POSHKAR NATH PANDITA AND SONS vs National Insurance Company

-THE complainant before his migration from the town of Anantnag to Jammu was running a business in his shop which was housed on the ground floor of his residential building under the name and style of ''m/s. Poshkar Nath Pandita and Sons''. All kinds of cloths, Sarees, Shawls, and readymade suitings were being sold by him. The shop was situated in the famous Lal Chowk of Anantnag Town which is considered as a hub of commercial activities. During the end of the year 1989, minorities and secular minded persons from the majority community were forced to leave their hearths and homes. The stocks of trade were insured for covering the risk of Rs. 8. 00 lakh. The insurance policy came into currency on 26. 11. 1990 and had to expire on 25. 11. 91. During its currency i. e. on 30. 1. 1991, the complainant came to know that on 28. 1. 1991 his shop had been ransacked and looted by some miscreants. On 2. 2. 91, the complainant lodged written report of the incident with the DIG Police Jammu, copies whereof were sent by registered post on 5. 2. 1991 to concerned quarters which included SSP, Anantnag and SHO, Police Station, Anantnag. The OP was also accordingly informed through written request dated 4. 2. 1991 (Annexure C/5) to get the loss assessed from a surveyor. The complainant for sometime waited to receive a reply on his representations but even could not receive a copy of the FIR from the concerned Police Station Anantnag. Reminders were sent but they went hay-wire. By such recalcitrant attitude adopted by the OP, the complainant was forced to approach the Commission and accordingly on 25. 7. 1995 this complaint was made wherein details of all reminders sent at different occasions were given. The last reminder was given to the SSP, Anantnag under No. CB/mig/95-1807 dated 9. 3. 1995 (Annexure ''6'') and it has been attached as Annexure ''6''. The details regarding the purchase of articles of trade and a copy of the ration card were also attached with it. The OP in his written version denied the incident including the lodging of the FIR before the Police by the complainant. This version was supported by taking the plea that the complainant had failed to produce any document in support of his raising the claim. In support of the complaint, the complainant himself appeared as well as examined Mr. Dev Parkash and Mohd. Amin Bhat as his witnesses. The OP examined Mr. R. K. Wali as its witness. The complainant and his witnesses have supported the version of the complaint. On the contrary, Mr. R. K. Wali witness of the OP has deposed on the lines which were set out in the written version. In other words, he denied the incident and raising of any claim with it. The Commission disbelieved the incident as it was not supported by any evidence. It was specifically stated that neither a copy of the FIR nor the copy of the investigation report were produced by way of evidence. In the end it was held that the complaint was time barred by 4 years. In that view of the matter, the complaint was dismissed by the Commission. The complainant challenged the order of dismissal before the Hon''ble High Court by filing CIMA No. 47/97 which was decided on 10. 3. 2004. The Hon''ble High Court set aside the order of the Commission and held that the complaint was within time because the complainant had been all along pursuing the case before the concerned authorities. A direction was given to the Commission for re-examination of the complaint on merits. It was further held in the said remand order that the claim of the complainant was substantiated by contemporaneous documents. In the Commission, the parties did not lead any evidence. They have placed reliance on the evidence which already had been let in. The OP had contested in the Hon''ble High Court that the complaint was not maintainable and in support of this contention the case law was cited which was considered by the Hon''ble High Court in the given below manner: The case of Muralidhar Saranji v. New India Assurance Co. Ltd. , I (2000) CPJ 3 (SC)=ii (2000) SLT 468=ii (2000) CLT 36 (SC)= (2000) 3 SCC 466, has been distinguished from the facts of the present case by holding that in that case the insured goods including the truck in question in which they were being carried were destroyed by the "bodo Terrorists" after making an attack. The armed attack had resulted into engulfing the truck in fire which reduced the loaded goods and the truck in question to ashes and the driver of the truck was also killed. The act of the terrorists could not be treated as "a malicious damage" falling within the definition of the insurance clauses and the terms and conditions of the insurance policy. With reference to the finding rendered in the case of Ashok Kumar Bararoo''s, National Insurance Co. Ltd v. Ashok Kumar Bararoo, 2000 KLJ 610, it has been held by the Hon''ble High Court that , "indeed riots, strike or malicious damage would also prima facie appear to have no nexus with fire. Heading sometimes can be looked into key to interpretation for construing rights of the parties, but for construing rights of the parties, it is the substantive provisions which have to be relied upon. In any view, a different policy i. e. fire policy B being subject of consideration, the decision in case of Ashok Kumar Bararoo can not be treated as of binding precedent. Similarly, the finding of Anand Ji Razdan''s case Anand Ji Razdan v. Divisional Manager, United India Insurance Co. Ltd. , (2000) KLJ 698, was also distinguished because that decision was given after the decision of Ashok Kumar Bararoo''s case. The ratio decidendi of Ashok Bararoo''s case (supra) was followed as a precedent. In view of the remand order passed by the Hon''ble High Court, this Commission is required to give a fresh decision regarding the alleged incident. The terms and conditions of the insurance policy are also required to be interpreted afresh. The Hon''ble High Court in its remand order has narrowed down the controversy and the Commission cannot overlook those observations. The learned Counsel appearing for the complainant has contended that the incident has been supported by the complainant in his deposition by clearly stating that his stocks in trade consisting of all types of cloth, Sarees, Shawls, readymade suitings, etc. were subjected to total damage by the riotous mob with the sole object and intention of causing "malicious damage" to his property. In cross-examination, he has stated that the incident was reported to the DIG, Jammu copies whereof were sent to all the concerned quarters. His version has found corroboration from the testimony of his witnesses namely, Mr. Dev Parkash and Mohd. Amin Bhat. The Insurance Company has not seriously contested the incident by leading any cogent evidence in rebuttal but their parrot like reply is that the alleged loss caused by the above stated acts was not covered under the terms and conditions of the policy which was a fire policy and the loss suffered by the complainant was not caused by fire incident. He has referred to the testimony of OP''s witness Mr. R. K. Wali and pointed from his cross-examination wherein he has admitted that intimation regarding the incident was received by the OP in the month of Feb. 1991. He also admits to have received the copies of the annexures filed with the complaint but this is a fact that the copy of the FIR (Annexure G) and copy of the police report (Annexure H) were received by him in the High Court during the pendency of the appeal. That the Hon''ble High Court in the remand order had held that the complaint of the "complainant was supported by contemporaneous record" and further has held that the "claim was covered by the terms and conditions of the policy". The argument of the learned Counsel of the Insurance Company that it was not covered under the policy had been rejected. After holding so, the Hon''ble High Court had held that "no reason was left for the OP not to have appointed a Surveyor and got the loss assessed". Concluding his arguments Mr. Raina has submitted that the Hon''ble High Court has to a great extent decided this case.

MR. Sunil Malhotra, Advocate in rebuttal has contended that the complainant''s case which had been projected in the police department right from Annexure B is of "looting" in which loss of Rs. 10. 00 lakh had been caused. This stand was corroborated by the complainant himself vide Annexure B written to the Branch Manager of the OP at '' Shalamar Road, Jammu wherein it is stated that his stocks had been "looted maliciously" by some miscreants. Annexures E which are the letters written by police officers from Jammu Range to Anantnag Range and they projected that the complainant''s house/shop had been broken open by some miscreants. He has referred to Annexure F which is order dated 22. 1. 98 passed by the learned Chief Judicial Magistrate, Anantnag on the application of the complainant wherein it is stated that it was a case of "burglary". Direction had been given by the learned CJM to the police under Section 157 (3), Cr. P. C. to register the case. From all the above stated documentary evidence a case was registered on 24. 1. 98 in Police Station, Anantnag for the commission of offence falling under Section 392, RPC. It is thus established that loss was caused by "burglary" and "robbery" and this mode of loss being caused to the insured property was not covered under "fire policy B" in question. These causes of loss are not referred under Clauses 1 to 6 of the insurance policy in question and in view of the law laid down by the Hon''ble Supreme Court in the case of United India Insurance Co. Ltd. v. Harchand Rai Chandan Lal, IV (2004) CPJ 15 (SC)=v (2004) SLT 876= (2004) 8 SCC 644, the OP is not liable to indemnify the loss and there is a direction in the DB order dated 10. 3. 2004 that the Commission was at liberty to consider the matter as to whether the incident is covered under the terms and conditions of the insurance policy or not. While concluding his arguments Mr. Malhotra has contended that the information of the incident was undoubtedly received by the OP on 5. 2. 91 but the complainant thereafter furnish any supporting documents in support of the incident despite the request being made to him by the OP. Moreover, no such document was produced which showed that the loss was covered under the policy in question. The complaint was dismissed vide order dated 24. 1. 97 by the Commission and when the complainant challenged that order in the Hon''ble High Court in Appeal No. CIMA No. 47/97, he at that time produced in the record a copy of the complaint made to the CJM, Anantnag as well as copy of the FIR. There was no deficiency on the part of the OP to settle the claim because the complainant had failed to produce any supporting documentary evidence. There is no evidence which has proved that the loss caused to the complainant was to the extent; he was claiming. In rebuttal, it has been argued by Mr. Raina, Advocate that as per the allegations made in para No. 5 of the complaint, the complainant had come in the Commission with specific allegations that on 28. 1. 1991, some miscreants in order to disturb the public peace committed rioting and thereby "maliciously" destroyed the entire stocks of trade kept in his shop. Likewise in his complaint dated 2. 2. 1991 (Annexure C/3) which he had already made before DIG of Jammu Range he had alleged "that a few days ago a group of some miscreants who wanted to disturb the public peace came out in the said locality and started rioting and damaging maliciously the said stocks and premises owned by the applicant. The whole stocks were damaged by the said violent group of anti-national and at present there is hardly anything left in the shop as per the knowledge and information of the applicant". In turn the DIG, Jammu Range as per Annexure C/4 (filed with the complaint) had directed the Police Station, Nowabad to enter the report on the basis of the said complaint in the "daily Diary Register" of the police station and refer the case to the concerned police station for necessary action under rules. Annexure C/5 is a letter dated 4. 2. 1991 written by the complainant to the OP wherein the latter had informed that his stocks in trade had been "looted maliciously" by some miscreants and that he had lodged the FIR in the Police Department, Jammu. The receipt of this letter (Annexure C/5) has been admitted by the OP. In para No. 3 of his written version-OP had denied the loss suffered by the complainant during the currency of the policy. This is a bald denial and without any basis carries no legal weight. The Counsel has further contended that the word "malicious damage" has not been defined in the terms and conditions of the insurance policy in question. The dictionary meaning of word "malice'' is "intention to do evil, a desire to tease, especially with cruelty, wrongful intention". The adjective of "malice" is "malicious" which is defined as characterized by "malice", intending or intended to do harm. The words ''malicious damage'' have been used in Clause 4 of the insurance policy in question and they would thus fall within the ambit of the definition as given in Law Lexicon which defines the term "damage" as means "any loss whether actionable as injury or not". It would further mean that damage is only a general name for the monetary loss to the owner, for different reasons. In other words, the genesis of which is the destruction and deterioration and the loss is one of the species. This damage was caused by the riotous mob and is very much covered under Clause 4 of the fire policy ''b'' which was in force between the parties herein at the material time. The introduction of word ''robbery'' is the handy-work of the Police Department as well as it has been implanted in the FIR on the direction of the learned CJM, Anantnag on the application scribed by a petitioner writer in Urdu language (Annexure F ). This unilateral insertion of the word "robbery" by the petition writer and repeated by the learned CJM, Anantnag in his direction given to the SHO, Anantnag for registration of the case would not take away the basic claim out of the purview of Clause 4 of the insurance policy in question. Concluding his arguments he has urged that the Hon''ble DB in its order dated 10. 3. 2004 has practically considered this plea also which is being raised herein and has held at page No. 8 of its order: "indeed, riot, strike or malicious damage would also prima facie appear to have no nexus with fire". Such a finding had acquired necessity because the Counsel of the OPs therein had argued on the following lines recorded in the said order at page No. 5 (last para), "counsel for the respondent submitted that it would be a futile exercise to remand the case for adjudication. According to the Counsel the complaint of the appellant ex facie makes out a case of malicious damage which is not covered by the fire policy in question". Having argued on the above stated premises in the Hon''ble High Court now it does not lie in the mouth of the OP to get its case argued on the plea that it is not a case of ''malicious damage'' but a case of "robbery". The OP under law is now estopped to blow hot and cold in the same breath because the doctrine of estoppel creates a legal bar for him to do so.

We have thoughtfully considered the respective contentions of the Counsel for the parties and carefully perused the record. The order of remand dated 10. 3. 2004 passed by the Hon''ble High Court has also been perused. We fully concur with the arguments submitted by Mr. P. N. Raina, the learned Counsel appearing for the appellant that OP herein is now estopped from putting up a new case that the loss to the stocks in trade in the shop in question was caused by "robbery" and it was not a case of rioting which caused "malicious damage". The loss to be caused by "malicious damages" was the sheet-anchor of the case of the complainant and the complainant therein had raised his claim on the same cause of action put forth in his complaint (Annexure C/3) made to Dy. Inspector General, Jammu Range, copies whereof were sent to, (i) The Secretary, Home Department, Jandk Government, Jammu; (ii) The Relief Commissioner, Jammu; (iii) Secretary, Sahiti Samiti Jammu; (iv) SSP; Anantnag and (v) SHO, Anantnag. In his letter dated 4. 2. 1991 (Annexure C/5) complainant had informed the OP that he had received telephonic call / message from Anantnag "that his stocks had been looted maliciously by some miscreants and he had lodged a FIR in Police Department Jammu". He had made a request for helping him by sending a Surveyor on the spot under intimation to him. After the perusal of the insurance policy in question, we find that on its first page 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. The introduction of the word "robbery" which was the handy work of a petition writer and some police officials of the lower rung of the police cadre at its Jammu wing as well as Anantnag wing could not take away the nature of the basic claim which the complainant herein had been putting forth from the very beginning. For construing the rights of the parties, substantive clauses of the contract of insurance have to be interpreted on their plain and simple meaning of the words used therein and viewing the matter in this perspective the looting of the "stocks in trade" by a riotous mob very much fal within the import of the word "malicious damage". The legal meaning of the term "malicious damage" has at length been dealt with hereinabove and it would be repetition if it is dealt with again here. The complainant has by placing on record the documentary evidence in the nature of purchase bills (from serial Nos. 15 to 29) has proved that were very much there when the loss was caused. He had to become a migrant under forced circumstances in order to save his life as well as the lives and honour of his family members. The insurance policy covered the risk of Rs. 8. 00 lakh and it was in force at the time when the alleged loss was caused in a "malicious manner" by an anti-national riotous mob. After receiving the information about the alleged loss it was the bounden duty of the OP to get the same verified immediately from a competent Surveyor and Loss Assessor which has not been got done in this case for the reasons best known to it. As this was a case of failure to discharge a contractual obligation so it amounted to "deficiency in service" which can be redressed by the Commission under the provisions of the Act. It has been established on the basis of evidence that it was a case of total loss of the insured stocks of trade and the OP committed a gross negligence for not getting the loss assessed from a recognized Surveyor and Loss Assessor after claim was raised before it and as per the admission of the OP''s witness Mr. R. K. Wali the insurer had received the information in the month of Feb. 1991. In this view of the matter, we accept the complaint and direct the OP to reimburse the loss of insured stocks in trade valuing Rs. 8. 00 lakh along with interest @ 8% per annum from the date of loss i. e. 28. 1. 1991 till the final payment is made. The OP is also directed to pay the litigation expenses to the complainant which are quantified at Rs. 6,000. The complainant is found not entitled to the payment of any other compensation as has been claimed by him for mental and physical sufferings as interest has been paid to him on the amount of reimbursement. The complaint be consigned to the records. Complaint allowed.