Heard learned counsel for the appellant.

                  None appears for the respondent.

2.              This appeal is  filed  U/S-15 of erstwhile  Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to  with reference to their respective status before the learned District Forum.

3.                   The  unfolded story    of  complainant  is that   the complainant had purchased the policy from the OP after incurring loan under PMRY scheme. It is alleged inter-alia that  he had insured  the stock-in-trade on payment of premium. The policy was valid from 18.06.1999 to 17.06.2000.  He submitted that due to  super cyclone i.e. on 29/30^th October,1999 there were  damages  to the stock of the complainant.  Then   he informed the OP who deputed surveyor but later  without  going through same has opined that there is no claim. Challenging  non-settlement of the insurance claim, the complaint was filed.

4.            The OP   filed written version  stating that   the complainant has purchased  the policy. It is also admitted fact that  the surveyor did not compute the loss because the documents were not produced by the complainant and he has observed that there is no existence of  shop.  Therefore, there is no deficiency in service on the part of the OP.

5.                       After hearing both the parties, learned District Forum   passed the following order:-

               Xxxx              xxxx              xxxx

                  “   In view of our above observation, we direct the OP No.1 to pay Rs.90,000/- to complainant  towards  compensation alongwith interest at the rate of 12 % per annum from the 1^st January,2000 till the date of full payment and litigation cost of Rs.500/- payable within 30 days of receipt of this order.

          The OP No.2 is also directed to make payment of Rs.20,000/- to the complainant towards compensation for harassment and mental agony but under  the circumstances  without any cost within 30 days of receipt of this order.

              Thus, the  case is allowed with cost and compensation.”

6.                Learned counsel for the appellant submitted that   learned District Forum have  passed the impugned order  although there is no such proof  of complainant  to substantiate the loss. He further submitted that the surveyor has  found no shop room in the spot for  which loss could not be computed.  According to him  the appellant has no fault.  Therefore, the impugned order should be set-aside  and the appeal should be  allowed.

7.               Considered the submission of learned counsel for the  appellant, perused the DFR and impugned order.

8.                    It is true that the shop of the complainant has been insured with the fire policy. It is also alleged  that there was super cyclone  but  there is no shop room at all for which  the question  of assessing the loss is not desirable by the surveyor. In fact in this regard the concerned surveyor has filed the affidavit. It is settled in law that  complainant has to prove his own case. When the policy is valid and the damage of stock  by cyclone  has been alleged but shop is  not found, now the question  arises  how can there be insurance of  the stocks without shop being present. Undoubtedly the stocks are insured as  per the surveyor’s report. The surveyor’s visit  is doubtful although complainant has only alleged about credibility  of report of surveyor.  We are not  concerned with the documents filed.

9.                Now the statement of surveyor  does not disclose about taking photograph of spot. Unless photograph  of spot is produced, it is difficult to rely on his report as to absence  of shop on spot,   the report of the surveyor is very suspicious one because he has  not taken  photographs  although he   got opportunity to take photograph when he has visited the spot.  Had there been photograph taken we  would have believed the report  of the surveyor as to shop’s non existence.  A duty of the surveyor is not to carry out the job in a monotonous   manner  but allow the common sense. Therefore, the surveyor’s report is not accepted. Moreover, his report  shows the repudiation of claim being no claim. Since, the report is not reliable, the repudiation is itself is deficiency in service on the part of the OP. In the  case  of Gurmel Singh-Vrs-Branch Manager,National Insurance Co.Ltd.  of Supreme Court of India vide Civil Appeal No. 4071 of 2022 decided on 20^th May,2022.While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control.

10.                    In this case learned District Forum has allowed the claim entirely  of Rs.90,000/-. When the loss has not been  assessed, the  direction to appellant to pay Rs.90,000/- towards compensation  with interest @ 12 % per annum can not be sustained. Further, order  to pay cost etc. can not be sustained U/S-14 of the Act unless deficiency in service  is  removed.

11.               While confirming the order of the learned District Forum, so far operative portion of the order is concerned, we direct the appellant to  settle the claim within a period of 45 days from today on reinvestigation by the different surveyor. The complainant will co-operate in all manner to the OP  for settlement of the claim. The direction to OP No.2 remains  unaltered.

                         In view of the aforesaid discussion, the appeal is disposed of accordingly. No cost.         

                          Free copy of the order be supplied to the respective parties or they may download same from the confonet  or webtsite of this  Commission to treat same as copy of order received from this Commission.  

                           DFR be sent back forthwith.