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Judgment
Present revision petition has been filed impugning the order dated 7.9.2017 in first appeal No.390/2017 filed by the petitioner against the order dated 14.3.2017 of the District Forum whereby the complaint of the respondent was allowed and the petitioner was directed to pay the insurance claim of Rs.6,02,351 alongwith interest @ 9% from the date of filing of the claim till recovery and cost of litigation of Rs.2000/-.
The brief facts of the case are that the respondent had purchased Standard Fire and Special Perils Policy for the period 23.7.2013 to 22.7.2014 for the building above plinth level situated at F/7-50, Opposite Tikona Park, Kashmir Avenue, Amritsar and also Householders Insurance Policy for the articles in the said property for the period 22.7.2013 to 21.7.2014. There was a fire on 2.5.2014 in the said property of the respondent due to short circuit which damaged the building and also the house hold articles. The respondent lodged a claim with the petitioner. The petitioner appointed a surveyor and the surveyor assessed the loss to the tune of Rs.1,61,600/-. Dissatisfied with the claim amount approved by the petitioner, respondent filed a claim with the District Forum. The petitioner took several objections including that the generator which was damaged in the fire and for which claim was repudiated by the respondent, was not covered under the policy. Respondent submitted the bills, which are as under: -
Balwinder Singh General Repair Bill No.226 Rs.2,01,730/-
Sunny Enterprises Bill No.53Rs.81,750/-
Modern Fert Works Bill No.4100 (not damaged) Rs.1,380/-
Sunny Enterprises Bill No.63 repeated
Against Bill No.53 Rs. 19,000/-
Baba Deep Singh Handloom Bill No.96 Rs.25,300/-
Amrit Electric Co. Bill No.134 Rs.3,000/-
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Total Rs.2,69,160/-
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Both the parties led their evidences before the District Forum. After hearing the arguments of learned counsel for both the parties and perusing the evidences led by them, the District Forum reached to the conclusion that the generator was covered under the fire policy and hence the respondent was entitled for the amount spent on the repairs of the generator. The District Forum has held as under: -
"It is apparent to mention over here that the complainant has obtained two policies i.e. policy No.404402/11/12/3100000544 for his building covering the risk period from 23.7.2013 to 22.7.2014 for the sum assured Rs.50 lacs and another policy bearing No.404402/20/13/3600000833 covering risk period from 22.7.2013 to 22.7.2014 in which all the household articles were insured. The only plea of the opposite party is that generator repair is not covered under the fire policy. But the opposite party has failed to produce any evidence showing that generator repair is not covered under the fire policy. Rather the policy obtained by the complainant Ex.C-3 shows that all the household articles were insured under the fire policy. The opposite party has also failed to prove that bills produced by the complainant are not genuine and fabricated. So the documents i.e. repair bills produced by the complainant are proved to be genuine. Even otherwise also, report of the surveyor is not sacrosanct nor it was the final word on the matter. Reliance in this regard can be placed upon the New India Assurance Co. Ltd. vs. Pradeep Kumar IV (2009) CPJ 46 (SC) wherein it has been held that Suveyor's report is not last and final word. It is not that sacrosanct that it cannot be departed from, it is not conclusive. The approved Surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report of the loss suffered by the insured but surely such report is neither binding upon the insurer or insured.
... ... ...
From the aforesaid discussion, it transpires that the complainant has been able to prove his case through cogent evidence. Consequently, the claim of the complainant succeeds and opposite party is directed to pay insurance claim to the tune of Rs.6,02,351/- in favour of the complainant alongwith interest @ 9% p.a. from the date of filing of the claim until full and finally recovered. Cost of litigation is assessed at Rs.2000/-. Compliance of this order be made within 30 days of the receipt of copy of this order. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room."
This order was impugned by the petitioner before the State Commission. The issue raised before the State Commission was that the generator and the repair expenses incurred by the respondent for other household articles were not covered under the policy. The petitioners have challenged the claim against the bills as indicated above in the appeal as well.
After hearing learned counsel for the parties, the State Commission held as under: -
"Admittedly 5 KVA generator set is a big structure with canopy. Determining the nature of generator set of such a heavy capacity depends upon if it is trailer mounted on a skid not bolted down or bolted down in the earth. It also depends on the fuel tank location and configuration. The opposite party has not rebutted the contention of the complainant with any cogent evidence and even the Surveyor does not specify its nature. He only says that the generator set was with canopy and does not specifically say that it is bolted down with earth or it is permanently fixed. The case of the complainant is that the same is not being removed from one place to another neither it is portable generator set. In such circumstances, the benefit must go to the insured though the District Forum has not given any reasoning with regard to accepting the claim so far as the price and repair of generator set is concerned. In the Black's Law Dictionary the word "fixture" has been defined as under:-
"fixture" Personal property that is attached to land or a building and that is regarded as an irremovable part of the real property, such as a fireplace built into a home. Historically, personal property becomes a fixture when it is physically fastened to or connected with the land or building and the fastening or connection was done to enhance the utility of the land or building. If personal property has been attached to the First Appeal No.390 of 2017 15 land or building and enhances only the chattel's utility, it is not a fixture. For example, if bricks are purposely stacked to form a wall, a fixture results. But if the bricks are merely stacked for convenience until used for some purpose, they do not form a fixture. Also terms permanent fixture, immovable fixture. Cf. IMPROVEMENT. [Cases: Fixtures].
"A fixture can best be defined as a thing which, although originally a movable chattel, is by person of its annexation to or association in use with land, regarded as a part of the land.... The law of fixtures concerns those situations where the chattel annexed still retains a separate identity in site of annexation, for example a furnace or a light fixture. Where the chattel annexed loses such identity, as in the case of nails, boards etc., the problem becomes one of accession."
In the light of this definition, although originally the generator set may be a movable property but by reason of its annexation or attachment with the land it becomes the permanent fixture and acquired a separate identity. Once it is attached to earth, it will certainly amount to a part of the building and premises because ultimately it is also covered under the term "electrical fittings" which are to be included as per the terms and conditions of the Policy. So far as the bill of repairs of generator set is concerned, the same is annexed on page No.41 of the District Forum record dated 17.6.2016 issued by Balwinder Singh of Amritsar for Rs. 2,01,730/-.
The total claim of the complainant was of Rs. 7,63,951/- but he is only aggrieved against the rejected bills qua which he has filed the First Appeal No.390 of 2017 16present complaint. The complainant has attached all the bills with the letter dated 20.2.2016 sent by him to the opposite party as Ex.C5. So far as the inverters and batteries are concerned, the same also come under electrical fittings because they also generate electricity and run fans, tubes etc. Similarly fan and tullu pump also come within electrical fittings. No reasons have been given for which the same were not covered under the electrical fittings. There are two separate insurance policies. Ex.C-2 is the Policy with regard to the building and permanent structure and permanent fittings of the building of first class. Ex.C-3 is the second Policy with regard to the Household Policy i.e. item-wise and the following items are covered:-
ITEM WISE SUM INSURED DETAILS Section Item Description (if any) Sum Insured 1B Miscellaneous DETAILS OF GOODS: Rs. 10,00,000/-
Section
Item
Description (If any)
Sum Insured
1B
Misc. Items
Details of Goods: Furniture Rs.1,50,000/-, Gold Rs.2,00,000, Three A.C. Rs.58,000/- One Fridge Rs.15,000/-, Utensils/Crockery Rs.50,000, Three Cyl. Rs.5,000/-, Cloth Cum Garments Rs.2,00,000/, Bedding cum Blankets Rs.1,49,000/-, other Misc. Goods Rs.2,00,000/-
Rs.10,00,000
2.
Misc. Items
Details of Goods: Furniture 1,50,000/-, Gold Rs.2,00,000/- Three A.C. Rs.58,000/-, One Fridge Rs.15,000/-, Utensils/Crockery Rs.50,000/- Three Cyl. Rs.5,000/-, Cloth cum garments Rs.2,00,000/-, Bedding Cum Blankets Rs.1,49,000/- Other misc. Goods Rs.2,00,000/-
Rs.10,00,000
5.
Air-Conditioner
Three AC of Various kinds & One Fridge
6.
TV Set
Two LED One washing machine, one fit King one microwave
Rs.1,90,000
There is bill dated 15.6.2014 of Baba Deep Singh Handloom with regard to the curtain cloth amounting to Rs. 25,300/-, which is placed at page no.43 of the District Forum record. We have gone through the policy Ex.C-3 and we found that only clothes and garments are covered and curtain cloth is not specifically covered under the policy. Therefore, this bill amounting to Rs. 25,300/- for curtain cloth is not covered.
Otherwise also the report of the Surveyor cannot be taken into consideration for the reason that the opposite party has not annexed the report of any qualified Engineer, who may say about the electrical fittings, building structure and attachments etc. are permanent or movable. Ashwani Kumar Gupta of Ashwani Gupta & Company, Surveyor, who gave his report Ex.OP-3 is a B.Com and Chartered Accountant and he cannot be treated as a fit person that he could have given a report regarding entire building structure. His services can only be used for the purpose of calculation and evaluation because specialized services of Structural Engineer or Building Engineer have not been taken by him to prepare the report. In the absence of the same, the report cannot be submitted as has been given by him. Report of one expert in the field can be accepted or rejected and reasons for acceptance and rejection of the claim are the soul of every report and that too by the expert in the field."
By way of present revision petition, the petitioner has again raised the same objections which it has raised before the District Forum as well as the State Commission and suffered with concurrent finding of facts based on the documents before the District Forum and re-appreciated by the State Commission.
Under Section 21 (b) of the Consumer Protection Act, 1986 this Commission has limited jurisdiction. It is not required to reassess or re-appreciate the evidences and then reach to its own finding on facts. Under Section 21 (b) this Commission can only interfere when the findings are based on no evidence or it is patently illegal and the impugned order suffers from illegality or infirmity meaning thereby it is against the established principles of law. The Hon'ble Supreme Court held in the matter of Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 as under:
"Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora."
From the concurrent finding of District Forum and the State Commission, it is apparent that the bills submitted by the respondent for the repairs of the articles as mentioned above, were found valid and accordingly the directions were given that the respondent is entitled for the said money. We do not find any illegality or infirmity in the impugned order. Revision petition has no merit and is accordingly dismissed.