1.      This revision petition under section 21(b) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order dated 05.12.2014 in First Appeal No.  920 of 2012 of the State Consumer Disputes Redressal Commission, Punjab, Chandigarh (in short, the ‘State Commission’) allowing the appeal and dismissing order dated 21.03.2012 of the District Consumer Disputes Redressal Forum, Gurdaspur (in short, the ‘District Forum’) in Consumer Complaint no. 408 of 2011.

2.      The brief facts of the case, according to the petitioner, are that he is a partnership registered firm dealing in electronic items for which he had obtained insurance cover for Rs 88,00,000/- under a Standard Fire and Special Perils Policy covering his shop and two godowns. During the validity of the insurance period from 05.12.2008 to 04.12.2009, on 17.10.2009 at around 8.30 pm, a fire broke out in one of the godowns near CID Office, Gurdaspur. The fire brigade was summoned and the fire brought under control. Intimation was given to the police who recorded a DDR entry on 30.10.2009. Loss was estimated at Rs 7,51,863/- and a claim preferred with the respondent which was repudiated on 26.08.2010 on the ground that (i) the claim was illegal and false as per the report of the surveyor and investigator appointed by them, (ii) the information of the incident was delayed by the petitioner and (iii) the location where the alleged fire occurred was not covered under the policy. A complaint was therefore filed before the District Forum which was allowed, on contest, for Rs 5,82,670/- with interest @ 9% from the date of filing the complaint till realization. On appeal, the State Commission set aside this order. This order is impugned before this Commission.

3.      The petitioner states that the impugned order is illegal and arbitrary as it is beyond the pleadings and evidence led by the parties. It is averred that the intimation of the incident of fire was delayed by 18 days against 15 days permissible and IRDA Guidelines permit delays if reasonably explained. The report of the investigator is stated to be contrary to the verifications by the surveyor while assessing the loss. The finding of the State Commission that the electric/electronic items were found burnt while its packing was not burnt and its conclusion that these items were brought from elsewhere and kept at the site of the fire incident is disputed as being based on conjecture and presumption. It is contended that the interpretation of the State Commission that a ‘godown’ is a covered structure and therefore its finding that the goods which were in an open area were therefore not covered under the policy which defined ‘premises’ as shop and godowns only is incorrect and erroneous. The interpretation of ‘godown’ to exclude the open area is disputed by the petitioner stating that the entire premises including the open area was the ‘godown’ covered under the policy. It is contended that the cover note of the policy does not make this distinction and that the entire area admeasuring 75 feet by 40 feet is the ‘godown’ covered under the policy. Hence the Surveyor’s interpretation of considering only the covered area measuring 40 feet by 35 feet and excluding the area of 35 feet by 40 feet is disputed. It is also stated that the fire damage was on account of the nature of packing of the goods comprising thermocol and external packing.

4.      I have heard the learned counsel for both the parties and perused the material on record carefully. I have also gone through the written synopsis filed by the learned counsel for the petitioner.

5.      It is the petitioner’s case that the incident of fire is not disputed as the fire brigade was called to douse the fire and a police complaint lodged. The Surveyor, H.S. Bawa, Surveyor and Loss Assessor assessed the loss and thereafter the investigator, M/s D.S. Chadha created a false story about the incident in collusion with one Manjit Singh Mehta, Development Officer of the respondent.  It is denied by the petitioner that there was any delay in intimation of the fire incident to the respondent insurance company which took this as ground for repudiation and which was accepted by the State Commission. It is his contention that there was a delay of only 3 days as he informed the respondent after 18 days instead of within 15 days. The learned counsel for the petitioner argued that the repudiation by the respondent is erroneous as it is based on the surveyor’s report which states that the goods that were lying in the open had been burnt and there were no visible marks or signs of flames on the floor or surrounding walls. The Surveyor’s report that the packing of the electric/electronic goods were either not burnt or partly burnt whereas the contents were completely burnt indicated that the burnt stock appeared to have been brought from elsewhere and presented as burnt stock and therefore there was no insurable interest was disputed and argued to not be the factually correct position. The Surveyor’s interpretation of the term ‘godown’ is argued to be incorrect as it has construed the godown to be only the area that has walls and is covered with a roof whereas the premises insured was partially open. The petitioner admits that only an area of 40 feet by 35 feet was covered and the rest was open area but states that the cover note of the policy does not specify that only the covered area is covered for risk. It is stated that the fire also affected the goods stored in this area although there was no evidence of fire as there were no walls or roof on which flames/smoke could have impacted. The petitioner denies the contention of the respondent that there had been misrepresentation regarding the fire with an intention to cover the loss incurred in a fire the previous year which occurred in the petitioner’s premises in Pathankot and states that this is based on conjecture and presumption. 

6.      Learned counsel for the respondent on the other hand argued that the intimation of the fire incident was delayed by the petitioner by 18 days which denied it the opportunity to investigate the matter. The appointment of the surveyor to assess the loss and make necessary enquiries was delayed. It is admitted that the claim was repudiated after placing reliance on the surveyor/investigator’s report which concluded that the stocks stated to have been damaged in the fire were in packing material that was not burnt even though the items were burnt/damaged. No external evidence of fire such as flames on walls or smoke were found as the material was kept in the open. It is also stated that the respondent has rightly concluded that the area of storage did not constitute a ‘godown’ as per the terms of the policy. It was also stated that the size of the godown as per the surveyor was 75 feet by 40 feet with a covered area of 40 feet by 35 feet.  Accordingly, it was argued that the District Forum had erred in determining the loss claimed and the impugned order of the State Commission had rightly set it aside.

7.      The impugned order of the State Commission reads as under:

10.     The terms and conditions of the insurance policy were proved on the record as Ex. R-28. The said condition is reproduced below:

“(i)     on the happening of any loss or damage the insured shall forthwith give notice thereof to the company and shall within 15 days after the loss of damage or such further time as the company may in writing allow in that behalf deliver to the Company

a)       a claim in writing for the loss or damage containing as particular an account as may be reasonably practicable of all the several articles or items or property damaged or destroyed, and of the amount of the loss or damage there to respectively, having regard to their value at the time of loss or damage not including profit of any kind

b)       particulars of all other insurance, if any.”

11.     As per this condition, on the happening of the loss to the electronic goods as a result of fire, the complainant was to give the notice to the Company forthwith and was to make the claim, in writing, within 15 days. The complainant did not allege in his complaint that he had given intimation of the fire to the opposite party forthwith or immediately. He averred therein that after verifying the loss the matter was reported to the opposite party. He failed to aver that as to on which date the information was given. In his affidavit Ex.CW-1/A he only deposed about the facts, as narrated in the complaint. However, the opposite party proved on record the statement of the complainant recorded by the Investigator as Ex.R20. In that statement he stated that he had given intimation to the Development Officer of the opposite party on the telephone on 17.10.2009. The opposite party proved on record the affidavit of Manjit Singh, Development Officer, Ex. R-4 and he deposed therein that he was not informed by anybody from the insured side regarding the fire claim. The opposite party also proved on record letter dated 3.11.2009 Ex.R-5, which was written by the complainant to it. It is very much clear from that letter that the intimation about the fire in writing was given to the opposite party for the first time, vide that letter. However, it was also mentioned that he had informed the agent of the opposite immediately on the telephone. As already said above, that part of his contention stands rebutted by the affidavit of the Development Officer himself. In these circumstances, we are not inclined to conclude that the loss to the electronic goods as a result of fire, was intimated by the complainant to the opposite party forthwith. However, from the above said letter, it stands proved that the written claim was made within 15 days. Thus, the opposite party has been able to prove that the complainant failed to comply with condition No. 1 of the terms and conditions of the Policy.

12.     It is an admitted fact that the goods so burnt in fire were lying in the open and not inside the building. The question to be decided is whether it can be said that those goods were stored in the godown of the complainant? HS Bawa was appointed as the Surveyor and Loss Assessor by the opposite party whose report was proved as Ex.R-8. His affidavit was also proved as Ex. R-2, in which he deposed about the correctness of that report. He mentioned in that report that the goods lying in open were burnt and not those lying inside the godown. BS Chadha was appointed as the Investigator by the opposite party, whose report was proved as Ex.R-19. The affidavit of that Investigator was proved as Ex.R-3, in which he deposed about the correctness of that report. He mentioned in his report that the loss was caused to the goods lying in the open yard, whereas the stocks lying inside the godown were saved. Even the complainant in his letter dated nil proved on the record as Ex. R-7, mentioned that due to heavy rush on the Diwali festival the stocks in the godown were covered as well as open and that when his Godown Keeper had gone to the godown at about 8:30 PM for lifting the material, then he saw that the material lying in the open was burning.

13.     The detailed description of “godown” was neither given in the cover note nor in the insurance policy. In Oxford Advanced Learner’s Dictionary, godown is defined as “a warehouse (building where goods are stored)”. The building is defined as “a structure such as a house or school that has a roof and walls”. Thus, the dictionary meaning of the godown means a structure which is having walls as well as a roof. Therefore, the open space, may be part of the enclosure, cannot be held to be a godown. Therefore, the goods lying in the open were not covered under the insurance policy. The District Forum never took the trouble to go into that aspect of the case while recording findings in favour of the complainant.

14.     HS Bawa, Surveyor and Loss Assessor, in his report dated 28.4.2010, Ex. R-8, mentioned that there was no visible mark and/or sign of fire flames on the floor or the walls around and the damaged contents (electronic goods) the packing was either not burnt or partially burnt, whereas the inner contents were completely burnt. He gave his opinion that it appeared that burnt stock had been brought from somewhere and had been kept for inspection. It is here that the above reproduced condition of the insurance policy becomes more relevant. The very purpose of giving intimation of the loss/damage forthwith is to rule out the possibility of the implanting of the things so as to make the loss damage covered under the Policy. It is not that the opposite party immediately repudiated the claim after these conclusions were recorded by the Surveyor and the Investigator. The complainant was called upon, vide letter dated 26.8.2010 to give his clarification to the same but failed to do so. By not replying that letter and by not giving any clarification, he impliedly admitted that the burnt goods had been brought from some other place and had been planted in the open place adjoining the godown in order to make the claim.

15.     From our above discussion, we conclude that the claim of the complainant was correctly repudiated by the opposite party and that the District Forum committed an illegality by recording a finding to the contrary.

16.     In the result, this appeal is allowed. The order passed by the district forum is set aside and the complaint filed by the complainant is dismissed.

8.      From the above, it is manifest that the intimation of the incident of the fire was admittedly not conveyed by the petitioner to the respondent ‘forthwith’ as envisaged in the policy. The petitioner has contended that it had 15 days to do so. This interpretation of the petitioner that he had 15 days to intimate it is based on an erroneous understanding of the terms of the policy which provides 15 days only to convey the estimate of the loss incurred and to prefer a claim in writing for the loss or damage, while the incident has to be intimated ‘forthwith’. The State Commission has concluded that the intimation was not done ‘forthwith’ as per the petitioner’s own admission which is a violation of condition no. 1 of terms and conditions of the policy which cannot be faulted.

9.      As for the fact whether the stocks damaged were in the shop or godown which are covered under the policy, it is admitted by the petitioner that the goods were lying in the open area of the godown and not inside the godown building. The respondent has relied upon the report of the surveyor and the definition of ‘godown’ to argue that the claim was not admissible since the goods were in the open area of the premises. The acceptance of this argument by the State Commission cannot also be faulted.

10.    The conclusion of the surveyor that the damaged/destroyed goods in question were in packing material that was not burnt or partially burnt whereas the electrical/electronic items were completely burnt, needs to be considered in the light of the opportunity to the petitioner to clarify the same which he chose not to do, thereby admitting the issue. The State Commission has concurred with the finding of the surveyor that in the absence of documentary proof despite opportunity to the petitioner the likelihood of the goods having been brought from another location was not disproved especially in view of the admitted fact that the packing material remained intact despite the goods inside getting totally destroyed by fire. It is highly improbable that while goods packed in thermocol and cardboard, both of which are flammable materials, will remain intact while the goods inside would get destroyed by fire that required dousing by a fire tender. The Surveyor’s report also mentions that bills/invoices of certain items burnt were not provided. The conclusion that the burnt items were brought from outside is, therefore, not entirely based on conjecture or presumption. The petitioner was obliged to produce records asked for by the Surveyor which he has failed to do. For this reason, the categorization of the claim as false cannot be dismissed as erroneous.

11.    For the foregoing reasons, the revision petition is liable to fail. The impugned order of the State Commission has considered the averments and arrived at a reasoned and well considered decision which does not warrant any interference under the revisional jurisdiction of this Commission. 

12.    In the result, the revision petition is disallowed. The order of the State Commission is affirmed.