Chander Shekhar Sharma, Member—This appeal is directed against the order of District Forum, Bilaspur, Himachal Pradesh passed in Consumer Complaint No. 6/2008, dated 4.3.2010, whereby the complaint of the respondent was allowed and the appellant was directed to pay to the appellant a sum of Rs.5,06,061 minus

Rs. 3,08,699 = Rs.1,97,362 with interest at the rate of 9% per annum on the balance amount from the date of filing of complaint, i.e.14.12.2007 till realization besides cost of complaint, which was assessed at Rs.2,000.

2. The factual matrix of the case in brief is that the respondent is running a business of petroleum products in the name and style of “M/s Shakti Filling Station”. It got insured its retail outlet through the appellant Insurance Company and obtained policy No. 352404/11/06/11/00000704 valid for the period from 8.3.2007 to 7.3.2008 for a sum of Rs.32,00,000. On 14.3.2007 due to heavy rains in the area, there was a huge land-slide, as a result of which a great loss to the retail outlet including damage to the shed with facia (i.e. Kenopy) to the tune of Rs.10,00,000 was caused besides other losses to the machinery. Thereafter the matter was reported to the respondent who initially got conducted preliminary survey and thereafter appointed Loss Assessor-cum-Surveyor to assess the loss, who submitted his report Annexure R2. But the said report was not acceptable to the respondent since as per it, it is arbitrary and made request for appointment of another Surveyor to assess the loss as the loss assessed by the Surveyor was much on lower side, whereas the respondent had spent more than Rs.7,50,000 to repair the said Kenopy to bring it in its original position. But since the appellant had not considered the request of the respondent for appointment of another Surveyor to assess the loss again and as the attitude of the appellant was not cooperative and as such there was a deficiency of service on the part of the appellant. In this background complaint under Section 12 of Consumer Protection Act, 1986 was filed for deficiency of service.

3. Appellant in the present case contested and resisted the complaint, wherein its plea was that the respondent has no cause of action to file the complaint and this is not a “consumer dispute” and it was also pleaded that the assessment of the loss was rightly made by the Surveyor.

4. Rejoinder to the complaint was also filed, wherein the respondent had reiterated the stand taken in the complaint.

5. Brief summary of evidence led by the parties in the present case in nutshell is that the appellant in support of its case filed affidavits of Shri Vineet Kaura and Shri N.S. Sidhu, Surveyors besides affidavits of Shri R.S. Negi, Divisional Manager and Shri Rulda Singh, Branch Manager of the appellant and also placed reliance upon documents Annexures R1 to R8, viz. preliminary survey report, final survey report, settlement intimation voucher, affidavits, claim disbursement voucher etc.

6. Respondent in support of its case filed affidavit of Shri Dinesh Sharma, Proprietor of M/s Shakti Filling Station and also placed reliance upon documents Annexures C1 to C10, viz. insurance cover note, Roznamcha report of Patwari of Patwar Circle, Ghumarwin, letter dated 22.11.2004 addressed to the respondent by the Reliance Industries Limited, newspaper cutting and letters sent by the appellant to the Surveyor and various other letters addressed to the respondent.

7. We have heard learned Counsel appearing for the parties and have also gone through the record of the case file minutely.

8. Mr. Ratish Sharma, learned Counsel appearing for the appellant argued that the order of the District Forum below is not legally sustainable as the claim submitted by the respondent was much on higher side and the assessment made by the Surveyor is based on sound reasons, who had assessed the loss or damage to the extent of Rs.3,09,925 vide his report Annexure R2 and the District Forum below had wrongly concluded that