Oriental Insurance Co. Ltd. vs Chand Rani

Mr. Tashi Rabstan, J. - This Civil Ist Miscellaneous Appeal is directed against judgment dated 21.04.2008 passed by the J&K State

Consumer Disputes Redressal Commission, Jammu in Complaint No. 2517 of 2003, titled Smt. Chand Rani v. Oriental Insurance

Company Ltd. & Anr., whereby the J&K State Consumer Disputes Redressal Commission, Jammu (for short ""the Commission"") has accepted

the Complaint of the respondent herein and directed the appellant-Insurance Company to reimburse the respondent to the risk cover of Rupees

Five Lac along with interest at the rate of 8% per annum from the date of loss (i.e., 26.03.2001) till the payment is made and the respondent is also

held entitled to litigation charges in the sum of rupees Five thousand.

Briefly, the case set up by the complainant/respondent herein is that she is a migrant widow from Kashmir Valley. On 01.05.2003, she filed the

complaint, inter alia, asserting therein that she along with her family members had been residing in Moura Chaki Rajwali of village Vessu District

Anantnag (Kashmir) and before enmass migration of the minority community from there, had got her residential house insured from tire appellant

for a sum of Rs. 8.00 lac. On 26.03.2001, the insured house was set on fire by the anti-nationals and after three months one of her neighbourer

informed about the incident. Immediately afterwards on 30.06.2001, she lodged a complaint in the Police Station, Qazigund and in this behalf a

case FIR No. 130 of 2001, for commission of offence under Section 436 RPC was registered. On 20.07.2001, the respondent raised the claim

with the appellant and on the same date, the appellant deputed M/s. Alak Consultants Pvt. Ltd., Surveyors as well the investigator Mr. G.A. Bhat

for survey and investigation respectively. It is pleaded that the Surveyor filed his first report on 16.05.2002 and later on filed his rectified report on

03.09.2002, while Mr. G.R. Bhat, Scientific Investigator had filed his first report on 04.09.2001. It was stated in the report that he visited the spot

on 04.08.2001, i.e., after five months from the date of loss. He opined that there was no clue of fire incident and on verification from the named

persons in the report as well as spot inspection, it was revealed that 2/3 years ago, the windows, doors, ceilings, etc. were taken away by

unknown persons. There had been lack of supervision and no repairs so the house had collapsed. No fire had taken place. His opinion was that

case be closed. The Investigator has filed his second report on 26.08.2002. After police verification report, he confirmed his previous opinion.

From the report, it appears that vide Letter No. GR/INU/599/2001, dated 22.12.2001, the respondent had also been associated with the

investigation. On these documents, he had stated that ""Keeping all the circumstances like spot verification, public version and the report of the

Surveyor, as discussed above, we are of the opinion that the report of the house of the insured is not based on facts. The house has not been

ablazed, but has fallen and damaged due to weather conditions. The claim is closed as ""NO CLAIM"". In the first report, the Surveyor (Alak

Consultants Pvt. Ltd.) assessed the net loss at Rs. 4,05,074/- and in the rectified report dated 03.09.2002, the net revised amount of the loss is

assessed at Rs. 2,91,127/-. It is further pleaded that the contract of insurance was reduced upto Rs. Five Lac from the previous contract of Rs.

Eight Lac without consulting her and even if the contract is deemed to be to the extent of Rs. Five Lac then the loss assessed is inadequate. The

loss has not been caused due to weather conditions but the damage was caused to the structure and attempts had been made to put the house on

fire.

The respondent filed the complaint before the Commission on the ground that the loss assessed by the Surveyor at Rs. 4,05,074/- is on the

lower side and the insurer is bound to indemnify the respondent to the tune of Rs. Eight Lac minus the salvage. Besides that, the respondent had

claimed damages for mental and physical agony to the tune of Rs. 20,000/- and Rs. 10,000/- as litigation charges.

The learned Commission, accepted the complaint of the respondents and directed the appellant-Insurance Company to reimburse the

respondent to the risk cover of Rs. Five lac along with interest at the rate of 8% per annum from the date of loss (i.e., 26.03.2001) till the payment

is made and the respondent is also entitled to litigation charges in the sum of Rs. Five thousand.

Aggrieved by the decision of learned Commission, the appellant-Insurance Company filed the present Appeal.

Heard the learned counsel for the parties and perused the judgment passed by the learned Commission.

The Commission accepted the complaint of respondent on following reasons. For facility of reference Para Nos. 6 and 7 are reproduced

hereunder:

Now the question remains about the law cited by Mrs. Z.S. Watali Advocate appearing for the Ops, in support of her arguments as laid down

by the Hon'ble High Court in the case of National Insurance Company v. Ashok Kumar Braroo (supra). This Commission in the case of

Poshkar Nath Pandita & Sons through Shri Poshkar Nath Pandita S/o Mr. Nand Lal Pandita C/o Arco Textilesm Talab Tillo, Jammu

v. Branch Manager National Insurance Company Branch Office Unit-1, Shalamar Road, Jammu (Complaint No. 951 of 1995)

instituted on 25.07.1995 and decided on 10.03.2008 has considered the above said ruling of the Hon'ble High Court of J&K in addition to the

law laid down by the same Division Bench in the case of Anand Ji Razdan v. Divisional Manager United India Insurance Co. Ltd. (2000)

KLJ 698. The Commission had the opportunity to acquaint itself with the law laid down by the Apex Court in the judgments referred to in the

above said case of Poshkar Nath Pandita as well as the observation of the Hon'ble Division Bench made in appeal in the same case (Poshkar Nath

Pandita (Supra). It has been held in that case that the law laid down in the case of Ashok Kumar Bararoo and Anand Ji Razdan (supra) is

distinguishable on the facts and circumstances of Poshkar Nath Pandita's case which distinction had been made explicit by the Hon'ble Division

Bench of J&K High Court in appeal filed in that case. With due respect to the view held by the Division Bench in the cases of Ashok Kumar

Bararoo and Anand Ji Razdan (supra), we cannot pursuade over-selves to follow the ratio-decidendi but following the ratio of the Division Bench

held in the order of appeal in the case of Poshkar Nath Pandita (supra) as well as views of the Apex Court discussed therein, we draw the

conclusion that ""on perusal of the first page of the Insurance Policy in question it is clear that under the heading ""Fire Policy-B"" in case the insured

stocks were destroyed or damaged by ""riot"", strike and malicious damage as per riot"" such a loss was covered under the cover of that policy

independently under the different heads and exclusion clause stated in the policy has no application."" We stick to our approach as was adopted in

Complaint No. 951 of 1995, decided on 10.03.2008 titled Poshkar Nath Pandita (supra) and hold herein also that the loss caused to the insured

building was due to ""malicious act"" and this risk was independently covered under the terms of the policy in question. It is a case of total loss as has

been established from the facts and the Ops are liable to re-imburse the complainant to the full insured amount of Rs. Five Lakhs.

In view of the discussion made above we, therefore, accept the complaint and direct the Ops to reimburse the complainant to the risk cover of

Rs. Five Lakhs along with interest at the rate of 8% per annum from the date of the loss (i.e. 26.03.2001) till the payment is made. The

complainant is also entitled to litigation charges in the sum of Rs. Five thousand.

Viewed thus, the State Consumer Disputes Redressal Commission was perfectly justified in accepting the complaint, we are, therefore, unable

to find any reason to interfere with the order dated 21.04.2008 passed by the learned Commission. Accordingly, this Appeal is dismissed. No

order as to costs.

Registry is directed to return the record to the learned Commission forthwith.