National Insurance Co. Ltd. vs RAINBOW INDUSTRIES

THE challange in this appeal is to an order of the District Forum, Solan, dated 16th December, 1993 whereby the District Forum has allowed the complaint and the complainant has been awarded Rs. 97,400/- with interest @ 12% from the filing of the complaint. Rs. 500/- has also been awarded as costs.

THE brief facts set out in the complaint which are necessary for determining the points in controversy are that the complainant who is unemployed youth was the proprietor of a firm M/s. Rainbow Industries in Village Onti Chakli, Diggal in Nalagarh area of District Solan. THE firm was duly registered as a small scale Industries unit with the District Industries Centre, Solan and was manufacturing painting and cleaning brushes. The complainant firm had taken fire policy insuring the building of the factory vide Policy No. 3732/3100529/86 signed on 19.12.86 valid w.e.f. 5.9.86 to 5.9.87 and Policy No. 3732/ 31, 00573/86 signed on 22nd December, 1986 valid from 25.8.86 to 25.8.87, insuring the machinery, stock etc. of the complainant firm.

On 22.8.87 during the night hours all of sudden a fire broke out in the premises of the factory and the entire stocks and machinery were destroyed due to fire. The roof and the building and its doors, windows, partition inside the factory building were completely destroyed due to fire. The complainant was not present on the fateful night and on the following day when the complainant reached the factory premises, he found that the factory premises and its records have been destroyed in the fire. The complainant reported the matter to the National Insurance Company and requested them to make payment of loss, the factory has suffered because of the fire which has broken out on the night of 22.8.87.

IT is not disputed that when the fire broke out, the insurance policy was operative. The Insurance Company/respondent has taken various objections. IT is not necessary to refer to all the objections except that the complaint has been filed beyond the period of limitations and there is no satisfactory explanation for condonation of delay for consideration of the complaint on merits. Secondly, that the complainant have earlier filed Civil Suit for recovering this amount and also complaint before the District Forum. The earlier Complaint No. DFS/87 of 1992 filed by the complainant before the District Forum was withdrawn. The District Forum has condoned the delay and proceeded to determine the complaint on merits and ultimately have given directions to the respondent/Insurance Company to pay to the complainant the amount along with interest and cost as stated here before. Mr. Ravi Bakshi, learned Counsel for the National Insurance Company appellant has submitted that he has not been provided an opportunity to defend the case before the District Forum, as no opportunity was granted to him to file reply affidavit in support of the reply. According to him, the only opportunity given to him was in regard to defend the application for condonation of delay filed by the complainant while deciding the application of condonation by the District Forum, the District Forum has decided the main complaint itself. There is good deal of force in this submission, we have seen the record of the case. In fact no opportunity has been granted to the Insurance Company to file reply evidence by way of affidavit, in the absence of which there has been no trial which has resulted in miscarriage of justice. The complainant has however, drawn the attention of the Commission that on 4.3.93, the District Forum has called for the record of the earlier petition/ complaint bearing No. DFS/87 of 1992 which was withdrawn and the reply which was filed by the appellant in the earlier complaint was taken into consideration by the District Forum. As such there is no miscarriage of justice. ''Such a submission has no force. No doubt, on 4.3.93, the record of old Complaint No.DFS/87of 1992 was called for which was withdrawn by the complainant earlier. It may be noticed from this order that this record of the earlier complaint bearing No. DFS/87 of 1992 was not transferred in the present case and further it is not clear whether in that complaint, the appellant was given an opportunity to place evidence on the record. Further,s when the complaint itself was withdrawn, there is no question of looking into the record of that case. At any rate the record of Complaint No. DFS/87 of 92, unless it is transferred with the consent of the parties or otherwise in accordance with the provision of law, the old complaint and its record can not be considered by the Commission as a record for the present complaint.

IN the light of this discussion, we are of the opinion that no opportunity has been granted to the appellant-INsurance Company to enable them to defend the case with the result the judgment of the District Forum is initiated in the eyes of law and is set aside. Next point Mr. Bakshi, learned Counsel has strenuously urged that the complaint was time barred and was filed after more than three years and there is no satisfactory explanation for condonation of delay and that the District Forum has wrongly condoned the delay. The complaint should have been rejected out rightly by the District Forum. We have noticed that in the facts and circumstances of the case, the delay has been condoned by the District Forum in its discretion, we are not inclined to interfere in the discretion of the District Forum. Such a contention therefore is rejected.

IN the light of what is discussed above, the judgment of the District Forum is set aside. The District Forum will decide the matter afresh in accordance with law after affording proper opportunity to the parties. The District Forum shall try to dispose of the matter within three months. There is no order as to costs. The amount deposited by the appellant-INsurance Company can be withdrawn by them. The record of the District Forum be sent back immediately. Judgment set aside.