Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member
This appeal takes an exception to an order dated 16/01/2007 in consumer complaint No.206/2005, Prop.Pralhad Bapu Lohar (Deshmukh) V/s. Branch Manager, The New India Assurance Company Ltd., by District Consumer Disputes Redressal Forum, Sangli (‘the Forum’ in short).
2. The consumer complaint pertains to alleged deficiency in service on the part of Insurance Company by not sanctioning the insurance claim arose on account of fire which took place at the shop on 22/01/2004. The complainant assessed the loss to the extent of `7 Lakhs. The Forum awarded the claim to the extent of `5,70,400/- based upon the assessment made by the Surveyor and also awarded additional costs of `2,000/-. Feeling aggrieved thereby the Insurance Company has preferred this appeal.
3. At the time of hearing of the appeal, Insurance Company and its Counsel preferred to remain absent. The appeal was already admitted on 15/10/2007. We heard Mr.A.J. Chougule, Advocate for the respondent/org. complainant.
4. In the instant case, we specifically asked Learned Counsel for the respondent as to what sort of evidence under Section 13(4) of Consumer Protection Act, 1986 is led on his behalf, particularly, when the Insurance Company challenged the Survey Report and particularly, said Survey Report is not relied upon and said report is not tendered in evidence. To this, there is no answer. Learned Counsel appearing for the respondent only pointed out the list of documents which was filed in the instant case. Mere filing of copies of documents without tendering them in evidence is of no consequences. Those were neither admitted nor undisputed documents.
5. In the instant case, since the Insurance Company specifically came with the conclusion that the Survey Report on which the complainant wants to rely upon and which made base of the impugned order is an action of fraudulent act on the part of the Surveyor, it is for the complainant to prima-facie establish his claim and complainant failed to discharge such burden.
6. It is revealed from the record that after Limaye & Company, Chartered Accountants viz. its letter dated 10/12/2004 addressed to the Insurance Company about difficulties it exercised in verifying about the stock at the time of fire advised the Insurance Company to ascertain the facts of the alleged stock through the suppliers and according to the Insurance Company they had written to those suppliers, but with no effect. Complainant failed to establish by satisfactory evidence that at the time particular quantity of stock was available and it was gutted to fire. This fact was also brought to the notice of the complainant by the Insurance Company by its letter which is in compilation at page-76. The subsequent surveyor J.C. Bhansali & Company has also opined against grant of insurance claim.
7. Since, initial burden which lies on the complainant is not at all discharged by the complainant, the onus never shifted on the Insurance Company. Under the circumstances, we find the Forum erroneously relied upon the Survey Report which is not tendered in evidence and which was disputed by the Insurance Company and also failed to consider all other relevant aspects and arrived at wrong conclusion. We hold accordingly and pass the following order :-
-: ORDER :-
1. Appeal is allowed. The impugned order dated 16/01/2007 is set aside. In the result, consumer complaint No.206/2005 stands dismissed.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
Pronounced
Dated 27th February 2012.
