Before the Hon’ble State Consumer Dispute

Redressal Commission, Uttarakhand at Dehradun

First Appeal No. of 2017
(Consumer Complaint No. 81 of 2016)

Shri Jakir Hassan S/o Shri Mehndi Hassan R/o New Janta
Mutton and Chicken Shop Mallital, Nainital.
……………….Complainant/Appellant

Versus
1. IFFCO TOKIO General Insurance Company Ltd., B-9, A-Durga
City Centre, Nainital Road, Haldwani, Tehsil Haldwani, district
Nainital, through Regional Manager.

2. Almora Urban Co-operative Bank, Branch Mallital, District

Nainital, through Branch Manager.

………………Opposite Parties/Respondents

Appeal U/s 15 of The Consumer Protection Act, 1986.

LIMITATION

Impugned Judgment passed on 10.10.2017

Certified Copy applied on 10.10.2017

Certified copy received on 10.10.2017

Appeal filed on 06.11.2017

Hence this appeal is being filed within period of limitation.

Sir,

The above named appellant is filing this present appeal

aggrieved by the Judgment & Order dated 10.10.2017, passed
by the Ld. District Consumer Dispute Redressal Forum,
Nainital, in Consumer Complaint No. 81 of 2016, Jakir Hassan
Versus IFFCO TOKIO & anr., whereby the complaint of the
Complainant was dismissed.

BRIEF FACTS OF THE CASE

1. That the complainant is owner of shop known as New Janta

Chicken Shop in Nainital.

2. That for running the said shop complainant/appellant took

Loan/CC Limit from the opposite party no. 2/respondent no. 2
Bank. In regard to which the O.P. no. 2 Bank got insured the
stock of furniture, fixture & fittings, fridge and tools of the shop
owned by the complainant/appellant. Vide Policy Cover-Note
no. 41746911 for a period from 26-02-2014 to 25-02-2015 for
an amount of Rs. 9,00,000/-.

3. That on 19-11-2014 at around 5:45 AM due to short circuit the

said shop of the complainant caught fired in respect to which
Fire Brigade were called and then fire was controlled after an
exercise of more than two and half hours. It is pertinent to
mention that herein mentioned shop got completely damaged
causing loss of more than Rs. 10,00,000/- as the result of fire.

4. That the fire as mentioned above also damaged the shop

adjoining the shop of the complainant.
5. That the complainant immediately intimated about the said loss
to the company directly as well as through the Bank. In respect
of which the Opposite party no. 1/Respondent no. 1 appointed
Shri B.D. Joshi Surveyor, who reached for inspection of the
shop after one day of the fire i.e. on 20/11/2014.

6. That the shop herein mentioned was engaged in the business

of raw chicken and meat, due to which the shop contained the
heavy stock of chicken, meat and eggs which was burnt due to
fire and hence caused a pungent smell in the shop which
disturbed the nearby area. The complainant in lieu of which
cleaned the shop and started its business transaction as the
complainant suffered huge loss from due to fire and delayed
supply of chicken and meat to his customers on next day when
the surveyor came to inspect the fire.

7. That the surveyor reached late to inspect the sight and asked
for illegal demands to allow the claim amount to the
complainant. This incident was reported to the nearby police
station by the complainant as the surveyor was asking for the
bribe.

8. That the surveyor to harass the complainant issued a false

inspection report to the insurance company on the basis of
which the Insurance Company blind folded rejected the Claim
of the complaint.

9. That the complainant against the said illegal repudiation by the

Respondent No. 1, filed a Complaint before the Ld. District
Forum, Nainital, i.e. Consumer Complaint No. 81 of 2016, Jakir
Hassan Vs. IFFCO TOKIO General Insurance & anr., which
was dismissed by the Ld. Forum vide its Judgment dated
10.10.2017.
 The impugned Judgment has been passed by the Consumer
Forum, completely ignoring the mandatory provisions of the Act
and ignoring the material on record, which are set out below:-

GROUNDS OF APPEAL

1- Because the Ld. Forum failed to consider this fact that the
report of the Surveyor was not a genuine report and was
prepared by him malafidely so as to cause harm to the
complainant/Appellant as the appellant failed to abide by the
illegal demands of the surveyor.

2- Because the Ld. Forum failed to consider this fact that the
malafide of the Surveyor was apparent from this vey fact that
being aggrieved by the illegal demand of the Surveyor the
Complainant/Appellant on the very first day of the visit by the
surveyor on the shop was forced to lodged a report with the
police authorities and the Bank against the demand of bribe
made by the Surveyor.

3- Because the Ld. Forum failed to appreciate this fact that the
report of the Surveyor is not the final and last thing as it can be
prepared by the Surveyor malafidely so as to cause illegal and
unlawful harms to the insured, as being done so in the present
case.

4- Because the ld. Forum erred in not considering this fact that in
the present case there was ample of evidence, which portrayed
the malafide of the Surveyor, and hence under the present
circumstances the report of the Surveyor was liable to be
discarded.
5- Because the Ld. Forum failed to consider this fact that from the
record it was crystal clear that the relations of the
complainant/Appellant become so bitter on the very first day
due to illegal demand of the surveyor that the
complainant/Appellant was forced to file complaint against the
Surveyor and the Surveyor as a counter blast filed a complaint
of the Complainant/Appellant with the bank and hence their was
no circumstances under which the Surveyor would have given
an independence and unbiased report.

6- Because the Ld. Forum failed to appreciate this fact that from a
bare perusal of the Report of the Surveyor it is apparent that he
had given a frivolous report as one page 1 of his report the
Surveyor states to have received the intimation of 19.11.2014
and had visited the site the same day i.e. 19.11.2014, however
on the next page he states too have visited the site the next day
i.e. 20.11.2014.

7- Because similarly the Ld. Forum failed to take notice of this fact
that the Surveyor in his report alleges to states that no incident
of fire took place, whereas in the affidavit filed by him in support
of his report he alleges that no loss due to allege fire took
place, hence the two versions are self contradicting and
conflicting.

8- Because the Ld. Forum failed to consider this aspect that the in
respect of the said Fire incident the Fire Brigade was called on
19.11.2014 which took a time of more than 2 and a half hours
to control the fire and they in their report have stated that a loss
of around Rs.19,00,000/- was caused to the shop of the
insured.
9- Because the Ld. Forum failed to consider this fact the report of
Fore Station has more relevance to that of the report of the
surveyor, as the Fire department is a Government entity being
recognized for its impartial services.

10- Because the Ld. Forum failed to consider this fact that the said
incident of Fire was also reported in many national news papers
being circulated in Nainital City and they had also confirmed the
incident of Fire and loss to the Complainant.

11- Because the Ld. Forum failed to take notice of this fact that the
shop of the insured was filled with meat and due to fire the
same got damaged and were releasing a very pungent odor
and it was necessary for the complainant to clean his shop
forthwith as the same was affecting the neighbors and as the
incident of fire took place on 19.11.2014 and the Surveyor
visited on 20.11.2014, it was not at all possible for the
complainant/Appellant to keep the burnt things intact in the
shop.

12- Because the Ld. Forum failed to take notice of this fact that the
complainant/appellant duly intimated the Insurance Company
on time, however it was the surveyor who visited the site after
expiry of more than 24 hours of occurrence of the incident and
by then it was not possible for the complainant/appellant to sit
among the burnt meat/furniture, fixture & fittings and as also the
Appellant was required to continue with his business which was
the only mode of livelihood of his and his family.

13- Because the Ld. Forum failed to take notice of this fact that the
defense being raised by the Insurance Company before them
was beyond the averments of the repudiation letter and as per
law the company cannot travel beyond the Repudiation letter.
14- Because the ld. Forum failed to consider this fact that the claim
of the complainant/Appellant was repudiated by the Insurance
Company on the ground that the policy issued was for stocks of
Furniture, Fixture & Fittings, Fridge & tools, but the complainant
is running a Meat Shop & as per the said trade, the stocks
related to chicken and mutton whereas in written statement
they have taken a plea to the effect that no loss had been
caused to the Complainant/Appellant.

15- Because the ld. Forum failed to apply its judicial mind to this
fact that the ground of repudiation of claim by the Insurance
Company was vague and ambiguous and failed to state any
specific reason for repudiating the claim of the
complainant/Appellant.

16- Because the Ld. Forum failed to consider this fact that the stock
of the Complainant/Appellant was insured by the Bank and the
Bank and the Insurance Company at the time of insuring the
premises of the Complainant/Appellant were well aware of the
fact that the Complainant/Appellant will do work of selling Meat
and in pursuance thereof they issued the said policy and now at
this stage they cannot withdrew themselves from the liability of
loss caused to the complainant/Appellant.

17- Because the Ld. Forum failed to consider this fact it was the
bank who got the premises of the Complainant insured and in
case there stood any fault of not mentioning correct facts then
the same was of the Bank and in that case the Bank was liable
to indemnify the Complainant/Appellant.

18- Because the finding of the Ld. Forum that the Bank was not a
proper party to the complaint are wrong, erroneous and without
 application of judicial mind as it was the Bank who got the
premises of the Complainant insured form the Insurance
Company.

19- Because the Ld. Forum failed to consider this fact that the
Respondent No. 1 & 2 in collusion and connivance with the
surveyor had acted malafidely so as to cause harm to the
complainant and derive unlawful gains.

20- Because the impugned Judgment passed by the Ld. Forum is

against facts, evidence and law.

21- Because the Ld. Forum failed to consider this fact that the claim
of the Complainant was genuine.

22- Because the Ld. Forum failed to consider this fact that the
Complainant had promptly taken all the action and had duly
informed the Fire Authorities, Bank and officials of Insurance
Company about the said Fire incident.

23- Because the Ld. Forum failed to consider this fact that the claim
of the Complainant was a genuine claim and the report of Fire
Station & newspapers verified the same.

24- Because the Ld. Forum failed to consider this fact that in the
entire investigation no allegation has been made out that the
said claim of the complainant is not genuine.

25- Because the Ld. Forum erred in not considering this fact that
the Insurance Company has repudiated the lawful claim of the
complainant on baseless, false & frivolous ground so as to get
unlawful gains after receiving a hefty amount as premium.
26- Because the Ld. Forum failed to consider this fact that the
Insurance Company from beginning was malafide in repudiating
the claim of the complainant on baseless grounds as they have
also repudiated the claim of the complainant by providing the
false report against the complainant.

27- Because the provisions of the law by the Ld. Forum have been
misinterpreted and overlooked and has not been correctly
appreciated.

28- Because the Ld. Forum erred in not considering this fact that
the Insurance Company has not come with clean hands.

29- Because the findings of the Learned Forum are hypothetical,

without any basis and against pleading, and evidence on
record.

30- Because the Learned District Forum has acted on the basis of
conjectures & surmises.

31- Because the learned Forum failed to exercise the jurisdiction

vested in it under law.

32- Because the impugned order is against the provisions of

Consumer Protection Act and law laid down by the Hon’ble
Supreme Court.

33- Because The Ld. Forum has erred in dismissing the complaint
of the Complainant on the false grounds without considering the
documents produced by the complainant.

34- Because the complaint of the Complainant was liable to be

allowed for all reliefs claimed.
35- Because the impugned Judgment is even otherwise bad, illegal
and is liable to be set aside and complaint of the
Complainant/Appellant was liable to be allowed.

It is therefore most humbly prayed: -

1. That the impugned Judgment/order dated 10.10.2017 be set

aside and the complaint of the complainant/Appellant is liable to
be allowed for all reliefs claimed.

2. That full cost of the appeal be awarded to the appellant.

3. That any other order as the Hon’ble Commission may deem fit
and proper be also passed in favor of the Opposite
Party/Appellant.

Dated:06.11.2017 Counsel for Appellant

Dehradun.
Presented by

(Vaibhav Jain, Advocate)

Counsel for the Complainant/Appellant
 Before the Hon’ble State Consumer Dispute
Redressal Commission, Uttarakhand at Dehradun
First Appeal No. of 2017

Jakir Hassan
Versus
IFFCO TOKIO General Insurance & anr.

I/We Jakir Hassan S/o Shri Mehndi Hassan R/o New janta
Mutton & Chicken Shop, Mallital, Nainital, the undersigned do
hereby nominate and appoint Shri J. K. Jain, R. K. Garg, Vaibhav
Jain, Ashish Gairola Advocates to be counsel in the above matter
for me/us and on my/our behalf to appear, plead, act and answer in
the above Court or my appellate court or any Court to which the
business is transferred in the above matter, and file petitions,
statements, accounts, exhibits, compromises or other documents
whatsoever, in connection with the said matter arising there from,
and also to apply for and receive all documents or copies of
documents, depositions, etc. and to apply for issue of summons and
other writs or subpoena and to apply for and get issued of any,
attachment or other execution warrant or order and to conduct any
proceeding that may arise there out and to apply for an receive
payment or all sum or submit the above matter to arbitration.

Provided, however that if any part of the Advocate’s fee remains

unpaid before the first hearing of the case or if any hearing of the
case be fixed beyond the limits of the town then in such an event
my/our said Advocate shall not be bound to appear before the Court
and if my/our said Advocate does appear in the said case he shall
be entitled to an question fee and other expenses of traveling,
lodging etc. Provided Also that if the case be dismissed by default,
or if it be proceeded ex-parte, the said Advocate(s) shall be held
responsible for the same. And all whatever my/our said Advocate(s)
shall lawfully do, I do here by agree to and shall in future ratify and
confirm.
ACCEPTED:

J. K. Jain, Advocate

R. K. Garg, Advocate

Vaibhav Jain, Advocate

Ashish Gairola, Advocate. Signature of Client

 Before the Hon’ble State Consumer Dispute
Redressal Commission, Uttarakhand at Dehradun
First Appeal No. of 2017
(Consumer Complaint No. 81 of 2016)

Shri Jakir Hassan S/o Shri Mehndi Hassan R/o New Janta
Mutton and Chicken Shop Mallital, Nainital.
……………….Complainant/Appellant
Versus
1. IFFCO TOKIO General Insurance Company Ltd., B-9, A-Durga
City Centre, Nainital Road, Haldwani, Tehsil Haldwani, district
Nainital, through Regional Manager.

2. Almora Urban Co-operative Bank, Branch Mallital, District

Nainital, through Branch Manager.

………………Opposite Parties/Respondents

Appeal U/s 15 of the Consumer Protection Act, 1986.

Dated: 06.11.2017

(Vaibhav Jain, Advocate)

Counsel for the Complainant/Appellant
Mob: 9412988455
Vaibhavjain1000@gmail.com