NEW INDIA ASSURANCE CO. LTD vs M/S. Gausuddin Kirana Store , Union Bank Of India Branch-Eye Hospital

THIS revision petition has been filed by the petitioner/OP against the order dated 14.07.2011 passed by the U.P. State Consumer Disputes Redressal Commission, Lucknow (in short, ''the State Commission '') in Appeal No. 1088 of 2008 - The New India Assurance Co. Ltd. Vs. M/s. Gausuddin Kirana Stores and Ors. by which, appeal filed by the petitioner was dismissed and order of District Forum allowing complaint was affirmed.

BRIEF facts of the case are that Complainant/Respondent No.1 had business in the name of M/s. Gausuddin Kirana Store, which was insured by Petitioner/OP No.1. During the subsistence of the insurance policy, in the mid-night of 4-5/9/2005, sudden fire took place in the shop of the complainant due to which, the entire trading stock, fittings, furniture, cash and other important documents were burnt and damaged. With the help of fire brigade, the fire was extinguished and report of the incident was lodged in the police station on 5.9.2005, and intimation was given to OP/Insurance Company. Due to fire, loss of about Rs.5,00,000/- was caused, but the Insurance Company assessed loss to the tune of Rs.54,160/-, whereas the complainant was entitled to receive Rs.4,50,000/- from the OP. Alleging deficiency on the part of OP/Insurance Company, Complainant filed complaint before the District Forum. OP/petitioner contested the complaint and submitted that as per surveyor ''s report, damages were assessed to the tune of Rs.54,160/- and complainant was asked to receive aforesaid amount after completing requisite formalities and there was no deficiency on the part of OP-1; prayed for dismissal of the complaint. OP-2/Respondent No.2 - Union Bank of India admitted grant of loan to the complainant and further submitted that complainant did not pay instalments of loan in time and still Rs.3,09,759/- is due from the complainant. Learned District Forum after hearing both the parties allowed complaint and directed OP-1/Petitioner Insurance Company to pay a sum of Rs.2,48,816/- along with 9% p.a. interest and Rs.2,000/- as cost of litigation to the complainant. Appeal filed by the petitioner and appeal filed by the complainant for enhancement of compensation were dismissed by learned State Commission by the impugned order against which, this revision petition has been filed. Heard learned Counsel for the parties at admission stage and perused record.

LEARNED Counsel for the petitioner submitted that as per surveyors '' report, respondent was entitled to receive only Rs.54,160/- and learned State Commission has committed error in dismissing appeal of the petitioner and confirming order of District Forum; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the Respondent No.1/complainant submitted that order passed by the learned State Commission is in accordance with law, which does not call for any interference and revision petition be dismissed. Learned Counsel for the Respondent No. 2 supported Respondent No.1 ''s claim.

COMPLAINANT has claimed Rs.4,50,000/- on account of damage to the goods, whereas surveyor appointed by the OP/petitioner has assessed total loss of Rs.73,715/- (on account of damage by water - Rs.12,134/- + damage by fire - Rs. 61,581/-) and after deduction of salvage, excess, etc., net loss assessed by the surveyor comes to Rs.54,160/-, which amount was offered by the petitioner to the complainant. Surveyor has prepared detailed list of items, which were damaged due to fire and which were damaged due to water in process of extinguishing fire and these lists also bear signatures of complainant, which makes it clear that surveyor prepared these lists in the presence of the complainant, who agreed to the amount of loss evaluated by the surveyor. Apparently, there was no reason to disbelieve the surveyor ''s report. Perusal of order of District Forum reveals that District Forum placed reliance on the report of the Fire Brigade Officer and allowed complaint to the tune of Rs.2,48,816/-. Perusal of fire brigade report reveals that he has simply mentioned estimated value of property as Rs.6,00,000/-, estimated value of damaged property as Rs.2,90,000/- and estimated value of saved property as Rs.3,10,000/-. Learned District Forum based its findings on the estimated value of damaged property given by the Fire Brigade Officer. No reasoning has been given in the report about assessment of value of property at risk, damaged, saved and in such circumstances, District Forum has committed error in placing reliance on fire brigade report and awarding compensation and in discarding surveyor ''s elaborate report, which also bears signatures of the complainant. Learned State Commission has also committed error in dismissing appeal of the petitioner only on the basis of fire brigade report. Learned Counsel for the respondent could not place any citation in support of impugned order and in such circumstances, the impugned order cannot be upheld and we are of the view that Complainant/Respondent No.1 is entitled to only Rs.54,160/-, as assessed by the surveyor appointed by the petitioner. Consequently, the revision petition filed by the petitioner is allowed partly and impugned order dated 14.7.2011 passed by the learned State Commission in Appeal No.1088 of 2008 is set aside and order of District Forum dated 5.5.2008 is modified and it is ordered that Complainant/Respondent no. 1 is entitled to receive a sum of Rs.54,160/- from the Petitioner/OP No.1 along with interest @ 12% p.a. from the date of filing complaint till realization of money along with Rs.2,000/- as litigation cost.