JUDGMENT
1. This Appeal has been preferred under Section 17 of the Consumer Protection Act, 1987 against the judgment and order dated 16.3.1999 passed by the State Consumer Protection Commission, Jammu in Complaint No. 1786/98 whereby claim of Rupees two lacs has been awarded to the complainant.
2. The appeal has been preferred on the ground that the claim is bogus as per report of the Surveyor and the claimant has not been able to make out the claim as projected in the complaint and despite that Consumer Protection Commission (hereinafter called Commission) has awarded an amount of Rupees two lakhs which is unjustified.
3. The complainant/respondent insured a three storied residential house for Rupees 8 lakhs and household goods as per list attached for Rupees 4.20 lakhs. The Insurance Policy was issued and valid for the period 27.4.1995 to 26.4.1996. Theft took place allegedly in the house and all belongings were burgled. Report was registered with police station Rampora, Srinagar and FIR No. 49/95 under Sections 457/380 RPC was registered. He lodged the claim with the Insurance Company – appellant. The appellant – company appointed Surveyor Mr. T.U. Siddiqui in the year, 1995. He submitted his report that the claim is bogus. Another Surveyor Mohd Indrabi was appointed. He also submitted his report that the complainant has not cooperated and recommended the claim to be closed within 15 days’ notice to the insured for pursuance of his claim failing which claim shall be liable to be repudiated.
4. Having not satisfied the complaint was filed before the Commission on 13.3.1998. Notice was sent to the opposite party – appellant herein to appear before the Commission on 16.3.1998 and next date was fixed on 30.0.1998. Appellants did not appear before the Commission and lastly put appearance on 21.1.1999. Since there was no report of the Surveyor, the commission tried to ascertain the facts in support of the claim and directed the appellants to appoint another Surveyor making it obligatory to file his report on 16.3.1999. Pursuant to the direction of the Commission, Alak Consultant Private Limited were appointed. They submitted the report on 9.3.1999 to the appellants. This report was not brought to the notice of the Commission. The Commission without waiting for the report passed final order under appeal allowing the claim presuming that the complainant/respondent has suffered a loss of Rupees two lakhs.
5. We have heard the learned counsel for the parties and perused the record.
6. From the perusal of interim orders maintained by the Commission on file, it is evident that the 3rd Surveyor was appointed at the insistence of the Commission and the date fixed was 16.3.1999 for submission of report by the Surveyor. The Surveyor submitted his report on 9.3.1999 and Commission was not having any notice of the report but passed the final order. It is apt to make mention of the reports of Surveyors to appreciate the case of the parties. The first Surveyor Mr. T.U. Siddiqui was appointed by the Commission who has observed in the report as under: –
“As per the insured he purchased this piece of plot from the housing board Srinagar in 1986 and constructed 4 houses on this piece of plot and only one house is insured with out company without any specific reference of the dwelling unit which is insured with our company, out of 4 existing houses on this piece of plot, having high compound wall all around with front and rear high steel gates. All the four houses in this piece of plot are fully occupied, the insured is having a grown up German breed without tail dogs his pet animals, they are freely running in the compound of the house, so in the pin drop silence in this residential area any one climb up the compound wall and cut the grills open in the presence of fierce full dogs & in the presence of four houses dwelling unit persons/in the presence of servants, as the insured is a rich person having a very good business & must be having all protection equipments with the family members.
We are sorry to recommend this claim as totally bogus & 100% pre fabricated keeping in view all the above facts in mind without prejudice.”
7. The appellants 2nd Surveyor Mr. M. Indrabi who has recorded in his report that
“Despite several verbal and written requests to fulfill the requisite formalities, the insured was not even able to submit the basic documents/information and as such we submit this interim report with recommendation to close the case for time being. In case the insured responds after submission of this report, the insurer may reopen the case and we shall provide necessary service in this regard”
8. The last para contains the opinion of the surveyor which is extracted below and reads;
“We feel that enough opportunity has been given to the insured for fulfilling necessary formalities and all our requests for the same have gone in vain, for reasons best known to be insured. It is as such recommended that the subject case be closed with a 15 days’ notice to the insured for pursuance of his claim, failing which the claim shall be liable to be repudiated.”
Surveyor M/s Alak Consultant Pvt. Ltd. appointed pursuant to the order of Commission has submitted its report on 9.3.1998. The surveyor has recorded in the report as under;
“During our visit to the insured premises we observed that four independent houses had been constructed in the piece of land reportedly owned by the insured. The houses were occupied by himself and his brothers. Mr. Sarwar Jan showed me the house where occurrence has taken place the said house was a single storey house having one room constructed on the first floor. But as per insurance policy insured has taken risk for a 3 storey house but the theft has a taken place in a single storey house. Further insured has 3 more houses and there are two houses which are 3 storied and it was confirmed that theft has not taken place in any of 3 storied houses. Insured has taken insurance cover for only one building which is 3 storied and remaining buildings are not insured.”
9. It is evident from the reports of the Surveyors that claim of the complainant is bogus and he has neither cooperated with the Surveyor nor filed any evidence to substantiate the claim.
10. It is also seen from the record that the household goods valuing Rupees 4.20 lakhs have been insured out of which as per list provided by the complainant at the time of insurance of the articles, Rupees 2.50 lakhs have been shown as value of Almirahs which are fixed in the wall of the house. It is admitted before the court by the learned counsel for the respondents that these Almirahs are intact in the house and these have not been by the burglars. It makes out that the claimant at the most could have subtracted this amount of Rupees 2.50 lakhs out of Rupees 4.20 lakhs which comes to Rupees 1.70 lakhs and should have been Rupees 1.70 lakhs in that event. The claim of claimant appears to be unjustified, untrue and dishonest.
11. We have also noticed from the report of the Surveyor that the house shown to him by the brother of the complainant where burglary has taken place is a single storey house whereas the house insured is three storied residential house. If this being the factual situation, the respondent has no justifiable claim against the appellant as no liability of insurance is created under the policy with regard to single story house.
12. Surveyor Alak Consultant Pvt. Ltd. before submission of report has written registered letter to the complainant on 15.2.1999 to cooperate with him and send information with documents at the earliest. They provided even the telephone numbers also by means of letter of the office as well as of residence. The complainant did not cooperate and provide any information as required and all the surveyors have submitted their reports terming the claim as bogus.
13. The findings recorded by the commission are based on assumption as complainant has not filed any purchase vouchers or other information that the burgled material was lying in his house. Burglary which took place is also disputed as to whether it is three storied house or one storey house. The Commission, therefore, has not appreciated these facts and has come to erroneous and presumptory conclusion.
14. For the aforesaid reasons, we are unable to maintain the order of Commission which is accordingly set aside. The claim being not proved and bogus is dismissed. The amount deposited by the appellant shall be released to them on demand.
