NATIONAL INSURANCE CO LTD vs CHANGA ELECTRONICS

-THROUGH the medium of this revision petition, the order dated 16. 6. 2005 passed by the learned Divisional Forum, Srinagar (hereinafter to be referred to as the Forum) has been challenged. The Forum on the basis of the appraisal of the evidence and after hearing the Counsel for the parties has held that the final assessment made by Mr. Kalim Wahidi, Loss Assessor, was not reasonable as not based on the statement of accounts submitted by the respondents herein. In this view of the matter, direction was given in the impugned order to the petitioner herein to get the loss re-assessed after taking into consideration the statements of the accounts and the purchase bills, which had been submitted by the respondent herein. It was also directed that re-assessment report should have been filed in a span of one month.

AGGRIEVED by the order the petitioner has challenged it, inter alia, on the following grounds: 1. That the surveyor Mr. Kalim Wahidi had considered those purchase bills which were chronological correct. The respondent had failed to submit the bank account statement before him and thus there could be no proof of his annual turnover. The report made on these consideration was correct.

The respondent for the first time produced the statements of accounts in the Forum and not before the surveyor and they were also not tendered in evidence before the Forum.

The discrepancies, if any, would have surfaced during cross-examination of Mr. Kalim Wahidi but he was not cross-examined on those lines and now it was too late in the day for the Forum for not placing any reliance on his report.

The learned Forum has circumvented the discretion of the new surveyor to consider the authenticity of the purchase bills and statements of accounts because the impugned order is of mandatory nature to admit those documents in his report.

In rebuttal Mr. Gojri, the learned Counsel appearing for the respondent has contended that the respondent had produced the whole record along with bank accounts before the surveyor, Mr. Kalim Wahidi, but he did not take into account all those documents, including the back accounts regarding which no doubt could be raised about their authenticity.

His second contention is that the assessment made by the surveyor was not communicated by the petitioner to the respondent as well as the order passed for no claim was also not communicated. These are the lacunae, which can be removed by appointment of new surveyor who has to re-assess the loss.

WE have considered the respective contentions of learned Counsel for the parties. The primary functions of the Fora created under the Jandk Consumer Protection Act is to do speedy justice between the parties without strictly following the rules of procedure and the evidence. A Forum is purely guided by the procedure laid down under the Act and had to follow the principles of natural justice. The method to be adopted for determining the claims is of inquisitional nature and not of adversarial nature. Adverting to the facts of the present case, we find that the learned Forum has made an attempt to do justice between the parties by giving a chance to the respondent to produce the whole record, which is in his possession for making assessment of his claim. The plea taken by the petitioner is that he had not produced the whole record before the surveyor Mr. Kalim Wahidi and that he had produced some of the record in the Forum itself. The plea advanced by the respondent is that the surveyor had not accepted the record for the reasons known to him and that he produced the record in the nature of statements of stocks prepared by his financier bank and that too was not admitted by him. Learned Counsel appearing for the petitioner vehemently contended that the surveyor has considered only those purchase bills which were chronologically correct and had rejected all those bills which were not so and that in the process of re-assessment a direction stands issued by the Forum in the name of the assessor to admit all the incorrect purchase bills also.

WE have read in-between the lines the operative part of the impugned order and do not find even an iota of evidence, which supports the contention of the learned Counsel for the petitioner that the discretion of the fresh surveyor has been limited in any way for making correct appraisal of the record. The re-assessment ordered is a step in aid for arriving at the correct decision of the case, because the respondent has a statutory right to get the reimbursement of the actual loss suffered by him within the limits of the insurance contract. After viewing the controversy in this perspective we find that the impugned order in any way would circumvent the discretion of the newly appointed surveyor for making a fair assessment of the actual loss suffered by the respondent. In this view of the matter, we find no merit in this revision petition, which is accordingly dismissed with costs of Rs. 3,000 to be paid by the petitioner to the respondent within one month from today because impugned order is found in consonance with law and there was no merit in throwing a challenge to it through the medium of revision petition. The office is directed to send back the record immediately to the Forum and parties are directed to enter appearance therein on 22. 7. 2008. Meanwhile, the petitioner insurer shall take steps for the appointment of fresh surveyor to get the loss re-assessed and the respondent shall render all possible help to him. The re-assessment report should be submitted by the petitioner in the Forum as soon as possible when it would be received from the surveyor. Revision Petition dismissed.