JAWAHIR LAL BHAT vs United India Insurance Co Ltd

-THE complainant owned a two storeyed residential building with attic situated in village Kilam Bozgam, Tehsil Kulgam and obtained fire policy bearing No. 111407/01/0/469/2000 which was effective from 8. 8. 2000 to 7. 8. 2001. The risk assured under the said policy was to the tune of Rs. 6. 00 lakh. The above said building and the attached attic was of "a class construction" and it was completely gutted in fire in the year 2001, intimation whereof was given to the OP which resulted in the registration of the claim. The occurrence was also reported in Police Station, Kulgam where on 2. 7. 2001 FIR No. 211 of the year 2001 for the commission of offence falling under Section 436, RPC was registered. After the completion of the investigation, final report was submitted by the police on 2. 12. 2001 in the competent Court of jurisdiction. In that report, it was stated that on 25. 6. 2001 accused Javed Ahmed Sheikh s/o Gul Mohd. Sheikh r/o Village Tarigam had burnt the said building as he had become a militant. On 27. 10. 2001, the security forces had killed him in an encounter. Challan for commission of offence under Section 436, RPC was presented posthumously against him. Vide letter dated 10. 9. 2001 the OP intimated the complainant that they had deputed Mr. Rafiq A. Shah to conduct the preliminary survey. The said Surveyor submitted report before the OP that the incident of fire had not taken place but the building in question had fallen because of its own time bound wear and tear. After this, OP wrote to the complainant to submit the final investigation report before it within 15 days. The complainant who had migrated from his village in 1990 in order to save his life and honour as well as of his family members and ever since then had been permanently residing in Jammu could get no information about the investigation as it was a lurking threat for his life either to visit his village or Police Station Kulgam. Hardly he could take a sigh of relief when another missive dated 4. 10. 2001 was served upon him on his Jammu address whereby he was required to furnish final police investigation report within 7 days. These letters were replied by the complainant and in response thereto letter dated 19. 12. 2001 bearing No. ANG/mkr/gmg/609/2001 was despatched to the complainant which too was replied vide a registered letter but instead of accepting it, the OP returned the same with a report "returned back". After its receipt, the complainant again made a formal request to make the final assessment of the loss but OP neither deputed any Surveyor nor settled his claim. The complainant thereafter sent a copy of the final report to the OP with a request to settle the claim but no reply was received by him and finally on 3. 3. 2004, the complainant served a legal notice through his Counsel but even then the claim was not settled. It is also alleged that the building in question had remained under the occupation of security forces from 22. 6. 99 to 21. 7. 2000 and during that period the building had been properly maintained. Moreover, the building was of the quality of "a class construction" having roof of CGI Sheets and the finding of the Surveyor, that the building had fallen on account of usual wear and tear being old structure was partisan and perverted which has caused miscarriage of justice. The complainant has claimed indemnification of the whole amount assured to the tune of Rupees six lakhs along with interest thereon @ 12% per annum from the date of loss till its realization. In addition thereto, Rs. 50,000 have been claimed as compensation for mental agony, torture and harassment. Rs. 25,000 have been claimed as cost of litigation.

IN the written version, the OP took the preliminary objection that the claim was repudiated on 19. 12. 2001 as "no claim" on the basis of the report of the investigator because the cause of loss which was "wear and tear" was outside the terms and conditions of the insurance contract. The complaint being time barred is not maintainable as filed beyond the prescribed period of two years. The period of the currency of insurance policy and the sum assured therein have been admitted. The destruction of the building in fire is denied. The raising of the claim by the complainant vide his letter 5. 8. 2001 though has been admitted but it is pleaded that the former had failed to substantiate it as he had even failed to provide a copy of the investigation report prepared by the concerned police. The investigator Mr. Rafiq A. Shah had investigated the claim by visiting the spot where the Nambardar of that village Mr. Ghulam Rasool Parray and Chowkidar Mr. Abdul Rehman Ganai in the company of other inhabitants had revealed that "building in question had got damaged due to natural climates over a year or so". They had given statements that no fire loss had occurred to the building. The complaint is hit by the disabling clause of Section 18 (a) of the Jandk Consumer Protection Act. In support of the complaint, the complainant himself appeared as a witness. The OPs have examined Mr. R. A. Shah, Surveyor as a witness besides, its Branch Manager namely, Mr. M. K. Raina who also appeared in the witness box.

Heard the arguments.

IT is an admitted fact of the parties that loss had occurred to the building and the attic during the currency of the insurance policy. The amount insured in the sum of Rs. 6. 00 lakhs has also been admitted. The disagreement between the parties is with regard to the cause of loss as well as bringing of the claim in the Commission within the prescribed period of limitation. There is not even an iota of evidence to hold that the appointment of Mr. R. A. Shah as a preliminary Surveyor was conveyed to the complainant. On the contrary, Mr. R. A. Shah, Surveyor himself in his preliminary survey report dated 24. 8. 2001 has admitted that no representative on behalf of the insured (complainant) was present to identify the house because he along with his minority community members had migrated from that village. That the house was got identified by him with the help of Chowkidar of the village namely, Abdul Rehman. That Surveyor had found no sign of fire in the building in question but on the contrary, the logs of wood of the ceiling and truss had fallen due to their wear and tear. On his alleged inquiry being made from the Nambardar of the village namely, Ghulam Rasool Parray and Chowkidar Abdul Rehman and other inhabitants it was revealed that the house had got damaged due to natural climates over a period of a year or so. This report was accompanied by the depositions of Nambardar Ghulam Rasool Parray and Chowkidar Abdul Rehman Ganai under their signatures. Their statements were recorded by the Surveyor Mr. R. A. Shah in English language. It was recorded therein that "building had fallen due to falling of rain, snow and other climatic changes". The statement stands nullified by the deposition made in Urdu under the seal and signatures of said Ghulam Rasool Parray, Nambardar and Abdul Rehman Ganai, Chowkidar wherein it is stated that during the night of June 25th 2001, the house of the complainant was set on fire by the militants. The complainant had also attached Annexure ''c2'' with his complaint which was a copy of the final report submitted by the S. H. O. , Police Station, Kulgam after the completion of the investigation in FIR No. 211/2001. It was stated in that report that on 25. 6. 2001 the building in question was set on fire by one Javed Ahmed Sheikh s/o Gul Mohd. Sheikh r/o Tarigam and he had committed an offence falling under Section 436, RPC. That said accused was killed by the security forces in an encounter which took place on 27. 10. 2001. It being a public document is a credulous piece of evidence. The complainant has also produced on record a copy of the registered letter written by Major P. C. Joshi of 9 RR Bn (RAJ RIF) c/o 56 APO dated 13. 1. 2002 which testifies the payment of rent to the complainant as well as to other owners of their buildings which had remained under the occupation of the forces. The official letter clarifies that the building in question was not in a dilapidated condition but habitable one. The averment made in the complaint that the building had remained under the occupation of the security forces with effect from 22. 6. 99 to 21. 7. 2000 gets corroborated. The complainant in his statement has also stated that the building was of ''a class construction'' and it had not fallen due to its wear and tear. The preliminary report of the Surveyor that the building had been damaged due to its own wear and tear pales into insignificance in the presence of oral as well as documentary evidence which is of credulous nature. The appointment of Mr. R. A. Shah by the OP to conduct the preliminary survey is shrouded in mystery as no intimation thereof was given to the complainant. The said Surveyor also took no steps to associate the complainant while conducting the inquiry. The said Surveyor (Mr. A. R. Shah) has not acted in impartial and fair manner but his conduct shows that he was in league with the then dealing Branch Manager of the OP to fabricate false report in order to deprive the complainant of his legitimate claim which loss he had suffered at the hands of a terrorist whose aim was to create disharmony in the society. Now the moot question which remains for consideration and determination is whether the complainant can be non-suited on account of the doctrine of laches as his claim is hit under Section 18 (a) of the Act for being time barred or not. The plea taken by the OP in his written version that on 19. 12. 2001 the claim was repudiated as "no claim" and he was accordingly informed by a registered letter sent to him on the same date has not been substantiated. Annexure ''c3'' is a letter dated 18. 12. 2001 addressed by the complainant to the Branch Manager, United India Insurance Co. Ltd. , Branch Office Anantnag wherein in para No. 3 he had clearly stated that incident was registered in the Police Station, Kulgam on 2. 7. 2001 under FIR No. 211 of 2001. He had stated that Surveyor Mr. R. A. Shah had not applied his mind while conducting the preliminary survey because he had ignored important public document like FIR when the complainant had been informing the manager that he was pursuing the matter with concerned police to get the information regarding the date of incident as well as final outcome of the investigation. He had also stated that it was not possible for him to visit the concerned police station and personally pursue the matter. He had intimated that after some time when copy would be available, the same would be sent through post. This information had been given by registered post. Annexure ''c4'' is a letter addressed by the complainant to the Branch Manager of Anantnag in reply to his letter dated 19. 12. 2001 wherein mention has been made that he had replied that letter of intimation of repudiation vide his registered letter dated 6. 2. 2002 but the postal authorities had returned that letter without its delivery accompanied by a report, "returned back". He had asked the reason why that letter had been returned instead of taking the suitable action on its contents. This registered letter is dated 4. 3. 2002 and a copy of that letter was again despatched with this letter with a request to depute Surveyor for final assessment of loss so that the relevant documents could be sent to him for making the survey. That last letter was followed by a legal notice given by the complainant through his lawyer and was served through registered post copy whereof is placed on the record as Annexure ''c5'' wherein a mention has been made about the outcome of the police investigation and its submission along with a copy of the FIR. It was pleaded that the claim had not been settled and demand was made for the payment of the assured amount along with interest @ 12% per annum and compensation in the sum of Rs. 1. 00 lakh was claimed.

THE complaint was filed in the Commission on 31. 5. 2004 which admittedly is time barred as beyond the prescribed period of limitation of two years from the date of alleged repudiation which was made on 19. 12. 2001. This repudiation on scrutiny is found only a unilateral arbitrary act which was done without giving any reasonable opportunity to the complainant of being heard and violates the principles of natural justice. The complainant being a member of the minority community had migrated enmass with other members, of his community leaving behind his insured house in order to save his life and lives of his family members. Judicial notice can be taken of the fact that he could not without risk to his life visit native village or even the Police Station, Kulgam where investigation of his FIR No. 211 of the year 2001 was going on. It was the duty of the OP to wait for the recipt of the resullt of the police investigation or himself get a copy thereof being a public document in order to act in a fair manner before passing any order regarding the claim pending before him. On the contrary, he accepted the tainted report dated 24. 8. 2001 submitted before him by his confidee namely, Mr. R. A. Shah, Surveyor. The report prima facie looked to be of casual nature as no date of his alleged spot visit had been mentioned. It is also established that the higher officials of the OP also did not make a subjective satisfaction of that report which could be brushed aside after reading all the communications which are annexures herein on the record of this complaint. In this view of the matter, repudiation order of the claim dated 19. 12. 2001 cannot be taken as a valid order but an arbitrary and partisan exercise of the legal duty and cannot have the effect of invalidating the legal right of the complainant which had accrued to him under the fire policy in question. In other words, it was not a repudiation at all and the right of the complainant to file the claim under Section 18 (a) of the Act had survived till the filing of the complaint. In the final analysis, we accept the complaint and direct the OP to indemnify the complainant to the extent of total loss suffered by him which extends to the insured limit of Rs. 6. 00 lakh (Rupees six lakh ). The amount should be paid along with interest @ 6% per annum from the date of loss i. e. 25. 6. 2001 till the final payment is made. The litigation cost of Rs. 6,000 is also made payable. The OP is directed to conduct a departmental inquiry regarding this unfair repudiation and fix the responsibility to recover the amount of interest from the pay of the delinquent/delinquents dealing official/officials. The public money of bona fide depositors cannot be allowed to be squandered to cover-up the misdeeds of the delinquent officers of the company (OP ). Complaint allowed.