Oriental Insurance Co. Ltd. vs Sanjeev Kumar

THIS is an appeal by the Oriental Insurance Co. Ltd. against the order dated 28.2.1998 passed by the District Forum, Pauri, Garhwal whereby the complaint of the complainant was allowed for recovery of the insured amount of Rs. 50,000/- along with interest @ 18% and cost of litigation of Rs. 250/-.

IN the complaint it is alleged that the complainant carries on the business of cloth merchant. He has taken the shop on rent from Bimal Devi. He spent Rs. 15,000/- in the repairsof furniture and has kept the articles of Rs. 35,000/- in the shop. There was a partition between the shop of the complainant and that of the landlord. The complainant has got his shop insured for Rs. 50,000/-. During the INsurance, the landlord committed a theft in the shop of the complainant. When the complainant went to lodge the FIR, the police refused to lodge the FIR because the policemen have got affairs with Bimal Devi. The complainant gave telegram to the police and also to the INsurance Company. He made a claim to the INsurance Company, which was repudiated. Therefore, he filed the complaint. The learned Forum allowed the complaint. There was no case that there was any fire in the shop but it appears that by mistake the learned Forum instead of theft has written about the fire. Before the learned Forum the Insurance Company alleged that the complainant was directed to complete the formalities but he did not hear, therefore, the claim was repudiated. It is alleged that the shop could not be traced out for survey. It appears that the insurance was obtained by fraud. It is alleged that if Bimal Devi has committed theft, she is liable for that.

We have heard the learned Counsel for the parties and gone through the records. The learned Forum did not write anything on the pleadings of the opposite party. It also did not write what was the actual loss to the complainant. Since the insurance was of Rs. 50,000/-, the learned Forum allowed this amount.

THE learned Forum has written in the judgment that the loss is proved on the basis of evidence before the learned Forum. What was that evidence before the learned Forum has not been disclosed? I is the duty of the complainant to prove the extent of loss and then only he can get compensation out of the insured amount. THE complainant has stated that he has got the furniture of Rs. 15,000/- and stock worth Rs. 35,000/-. THE stock, etc. has not been disclosed. THE statement of the complainant was recorded on 28.8.1994. In the statement he has stated that the total loss was of the sum of Rs. 34,769/-. If his total loss was for a sum of Rs. 34,769/-, how he can claim compensation of Rs. 50,000/-? In this case the Surveyor has surveyed the shop and he has written that the complainant has claimed the amount of Rs. 34,769/-. The Surveyor has also written that the value at risk as on 2.8.1994 (as per claim bill) Rs. 34,769/- but the insured has not produced stock register or any other proof in favour of his such claim. He further wrote that the books of accounts, stock register, bill cash memos of goods purchased, receipt of shop rent-all are reported lost in the said loss. It is, therefore, the complainant was not able to produce all these papers. The Surveyor did not write what should have been the actual claim of the complainant?

IN his statement also the complainant has stated that he used to go to Najibabad and Delhi and therefrom he used to come to his shop. From his statement it appears that there was dispute between the landlord and the complainant regarding tenancy and the landlord has taken possession by force. The complainant has not made any arrangement for the safety of the shop. However theft is there, even if the landlord has taken possession by force. IN circumstances like this the complainant should get not more than Rs. 25,000/- because the Surveyor has also assessed the loss of Rs. 34,769/- and where the complainant has himself been negligent, at least 1/3rd of the loss should be borne by him. The learned Forum, has allowed interest @ 18%. This is definitely on the very high side. Rate of interest in 1998 was not more than 8-9%, the complainant should get interest only @ 9%. The order under appeal is to be modified accordingly. ORDER The appeal is hereby partly allowed and partly dismissed. The amount of compensation is hereby reduced to Rs. 25,000/- and the complainant will get this amount along with interest @ 9% payable from 28.2.1998, i.e., the date of judgment by the learned Forum till the actual date of payment. Order regarding payment of cost of Rs. 250/- is hereby upheld. Cost of the appeal shall be easy. Appeal partly allowed.