JUDGMENT
Syed Basihir ud-Din, J.
1. The Appellant raised claim and lodged a complaint with Jammu and Kashmir State Consumer’s Protection Commission. Sriiiagar, (hereinafter for short State Commission), for insurance claim and compensation in the sum of Rs. 7,38,683.OO/-as assessed by one Mr. H. Kanan, loss assessor and valuer of the Oriental Insurance Co. and approved by Divisional Manager, in August. 1996. The claim was advanced in connection with property covered by Insurance Policy No. 23424/ 11/96 00635/23424, Sgr. subsisting between 1-11-1995 to 31-10-1996. in respect of a residential building situated at Jogitiyal Haihama, Kupwara. The fire incident of 27-12-1995 destroyed the whole building with house-hold goods.
2. Before the State Commission, the Opposite party. Oriental Insurance Co. did not opt to contest the claim. Neither written statement was filed nor any evidence was led by the Opposite party State Commission, on examining the matter and the file of Oriental Insurance Company, O.P. declined to grant the claim and compensation . It dismissed this complaint (No. 199/97 as bogus. Against this order dated 1 -7-1998 of State Commission, the claimant has come in Appeal.
3. Parties have been heard.
4. The State Commission has dismissed the complaint in main on the assumption that the house of the claimant was in fact burnt on 27-10-1995, when the Insurance Policy in question was not in force in respect of this house. The petitioner’s house being not covered by the policy therefore, he was not entitled to recover any claim from the Insurance Company. The State Commission has also noted that the FIR in this case has been belatedly filed and the petitioner has already obtained ex gratia relief of Rs. 62,500/-in respect of the property and that the second surveyor Mr. M.K. Warikoo has also opined that the property was in fact burnt on 27/28 Oct. 1995 when the Insurance cover/policy was not in force. The State Commission has also taken an exception to approval of claim by the then Sr. Divisional Manager, Shri L. K. Joshi, as in its view such a course is not being followed while processing and finalising the Insurance claims.
5. Mr. Khuroo has supported inference of the State Commission. However, the counsel for the appellant submits that the Oriental Insurance Company the opposite party did not even contest the case before the forum. No written statement was filed. No evidence was led. He was not given access to the record referred by the State Commission. The house in respect of which the Commisison concluded that it is not covered by the Insurance cover/policy, is in fact an ancestral house which belongs to the claimant and his brothers jointly. All owners got ex gratia relief from State Government for this joint house of theirs. The petitioner has been made to suffer unjustly. The delay in filing the FIR is for reasons beyond his control. Once the claim was assessed by loss assessor and surveyor of the Oriental Insurance Company (Mr. H. Kanan) and approved by its Sr. Divisional Manager, Mr. L.K. Joshi. the Company admitted the insurance claim of the petitioner. In such circumstances, in absence of any content by Opposite Party (respondent), the conclusion of the State Commission, that the claim is bogus, is not based on any record, but is jut an imaginative inference of the Commission.
6. We find from record that the petitioner had insured his three storied residential building situated at Jogitiyal Kupwara for Rs. nine lacs and the house hold good for Rs. 75,000/-. This policy was effective from 1-1,1-1995 to 31-10-1996. The claimants case before the State Commission was that as he was instrumental in making some of the militants to surrender before the authorities, militants felt deeply offended. They first set his ancestral house on flames (on 28-10-1995) in respect of which he lodged FIR. Later he was kidnapped. Though he managed to give them slip, but his self acquired house under insurance cover was set on fire. The entire property as also the house hold goods were put ablaze. Fearing for his life, he fled to and stayed back at Jammu. For this reason he lodged report belatedly in respect of this house of his covered by insurance cover. The record shows that the claimant got ex gratia payment in respect of the uninsured house which gutted on 28-10-1995. The report in respect of this fire incident was lodged as FIR 353/95 with Police Station Kupwara, through the Chowikdar of the village one Ghulam Hassan Mir. The building covered by the insurance is found to have gutted in a fire on 27/28 Dec. 1995 in respect of which FIR 3/97 has been lodged on 4-1-1997 with Police Station Kupwara. The report itself says that the claimant a Numberdar of the village filed this report through Superintendent of Police, District Kupwara, who forwarded the report to the concerned Police Station for required action. The letter dated 27-2-1997 of the Superintendent of Police, District Kupwara addressed to Sr. Divisional Manager, Oriental Insurance Co. Ltd. Srinagar and the communication dated 21-4-1998 of Superintendent of Police, Kupwara addressed to Surveyor and Loss assessor of the Company confirm that the house in question was gutted in fire on 27/28 Dec. 1995. These communications along with the copy of the FIR fully support petitioner’s case. Not only so, Mr. Khuroo does not deny as even found by the State Commission that the loss assessor and Surveyor Mr. H. Kanan assessed the loss during subsistence of the insurance.
He assessed loss at Rs. 7,38,683/-. The claim for payment of above assessed loss to claimant was even approved by the then Sr. Divisional Manager of the Insurance Company the Opposite party. In the face of this evidence coupled with the deposition before the State Commission of the claimant and his witness Mehrajuddin, the Commission’s conclusion that a false and forged claim has been put forward, is wholly misplaced and not based on any material or evidence, documentary or otherwise. This is more so, when the Opposite party even failed to file the written statement and contest the claim.
7. It is admitted by Mr. Khuroo, counsel for the respondents-Insurance Company that the observation of the Commission that then Sr. Divisional Manager is hauled up by the CBI in some matters in respect of which investigations are pending, is not true. He submits that no case has been found against Mr. Joshi and he is wholly cleared by the agency. Merely because the Senior Divl-slonal Manager approved the claim on the basis of the report of the assessor, who assessed the claim at the first available opportunity, the State Commission finding is hardly merited and that too when the State Commission’s approach is faulty and suspect. The evidence and documents on record are cogent and credible enough to sustain full proof of the claim put forward before the Commission, by preponderance of probabilities.
8. The finding of the State Commission cannot be sustained either in fact or law. Therefore, we set aside this impugned order of the State Commission and award claim to appellant/claimant in the sum of Rs. 7,38,683/- as assessed by the assessor and approved by the Opposite Party Insurance Company in respect of the building covered by the Insurance cover with 10% interest two months after receipt of the surveyors report till payment.