SARAT CHANDRA DASH vs NEW INDIA ASSURANCE CO. LTD.

In this revision petition, there is challenge to order dated 26.11.2007 passed by State Consumer Disputes Redressal Commission, Orissa, Cuttack ( (for short, ''State Commission'') in First Appeal No.783 of 2006, vide which appeal filed by Respondents/ Opposite Parties was allowed and consumer complaint filed by the Petitioner/Complainant was dismissed.

Petitioner filed a consumer complaint before the District Consumer Disputes Redressal Forum, Cuttack (for short, ''District Forum'') on the allegations that he borrowed huge amount of money from Urban Co-operative Bank, Jagatpur, Cuttack and opened a shop-cum-godown at Sapanpur, Salepur and carried on business in food grains and other grocery articles. He procured articles from the Civil Supply Corporation, Cuttack. He insured his godown-cum-shop with respondent no.1 under policy No.4855010201162 which has been valid from 7.6.99 to 6.6.2000. At 9 A.M. on 30.10.99 after the super cyclone, some hooligans of the area looted the grocery and food articles from his shop-cum-godown causing him heavy loss. He lodged information at Salepur P.S. A case was booked. Police after investigation returned the case with P.R. true, but no clue. The J.M.F.C., Salepur Court accepted the P.R. as per G.R. Case No.560/99. The cost of the articles so looted was approximately Rs.2,99,000/-. Respondents no.1 to 3 were intimated about the loss. Claim form supplied by respondent No.1 was submitted to them by the complainant.

Respondents in their written statement took the plea that insurance policy in favour of petitioner was the shop keeper''s insurance policy and the proposal form submitted by the insurer was for shop only and not for godown-cum-shop. The petitioner had not declared about the godown forming part of the shop at the time of making the proposal. Accordingly, the godown is not covered under the policy condition. No intimation regarding the alleged loss was ever received by the respondents or by any of its Branches, either at Choudwar or at Nimapara. Further, no communication was received through UNDER CERTIFICATE OF POSTING as has been mentioned. Thus, respondents had never received information regarding the alleged loss from the insured petitioner in any form whatsoever.

Further, this allegation that a Surveyor, namely Manas Kumar Singh was deputed by respondent no.1 is false. The question of deputation of Surveyor for assessment of the alleged loss does not arise, since no intimation/information about the same was received at the end of the insurer. Though a report was submitted by Manas Kumar Singh, which indicates that he had undertaken the survey work under the instructions of respondent no.1, yet the same is not acceptable. On being questioned regarding the report, Mr. Singh remained silent to three registered letters issued by the insurer asking him regarding his engagement as Surveyor to assess the loss. Though the letters were duly received, yet the said Surveyor did not respond to the same. Rather after long silence, he in his letter dated 10.02.2001 informed the insurer that he had undertaken investigation of the alleged loss at the direction of the respondent no.4. While doing so, he has not submitted any proof of his appointment.

Thereafter, Petitioner filed CD Case No.61 of 2001. The District Forum by order dated 29.12.2003, directed the respondents to settle the claim of the petitioner.

Aggrieved by the order of District Forum, respondents filed CD Appeal No.635 of 2004.

The State Commission vide order dated 23.3.2006, directed respondents to take a decision on the claim and communicate the same to the petitioner.

Respondents accordingly considered the claim of the petitioner but repudiated the same.

Thereafter, State Commission vide order dated 9.6.2006 disposed of the appeal of the petitioner, being infructuous.

Petitioner being dissatisfied with the grounds of repudiation, filed CD Case No.214 of 2004 before the District Forum.

District Forum, partly allowed the complaint of the petitioner vide order dated 29.8.2006 and passed the following order; "The assessment of loss is found not thoroughly proved to the hilt. However, taking an considerate view of the shop or godown-cum-shop as has been vehemently and fiercely argued at the Bar, we direct the O.P. No.1 to 3 to pay to complainant an amount of Rs.1,50,000/- towards the insurance claim and Rs.50,000/- for the mental agony, harassment and legal expenses suffered by complainant within one month after receipt of a copy of this order by them."

Aggrieved by the order of District Forum, respondents filed (First Appeal No.783 of 2006) before the State Commission which allowed the same, vide impugned order.

Now, petitioner has filed the present revision.

We have heard the ld. counsel for the parties and gone through the record.

It has been submitted by ld. counsel for the petitioner that State Commission has not given any reasons to discard the finding recorded by the District Forum, while setting aside its order. It is further submitted that State Commission had failed to take judicial notice of the fact that during the 1999 Super Cyclone, godowns/stores/shops had been looted by people affected by the Cyclone. The insurer in order to avoid payment of compensation, had been taking similar pleas. In many similar cases, the State Commission had awarded exorbitant cost on the insurers for advancing false pleas, besides awarding compensation. Thus, the impugned order is bound to be set aside.

On the other hand, ld. counsel for respondent has contended that petitioner has not placed any material on record to show as to what loss he had suffered.

The State Commission in the impugned order observed; "6. It is submitted by Shri Sarangi that the appellants-insurance company did not appoint any Manas Kumar Singh as surveyor-cum-loss assessor and therefore question of submission of any report by him does not arise. In support of it, the appellants relied upon three affidavits. On 13.11.2007 the appellants have filed another affidavit sworn to by one Sridhar Tarai, present Branch Manager of Nimapara Branch office of the appellants - Insurance Company.

We may briefly indicate the contents of the affidavits. During the relevant time, one Brundaban Mallick was the Branch Manager, Nimapara Branch Office. In his affidavit he has stated that he did not receive any information regarding any loss alleged to have been suffered by the respondent during the cyclone. He has also asserted that he did not engage any surveyor or engineer to cause investigation. One Bibhuti Ranjan Mohapatra has filed an affidavit saying that in September, 1998, he was the A.A.O. in the Divisional Office. He has stated that he has not asked engineer Manas Kumar Singh to conduct survey of alleged loss of the respondent. There is also no record to show payment of remuneration to him. Sridhar Tarai the present Branch Manager of Nimapara Branch office of the appellants - insurance company in his affidavit has stated that on verification of records he did not find any paper appointing Manas Kumar Singh as surveyor-cum-loss assessor to assess the loss of the respondent. He has also stated that no remuneration was paid to Manas Kumar Singh for conducting survey. In the face of the above affidavits we are inclined to hold that the appellants-insurance company did not receive any claim from the respondent nor any surveyor was appointed to cause investigation and submit report. Therefore the so called report submitted by Manas Kumar Singh cannot be accepted as authentic.

The District Forum has taken into consideration the loss assessed by the police. The final report submitted by the police is not on record. There is nothing on record to show the basis of assessment made by the police. Therefore no reliance can be placed on it. 8. For the reasons mentioned above, we set-aside the impugned order, dismiss the respondent''s complaint and allow this appeal."

Petitioner in this case, has not placed any documentary evidence on record to show as to what was the loss suffered by him in the Cyclone. Moreover, order passed by the District Forum, is based on conjectures and surmises, as District Forum in its order on the one hand states that, "The assessment of loss is found not thoroughly proved to the hilt". In the same breath, it states that, "However, taking an considerate view of the shop or godown-cum-shop as has been vehemently and fiercely argued at the Bar, we direct the O.P. 1 to 3 to pay to complainant an amount of Rs.1,50,000/- towards the insurance claim and Rs.50,000/- for the mental agony, harassment and legal expenses suffered by the complainant within one month after receipt of a copy of this order by them."

Thus, it is manifestly clear from the above order of District Forum that petitioner itself has failed to show the alleged loss suffered by him in the cyclone. It appears that the District Forum was swayed away by the emotions and on humanitarian grounds, it allowed the complaint in favour of the petitioner. There is no provisions under the Act, for award of compensation to any victim on humanitarian ground or otherwise.

Under these circumstances, we do not find any infirmity or ambiguity in the order passed by State Commission. Hence, the revision is hereby dismissed.

No order as to cost.