IMPORTANT POINT
Forum has to consider evidence on affidavits.

JUDGMENT (ORAL)

V.K. Jain, Presiding Member—The complainant/ respondent No.1 had taken a standard fire and special peril policy from the appellant in order to take an insurance cover on the stock which he had hypothecated with the respondent Punjab National Bank. The policy was valid from 17.03.2004 to 16.03.2005. On 27.04.2004 a fire broken out in the premises of the complainant. An intimation of the fire was given to the banker as well to the concerned police station on the next day. The insurer was informed of the fire on 05.05.2004. A surveyor was appointed by the insurer to assess the loss to the complainant. The surveyor assessed the loss at Rs.2,46,493/-. The said amount was offered by the insurer to the complainant but was declined by him. The complainant thereafter approached the concerned State Commission by way of a consumer complaint, seeking payment of Rs.22 lakh from the insurer along with interest, etc.

The banker was also impleaded as a party to the consumer complaint.

2. The complaint was resisted by the insurer which sought to justify the assessment made by the surveyor and the amount offered by it to the complainant.

3. Vide impugned order dated 29.01.2010 the State Commission directed the insurer to pay a sum of Rs.22 lakh to the complainant alongwith interest @ 9% p.a. w.e.f. 27.05.2004, compensation quantified at Rs.25,000/- and cost of litigation quantified at Rs.20,000/-. Being aggrieved from the order passed by the State Commission the insurer is before this Commission.

4. A perusal of the impugned order would show that the State Commission decided the consumer complaint solely on the basis of the evidence produced by the complainant noting in para 23 of the impugned order that neither of the opposite parties had filed any evidence though the insurer had relied upon the expert report annexed to its reply.

5. The learned counsel for the appellant vehemently submits that the appellant had filed as many as three affidavits by way of evidence, the said affidavit having been sworn by (1) Mr. C.P. Parwani, Manager of the insurer, (2) Mr. P.B. Chopra, Chartered Accountant and (3) Mr. Harish Kumar, Surveyor who was appointed by the insurer. The learned counsel for the complainant however, submits that no such affidavit was filed before the State Commission. The appellant company has filed an affidavit of Mr. Ashish Verma, Advocate who had represented it before the State Commission. In his affidavit filed before this Commission Mr.Ashish Verma, Advocate has stated that he was representing the appellant company in the above referred consumer complaint and had filed the affidavits of evidence of Mr. C.P. Parwani, Manager of the insurer, Mr. P.B. Chopra, Chartered Accountant and Mr. Harish Kumar, Surveyor in the Registry of the State Commission on 13.04.2007 vide diary No.1869.

6. The record of the State Commission called by to verify as to whether the said affidavits were available on record or not. It has however been reported that the record has been destroyed. As a result it is not possible to verify the affidavit solemn by Mr. Ashish Verma, Advocate.

7. The appellant has placed on record the photocopies of by the affidavits of Mr. C.P. Parwani, Manager of the insurer, Mr. P.B. Chopra, Chartered Accountant and Mr. Harish Kumar, Surveyor. A perusal of the said photocopies would show that the affidavits were sworn before an Oath Commissioner on 02.04.2007. This would show that the affidavits of all the three persons referred above were actually prepared and got attested. The insurer has also filed an affidavit of an officer of the company who has stated in the said affidavit that the insurer had filed affidavits of Mr. C.P. Parwani, Manager of the insurer, Mr. P.B. Chopra, Chartered Accountant and Mr. Harish Kumar, Surveyor before the State Commission.

8. In view of the affidavit of Mr. Ashish Verma, Advocate who has not only sworn on oath with respect to the filing of the affidavit by way of evidence but has also given