M/S. Atam Vallabh Knits & Anr vs New India Assurance Co. Ltd. & 2 Ors

Dr. S. M. Kantikar, J

We heard learned counsels for the revisionists - knitting co. and the respondents - insurance co. and perused the material on record.

The dispute relates to repudiation of an insurance claim.

The District Forum heard both sides, appraised the evidence and dismissed the complaint vide its Order dated 25.11.2014:

So, it is apparently clear from the report dated 16.12.2013 Ex. R1 of the surveyor and loss assessor Er. Arun Mehta that fire took place within the machine due to short circuiting and the Ops have rightly repudiated the claim of the complainant while relying upon the aforesaid report of the surveyor and loss assessor Er. Arun Mehta which appears to be reliable and trustworthy and can be relied upon.

Though, during the course of arguments, learned counsel for the complainants has strongly contended that the report of the surveyor and loss assessor dated 16.12.2013 does not bear the signatures of the insured which is mandatory requirement as per law. But perusal of the report dated 16.12.2013 Ex. R1 of the surveyor and loss assessor Er. Arun Mehta reveals that though the same does not bear the signatures of the insured regarding his presence at the inspection by the surveyor at the spot. However, it is an undisputed fact of the part of the complaint of the complainants that insured was present at the time of inspection of the machine in the premises of the complainant and further, the learned counsel for the complainants have not denied the recording of statement of Sh. Parveen Jain, proprietor of complainant's firm by the surveyor and loss assessor qua the cause of loss. This all goes to prove that the complainants were very much present at the spot during the period of inspection made by the surveyor and loss assessor. So, this contention of learned counsel for the complainants appears to be devoid of any merit. It appears that Ops had rightly repudiated the claim of the complainants and there does not appear to be any deficiency in service on the part of the Ops and furthermore, the judgments relied upon by the learned counsel for the complainants are of no help to the case of the complainant since the facts of the reported judgements are quite distinguishable from the facts of the case in hand.

In view of the above discussion, we are of the opinion that the complainants have failed to prove their case against the OPs by leading cogent and convincing evidence on record. As such, we hereby dismiss the complaint being devoid of any merit. Copy of order be made available to the parties free of costs. File be completed and consigned to record room.

(paras 13, 14, 15 of the District Forum's Order)

The State Commission heard both sides, appraised the evidence and dismissed the appeal vide its Order dated 27.02.2017:

Now, we are concerned with this fact as to whether the fire erupted within the machine due to short circuiting or not. On this point, the report of the surveyor is on the record, which has been proved by the surveyor by virtue of his affidavit Ex. R-B on the record. The surveyor has proved in the report Ex. R-1 that the loss to the machine due to fire was on account of short circuiting, from within the machine and claim is not admissible. Counsel for the complainants relied upon law laid down in case "United India Insurance Co. Limited vs. Ram Prasad Aggarwal" 1993(2) CPJ-196. In the cited authority, the National Commission observed that there was clear evidence on the record that the spark was caused by fire which was not within the machine. In view of the peculiar fact and circumstances of the case, this observation was recorded in the cited authority and the ratio of this authority is not applicable to this case. Reference was also made to law laid down in "New India Assurance Co. Ltd. vs. Sal C.T. Scan Centre" 2013(1)CPJ-210. There was some dispute regarding the amount to be settled in the cited authority and the facts of the cited authority do not match with the facts of the case in hand. Reference was made to law laid down by the National Commission by the appellants in case "New India Assurance Co. Ltd. Versus Dr. M. M. Krishan" 2011(2) CPJ-301, we find that in the cited authority, there was a major fire and number of fire tenders were pressed into service over a period of 40 minutes to control the fire. Similarly, the facts of case titled as "Navneet Textiles Pvt. Limited Vs. United India Insurance Co. Limited" 2014(2) CPJ-142 by the National Commission are clearly different from the fact situation of the case. This authority cannot be said to be applicable to case in hand. We, thus, conclude that there was no major eruption of fire in this case, no fire brigade was called to put out the fire. No intimation to fire brigade was even lodged by the complainant in this regard to control the fire. There is no police report in this regard. There is no other loss caused by fire to other infrastructure of insured. Consequently, the report of surveyor Ex. R-1 cannot be said to be arbitrary and biased. The surveyor is appointed under the Insurance Act and his report carries weightage unless it is rebutted by the strong contrary evidence. We, thus, hold that the loss to the single machine on account of fire was on account of short circuit from within the machine, which claim is inadmissible under the general exclusion clause of the policy. This finding has been recorded by us after appreciating the facts and circumstances of the case. We find no illegality or material irregularity in the order of the District Forum, dismissing the complaint of the complainant and the same is affirmed in this appeal.

As a result of our above discussion, we find no merit in the appeal and the same is hereby dismissed.

(paras 7, 8 of the State Commission's Order)

This revision has been filed under section 21(b) of the Act 1986 against the said Order dated 27.02.2017 of the State Commission. Section 21 (b) reads as below:

....to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

We find the Order of the State Commission to be well-appraised and well-reasoned. The State Commission concurred with the District Forum. We note in particular the observations of the two fora quoted in paras 3 and 4 above. We also specifically note that both the fora below have arrived at the finding that loss to the subject machine was on account of short circuit from within the machine, which claim is not admissible under the general exclusion clause of the subject insurance policy. Within the meaning and scope of section 21(b), we find no grave error in appreciating the evidence by the two fora below, as may cause to require re-appreciation of the evidence in revision. On the face of it, we find no jurisdictional error, or a legal principle ignored, or miscarriage of justice.

There is no reason evident to interfere with the concurrent findings of the District Forum and the State Commission.

The revision petition is dismissed.