Per Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member

          This appeal takes an exception to the order dated 26/04/2010 passed in consumer complaint No.127/2007, Shri Yashwant Govind Patil V/s. The Oriental Insurance Co. Ltd., by District Consumer Forum, Raigad (‘Forum below’ in short).

          Undisputed facts are that the respondent/org. complainant runs a Stationery and Xerox shop at Dhanakwadi at Roha, Dist. Raigad.  He had taken shopkeepers policy from the appellant/Insurance Company.  When the said policy was effective, in the wee hours of 14/05/2006, there was a fire in the shop and as a result of which the articles therein and shop itself was fully gutted in fire.  Two Xerox machines, computer with peripherals, colour printer, fax machine were amongst articles which were burnt and lost.  Insurance claim was made on 20/05/2006.  However, same stood repudiated as per letter dated 15/05/2007.  Feeling aggrieved thereby, consumer complaint was filed in the Forum below on 18/07/2007.  Forum below as per the impugned order awarded the claim and directed the appellant/Insurance Company to pay rupees nine Lakhs along with interest @ 8% p.a. with effect from 01/03/2007.  Forum below has further awarded `15,000/- as compensation towards mental and physical torture and `10,000/- as costs.  Feeling aggrieved thereby, the Insurance Company has preferred this appeal.

          We heard Mr.A.S. Vidyarthi, Advocate for the appellant and Mr.Subodh Gokhale, Advocate for the respondent.  Perused the record.

          The Insurance Company heavily placed reliance upon the report of surveyor Mr.Ashok Chopra & Co.  Report is dated 30/12/2006.  The Surveyor has recorded its findings (investigations) as under :-

“i)     The Debris and the other details of the incident do not support the insured’s claim.

ii)                Notwithstanding the fact that there is now obviously some enmity between the insured and the landlord, the latter’s allegations seem to be fully substantiated.

iii)             The machines claimed for by the insured do not seem to have existed.

iv)              The Bankers submissions are actually contrary to the insured’s submissions.

v)                 The insured’s Accounts are illogical and seem to be completely manipulated.

vi)              The Rental Agreement seems to be forged.

vii)            All the insured’s submissions and clarifications are illogical.”

and on the basis of which recommended to the Insurance Company that in its opinion the loss was not admissible under the terms and conditions of the policy and therefore, “matter may be closed after due consideration”.  The Insurance Company acted upon the said Survey Report, repudiated the insurance claim.

          The documents produced on record are not disputed.  It also cannot be disputed that it is for the Insurance Company to justify the repudiation which according to us, the Insurance Company failed to do so.

          Coming to the findings recorded by the Surveyor, we find that summerisation by the Surveyor is arbitrary and not properly carried out.  To assume that the stock of petrol and inflammable articles were stored prior to the incident in the shop or that prior to the incident, certain articles were removed from the shop is a statement made on the basis of alleged complaint made by the landlord of the complainant and landlord’s hearsay statement about shop owner whose shop is situated in front of the shop of complainant.  Surveyor himself pointed out the discrepancy in the letter received by him from the landlord of the complainant and the agreement which he had seen.  Without verifying authenticity of the signature of the said landlord, he presumed that the signature on the letter received by him is genuine and one on the agreement is false.  Neither survey report nor his supporting affidavit shows that Surveyor made any enquiry and recorded the statement of landlord or the shopkeeper whose identity was disclosed by the landlord to the surveyor in the letter.  Said landlord is also not on good terms with the complainant.

          Another instance is about observation about remains of two Xerox machines after the fire.   There is a Stock Inspection Report from the Bank prior to the incident and which record verification of the stock i.e. assets purchased out of bank finance.  Since, admittedly, only one Xerox machine was purchased from such finance from the Bank, observations of the Surveyor that while verifying the stock, said inspecting authority did not notice two Xerox machines is an instance of how surveyor misread the facts.  The Surveyor did not bother to verify from the Fire Fighting Authority about the state of affairs after they extinguished the fire.  He also did not try to ascertain the cause of fire either from Police or from the Fire Fighting Authority officials who attended the call.  However, Fire Report No.12/2006 dated 05/06/2006 recorded cause of fire as ‘Unknown’.  Had it been a fact of sabotage i.e. deliberate fire, use of kerosene or petrol or other inflammable material, then it ought to have been noticed by either Police or Fire Fighting officials.  This is one reason, we find that the Surveyor blindly relied upon the so called discloser made by the landlord about storing inflammable liquid material in the shop prior to the incident and attributing malafide on that count to the complainant.

          Surveyor gives much importance in mentioning serial number of the Xerox machines, when particularly, even the supplier of the said machine affirmed the fact of supply of Xerox machine and said machine was duly verified by the bank, who extended finance for the same.  Merely because the information on the website that the particular model of Xerox machine was discontinued by the manufacturing company does not mean that said machine was not at all available.  Assumption that the dealer in the machine will not keep its money locked for considerable length of time, is also an inference drawn without any basis.  Dealer might have procured the same from other source and supplied it.  It is not necessary that he had supplied the same only from the stock with him and which was idle with him for pretty long time.  These facts are not investigated before coming to the conclusion by the surveyor.

          The surveyor held that the documents produced by the complainant were manipulated, but, he failed to justify such assumption.  Therefore, we find that the survey report cannot be accepted as gospel truth.  The Insurance Company on receiving the said report ought to have noticed the inherent infirmities therein to which reference is made earlier and ought to have investigated further before repudiating the insurance claim.  Thus, their action of repudiation of the insurance claim being arbitrary and without any just justification, deficiency in service on the part of Insurance Company is well established in this case.  Under the circumstances, we uphold the findings recorded by the Forum below on this count.  Further, we also find no reason to interfere with the quantum of compensation awarded by the Forum below.  Thus, finding the appeal devoid of any substance, we pass the following order :-

                             -: ORDER :-

1.       Appeal stands dismissed.

2.       In the given circumstances, there shall be no order as to costs.

3.       Copies of the order be furnished to the parties.