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Ashoka Fibre v/s National Insurance Co. Ltd. & Another

Company & Directors' Information:- S S S FIBRE LIMITED [Active] CIN = U17110PB2005PLC027818

Company & Directors' Information:- ASHOKA FIBRE LIMITED [Strike Off] CIN = U17121TG2007PLC056433

Company & Directors' Information:- G L FIBRE PRIVATE LIMITED [Strike Off] CIN = U17112PB2010PTC033873

Company & Directors' Information:- INDIA FIBRE PVT LTD [Active] CIN = U17232WB1968PTC027401

Company & Directors' Information:- ASHOKA PVT LTD [Strike Off] CIN = U52339OR1981PTC001004

Company & Directors' Information:- ASHOKA CORPORATION PRIVATE LIMITED [Strike Off] CIN = U19129UP1959PTC002744

    Revision Petition No. 3218 of 2015 in Appeal Nos. 1632 of 2004 & 1119 of 2014

    Decided On, 05 July 2018

    At, National Consumer Disputes Redressal Commission NCDRC


    For the Petitioner: Vivek Kumar Tandon, Mamta Tandon, Advocates. For the Respondents: Sanjay Rawat, Advocate.

Judgment Text

1. This revision petition has been filed by the petitioner M/s. Ashoka Fibres against the order dated 7.9.2015 of the State Consumer Disputes Redressal Commission, Haryana, (in short ‘the State Commission’) passed in First Appeal No. 1119 of 2014 in F.A. No. 1632 of 2004.

2. Brief facts of the case are that on 14.12.1999, the petitioner firm got itself insured with the respondent company. On 27.6.2000, unfortunately at about 1.30 a.m. fire broke out in the petitioner firm. Out of total stocks, stocks, assets worth Rs. 7,18,976 stood engulfed/destroyed in fire, which also caused loss to the building of the ‘Firm’, the loss to the building was assessed at Rs. 79,525. The Firm suffered a total loss of Rs. 7,98,495 in the said fire incident. The complainant filed the insurance claim which was not responded to by the Insurance Company. Despite many requests, the respondent company did not decide the claim, leaving no option for the petitioner except to file the complaint before the District Consumer Disputes Redressal Forum and the complaint was filed on 14.12.2001. On 23.8.2002, the respondent company filed its reply to the aforesaid complaint. With its reply the respondent company also filed the assessment report of the surveyor in which surveyor assessed the loss of Rs. 1,89,553 + Rs. 36,341 . On 24.5.2004, the District Forum, dismissed the complaint of the petitioner. On 1.7.2004, aggrieved by the aforesaid District Forum’s order the petitioner filed the appeal bearing No. 1632 of 2004 before the State Commission, Haryana. On 21.10.2011, the State Commission finally dismissed the appeal. Aggrieved by the aforesaid order the petitioner filed revision petition bearing No. 2511 of 2012 before this Commission. On 11.11.2014, this Commission after hearing the petitioner allowed the revision and set aside the order dated 21.10.2011 passed by the State Commission. This Commission remanded the matter back to the State Commission for deciding the appeal by speaking order after giving an opportunity of being heard to the parties. On 7.9.2015, the State Commission again dismissed the appeal of the petitioner. Feeling aggrieved by the aforesaid order the petitioner has filed the present petition.

3. Heard the learned Counsel for the parties and perused the record. Learned Counsel for the petitioner stated that this Commission had remanded the matter to the State Commission for deciding all the issues raised in the appeal, however, the State Commission has again not decided all the issues rather has dismissed the appeal only on one ground that the incident of fire was doubtful.

4. Learned Counsel for the petitioner submitted that the State Commission as well as District Forum despite admitting the incident of fire strangely held that the incident of fire was doubtful. It was the duty of the respondent company to have filed a complaint against the petitioner with the police authority if it was a fraud and forged case, but they have not done so.

5. Learned Counsel for the petitioner stated that the question for consideration before the State Commission as well as District Forum was never to go into the inquiry of occurrence of fire, rather, the question for consideration was, that whose calculation with regard to the assessment of loss was correct; whether the loss assessed by the petitioner was correct or the loss assessed by the respondent company was correct, but the State Commission erred in choosing the wrong path and not deciding the relevant question.

6. Learned Counsel for the petitioner mentioned that even if one assumes that no documents as sought by the surveyor were supplied by the petitioner, though it is categorically denied, but still, even in that case, the calculation of the loss assessed by the surveyor of the respondent company should have been allowed, but the complaint has been dismissed.

7. Learned Counsel for the petitioner submitted that the Fora below failed to appreciate that respondents based their repudiation on the basis of investigation conducted by their own appointee, behind the back of the Firm and that was nothing but sham to deny legitimate claim of the ‘Firm’. It was not an independent investigator being a third party.

8. It was stated by the learned Counsel for the petitioner that all the reports of other independent departments like Police and Fire Department authenticate the incident of fire and the loss has also occurred as assessed by the surveyor. It was requested that the order of the State Commission be set aside by this Commission and complaint may be allowed.

9. On the other hand, the learned Counsel for the respondent Insurance Company stated that the company had appointed an investigator and it has been found that the factory was not running after 8:00 p.m. and there was no electricity connection for the premisess. Thus, there was no question of any short circuiting which might have thereby caused the fire. It has been alleged by the complainant that one machine was working on the electricity generated by generating set. If this was so, the generation of electricity beyond 10 KW was not authorised without permission of the Electrical Inspector and there was no such permission obtained by the complainant and this was an unauthorised act by the complainant. The Insurance Company cannot indemnify any loss due to an illegal act. The learned Counsel stated that the District Forum has already analysed all the issues, which is clear from the following observations of the District Forum:

“3. The contention of the learned Counsel Mr. I.M. Malik, Advocate for the respondent is plausible that the petitioner has not obtained the permission or sanction from the Electricity Deptt. To our mind under Section 45(A) of the Indian Electricity Rules, 1956 and Section 28 of the Indian Electricity Act, 1910, as referred by E.J.S. Mali. Addl. Superintending Engineer, PSEB Prop. Power Equipment and Control Engineers, Focal Point, Patiala, in his report, no consumer or occupier shall commission his generating plant of a capacity exceeding 10 KW without the approval in writing of Inspector. He also referred to Section 28 of the Act vide which sanction by non-licensee for the use of the Electricity Power was required to be contained from the Electricity Deptt. The petitioner in his cross-examination has clearly admitted that the factory was running upto 8.00 p.m. but the fire allegedly took place at 1.30 a.m. in the night. Thus, report of the Investigator that the circumstances seem to be doubtful is genuine and just one and is liable to be believed.”

10. Learned Counsel for the respondents further pointed out that the same observations have been made by the State Commission as well. The State Commission has clearly observed that when there was no source of electricity, there can be no question of short circuiting causing fire. Therefore, the incident of fire seems to be doubtful. Learned Counsel referred to the following observations of the State Commission:

“8. Be that as it may, the incident of fire is doubtful. It is admitted by the complainant that he was not having any electric connection in the factory. It is alleged by him in the complaint that at the time of incident one machine was working in the factory, but, Ashok Kumar is altogether silent about this fact in his affidavit Ex.C-B. It is nowhere alleged therein that the one unit of factory was running at that time i.e. during night. He has also not produced affidavit of any person to prove that any unit was running in the factory at that time. When the factory was closed, there was no question of short circuiting. Generator set is stopped when the factory is not working. It is alleged by him in para No. 10 of Ex.C-5 that due to short circuit in controller switch the light might have erupted. When there was no source of any electricity, question of short circuit does not arise. In this way the story of fire is doubtful and possibility of putting the goods on fire just to get compensation cannot be ruled out.”

11. It was further argued by the learned Counsel for the respondents that both the Fora below have given concurrent finding of fact and the scope under the revision petition is quite limited. This Commission cannot reassess the facts in the light of the concurrent finding of facts by the Fora below. It was requested that the revision petition may be dismissed accordingly.

12. I have given a thoughtful consideration to the arguments advanced by the learned Counsel for the parties and have examined the material on record. Both the Fora below have given concurrent finding of fact that the incident of fire due to short circuiting was doubtful as there was no electricity connection in the factory. Even if it is assumed that one machine was running on generating set, the complainant firm had no permission from the Electrical Inspector to generate electricity beyond 10KW. Thus, if this was being done, the same was illegal. I agree with the contention of the learned Counsel for the respondent/Insurance Company that Insurance Company cannot indemnify loss occurred due to some illegal activity. Against the concurrent finding of fact, it is not possible to reassess the fact at the stage of revision petition as held by the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors. v. H&R Johnson (India) Ltd. and Others, VI (2016) SLT 86=(2016) 8 SCC 286, wherein, the Hon’ble Supreme Court has observed the following:

“23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”

13. District Forum as well as the State Commission have clearly

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given reasons for doubting the incident of fire and consequent claim. It is seen from the revision petition that the finding given by the District Forum and State Commission have not been denied in the memo of revision petition and no grounds have been taken in denial of those findings. Even during the arguments, learned Counsel did not argue anything to dispute the findings given by the District Forum and the State Commission against the complainant. 14. I also do not find any merit in the contention of the learned Counsel for the petitioner that the State Commission should have decided all the issues raised in the appeal. When the incident of fire itself becomes doubtful, obviously, there should be no occasion for the State Commission to decide the other issues like the quantum of compensation. 15. Based on the above discussion, I do not find any illegality, material irregularity or jurisdictional error in the order dated 7.9.2015 of the State Commission, which calls for any interference from this Commission. Accordingly, RP No. 3218 of 2015 is dismissed. Revision Petition dismissed.