National Consumer Disputes Redressal
Nakipuria Oil Mills vs National Insurance Co. Ltd on 14 March, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 609 of 2007 (From the order dated 07.09.2007 in Complaint Case No.73/99 (Hry)/RBT No.74/07 of the State Consumer Disputes Redressal Commission, Chandigarh UT) Nakipuria Oil Mills Situated at 3 K.M. for Loharu Road, Bhiwani Through its Proprietor, Shri Brahamanand Aggarwal R/o Village Nakipur, Tehsil Loharu, Distt. Bhiwani Present Address: C/o Bhavesh Traders, DBZ No. 154, Arya Samaj Mandir, P.O. Gandhi Dhyam, Gujarat ..Appellant Vs. 1. M/s. National Insurance Co. Ltd. Through its Chairman, Regd. Office, Middleton Street, Calcutta-700071 2. The Branch Manager, National Insurance Co. Ltd. Circular Road, Bhiwani (Haryana) 3. The Haryana Finance Corporation Ltd. Through its Managing Director, SCO No. 17, 18 & 19, Sector 17A, Chandigarh ..Respondents BEFORE: - HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER HONBLE DR. S.M. KANTIKAR, MEMBER For the Appellant : Mr. Parinav Gupta and Mr. Vishal Gupta, Advocates For the Respondents : Mr. Abhishek Kumar, Advocate PRONOUNCED ON: 14.03.2013 O R D E R
ASHOK BHAN, J., PRESIDENT Complainant/Appellant herein has filed this Appeal against the judgment and order dated 07.09.07 passed by the State Consumer Disputes Redressal Commission, Chandigarh, UT (in short, the State Commission) in Complaint Case No. 73/99 (Hry.) No.74/07, wherein the State Commission has dismissed the complaint filed by complainant.
FACTS:-
Complainant/appellant-Mill which deals in the business of extracting oil from mustard and manufactures mustard cake took three policies from the Respondent-Insurance Company (hereinafter to be referred to as the Respondent) on 12.05.1995 for stock, plant & machinery covering the risk against the natural calamities, fire and burglary, etc.. On 4-9-1995, due to sudden flood in Bhiwani, water entered in the factory premises of the appellant and the premises submerged under the flood water as a result of which stock of mustard, mustard oil and mustard cake were badly damaged. Damage was caused to the building and machinery as well. According to the appellant, the loss was to the tune of Rs.23,41,341.10/-. Appellant lodged the FIR as well as informed the respondent about the incident. Respondent, on being informed, appointed Shri B.C. Goyal, Chartered Accountant, Surveyor & Loss Assessor to conduct the survey and to assess the loss. Surveyor submitted his report assessing the net loss at Rs.7,08,675/- as against the claim of Rs.23,41,341.10/-.
Appellant, being aggrieved, initially filed the complaint before the District Forum which was subsequently withdrawn for want of pecuniary jurisdiction and the appellant, thereafter, filed the complaint before this Commission. Respondent admitted its liability to pay the sum of Rs.7,08,675/- as has been assessed by the surveyor. This Commission disposed of the complaint by directing the respondent to pay the sum of Rs.7,08,675/- and the appellant was granted liberty to pursue its remedy for the balance amount before the appropriate forum. In compliance with the direction issued by this Commission, the respondent paid the sum of Rs.7,08,675/- to the appellant.
Complainant, thereafter, filed the complaint before the State Commission seeking the balance amount.
Respondent Insurance Company, on being served, put in appearance and filed its written statement contesting the complaint on the grounds; that the complaint was barred by the principle of res-judicata; that as per order of the National Commission, jurisdiction under Consumer Protection Act was ousted; that the complaint filed before the State Commission was not maintainable; that the amount assessed by the Surveyor had already been paid to the Appellant; that the Appellant ought to have pursued its remedy by filing the recovery suit.
State Commission, after considering the material available on record and the evidence led by the parties, came to the conclusion that the Appellant has failed to prove that the loss suffered by it was more than the loss assessed by the Surveyor. State Commission dismissed the Complaint by observing, thus:
12. In the present case, there is no solid evidence produced by the complainant that the report of surveyor was wrong and the complainant was entitled to a sum of Rs.23,41,341.10p in all. Thus, report of the surveyor cannot be ignored and insurance company has rightly paid the amount in view of the report of the surveyor and the complainant is not entitled to anything more than amount assessed by the Surveyor. However, complaint is maintainable in view of the order of the Honble National Commission as it had given liberty to file another complaint for the balance amount before appropriate fora. The report of surveyor is well reasoned. He had detailed reasons in support of his report. Moreover, he had no axe to grind against complainant, nor , he was friendly in any manner with the insurance company.
Counsel for the complainant contended that surveyor had not visited the spot as he could not go there due to water standing in the factory premises. He had gone there and had taken some photographs with the help of tractor but he had made assessment of loss on the basis of documents submitted to him by the complainant containing stock position of the goods, building and machinery. He had even verified purchase made by the complainant from other parties. He had further visited premises on 1.10.95, 16.10.95, 10.11.95, 15.12.95, 31.1.96 and 27.2.96, thus, it cannot be said that he never visited premises.
Appellant, being aggrieved, has filed the present appeal.
We have heard the Ld. Counsel for the parties at length.
Ld. Counsel appearing for the Appellant contends that the State Commission has erred in relying upon the interim report of the Surveyor, Shri B.C. Goyal; that an assurance was given by the Surveyor that he would submit the final report later on; that on 4.9.95 when the incident took place, a huge stock of mustard, mustard oil and mustard cake was lying in the factory premises which were destroyed or theft; that there was substantial loss to the building as because of stagnant water in the factory premises, the boundary wall was collapsed. As against this, Ld. Counsel appearing for the Respondent supports the order passed by the State Commission.
It is not disputed before us that on 4-9-1995 due to heavy flood in Bhiwani City, factory premises of the appellant was flooded with water. There was loss of stock of mustard, mustard oil, mustard cake lying in the factory premises, building & machinery. Appellant lodged a claim of Rs.23,41,341.10/-. Surveyor appointed by the respondent assessed the loss at Rs.7,08,675/- for the stock lying in the premises, building & machinery which amount has already been paid by the respondent. The dispute centers around the balance amount of claim.
We agree with the view taken by the State Commission that the surveyor had given detailed reasons in his report to assess the loss at Rs.7,08,675/-. The report of the surveyor is a vital and important piece of evidence and the same cannot be ignored or discarded in the absence of any evidence to the contrary showing that the loss was more than what had been assessed by the Surveyor. Appellant failed to adduce any evidence to substantiate that the loss suffered by it was more than what was assessed by the surveyor. Onus to prove that the loss was more than what had been assessed by the surveyor was on the appellant which it failed to discharge by leading cogent evidence. In the absence of any evidence to prove that the loss was more than what was assessed by the surveyor, the report submitted by the surveyor cannot be ignored or rejected.
We do not find any infirmity in the order passed by the State Commission. For the reasons stated above, we do not find any merit in this appeal and dismiss the same leaving the parties to bear their own costs.
(ASHOK BHAN J.) PRESIDENT (VINEETA RAI) MEMBER (S.M. KANTIKAR) MEMBER YD/RB