- (1.) THIS appeal arises from order dated 28.7.2003 rendered by the learned Consumer Disputes Redressal Forum, Bhavnagar in Consumer Disputes Case No.23 of 2003 directing the opponent Insurance Company to pay Rs.2,38,500/ - with 9% interest from 1.1.2002 till payment and cost and compensation in sum of Rs.2,000/ - each. We have heard the learned Advocates for the parties. We have gone through the impugned order. We have also gone through the pleadings before the learned Forum and the material placed on record.
(2.) IT would appear that the complainant has been carrying on business in the name and style of Hotel White Rose and had taken policy of insurance in question in respect of furniture, beds, mattresses, carpet, pillows and other items lying in the hotel. The complainant alleged that there was torrential rain on 27.6.2002 in the city of Bhavnagar resulting into water getting collected in the cellar of the complainant's hotel damaging furniture, sleepwell mattresses and other items described in the complaint. The complainant immediately intimated the opponent Insurance Company through her agent Bhaskarbhai Shah assessing the damage at around Rs.1,00,000/ -. After the water was drawn out with the aid of pump, loss was found to be more and assessed at Rs.2,64,980/ -. Surveyor Mr. Atul Vaghela had attended the place, taken photographs and assessed the loss at Rs.1,93,155/ -. He deducted depreciation, salvage and under -insurance and assessed the net loss at Rs.1,21,569/ -. The assessment offered to the complainant was not acceptable to her. She alleged that there were riots in the year February, 2002 during which her hotel was set ablaze resulting into loss of around 42 lakhs whereas she was offered Rs.12,50,000/ -. Under such circumstances, offer of Rs.1,21,569/ - was not acceptable by the complainant. She, therefore, prayed for compensation in the sum of Rs.2,64,980/ - with interest @ 12% p. a. from 27.6.2002 and compensation in the sum of Rs.50,000/ -. The opponent Insurance Company appeared before the learned Forum and resisted the complaint inter -alia on the ground that certain items of furniture were in fact not placed in the cellar and they were ordinarily required to be placed in the ground floor or first floor of the hotel where there was no water logging at all. The Government approved Surveyor assessed the loss at Rs.1,21,569/ - net and, therefore, there was no deficiency in service on the part of the opponent Insurance Company. The learned Forum came to the conclusion that the hotel was set ablaze in February, 2002, destroying furniture, fixture and other movable. The complainant was obviously required to purchase new articles and, therefore, there was no scope for deducting depreciation as done by the Surveyor. The learned Forum, therefore, accepted the case of the complainant and passed the impugned order.
(3.) IT has been submitted on behalf of the opponent Insurance Company that the complainant has not produced any evidence to rebut the survey report. The survey report not only indicates the items which were damaged and/or lost in the flood in question but it also reflects what items could have been stored in the cellar and what could be noticed in the cellar at the time of spot survey. It has been submitted the complainant has not produced any evidence, much less cogent evidence to support the claim in excess of the claim approved by the Surveyor. It has been submitted that if new items of furniture and articles were purchased by the complainant after February, 2002, the complainant ought to have the bills/vouchers of such purchase, which have not been produced by the complainant either before the Surveyor or before the learned Forum. In our considered opinion, this submission merits acceptance as, on verification of material placed on record by the complainant, it would appear that the complainant has not produced any evidence, much less reliable evidence to rebut the survey report. In view of the provision of Sec.13 of the Consumer Protection Act, 1986 , it is the complainant's burden to establish his case as to how the opponent is deficient in rendition of service. Service is in fact rendered by the opponent Insurance Company to the complainant. Therefore, for the purpose of alleging deficiency in service in such a type of case, it will be for the consumer to establish by producing evidence what has been left out by the opponent and what has been not correctly and properly assessed by the opponent. This is what Sec.13 of the Consumer Protection Act, 1986 speaks about. In that view of the matter, survey report which is a valuable document has got to be accepted (See Kisan Agro Industries V/s. United India Insurance Company Limited,2004 8 CLD 557, quoting decision of the National Commission in National Insurance Company Limited V/s. Winner Chorates (P) Ltd., 2004 2 CPJ 1 (NC)=2003 (2) CPC 355 (NC), which in turn has referred to the Supreme Court decision in the case of United India Insurace Company Limited V/s. Roshan Lal Oil Mills Ltd.,1999 SCR 1024 SC. On behalf of the complainant, reference has been made to a decision in the case of Dr. JJ Merchant V/s. Shrinath Chaturvedi, 2003 1 GLH 608. This decision will not be applicable to the present case as the complainant had sufficient and full opportunity to place her case before the learned Forum supported by appropriate evidence which, in the ordinary course of events and in the ordinary course of business would be in possession of the complainant. In above view of the matter, we have no other alternative except to find that the complainant would be entitled to surveyed amount of Rs.1,21,569/ -.;