VEENA DEVI vs NATIONAL INSURANCE CO LTD

THIS revision petition has been filed by Veena Devi (hereinafter referred to as the ''Petitioner '') being aggrieved by the order of the State Consumer Disputes Redressal Commission, Bihar (hereinafter referred to as the ''State Commission '') in Appeal No. 127/2000 in favour of National Insurance Co. Ltd. (hereinafter referred to as the ''Respondent '').

THE facts of the case according to the Petitioner/Complainant are that she had got her bookshop insured with the Respondent/Insurance Company for a sum of Rs. 2 lakh from 22.4.1996 to 21.4.1997 under the Shopkeepers '' Insurance Policy. On 16.8.1996 due to heavy rains, water entered into the shop and extensively damaged books valued at Rs. 77,000 as also fixtures and furniture worth Rs. 5,000 causing loss to the Petitioner. Petitioner, therefore, filed a claim with the Respondent/Insurance Company who appointed a Surveyor to assess the loss. According to the Petitioner, an inspection of the premises was conducted, the list of books damaged was given in writing to Surveyor but despite this, the Respondent/Insurance Company repudiated the claim on the ground that the Surveyor had reported that the Petitioner did not cooperate with them and insulted them and only later submitted Xerox copies of certain invoices which prima facie appear to be not genuine. The Respondent/Insurance Company, therefore, did not settle the claim. Aggrieved by this, Petitioner filed a complaint before the District Forum on grounds of deficiency in service and requested that Respondent/Insurance Company be directed to pay the Petitioner, Rs. 77,000 for damaged books and Rs. 5,000 for damage to furniture and fixtures, etc. The District Forum after hearing both parties allowed the complaint by observing as follows: "The complainant has produced on the cash record, the first information letter dated 19.8.1996, protest letter dated 6.9.1996 submitted against Surveyor, claim form, details of loss statement, shopkeeper Proposal-cum-policy, letter of Surveyor Ajay Kumar Ojha dated 23.8.1996, B.P. Agrawal and Co. Surveyor report dated 2.11.98 submitted to National Insurance Co. Ltd. containing inventory of damaged goods, two photographs, estimate of M/s. Annapurna Kutir Udyog dated 4.10.1996, cash memo of Book Shopee dated 22.7.1996, 26.7.1996, 29.7.1996 in support of stock on 16.8.1996 and affidavit filed by the complainant. From perusal of all these papers the existence of insurance and the incident dated 16.8.1996 are well established. From perusal of reminder letters of the complainant it appears that neither the Insurance Company nor the Surveyors were willing to settle the claim which is proof of deficiency in service and it establishes illegal action on the part of the opposite party. On the one hand the complainant was trying hard for settlement at the same time on the other hand the opposite party after submitting the survey report by Surveyor B.P. Agrawal never sent any letter of communication regarding any objection on statement of account or repudiation to the complainant. "

The District Forum, therefore, directed the Respondent/Insurance Company to pay the Petitioner, Rs. 63,207.78 with interest @ 10% per annum within 30 days of the receipt of the order.

AGGRIEVED by this, Respondent/Insurance Company filed an appeal before the State Commission which allowed the appeal by observing as follows: "It may be noted at the very outset that the respondent-complainant adduced no legal evidence either oral or documentary or in the shape of affidavit to prove her case regarding inundation of the area including her shop and damage caused to the Books stored there. The report submitted by two Surveyors deputed by the Insurance Company speak of non-cooperation of the respondent which was evidence from the fact that she produced no documents referred to above called for from the respondent nor were produced the damaged books and the Surveyors found only outdated books which could have hardly been sold from her shop. The damaged books would have been relevant for assessment of damage/loss but surprisingly enough damaged books, books of account, certificate regarding registration of shop, cash book and other relevant registers, etc. could not be produced by the respondent for the reasons best known to her laches, negligence and indifference on the part of the respondent in producing the relevant papers and her non-cooperative attitude must give rise to adverse inference particularly when she had earlier also got compensation for damage of books caused by inundation. It is also a matter of common experience these days that insurance policy is obtained with ulterior motive and intent to lay false claim against the Insurance Company. "

Hence, the present revision petition. Counsel for both parties made oral submissions. Counsel for Petitioner stated that the State Commission was factually incorrect in observing that the survey and assessment could not be done by the Surveyor due to the callousness and non-cooperation of the Petitioner and also that no important documents including the alleged damaged books were produced before the Surveyor by the Respondent to prove her case. Counsel for Petitioner stated that in fact Petitioner had filed an affidavit which was in evidence before the Fora below (Annexure P-8 at page 57 of the paper-book) in which Petitioner had given all the relevant details confirming that due to heavy rains, water had entered into her shop and books worth Rs. 74,362 were damaged as also furniture and fixtures worth Rs. 4,800 and that she had fully cooperated with the Surveyor and had also provided the Surveyor with a specific and detailed list of the books that had been damaged. The District Forum being a Court of fact had on the basis of this evidence rightly accepted the Petitioner ''s contention and given her the necessary relief.

COUNSEL for Respondent essentially reiterated the facts as stated by Respondent before the Fora below, namely; that a proper survey and assessment could not be made by the Surveyor appointed by it due to the non-cooperative attitude of the Petitioner who did not produce documents to prove the loss and that during the course of the investigation some outdated books were located and no genuine books of accounts or relevant registers were produced. Further, no evidence has been produced in the shape of an affidavit by the Petitioner to prove her case regarding inundation of the area including her shop and the cost of damaged books thereon. We have heard learned Counsel for both parties and have carefully considered the evidence on record. We note that it is a fact that the Petitioner had filed an affidavit which was in evidence before the Fora below where she had confirmed the cause of the damage as well as the loss. We further note that Petitioner had supplied the list of all the books which have been damaged as a result of the inundation along with price. Photographs to support the same had also been taken and produced in evidence before the Fora below. Under these circumstances, we agree with the Counsel for Petitioner that the State Commission erred in recording that no affidavit was filed by the Petitioner to support her claim and that no documents were supplied to the Surveyor in respect of the damage caused. In fact, it is the Surveyor whose report inspires very little confidence because he has in a perfunctory manner merely stated that though an inventory of damaged goods was taken, because of lack of cooperation, etc. by the Petitioner, loss could not be assessed. No mention has been made of the large number of books which was shown as damaged and the list of which was given to the Surveyor who while admitting that they had made an inventory of damaged goods, did not given an assessment of the loss. It is well settled that the report of the Surveyor is an important document unless proved otherwise. In the instant case, for the reasons stated above, the Surveyor ''s report in this case does not inspire confidence and therefore, not much credence can be given to it. Respondent has not been able to produce any other evidence to controvert the claim made by the Petitioner in the affidavit and supported by documentary evidence of the list of books damaged along with photographs. In view of the above, we are unable to accept the order of the State Commission and set aside the same while restoring the order of the District Forum. This revision petition is thus allowed. Respondent/Insurance Company is directed to pay the Petitioner, Rs. 63,207.78p with interest @ 10% per annum within six weeks from the date of receipt of the order failing which interest @ 12% per annum would be applicable on the entire amount. Revision Petition allowed.