Per Mr.Dhanraj Khamatkar, Hon’ble Member
This appeal takes an exception to an order dated 10/02/2011 passed in consumer complaint no.232/1020 by District Consumer Disputes Redressal Forum, Nasik.
Facts in brief leading to this appeal can be summarized as under:-
Original complainant/appellant had taken insurance policy from the opponent Insurance Company for the articles stored in godown on ground floor and first floor of the shop. On 19/09/2008 there was a sudden flood and the flood water entered into the insured premises and the articles stored in the premises were damaged. Accordingly, the original complainant/appellant had filed the insurance claim of `3,65,000/- with the opponent. However, opponent repudiated the claim vide its letter dated 18/12/2009. Hence original complainant/appellant filed consumer complaint praying `3,65,000/- as claim amount with interest @ 24% p.a. from 20/09/2008, `50,000/- for mental agony and `20,000/- as costs.
The opponent contested the complaint admitting that the original complainant/appellant had taken the insurance policy, however contended that when the surveyor visited the site, the damaged goods were not available in the insured premises. The complainant/appellant had shifted the material to adjacent premises. However, the complainant had not produced any evidence for the same. Further, the complainant could not prove whether the articles were damaged and what was the price of those articles. Similarly, the opponent contended that in the panchanama carried out by the Government agencies there is no mention of the insured place. The opponent further contended that they have appointed a surveyor to carry out the survey of the damaged goods and the surveyor has assessed the damages amounting to `2,51,695/-. However, the opponent repudiated the claim as there was violation of the conditions of the policy by the complainant.
District Consumer Forum after going through the complaint, written version of the opponent, evidence adduced by both the parties on affidavits and the pleadings of both the advocates came to the conclusion that there is no deficiency on the part of the opponent and dismissed the complaint. Being aggrieved by this order, original complainant had filed the appeal.
We heard Advocate Mr.Ashutosh Marathe for the appellant and Mr.Sanjeet Shenoy-Advocate for the respondent.
Admittedly, appellant had taken an insurance policy from the respondent Insurance Company. Further it is an admitted fact that on 19/09/2008 there was a sudden flood in the city and because of sudden flood, there was damage to the properties in the area. Ld.Advocate Mr.Marathe has drawn our attention to the intimation given by the appellant to the Village Officer, Nasik, punchanama drawn by the Village Officer, affidavit filed by the appellant and contended that in the punchanama the Village officer has mentioned that the costs of the damaged goods is `12 lakhs. No doubt in the punchanama there is mention of godown of the Parakh Cloth Stores. Respondent had repudiated the claim on the ground that no photographs of the damaged stocks were submitted. The stocks were shifted from the insured premises before the inspection of the same by the surveyor. The stocks were removed without the permission of the surveyor of the company and the Talathi punchanama was not conducted at the insured premises. In the appeal compilation from page 63 to 79 there is copy of survey report. The surveyor visited the insured place and specifically observed in the survey report that the water level rose upto 3 feet inside the shop and the insured shifted the damaged stock to the Jain Bhavan Community Hall in the same vicinity. The surveyor has also gone through the punchanama conducted by the Revenue authority and observed that location of loss as mentioned in the punchanama is basement only. The loss claimed under the present policy is for loss in the ground floor shop. The surveyor further stated in the survey report that as there was evidence of water entered in the ground floor shop, undersigned has accepted the insured’s contention. The surveyor had concluded his report by stating following facts:-
“The loss occurred at Ground Floor, Hundiwala Lane
The loss occurred within the period of the policy.
There was no evidence to suggest that the moral of the insured was not good.
The loss is within the purview of the policy.
He has no direct or indirect interest in the items surveyed.
The report is prepared without any bias or prejudice.
The report is prepared on the basis of explanations offered, information given and documents produced for verification by Mr.Kamlesh Parakh.
The report is prepared for the benefit of the insurer only.”
Not only this, the surveyor has filed his affidavit.
No doubt insurance is a contract between the parties and it is based on utmost good faith. This is not one sided. It is equally applicable to the respondent/Insurance Company. Survey report is a document prepared by the third party and the survey report clears all the technicalities raised by the respondent/Insurance company. Not only this the appellant has not suppressed any material fact from the Insurance Company. The survey report as well as the circumstantial evidence establishes the claim of the appellant. The date of incidence is 19/09/2008 and survey is carried out on 20/09/2008. Surveyor observed the water mark in the shop and on the very day he has inspected the damage of shifted insured goods. The District Consumer Disputes Redressal Forum failed to appreciate this important evidence while passing the order. In view of the specific observations of the surveyor, we hold that the order passed by the District Forum is erroneous and hence we pass the following order:-
ORDER
Appeal is allowed.
Consumer complaint is partly allowed.
Respondent/Insurance company is directed to pay to the appellant/ original complainant a sum of `2,39,110/- along with interest @ 12% p.a. from the date of repudiation of the claim till realization.
No order as to costs.
Inform the parties accordingly.
Pronounced on 17th January, 2012.
