincing evidence to rebut the report of the surveyor particularly when the same was not proved in accordance with law by the respondent Insurance Co. In the circumstances, learned Counsel pleaded that the State Commission has passed the impugned order without appreciating the facts of the case and the contentions raised by the petitioner and as such the impugned order is liable to be set aside. He, therefore, urged that the revision petition be allowed with costs. On the other hand, learned Counsel for the respondent submitted that the impugned order has been passed by the State Commission after considering all the related aspects and keeping in view the report of the surveyor which was not rebutted by the petitioner. He submitted that it is established law that unless there are cogent reasons to discard the report of the surveyor, Consumer Fora have to rely on the surveyor''s report. He, therefore, submitted that the order passed by the State Commission is a fair and just order and there is no merit in the revision petition filed by the petitioner which deserves to be dismissed.

THE State Commission while dismissing the claim of the petitioner and setting aside the order of the District Forum has observed thus: "It is well settled law that the surveyor report cannot be brushed aside in the absence of any other cogent or rebuttal evidence. In support of his argument, learned Counsel for the appellant -Insurance Company has drawn our attention towards the report Annexure A/2, the relevant part of which is as under - -

''various other discrepancies were also observed in stock records submitted by the insured. Keeping in view all these discrepancies and the fact that the insured had taken the opening stock qty''s as on 1.4.2003 without any basis, we are of the opinion that the insured had prepared the stock record without any basis just to support their claim and thus under the circumstances the same cannot be relied upon for assessment of loss.''

The surveyor in his report has further observed as under - -

''7.4 Cause As per the explained circumstances, FIR, Newspaper report, etc. the cause of loss was burglary by forcibly breaking open the locks of the door and the shutter of the godown of the insured. However based on our observation/analysis of records as the insured has not suffered any loss due to reported burglary thus in our opinion there was only an attempt to burglary and actually burglary has not been taken place.''"

The State Commission has further observed that the complainant/petitioner has not led any cogent and convincing evidence to rebut the report of the surveyor and mere assumption and presumption by way of affidavit of the complainant cannot be taken as trustworthy. We agree with the view taken by the State Commission. Learned Counsel for petitioner has fairly admitted that the petitioner did not lead any evidence except filing his affidavit to rebut the contents of the report of the surveyor. In the circumstances, we do not find any infirmity which would call for our interference with the impugned order while considering this petition under Section 21(b) of the Consumer Protection Act, 1986. The revision petition is, therefore, dismissed. No costs.