NATIONAL INSURANCE CO. LTD. vs Shilpa Cloth House

CHALLENGE in this revision petition is to the order dated 28.07.2011 passed by U.P. Consumer Disputes Redressal Commission, Lucknow in Appeal No. 672/2009 whereby the State Commission has partly allowed the appeal filed by the petitioner against order dated 25.02.2009 passed by the District Forum, Meerut in Complaint No. 135/2007.

PETITIONER insurance company was the Opposite Party before the District Forum and the respondent firm was the Complainant. The facts of this case which are relevant for its disposal are that the complainant firm was doing retail business of sale of cloth such as Suiting Cloth, Sarees, Pants, Shirting etc. at Modipuram. The complainant firm got its shop insured with the petitioner insurance company for Fire, Burglary, Theft and for carrying Cash. At the time of getting the insurance with the petitioner, the shop was got surveyed by the complainant for which, as per the case set up by the complainant, the employees of respondent came to the shop and after verification the shop and the stock available at the shop were insured for a value of 10,25,000/ - for which a premium of 5,299/ - was paid by the complainant/respondent for the cover period from 23.11.2006 to 22.11.2007. A fire took place on 09.02.2007 in the shop in question and stock of 11,50,000/ - was in the shop at that time. As per the complainant, all the cloth stock including the documents, i.e. all registers and bills were burnt in the fire. The respondent/complainant immediately informed the petitioner/OP about the incident and a report was also lodged with the local Police Station. In spite of some personal visits by the complainant, when there was no response from the Petitioner/OP, the complainant sent intimation in writing to the petitioner insurance company on 22.02.2007. Thereafter, a surveyor was deputed and inspection was carried out. According to the complainant, the firm was promised payment of 10,25,000/ - by way of compensation. However, the complainant did not receive the amount of compensation. It served alleged notice dated 15.03.2007 on the OP/petitioner to which also there was no reply. Alleging this as deficiency in service, the consumer complaint in question came to be filed with the District Forum.

THE complainant submitted before the District Forum that the business got closed on account of burning of the stock of goods, register etc. in fire and since it had not been paid the amount of the claim, the proprietor of the complainant firm had lost the means of his livelihood leading to ruination. The prayer of the complainant firm was for payment of 10,25,000/ - on account of loss in fire, 50,000/ - compensation for mental harassment and 10,000/ - by way of cost of litigation.

ON being noticed, the OP/insurance company filed its written statement in which the OP admitted the policy cover but submitted that the complaint was concocted one since the facts of incident, as narrated by the complainant in its complaint, were wrong. It was further submitted by the insurance company that the shop in question was got inspected by the insurance company through the surveyor, Shri Balbir Singh on 24.02.2007 and after the inspection, the complainant was asked to submit certain documents but the same were not submitted by it and as such, the complainant is not entitled for any claim. Denying any deficiency in service on its part the insurance company prayed for dismissal of the complaint. Both the parties led evidence in support to their contentions along with their affidavits. The complainants filed an application for spot inspection on 18.03.2008 which was allowed by the District Forum on 27.05.2008 and one Shri Anil Kumar Garg, Advocate was appointed as Commissioner. He inspected the shop in presence of both the parties and filed his report with the site plan, information to insurance company as well as complainant, receipts of photographer, statements recorded by the Local Commissioner etc. After hearing the parties and based on the appraisal of the evidence including the report of the Local Commissioner, the District Forum accepted the complaint vide its order dated 25.02.2009 and granted the following relief: - The complaint of complainant is hereby allowed and the respondent is directed to pay the claimed amount of 10,25,000/ - within one month along with interest @ 12% p.a. w.e.f. three months after the date of loss. The respondent is also directed to pay the compensation of 10,000/ - and the cost of litigation of 5,000/ -. If the respondent failed to comply with this Order, the complainant will be free to initiate action under Section 25/27 of Consumer Protection Act, 1986."

AGGRIEVED by the order of the District Forum, the OP/insurance company filed an appeal challenging this order before the State Commission which partly accepted the same by modifying the order of the District Forum to the extent of deleting amount of 10,000/ - by way of compensation but confirmed the rest of the order passed by the District Forum. Thus, the appeal of the petitioner was partly accepted by the State Commission vide its impugned order. Not satisfied with the partial relief granted by the State Commission, the petitioner insurance company has now filed the present petition before this Commission against the State Commission''s order.

SHRI Kishore Rawat and Shri Mayank Sharma, Advocates have appeared for the petitioner and Shri Harsh Kant, Advocate has appeared for the respondent. Learned counsel for petitioner has submitted that orders of the fora below are not sustainable in law as no reasons have been assigned for allowing the complaint and dismissing the appeal. He submitted that the contentions raised by the petitioner have not been considered at all and although the fora below have recorded the submissions of the petitioner but have failed to deal with the same while deciding the case and hence the orders passed by them are erroneous and are liable to be set aside. The main ground on which the counsel would assail the impugned orders was that there was delay of 13 days on the part of the complainant to intimate the petitioner insurance company about the incident. On the other hand, he submitted that the complainant has been very quick in filing the complaint. In spite of delay of 13 days, which is clearly a serious violation of the important condition of the policy, both the fora below have failed to discuss the same so as to analyze the reasons for this delay. Learned counsel also pointed out that the survey report, a copy of which is placed on file, clearly indicates that the complainant firm failed to establish the loss claimed to have been incurred by it by documentary evidence and yet the District Forum accepted the claim and passed the award for which there is no basis. In view of this, learned counsel strongly pleaded that the order of the District Forum as well as the impugned order of the State Commission upholding it except setting aside the amount of 10,000/ - by way of compensation, cannot be sustained in the eye of law and hence deserves to be set aside and thus, the petition be allowed.

ON the other hand, learned counsel for respondent/complainant supported the impugned orders and submitted that since the registers and account books including the bills have been burnt in the incident of fire, it could not be possible to produce the same before the surveyor. He however pointed out that about two months before the issuance of policy, survey had been conducted by the petitioner insurance company and it had been verified that there was stock of goods worth 10,25,000/ - for which the insurance policy had been issued. He stated that this fact has not been specifically denied by the OP/insurance company in its written statement.

HE also submitted that simultaneously with the filing of the FIR, immediate information was given to the petitioner insurance company orally followed by intimation in writing since there was no action taken by the insurance company on the oral intimation. He however admitted that no document could be filed before the surveyor. Finally, he stated that both the fora below have returned their concurrent findings of facts and have also got the whole matter looked into through a Local Commissioner whose report is placed on file, there is no scope or justification for interference with the impugned orders. The revision petition therefore be dismissed. We have carefully considered the rival contentions and perused the record. We may note that the impugned orders of the fora below are passed on the basis of concurrent finding of facts. So far as the allegation of concoction on the part of the complainant firm regarding the incident is concerned, we cannot accept the plea of the petitioner company in the face of the FIR having been filed by the complainant soon after the occurrence of the incident in which details of the incident were reported. We may also note that the District Forum has taken care to depute a Local Commissioner who has conducted spot inquiry during the course of which both the parties were represented. No doubt there was delay in sending intimation in writing to the insurance company but, this by itself is not sufficient to deny either the occurrence of the incident or reimbursement of the loss suffered by the insured in the facts and circumstances of this case. It has to be appreciated that Section 21(b) of the Consumer Protection Act, 1986 under which this petition has been filed confers limited jurisdiction on this Commission and when both the fora below have submitted their concurrent findings of facts, interference from this Commission cannot be justified unless infirmity or jurisdictional error on the part of the fora below is established. Keeping in view the overall facts and circumstances of this case, no fault could be found with the findings of facts returned by two fora in favour of the respondent/complainant.

IN view of the above discussion and keeping in view the ratio laid down by the Apex Court in the case of Mrs. Rubi (Chandra) Dutta Vs. M/s. United India Insurance Co. Ltd. : 2011 (3) Scale 654, we do not find any merit in this revision petition and hence, dismiss the same with the parties bearing their own costs.