National Insurance Co. Ltd. and Another vs Mehbooba Shabnam

The present appeal is against an award passed by the Jammu and Kashmir State Consumers Protection Commission. By the award, claim under

a Fire Policy has been allowed. Before the Commission, the claimant contended that she had taken out a policy of insurance from the appellant

covering the peril of fire in respect of a house and household articles lying therein. It was contended that a fire broke out which gutted not only the

house but also all household articles lying inside the house. The claim was on the basis of total loss of the insured properties. According to claimant,

despite lodgement of the claim with the appellant under the policy, appellant did nothing and, accordingly, the claimant had been forced to

approach the Commission.

Appellant contested the claim and contended that on receipt of the claim, it had appointed Andrabi Associates as Surveyor, who surveyed and

reported that the house was not complete, as many a necessary ingredients of a complete house, were not reportedly found, but whatever was

there suffered total destruction by fire who to terrorism. It was contended in the counter that on the basis of said report of the Surveyor, the loss

was assessed by another Surveyor and, in terms thereof, a sum of Rs. 3,39,736/- was payable under the policy. Appellant informed the same to

the claimant by a communication but the same returned undelivered with postal remark that the addressee is not available at the address.

Before the Commission, the appellant did not produce anyone representing Andrabi Associates nor did it produce the person who assessed the

loss on the basis of the report of Andrabi Associates. Before the Commission, witnesses, who deposed on behalf of the claimant, asserted that no

one representing Andrabi Associates ever visited the house which was destroyed. Taking into account the evidence on record, the Commission

has made and published the award.

Before us, learned Counsel for the appellant contended that in the instant case, the dispute was pertaining to the quantum of the loss, which

according to the policy of insurance, was required to be referred to Arbitration and, accordingly, the Commission ought not to have gone into the

matter. In addition to that, it was contended by the appellant that the house was an incomplete house, incapable of keeping household goods, and,

accordingly, no award could be made in respect of house hold goods and, at the same time, it was required to establish what were in fact lost and,

the value thereof, to ascertain the claim payable under the policy. It was submitted that the same having not been done, the award is in any event

interferable.

The fact remains that the appellant did not contend before the Commission that the dispute inter se the parties is in regard to the quantum of loss

suffered and that the same is required to be referred to Arbitration, in terms of the Arbitration clause contained in the policy of insurance. Appellant

having had not asserted the same before the Commission, cannot take the said plea for the first time in the appeal.

Whether the house was a fully constructed house or a semi finished house, not fully constructed, was a question of fact to be ascertained on the

basis of evidence tendered. The report of Andrabi Associates was produced before the Commission but no one was produced to prove the

contents thereof. The report of Andrabi Associates in no uncertain terms held out total destruction due to fire of what was in existence. However,

the report did not make any endeavour to ascertain what was in existence. Be that as it may, in the absence of a person proving the contents of the

said report, no part of the said report could be treated to be a piece of evidence acceptable in law. Similar is the case pertaining to the report

prepared by yet another person about the loss said to be on the basis of the report of Andrabi Associates. In any event, unless the report of

Andrabi Associates is proved and the contents thereof are acceptable, the second report has no value. On the other hand, the evidence on record

suggested assertions after assertions that the house was complete, household goods were lying there and the house was being used. In that

background, the Commission has proceeded on the basis that the insurable value of the properties lost was so much, as has been awarded, and, it

being not contended before us that the loss has been assessed by the Commission in excess of the liability of the appellant under the policy of

insurance, there is no scope of interference.

The appeal fails and the same is dismissed.