NATIONAL INSURANCE COMPANY LTD vs DAVOOD ALI DAR

THROUGH the medium of this appeal, order dated 28. 3. 2007 has been challenged. The learned Divisional Consumer Protection Forum (herein referred to as the Forum), had accepted the complaint of the respondent and allowed him an amount of Rs. 29,400 by way of indemnification of the insured liability along with interest @ 6% p. a. payable after six months from the date of loss till realization. Besides that, an amount of Rs. 10,000 has been awarded as compensation for financial loss and mental agony. Litigation charges have also been made payable for a sum of Rs. 2,000.

THE brief facts are that the respondent in order to earn his livelihood had purchased Carbon Copier from M/s. Raja Photostat and this firm also runs the business of preparing photostat copies, besides sale of Photostat machines. Mr. Rashid Haroon is the proprietor of the firm and he is assisted in the business by his son. They had originally purchased the photocopier from Delhi and sold it to the respondent for a consideration of Rs. 80,000 and issued the sale invoice. The respondent had insured the photocopier in the liability of Rs. 70,000 under policy No. 42010006/44/2001/6000002 and the insurance policy was effective from 17. 4. 2001 to 16. 4. 2002. It is averred that on 10. 4. 2002, the photocopier got damaged and the appellant deputed Mr. Nayeem Khan as Surveyor to assess the loss. He examined the machine twice and at the last occasion had got it dismantled in the office of M/s. Canon India at Regal Chowk, Srinagar in the presence of the Surveyor who had found it completely damaged and irreparable. The Surveyor had noted down all the damages caused to the photocopier and opined that the photocopier had been damaged beyond repairs and accordingly framed the survey report and submitted the same to the appellant in the year 2002. In the complaint, it was further averred that respondent''s business got closed and he was not in a position to earn his livelihood but the claim was not settled and that was the deficiency on their part and actionable under the provisions of Jandk Consumer Protection Act. On 12. 4. 2003 a letter was written by the respondent to the appellant to settle the claim but there was no response. This was followed by personal visits but no settlement was made. In these circumstances the complaint was filed and after trial the above said relief was awarded in favour of the respondent. In the written version it was pleaded that after the raising of the claim, the appellant had immediately deputed the Surveyor namely, Mr. Nayeem Khan, to assess the loss who had twice inspected the photocopier and discussed the damages with the Engineer in the sub-office of the manufacturers located in Lal Chowk. He was satisfied that the machine was non-functional and had asked the respondent to submit claim documents but he had not cooperated. It is also admitted that during the discussions the Surveyor had made an offer to the respondent to settle the claim on total loss basis but he had insisted to settle it on repair basis. The respondent had failed to submit the documents like repair bills and sale letters, etc. and since the model of the photocopier had become out-dated and spare parts were not available in the market so on that ground the respondent could not get it repaired and produce the repair bills for assessment of loss. That after a gap of considerable time, the respondent had submitted the estimate of repairs bills and the total loss was assessed to the tune of Rs. 29,000 less by salvage value at Rs. 5,000 and on repair basis to the tune of Rs. 29,713 less by salvage value at Rs. 313 and submitted his assessment report in the office of the appellant on 27. 5. 2004. The appellant had also approached the respondent to submit repair bills and the sale letter in support of his claim so that the claim could be settled but that was not done and the claim could not be settled. The respondent had submitted photocopy of that bill which did not bear the signatures of the proprietor and that bill was bearing No. 833 dated 25. 2. 1998 which was found as fake and frivolous by their Inspector namely, Mr. Mohd. Ashraf Bhat. On these counts the claim was denied and there was no deficiency in service.

The order has been challenged, inter alia, on the ground that the complaint was not maintainable because it was not signed by the complainant but by his Advocate. The case was not proved because the complainant had not appeared as a witness. It is also pleaded that the complaint was time-barred. The original sale letter had been produced by the respondent during the trial of the complaint in the month of September 2005 and the finding of the Forum that the appellant was negligent in settling the claim till that date is not based on any material. The respondent had failed to produce the repair bills also before the appellant and on the basis of production of fake sale deed the claim was rightly denied. The Forum below should have awarded the claim on the basis of total loss to the tune of Rs. 29,000 less salvage value of Rs. 5,000 but the award given on the basis of repairs to the tune of Rs. 29,400 is not tenable. The interest has also been wrongly awarded from the period of six months after the loss.

THESE arguments have been rebutted by Counsel for the respondent on the ground that there was admission on the part of the appellant that on the production of the sale letter the claim would be settled but the Surveyor had failed to accept the original sale letter and was also not accepted by the appellant and during the trial it was produced in the Forum on the direction issued on 14. 9. 2005. Since there was admission on the part of the appellant that on the production of the original sale deed the claim would be settled, so the respondent thought that it would be futile exercise to appear as a witness because he had a strong case in his favour on the basis of admission made by the appellant. It is further stated that the Inspector himself had taken the photocopy of that bill and when had visited the premises of the firm M/s. Raja Photostat for that purpose his son/employees were present there who could not acknowledge its authenticity. He never had approached the Proprietor Sh. Rashid Haroon himself. Mr. Rashid Haroon had been examined by the respondent as a witness and he categorically on oath has stated that he sold that photocopier to the respondent for a consideration of Rs. 80,000. He has denied that no person from appellant''s side or from any other person ever approached him along with the sale invoice for verification about its genuineness and the photo sale invoice was shown to one of his salesman/employee who had refused to comment on the genuineness. He authenticated the genuineness of the photocopy of the sale deed as true and correct. He further admits that his son had issue bill to the respondent in his presence. Sh. Vidya Sagar Administrative Officer of the appellant has stated that the Surveyor had conducted the survey on 11. 4. 2002 and 19. 4. 2002 and submitted his report after a gap of two years i. e. on 27. 5. 2004. He has further deposed that the Surveyor had considered the documents like repairs bills, purchase bill and claim form for assessment of loss and these documents were produced by the respondent before the Surveyor and not before the appellant. It is further admitted by him that there was no mention in the records to any effect that after the receipt of survey report they ever issued any communication to the respondent for submission of requisite documents. Although he has tried to wriggle out from the lapse which was committed on their part by stating that a verbal direction was issued but could not produce any official record which mentions the fact of issuance of such a verbal information. He has admitted that no offer was made by the insurer to settle the claim. We have considered the respective contentions of Counsel appearing for the parties and find that there is no substance in the arguments advanced by Counsel for the appellant. The complaint was not time-barred because there is admission on the part of the appellant that the claim was not settled even after the receipt of survey report on 27. 5. 2004 and thereafter no communication was entered with the respondent requiring him to produce any documents which were required. The alleged fake sale bill No. 833 has been proved to the hilt to be genuine one after the original thereof was produced by Mr. Rashid Haroon. Also Mr. Ashraf Bhat, Inspector has been found to be not a qualified Inspector and his investigations do not carry any weight. It has also been found from the evidence of Sh. Vidya Sagar that no letter had been issued to the Surveyor to submit his report at an earlier time. The defence taken by the appellant that time-barred complaint was entertained is found to be based on surmises and conjectures and not on the basis of any record. The Surveyor has assessed the loss on total loss basis as well as on repair basis. The respondent had opted for the assessment of loss on repair basis and the Forum has not committed any error by indemnifying the respondent to the tune of Rs. 29,400. The non-appearance of the complainant as a witness in support of the claim has also lost its significance because the claim stands proved on the basis of preponderance of evidence in his favour which is based on the admission as well as production of original copy of the invoice of sale, supported by oral evidence of the seller. The factum of the alleged false fabricated sale deed had fallen flat on the ground because of the admission being made by the proprietor, Sh. Rashid Haroon, that it was genuine document as tallying with the original one. The report of the Inspector was without any authority as he was not a qualified Inspector. Be that as it may, Sh. Vidya Sagar, Administrative Officer of the appellant has himself proved the case of the respondent by truly and faithfully deposing from the record in a straight forward and candid manner.

IT is thus established that a genuine claim of the respondent had not been settled for a considerable period of time, without any explanation and the respondent was forced to approach the Forum, after bearing financial losses and mental torture. No factual or legal infirmity has been found in the impugned order, rather it is established that a meritless appeal had been filed in the Commission, which is dismissed with costs of Rs. 4,000. Accordingly the order of the Forum is confirmed and its record be returned at once and record of the appeal be consigned to records. Appeal dismissed.