Decided on August 01,2008



- (1.) THE brief facts of the case are that the complainant, Abdul Aziz Mir, in his complaint alleged that in the year 1995, he initially got his double storeyed house, kitchen and land (as described in the complaint), insured and during its currency loss had occurred to the insured property and mutually was settled with the O.P. by accepting indemnification of Rs. 12,000. Thereafter, the policy was renewed in the year 1996 -97 wherein the risk covered under the said policy was to the tune of Rs. 10 lakh. It is further averred that during the currency of that policy, the insured property suffered loss caused by heavy floods, which engulfed the area during the month of July 1997. Immediately thereafter, the claim was raised but was repudiated on the plea that he was not the owner of the insured property and that he had failed to provide the requisite documents to the Surveyor, namely Mir Fayaz Ahmed. The complainant served a legal notice on the O.P. but it was not responded and the complainant was compelled to file the complaint wherein reliefs are claimed for indemnification of the assured liability of 10 lakh of the insured poroperty, and payment of Rs. 50,000 by way of damages for mental strain and agony along with interest at the rate of 18% p.a.
(2.) IN the written version preliminary objection taken by the O.Ps. is that the claim was time barred as on 16.8.1998 it was closed as "no claim" and thereafter the complaint was not presented within a period of 12 months. It was also pleaded that the complainant had shown to the Surveyor the damaged house of some body else and thus a fraudulent claim has been set up. During the pendency of the complaint, O.Ps. got the investigation conducted by M/s. Jehlum Investigating Service Pvt. Ltd. who in its report had stated that the insured property had suffered loss due to floods during the month of August, 1996 and M/s. Andrabi Associates had assessed it at Rs. 12,490. After the acceptance of the amount of loss, the complainant did not repair/renovate the insured property till the re -occurrence of the floods, which engulfed that area during the month of September 1997. It was clearly pleaded that it was not a genuine claim. On such a stand being taken by the O.Ps. the Commission vide its order dated 4.9.2003 directed them that again investigation should be got done from an experienced investigator and after that the loss should be got assessed from Mr. Javed Hussain, Surveyor who at the first occasion had assessed the loss which had occurred during the year 1995 -96. Accordingly O.Ps. appointed Scientific Investigators and Consultants to investigate the loss. Abovesaid Mr. Javed Hussain, who was one of the associates of the said firm, submitted his report on 15.10.2003 and gave the opinion that the complainant again has claimed the amount of indemnification of the loss which was caused to the insured property during the floods of 1996 that in fact during the year 1997 the insured property did not suffer any loss. His specific finding was: "It was quite evident that there are no fresh damages to the insured building but only the previous damages had been aggravated as no major repairs had been done. Since the previous loss of 1996 has already been indemnified to the insured. The insured cannot again be indemnfied for the same damages, which the insured alleges to have occurred due to floods of 1997. Keeping the above facts in view, the insurers are not liable for any indemnification of reported loss to the insured building (and other property, if any) due to floods of 1997."
(3.) IN support of the claim the complainant appeared in the witness box and supported the averments made in the complaint. He examined Ali Mohd Bhat and Ab. Rehman Mir as witnessess. They supported the averments made in the complaint. The O.Ps. examined Abdul Rashid Untoo as a witness. He appeared as a representative of M/s. Jehlum Investigating Services Pvt. Ltd. and in his cross -examination stated that at the time of his visit the house was still in a damaged condition. That inquiries were made from the local inhabitants but no record was made available to the effect that the loss pertained to the year 1996. The other witness of the OPs was Mir Fayaz Ahmed Surveyor. He stated that on the instructions of O.Ps. on 9.9.1997 he contacted the complainant twice i.e., on 12.9.1997 and 20.9.1997. He has also stated that on his second visit, which he made on 20.9.1997, the building shown by the insured to him did not belong to him and he wanted to deceive him. Thereafter the complainant did not turn up. In his cross -examination he has stated that on the second visit he saw some other person residing in the alleged insured house.;

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