ORIENTAL INSURANCE CO. ...........Petitioner(s) vs BANKA RAM

Petitioner/Opposite Party has preferred this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short, ''Act'') challenging impugned order dated 22.5.2009 passed by H.P. State Consumer Disputes Redressal Commission, Shimla (for short, ''State Commission'') vide which Appeal No. 383 of 2008 filed by the petitioner before the State Commission was dismissed.

Brief facts are, that Respondent/Complainant was the owner of three storeyed residential house situated at village Pujarali No.4, Sub Tehsil Tikkar, District Shimla and that the said house was insured by him with the Petitioner'' Company for a sum of Rs. 8,00,000/- vide insurance policy No.11/2005/3001 effective from 23.3.2005 to 22.3.2005. It is stated that on 12.4.2005 the insured building and his house hold articles caught fire and were completely reduced to ashes and the factum of fire incident was also reported to the police and the intimation in this regard was also sent to the petitioner which got the loss assessed from surveyor and offered him only a sum of Rs.1,66,550/-against the insured sum of Rs.8,00,000/-. Hence, feeling dissatisfied and aggrieved by the act and conduct of the petitioner, respondent filed a consumer complaint against the petitioner.

Petitioner filed its written statement and took some preliminary objections regarding maintainability of the complaint, cause of action and jurisdiction etc. On merits, petitioner admitted that the building of respondent was insured with them for the period from 23.3.2005 to

22.3.2006 for a sum of Rs. 8,00,000/-. It is stated that on receipt of the intimation regarding fire incident, independent surveyor to assess the loss to the building and material was appointed who assessed the loss to the tune of Rs.1,66,550/- and this amount was recommended to be paid to the respondent. But, the respondent did not accept the aforesaid amount and as such there being no deficiency in service, the complaint is liable to be dismissed. Thereafter, the parties led oral and documentary evidence in support of their claim/counter claim.

District Consumer Disputes Redressal Forum, Shimla, H.P.(for short, ''District Forum'') vide order dated 11.11.2008 allowed the complaint and directed the petitioner to indemnify the respondent to the extent of Rs.8,00,000/- being insured sum along with interest @ 9% per annum with effect from the date of filing of the complaint, i.e. 17.11.2008 till making full payment of the aforesaid amount. Petitioner was also burden with litigation cost of Rs.3,000/-.

Being aggrieved, petitioner filed an appeal before the State Commission which dismissed the same.

Hence, this revision.

Notice of present revision petition was issued to the Respondent/Complainant. Initially, respondent had put in appearance later on absented and as such was proceeded exparte on 18.2.2015.

I have heard the learned counsel for petitioner and gone through the record.

It is submitted by learned counsel, that both fora below have erred in law in not relying upon the report of independent surveyor, who after having the spot inspection and in consultation with the insured has assessed the loss for sum of Rs.1,66,550/-. Thus, the award of any amount over and above the amount of Rs.1,66,500/- is not legally sustainable, especially when respondent has not controverted the said piece of evidence by any expert evidence.

It is further submitted that both the fora below, have failed to advert to the surveyor report which is expert evidence in the eyes of law and wrongly relied upon the report of Patwari, which is without any basis and is not supported by any reasons.

District Forum vide its order dated held; " 6. Undisputedly, the complainant had duly insured his house property including house hold articles for a sum of Rs.8,00,000/-. The complainant has alleged that it was a complete loss to his entire property in this fire incident. The certificate issued by Patwari Halqua dated 19.4.2005 Annexure C013 substantiate the allegation of complainant who reported total loss t the tune of Rs.8,36,600/- was suffered by complainant in this fife incident.

It may be stated that the revenue officers are the first ones to have reached the spot as the part of district administration when any incident due to natural calamity is reported to the district administration. Therefore, the certificate issued by the revenue authority i.e. Patwari Halqua concerned is reliable evidence and cannot be excluded at the time of considering the insurance claim of the complainant. On this point, our views are supported by the case law authority of

our own Hon''ble HP State Consumer Commission reported in case The Oriental Insurance Company Ltd. Shimla versus Shri Bhupinder & Ors., latest HLJ 2006 (HP) 421. Therefore, in the given case, it was a complete loss to the house property of the complainant which was duly insured with the OP-Company for a sum of Rs. 8,00,000/-, therefore, we are of the considered opinion that the complainant is certainly entitled to be indemnified by the OP-Company to the extent of the insured amount for the loss sustained by him in this fire incident. Hence, the illegal and unjustified stand of the OP-Company to offer a total sum of Rs.1,66,550/- against the insured sum of Rs.8,00,000/- to the complainant was a clear cut deficiency in service.

For the foregoing reasons, we allow this complaint........................ ".

The State Commission while upholding order of the District Forum in its impugned order observed; " 9. After hearing the arguments of both the parties, as well as after going through the record of the case, we are convinced that the order of the District Forum below does not suffer from any infirmity and thus it calls for no interference and there is no force in the argument of learned counsel for the appellant. Reason being that the surveyor in his report Annexure R-1 has not spelt out what was the life span and what was the age of the building in question when it was gutted into fire. Suffice it to say in this behalf, that when the building was insured vide Annexure C-1, the Insurance Agent/Development Officer of the appellant-Insurance Company was duty bound to have satisfied himself about the nature of the building and its quality of construction and after being satisfied regarding both he was to undertake the insurance in the sum of Rs. 7 lacs qua the building and Rs. 1 lac for the household articles. As such the appellant can be allowed to say that for insurance purposes the value of the building is not to be taken in case of mishap, as was urged by Dr. Sharma.

We have also examined the report of surveyor Annexure R-1. In the said report under the heading "assessment of loss", this fact is clear that the building had totally demolished due to the fire and there were complete destruction of the house/household articles. The surveyor in his report which is at page 103 of the complaint file has further observed, " however the captioned building insured as residential house two storied, was quite old and the estimates have no relevance for reproduction of the building while preparing estimate the insured have claimed the said building as three storied." Hence the report of the surveyor whereby the loss was assessed to the tune of Rs. 1,66,550/- is not based on sound and cogent reasons, as such it cannot be made basis for indemnifying the respondent to the aforesaid loss sustained by him in fire. As such we do not accept the report of the surveyor relating to the loss assessed by him in his report pertaining to the building/household effects those were destroyed in the fire. Surveyor should have also enquired/checked up with the person who had undertaken the insurance vide Annexure C-1 as to how the value of the building was fixed for insurance purpose.

It has been observed by the Apex Court that Insurance Company being in a dominant position, often act in an unreasonable manner and after having accepted the value of a particular insured goods disown that very figure on one pretext or the other when they are called upon to pay compensation. This ''take it or leave it'' attitude is clearly unwarranted not only as being bad in law but ethically indefensible. See the case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC ). There is sufficient, cogent and convincing/relevant evidence brought on record by the respondent viz. certificate Annexure C-3 whereby patwari halqua had reported that the respondent has sustained loss to the tune of Rs.8,36,600/- which is duly countersigned by the SDM concerned. Patwari halqua in his report Annexure C-3 has reported that house of Moti Ram was constructed on khasra No. 296 in Abadi Deh. Since the Revenue Officer are the first one to have reached the spot as the part of District Administration when any incident caused due to natural calamity and as such the certificate issued by the revenue authority, i.e. patwari halqua concerned which is duly countersigned by the SDM concerned cannot be excluded for the purpose of considering insurance claim of the respondent. On this point, we are also supported by a decision of this Commission in Oriental Insurance Company Ltd. Shimla Vs. Shri Bhupinder & Ors. latest HLJ 2006 (HP) 421 .

Now doubt in the present case the District Forum below has not discussed in its order about surveyors report Annexure R-1, but this report cannot be relied upon since it is not based on sound reasons as already discussed hereinabove. Moreover in the present case the respondent has got the building and household articles insured with a view to get himself indemnified in case of mishap and not for being dragged into litigation as is apparent from the evidence on record, as the genuine claim of the respondent has been turned down by the appellant by assessing the claim to the tune of Rs.1,66,550/- which is not legally warranted since stand of the respondent to offer a sum of Rs.1,66,550/- was completely illegal and unjustified, as such this is a clear cut case of deficiency in service ".

As per photo copy of insurance policy in question, which is placed on page no.35 of the paper book. Risk Description is; " ON THE BUILDING & ALL KIND OF H.H. GOODS" and

"Total sum insured was Rs.8,00,000 /- (Eight Lakh only)".

The surveyor in its report has stated that; " Building had totally demolished due to fire as is evident from photographs enclosed". He further observed;

" Please note that the captioned building is insured for Two stories the estimated submitted by the insured are for three storied house, thus during assessment of loss we considering only for two stories ."

As noted above, the entire building of the respondent was insured with the petitioner for a total sum of Rs.8,00,000/-. I fail to understand, as to how surveyor has propounded its own theory, that building in question was insured for two stories only whereas estimated submitted by the insured are for three storied house.

It clearly goes on show. that the report of surveyor is based on conjectures and surmises. Therefore, both fora below were absolutely right in rejecting the said report of the surveyor. Both fora have relied upon the report issued by Halqa Patwari with regard to the damage caused to the building. Interestingly, that report of Patwari has not been filed by the Petitioner before this Commission.

Be that as it may, it is well settled that under Section 21(b) of the Act, scope of revisional jurisdiction is very limited. This Commission can interfere with the order of the State Commission only where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

The Hon''ble Supreme Court in Mrs.Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed; " Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora " .

In view of the concurrent finding of the facts given by both the Fora below, I hold that there is no infirmity or illegality in the impugned order. The present revision petition is thus having no legal merit and the same is hereby dismissed. 20. No order as to cost.