Jammu and Kashmir

Jammu

CC/765/2017

SHANKAR NATH - Complainant(s)

Versus

NATIONAL INSURANCE CO. - Opp.Party(s)

IMRAN AHMED

03 Sep 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

           (Constituted under J&K Consumer Protection Act,1987).

                                                          .

 Case File  No                 290/DFJ           

 Date of  Institution     03-11-2017

 Date of Decision          13-08-2018

 

M/S Shanker Nath & Sons,

Through its Partners,

1.Som Nath Pandita,

S/O Shanker Nath,

R/O H.No.3,Lane No.1,

Anand Nagar Bohri.

2.Pushkar Nath Pandita,

S/O Late  Shanker Nath,

R/O H.No.3,Lane No.1,

Anand Nagar Bohri.

                                                                                                                                                Complainant

         V/S

1.Branch Manager,New India Insurance Company Ltd.

  First Floor Shivaji Market,Shalamar Road,Jammu.

2.Divisional Manager,The  New India Insurance Company,

   Auqaf Complex Gandhi Nagar,Jammu.

                                                                                                                                                  Opposite parties

CORAM

                  Khalil Choudhary             (Distt.& Sessions Judge)  President

                  Ms.Vijay Angral                                                                Member

                  Mr.Ghulam Sarwar Chouhan                                       Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

      

 Mr.Imran Ahmed Rather,Advocate for complainant, present.

Nemo for OPs,present.

 

                                                           ORDER

 

                      Briefly stated facts of the case as per averments of the complaint are that the complainant is a partnership firm originally consisting of three partners 1.Shanker Nath,2 Som Nath Pandita and 3.Pushkar Nath Pandita,but it is important to mention here that one of the partner of  the partnership firm had expired, hence the present complaint is filed by its surviving partners(copy of partnership deed is annexed as Annexure-A).That the partners of M/S Shanker Nath and Sons are originally resident of village Bidder Hayatpora Tehsil Kokernag District Anantnag and are presently residing at House No.3 Lane No.1 Anand Nagr,Bohri,Jammu because of prevailing situation and subversive activities in the valley of Kashmir,the partners of M/S Shanker Nath and Sons  in the year 1990 were forced to leave Kashmir valley alongwith their family members because of militancy and security threat to their life.That one of the partner of M/S Shanker Nath and Sons,namely,Shanker Nath had already expired and now M/S Shanker Nath & Son is survived by only two partners,(Copy of death certificate is annexed as Annexure-B).That the partners of M/S Shanker Nath & Sons are registered as migrant in the year 1990 by the organization of relief which was established by the State Govt.for registering the migrants and concerned camp commandant verified antecedents and got the Partners of M/S Shanker Nath & Sons registered as migrant and also issued ration card in favour of Partners of M/S Shanker Nath & Sons,(copy of ration card is annexed as Annexure-C). The partners of M/S Shanker Nath & Sons  approached OP2 for getting their triple story tin roofed residential house alongwith two godowns insured with the OP company and paid the premium on their demand, who thereafter issued cover note in favour of M/S Shanker Nath & Sons,(copy of cover note is annexed as Annexure-D).That after getting the property insured by Ops,the partners of M/S Shanker Nath & Sons were paying premium to Ops continuously to their satisfaction till 2009 and later on when the partners of M/S Shanker Nath & Sons came to know that their insured property had been badly damaged due to fire caused by some unknown persons on,27^th June,2004(copy of report of ASI Police Station Kokernag is annexed as Annexure-E).That complainants/Partners of M/S Shanker Nath and Sons after getting  information in the year 2009 that their insured property had been burnt to ashes due to fire in the year 2004,they immediately approached Ops company alongwith all the requisite documents to settle their claim ,but the Ops did not settle the claim of complainants for the reasons best known to them. Complainants further submitted that because of prevailing situation in the valley, the Partners of M/S Shanker Nath and Sons are presenting this complaint against the Ops before the Hon’ble Commission for its adjudication. Moreover the Ops are having its branch office at Jammu and the Ops company had also received premium from them at Jammu, as such the complainants are presenting the present complaint before this Forum. That admittedly the partners of M/S Shanker Nath and Sons are the absolute and exclusive owner of alleged insured property which has been gutted by the subversive activities resulting total loss and the alleged insured property is now left with the heaps and debris due to said fire incidence. That the That complainants/ partners of M/S Shanker Nath and Sons have insured the above mentioned insured property with the Ops for an amount of Rs.6,50,000/-and the validity of the policy was intact for the period when the alleged insured property got badly damaged in fire incident regarding which the ASI Police Station Kokernag had given his report .It is pertinent to mention here that the complainants have paid premium upto the year 2009 and after receiving information, the complainants immediately approached Ops for receiving insured amount, but the Ops adopted dilly delaying tactics, constrained by the act of OPs,complainants also served legal notice to Ops through their counsel, but even after receiving legal notice,Ops did not settle their claim, who being migrated from the valley was not able to inform OPs,when the insured property got damaged due to fire caused by subversive activities in the valley. That the complainants/partners of M/S Shanker Nath and Sons as already submitted are migrants from valley and from the day of migration they never went to their native place as there is threat their lives from the militant organization and due to this reason the partners of M/S Shanker Nath and Sons were not aware about the fact that the abovesaid insured property had been gutted in to debris due to fire incidence dated 27^th June,2004 and were bonafidely paying premium to OP company upto the year 2009 and the Ops company had also issued cover note to that effect(copy of receipt of premium in the year 2009 is annexed as Annexure-F).That the Ops company also appointed surveyor for assessing the loss caused to the insured property, who issued communication dated 20-04-2010 to the complainants/ Partners of M/S Shanker Nath and Sons, asking them to submit documents within ten days, which was not possible for complainants/partners of M/S Shanker Nath and Sons to arrange within shortest period of time, because they are migrants from Valley and the insured property is also situated at Valley and the complainants/partners of M/S Shanker Nath and Sons  by virtue of this communication dated,24-04-2010 posted to surveyor sought time to arrange documents and the complainants after arranging requisite documents gave said documents to the surveyor, but the surveyor did nothing to get the insured claim ascertained, copy of communication is annexed as Annexure-G&H,respectively. All the documents necessary for settlement of claim were handed over to the surveyor for finalization of claim, but to the utter shock and dismay of complainants,OPs did not settle the claim of complainants. In the final analysis complainants prays for indemnification of loss to the tune of Rs.6,50,000/-and in addition also prays for compensation of Rs.3.50 lacs, under different heads.

                       Notices were sent to the OPs alongwith copies of complaint through registered covers with acknowledgment due and as per record the notices were received by the Ops, but they did not choose to represent their case in this Forum, either to admit the claim of complainant or to deny the same within stipulated period provided under the Act, so their right to file written version was closed vide order dated 27-02-2018 and the complainants was ordered to produce evidence by way of affidavits in support of the complaint.

                     The complainants adduced evidence by way of duly sworn their own affidavits and the affidavits of Moti Lal Pandita and Omkar Nath Pandit,respectively.The complainants have placed on record copy of Partnership Deed, copy  of Death Record, Copy of Migrant Ration Card, copy of receipt ,copy of policy Schedule, copy of FIR, copies of communications exchanged between the parties collectively and copy of legal notice.

                                 We have perused case file and heard L/Cs appearing for the parties at length.

                              To be brief  facts of the case are that the partners of M/S Shanker Nath & Sons approached OP2 for getting their triple story tin roofed residential house alongwith two godowns insured with the OP company and paid the premium on their demand, who thereafter issued cover note in favour of M/S Shanker Nath & Sons.That after getting the property insured by Ops,the partners of M/S Shanker Nath & Sons were paying premium to Ops continuously to their satisfaction till 2009 and later on when the partners of M/S Shanker Nath & Sons came to know that their insured property had been badly damaged due to fire caused by some unknown persons on,27^th June,2004.That complainants/Partners of M/S Shanker Nath and Sons after getting  information in the year 2009 that their insured property had been burnt to ashes due to fire in the year 2004,they immediately approached Ops company alongwith all the requisite documents to settle their claim ,but the Ops did not settle the claim of complainants for the reasons best known to them. Complainants further submitted that because of prevailing situation in the valley, the Partners of M/S Shanker Nath and Sons are presenting this complaint against the Ops before the Hon’ble Commission for its adjudication. Moreover the Ops are having its branch office at Jammu and the Ops company had also received premium from them at Jammu, as such the complainants are presenting the present complaint before this Forum. That admittedly the partners of M/S Shanker Nath and Sons are the absolute and exclusive owner of alleged insured property which has been gutted by the subversive activities resulting total loss and the alleged insured property is now left with the heaps and debris due to said fire incidence. That the That complainants/ partners of M/S Shanker Nath and Sons have insured the above mentioned insured property with the Ops for an amount of Rs.6,50,000/-and the validity of the policy was intact for the period when the alleged insured property got badly damaged in fire incident regarding which the ASI Police Station Kokernag had given his report .It is pertinent to mention here that the complainants have paid premium upto the year 2009 and after receiving information, the complainants immediately approached Ops for receiving insured amount, but the Ops adopted dilly delaying tactics, constrained by the act of OPs,complainants also served legal notice to Ops through their counsel, but even after receiving legal notice,Ops did not settle their claim, who being migrated from the valley was not able to inform OPs,  when the insured property got damaged due to fire caused by subversive activities in the valley. That the complainants/partners of M/S Shanker Nath and Sons as already submitted are migrants from valley and from the day of migration they never went to their native place as there is threat their lives from the militant organization and due to this reason the partners of M/S Shanker Nath and Sons were not aware about the fact that the abovesaid insured property had been gutted in to debris due to fire incidence dated 27^th June,2004 and were bonafidely paying premium to OP company upto the year 2009 and the Ops company had also issued cover note to that effect. That the Ops company also appointed surveyor for assessing the loss caused to the insured property, who issued communication dated 20-04-2010 to the complainants/ Partners of M/S Shanker Nath and Sons, asking them to submit documents within ten days, which was not possible for complainants/partners of M/S Shanker Nath and Sons to arrange within shortest period of time, because they are migrants from Valley and the insured property is also situated at Valley and the complainants/partners of M/S Shanker Nath and Sons  by virtue of this communication dated,24-04-2010 posted to surveyor sought time to arrange documents and the complainants after arranging requisite documents gave said documents to the surveyor, but the surveyor did nothing to get the insured claim ascertained. All the documents necessary for settlement of claim were handed over to the surveyor for finalization of claim, but to the utter shock and dismay of complainants,OPs did not settle the claim of complainants.

                        The complainants in their own affidavits and  affidavits of Moti Lal Pandita and Omkar Nath Pandit,respectively have supported the averments of the complaint. There is no evidence on record produced by other side to rebut the case of complainant. So from perusal of complaint, documentary and other evidence produced by the complainants/Partners of M/S Shanker Nath and Sons, it appears that the complainants have succeeded in proving their case as narrated by them in the complaint. The complaint is fully supported by the affidavits of complainants and affidavits of  Moti Lal Pandita and Omkar Nath Pandit,respectively, so, in the given circumstances of the case, and in view of the evidence on record, there is no reason to disbelieve the averments of complainants in complaint. This is a case of deficiency in service. The Ops despite service of notice, sent by the Forum through registered cover have not taken any action to represent the case before this Forum, either to admit the claim of complainant, or to deny it, so there is no reply filed by the Ops in this complaint and there is also no evidence in rebuttal. The present case of the complainant is covered by Section 11 2(b) (ii) of the Consumer Protection Act, 1987, which provides that in a case, where the OPs omits or fails to take any action to represent their case within the time given by Forum, in that situation, the Forum shall settle the consumer dispute on the basis of evidence brought to its notice by the complainant. Sub-clause (ii) of the Section 11, clearly provides that even where the OPs omits or fails to taken any action to represent their case before the Forum, the dispute has still to be decided on the basis of evidence brought to its notice by the complainants.

                  In addition complainant has also supported the averments contained in the complaint by duly sworn their own affidavits and affidavits of Moti Lal Pandita and Omkar Nath Pandit,respectively,which are corroborative of the facts contained in the complaint. Therefore, in the light of unrebutted averments contained in the complaint and documents on record, we are of the opinion that complainants successfully made out a case of deficiency in service by Ops.

                      Therefore, in view of aforesaid discussion, the complaint filed by the complainants for redressal of their grievance is allowed and Ops are directed to indemnify the loss to the tune of Rs.6,50,000 (i.e. the sum insured) to the complainant. Complainants are also entitled to compensation of Rs.5000/-for causing unnecessary harassment and mental agony and litigation charges of Rs.5 000/-respectively. The Ops shall comply the order, within one month, from the date of receipt of this order. Copy of this order be provided to both the parties, as per requirement of the Act. The complaint is accordingly disposed of and file be consigned to records after its due compilation.

Order per President                                                    Khalil Choudhary

                                                                                     (Distt.& Sessions Judge)

                                                                                            President

Announced                                                           District Consumer Forum

    13-08-2018                                                                       Jammu.

 

Agreed by                                                               

                                                                           

Ms.Vijay Angral                                               

 Member    

 

Mr.Ghulam Sarwar Chauhan

Member