ORIENTAL INSURANCE Company Limited vs SANJEEV KUMAR SHARMA

-THIS is an appeal filed by the O.Ps. of Complaint Case No. 350 of 2002 filed by the respondent/complainant Shri Sanjeev Kumar Sharma against judgment and order dated 3.3.2004 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter referred to as District Forum) allowing the complaint and directing the O.Ps. to pay Rs. 17,850/- + Rs. 18,000/- totalling Rs. 35,850/- with interest @ 6% per annum from the date of filing of the complaint i.e., 21.5.2002 till its payment along with Rs. 1,000/- as costs of litigation.

THE respondent/complainant got his computer insured with M/s. Oriental Insurance Company Limited (for short hereinafter referred to as the Insurance Company) for Rs. 25,000/- vide cover note No. 578057 dated 10.4.2000. Prior to the issuance of Insurance policy, an investigation of the computer aforesaid had been done and pre-investigation report was prepared by the Surveyor appointed by the Insurance Company, the appellant. THE said computer was damaged on or about 5.1.2001 due to fluctuation of electric energy. This was duly intimated to the appellant - Insurance Company vide letter dated 5.1.2001 (copy Annexure C-3). THE estimate of repairs (C-3/A) and (C-3/B) were also annexed with the letter. Shri Satwinder Singh was appointed as Surveyor to assess the loss of damage. THE Surveyor investigated the computer system and signed all the defective components thereof and on the basis of the report of the Surveyor, the Insurance Company passed a claim for Rs. 1,469/- although actual insurance claim submitted by the complainant to the O.Ps. was for Rs. 17,100/- + Rs. 750/- = Rs. 17,850/-. Alleging deficiency in service on the part of the Insurance Company, the respondent/complainant served legal notice dated 8.10.2001 (C-1), which was, however, dated 8.10.2001, which was, however, not settled and this also, it is alleged, amounted to deficiency in service. The complainant prayed that O.Ps. be directed to pay Rs. 17,850/- with interest @ 18% per annum from January 2001 till its realization and be further directed to pay an amount of Rs. 15,000/- as rent paid for hired computer being alternative arrangement along with future rent @ 1,000/- per month till the case is settled and a sum of Rs. 50,000/- was claimed as damages on account of mental agony, harassment, loss and injury suffered due to the negligence and deficient services rendered by the O.Ps. The costs of complaint was also claimed.

The O.Ps. contested the complaint case and challenged the maintainability of the complaint case. It was alleged that the complainant was not a consumer and had no locus standi to file the complaint. The plea of estoppel was also taken. It was urged that the dispute may be referred to the Arbitrator under Arbitration clause contained in the policy of insurance. Next, it was urged that the case involved complicated questions of law and facts and the complainant be relegated to his remedy of approaching a Civil Court of competent jurisdiction. It was, however, not disputed that the claim was settled by the appellant Insurance Company to the extent of Rs. 1,469/-. It was not denied that in the event of partial loss, it is the duty of the O.P. to get the damaged parts repaired so that the computer may be in the same condition in which it was before the damage had been caused. But such a situation would arise only when the claim of the complainant was genuine. Reliance was placed by the appellant on the survey report (Annexure R-2). It was categorically denied that there was any contradiction in Surveyor''s report and letter (C-4) of the appellant on one hand and the pre-investigation report on the other hand on the basis of which the policy of insurance was issued.

PARTIES led evidence in the shape of their affidavits and filed documentary evidence. The District Forum referred to the affidavit of Shri N.K. Nagal, Sr. Divisional Manager and discussed the same as also the letter of repudiation (C-4) that if at all there was no loss to the mother board or even to the processor, then it would not have been possible to run the window software which was successfully running at the time of survey.

DEALING with the preliminary objections, the District Forum repelled the same and held that the complainant was a consumer and the appellant Insurance Company was the provider of the service for consideration. It was also held that the case did not involve complicated questions of law and fact as ruled by the Hon''ble Supreme Court of India in the case of Dr. J.J. Merchant v. Srinath Chaturvedi, III (2002) CPJ 8 (SC)=IV (2002) SLT 714=2002 CTJ 757. The grounds, which were urged in repudiating the claim of the complainant were not held to be genuine or bona fide. The report of the Surveyor was taken up for analysis and after referring the same it was concluded that the Insurance Company/appellant while repudiating the claim had not applied their mind to the whole material before it and their decision is not bona fide. It was held that there was deficiency in service on their part. The District Forum then considered the quantum of compensation and held that the complainant was entitled to get a sum of Rs. 17,850/-, which have been fully proved from the repair estimates Annexures C-3/A and C-3/B. The complainant was also allowed the hire charges of Rs. 18,000/- from the O.P. and no separate compensation was awarded for technical loss or mental or physical harassment because the complainant is conducting his work satisfactory by means of hired computers. The O.Ps. felt aggrieved with the judgment and order of the District Forum and filed this appeal. The record of the case was summoned. The respondent/complainant put in appearance in response to service of notice. We have heard the learned Counsel for the appellant Mr. D.P. Gupta, Advocate and Shri Rajesh Kumar Sharma, authorised representative of respondent Shri Sanjeev Kumar Sharma. We have also carefully perused the impugned order and the record of the case. The District Forum took into consideration the entire material placed on record and referred to the rival contentions made in this case. It is relevant to point out that the appellant mainly relied on the report of the Surveyor and Loss Assessor Shri Satwinder Singh who assessed the loss caused to the insured equipment and filed his report (Annexure R-2). According to the report of the Surveyor, the claim which was admissible was to the extent of Rs. 1,844/- out of which the Insurance Company allowed compensation of a sum of Rs. 1,469/-. The Surveyor himself was not examined in the case to prove the report and the investigations made by him and instead affidavit was filed of Shri N.K. Nagal, Sr. Divisional Manager of the Insurance Company who himself did not investigate the matter and who relied substantially on the report of the Surveyor. The affidavit filed by Shri N.K. Nagal is dated 23.8.2002 and the averments of the affidavit as contained in Paras 1 to 9 have been verified to be true and correct to his knowledge and no part of it has been stated to be false and nothing material has been kept concealed therein.

A careful perusal of the affidavit of Shri N.K. Nagal shows that in none of the paragraphs of the affidavit, the deponent deposed about his personal investigation in the case and about his perusing the relevant record and as mentioned above, the verification clause shows that the facts mentioned and deposed to in Paras 1 to 9 of the affidavit were verified from his personal knowledge. It has also not been mentioned in the affidavit as to why and under what circumstances, the Surveyor could not file his affidavit.

ON the other hand, the complainant got his computer examined by an expert Shri M.R. Kapila, Computer Engineer, Proprietor of M/s. Bliss Computers and Peripherals, SCO No. 1086-87, Cabin No. 15, IInd Floor, Sector 22-B, Chandigarh who deposed about his investigating the computer system and submitting separate statement annexed with the affidavit, which is investigation/valuation report. A perusal of his report will go to show that after the breakdown due to sudden voltage fluctuation, the parts of computer system, which were damaged and need replacement were Mother Board, HDD 1.2 GB and 2.1 GB, FDD 1.2 MB, CD ROM and Software to be loaded. The report contained three paragraphs regarding these damaged parts giving the details of the same. The District Forum considered the documents, which were placed on record and after giving appropriate reasons accepted the case of the complainant and awarded compensation referred to above. Mr. D.P. Gupta, Advocate contended that the District Forum accepted the statement of the complainant as contained in his affidavit, which did not prove the case of the complainant. We find no merit in the said submission. The District Forum while considering the evidence of the complainant referred to the documentary evidence as well as the report prepared by Shri M.R. Kapila, Computer Engineer, Proprietor of M/s. Bliss Computers and Peripherals. Since the computer, which was insured with the Insurance Company was lying damaged, the complainant prayed for recovery of the rent for a hired computer, which was by way of an alternative arrangement. Once the Insurance Company was deficient in rendering the service, the Insurance Company is required to pay the loss suffered by the respondent/complainant by way of compensation.

Resultantly, we find no infirmity in the impugned order. The appeal fails and is dismissed with costs, which we quantify at Rs. 250/-.

COPIES of this order be sent to the parties free of charge. Appeal dismissed.