State Consumer Disputes Redressal Commission
B D Mahajan vs N I Co on 20 May, 2015
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 Complaint Case No. C/2005/17 1. B D Mahajan a ...........Complainant(s) Versus 1. N I Co a ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE Virendra Singh PRESIDENT HON'BLE MR. Jitendra Nath Sinha MEMBER For the Complainant: For the Opp. Party: ORDER RESERVED STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTAR PRADESH, LUCKNOW COMPLAINT NO. 17 OF 2005 B D Mahajan & Sons Pvt. Ltd. Head Office B-10, Sports Complex Delhi Road, Meerut-250002 Uttar Pradesh Through its Managing Director Sri Sudhir Kumar Mahajan S/o Sri B D Bahajan R/o A-6, Defence Colony Meerut ...Complainant Vs. National Insurance Company Limited Branch First, Opposite Government Inter College Begum Bridge Road, Meerut. Through its Branch Manager ... Opposite Party BEFORE: HON'BLE MR. JUSTICE VIRENDRA SINGH, PRESIDENT HON'BLE MR. JITENDRA NATH SINHA, MEMBER
For the Complainant : Sri T H Naqvi, Advocate. For the Opposite Party : Sri Deepak Mehrotra, Advocate. Dated : 26-08-2015 JUDGMENT PER MR. JUSTICE VIRENDRA SINGH, PRESIDENT
This complaint under Section 17(a) of the Consumer Protection Act, 1986 has been filed by B. D. Mahajan & Sons Pvt. Ltd. against National Insurance Company Limited with the following prayers :-
the opposite parties insurer be directed to pay a sum of Rs.43,30,395.12 together with 18% interest till the date of payment.
the opposite parties be directed to pay a sum of Rs.5,00,000/- for mental agony and harassment caused to the complainant.
the opposite parties be directed to pay a sum of Rs.15,00,000/- for the damages due to deficiency in service of the opposite parties as compensation.
:2:The opposite parties be directed to pay a sum of Rs.50,000/- for the cost of the proceedings.
Any other relief which this Commission deems fit and proper in the interest of justice.
The facts of the complaint case stated in brief are that the complainant company is engaged in manufacturing of sports goods and cricket equipments under the Brand name of BDM. The company exports goods to cricket loving countries. The company had taken fire insurance policy from the opposite party in respect of the stock of all kinds, plant & machinery. On 25-07-2002, at 1.15 p.m. fire broke at the factory premises of the complainant, whereby the raw material, semi-finished goods and finished goods, factory building, plant & machinery, tools and other valuable and important documents were destroyed in the said fire. It took approximately more than 5-6 hours to extinguish the fire by the fire brigade staff and complainant's staff. The complainant informed the opposite party immediately and lodged an FIR with the police at T P Nagar, Meerut on 26-07-2002. The opposite party appointed a surveyor Sri Ravi K Singhal, C.A. The surveyor visited the place of incident on 25-07-2002 for investigation. The complainant submitted all the required documents, details and papers as and when required by the surveyor and offered utmost help and cooperation to the surveyor. The complainant since beginning has repeatedly been contacting the opposite party in person and through letters for settling and payment of the claim at the earliest, but all in vain. The opposite party only in the month of March, 2003 informed the complainant that as per survey report and recommendations, the opposite parties have approved the sum of Rs.38,58,696/- as claim amount as against the complainant's legitimate claim of Rs.43,30,395/-. The fire due to smoking has been admitted by the surveyor and the fire brigade. The fire brigade has also supported the complainant's claim. The claim of the complainant is genuine and is based upon real facts. The Divisional Office, Meerut of the opposite party had recommended the aforesaid amount for the approval by the Dehradun Regional Cell who also :3: approved and forwarded it with their recommendation for the payment to Regional Office, Lucknow and confirmed to the complainant vide letter no. DRC/Fire/Claim/916/03 dated 18-06-2003. The complainant further pleaded that after one year suddenly Sri P K Khanna from Lucknow wrote a letter to the complainant for survey but the complainant did not know who is Sri P K Khanna and the opposite party also did not inform the complainant regarding the appointment of any second surveyor. Even on the inquiry of the complainant through letter dated 22-08-2003 to the opposite party Regional Office, Lucknow and copy to the Head Office, Kolkata and Regional Cell, Dehradun, none of them replied to the complainant regarding this second surveyor. So how can the complainant allow a strange to visit his factory and to survey his losses after more than one year of the fire incident and the complainant is not a customer of Sri P K Khanna. The complainant visited the opposite party at Meerut for the settlement of his claim regularly and also in correspondence with the opposite party for its settlement. The complainant received a registered letter dated 22-12-2003 from the opposite party on 07-01-2004, after approximately 1.5 years of the fire incident, informing that the complainant's claim has been reduced to Rs.19,57,493/-, assessed on a fabricated report of some Sri P K Khanna of Lucknow who assessed the loss plainly on presumptions, sitting on his office. The complainant lodged his complaint to the Chairman and the Managing Director of National Insurance Co., Head Office, Kolkata. The complainant's claim was forwarded by the previous surveyor Sri Ravi K. Singhal to the opposite party for the payment of fire loss of Rs.38,58,696/- after very minutely assessing the claim. The complainant further submitted that how the second surveyor came into the picture after a long gap of more than one year from the date of fire incident when the complainant was waiting for the payment of the claim. The observation of second surveyor is biased and based upon surmises and conjectures and this appointment of the second surveyor is against the provisions of Insurance Law. The Fire Brigade report is supporting evidence in favour of the complainant. However, it is very clearly :4: mentioned in the Fire Brigade report that the loss is approximately of rs.45,00,000/-, while the Fire Brigade roughly estimated Rs.20,00,000/-. It also mentioned that the surveyor's report will be final for actual loss, because the Fire Brigade employees are non-technical and incapable of assessing the loss.
The opposite party National Insurance Company Limited has filed written statement thereby stating that the details of various insurance as given by the complainant are incomplete and confusing. It should have specified as to what kind of risk and what kind of items were covered under the particular cover note which is relevant for the purpose of this case. The complainant has not disclosed the cause of fire, point of its initiation etc. It is stated that the incident of fire occurred only on leg guard section at the first floor of B-10 Sports Complex which is multi story building having a separate basement. The complainant had supplied the papers and records related to position/status of stock and accounts etc. after quite a long time as it was gaining time for preparation papers, book of accounts etc. according to value of loss claimed and as such the surveyor Sri Ravi K. Singhal could be able to submit his first ever report on 31-07-2002 without any details of losses and thereafter he kept on sending letters/reminders to the complainant for supplying the papers and relevant books of account. It is further submitted that the complainant itself is guilty of committing delay in supplying papers and records. The opposite party never informed the complainant about the offer/recommendation for Rs.38,58,696/-. This amount was a mere assessment of spot/first surveyor and was not at all final. The opposite parties are fully authorized to get a final survey/investigation done and they were doing so hence there was no question of any information etc. prior to the report of 2nd/final survey. The fire took place only in first floor of the factory premises and it has not at all effected any other floor of the factory/building. Even the fire has effected only a part/portion of the first floor. The report of surveyor is not at all binding on the insurance company. It has a right to get the matters/incidents/damages re-surveyed/reinvestigated. It is further :5: submitted that the fire brigade has assessed the amount of loss/damaged property at Rs.20,00,000/- and the claim made by the complainant is absolutely false, exaggerated and based upon fabrications. The Regional Office at Lucknow was the competent and authorized authority to take a decision on further course of action. After going through the entire papers/file it was decided by the opposite party that the matter deserved to be re-surveyed/re-investigated by appointing a second surveyor as there were certain discrepancies in the report of spot/first surveyor Sri Ravi K. Singhal. Sri P K Khanna was duly appointed surveyor of the insurance company and he visited the complainant's premises alongwith Mr. Anand, Assistant Administrative Officer of Meerut Branch but he was not allowed to inspect the premises and no cooperation was extended by the complainant and its M.D. There was no reason to doubt the identity of final surveyor.
It is further submitted that the report prepared by the final surveyor Sri PK Khanna was based upon the genuine and reasonable analysis of entire record viz balance sheet, purchase/sale vouchers, other papers related to status of stocks. No discrepancy was found in his assessment as also in the manner of assessment and hence after thorough analysis of his report, the amount assessed by him Rs. 19,57,493/- was found to be correct and sufficient towards the full and final settlement of claim. The opposite party has acted according to the rules while appointing final surveyor. The complainant has tried to justify the higher assessment only on the basis of photographs as he knows that the report of Sri P K Khanna is otherwise justified and is based upon correct and fair analysis. The report of fire brigade is an impartial document, loss assessed in the fire brigade report is correct and proper. The clarification given by the complainant on the point of huge and unbelievable stored quantity of Hydrogen Peroxide is incorrect and bogus. It is pleaded that the complainant has wrongly filed the complaint under the Consumer Protection Act. It being a matter of extensive calculations and accounting does not come in the category of consumer dispute and such dispute is covered under the arbitration clause and the complainant must seek :6: remedy before the arbitrator and not before this Commission where the proceedings are summary in nature. Since the opposite party has already taken a decision on complainant's claim and has already settled his claim, there is no deficiency in service or negligence on the part of the opposite party.
Evidence by the complainant An affidavit, in support of the complaint case has been filed by Sri Rakesh Mahajan, S/o Sri B D Mahajan the complainant. The following documents have also been filed on behalf of the complainant as annexure with the complaint.
Photocopy of the survey report of Sri Ravi K. Singhal Photocopy of Fire Brigade report.
Photocopy of letter dated 18-06-2003 issued by Insurance Company to the complainant.
Photocopy of Insurance Cover Norte.
Photocopy of letter of F.I.R. dated 26-07-2002.
Photocopy of letter to Fire Brigade Service dated 26-07-2002.
Photocopy of letter dated 26-07-2002 to District Magistrate.
Photocopy of letter dated 25-07-2002, as information to National Insurance Company Limited.
Photocopy of letter dated 28-12-2002 to Fire Certificate from fire department.
Photocopy of Fire Report dated 17-08-2002.
Photocopy of Fire Report on stamp paper dated 17-01-2003.
Photocopy of Fire Charges Deposit Slip Rs.10,027/- + Rs.25/- dated 27-07-2002.
Photocopy of the surveyor Ravi K. Singhal's letter asking the details of papers.
Photocopy of the complainant's letter dated 03-10-2002 submitting claim with papers.
Photocopy of second survey report dated 16-08-2003.
Photocopy of the letter of the complainant to the Regional Manager, Lucknow about who is P K Khanna the second surveyor.
:7:Photocopy of the letter of the opposite party dated 22-12-2003 for accepting the claim as per the second surveyor Shri PK Khanna's report.
Photocopy of report of second surveyor Sri PK Khanna.
Photocopy of the letter dated 21-01-2004, reply of claim offered by OP based on second surveyor.
Photocopy of the letter dated 19-07-2004 second reply f the claim offered with objections explained point-wise.
Photocopy of the letter dated 26-07-2004 to the Direct Public Grievances, New Delhi.
Photocopy of the letter dated 03-04-2004 of the complainant to the opposite party as reminder.
Photocopyu of the Advocate's Notice dated 03-07-2004 Grievances Cell, Kolkata.
Photocopy of the letter dated 24-07-2003 from Kanan Shaha, National Insurance Company Limited, Kolkata.
Photocopy of the letter dated 05-08-2004 reply to the complainant's letter from Grievance Cell, Kolkata.
Photocopy of the letter dated 29-12-2004 of the complainant to the Grievance Cell as reminder.
Photocopy of the letter dated 06-01-2005 of the National Insurance Co. Ltd., Meerut as the last letter received.
Evidence by Opposite Party An affidavit on behalf of the opposite party sworn by Sri R N Tiwari, S/o Sri S N Tiwari, Deputy Manager(C.S.R.D.), Regional Office, National Insurance Company Limited, Lucknow in reply to the affidavit/evidence filed by the complainant has been filed. The following documents have also been filed on behalf of the Opposite Party as annexure with the affidavit.
Photocopy of preliminary report dated 31-07-2002 and that of surveyor Mr. Singhal's letter dated 14-08-2002.
Photocopy of report dated 05-03-2003 prepared by Sri R K Singhal.
:8:We have heard Sri T H Naqvi, learned Counsel for the complainant and Sri Deepak Mehrotra, learned Counsel for the opposite party and perused the entire record including the evidence and written arguments of both the parties.
Learned Counsel for the complainant submitted that the complaint has been filed for indemnification of loss on account of fire for which legitimate claim of Rs.43,30,395/- was lodged. The surveyor appointed by the opposite party had inspected the site on the same day of mishap of fire and also on other dates as well. All the documents required by the surveyor and opposite party have been provided to them. The surveyor also endorsed that after tally of books of accounts, purchases and sales, value of closing stock as on 25-07-2002 was Rs. 93,21,921.25 and ultimately assessed the amount of loss to the tune of Rs.38,58,696/- payable by the Insurance Company to the complainant but the same has not been paid even after sending legal notice to the opposite party on 20-11-2003. The opposite party appointed another surveyor Khanna Thaker & Company, Chartered accountant after lapse of one year from the incident of fire. This appointment of second surveyor was without any justification. It is further submitted that the first surveyor Sri Ravi Singhal who not only is a Chartered Accountant, but approved Valuer, Loss Assessor, Surveyor etc. in comparison to second surveyor who is only Chartered Accountant and nothing more than that. This goes to show that Branch Office not following the recommendation of its D.C. and R.O were bent upon not to pay the amount of the claim or the amount assessed by the first surveyor. The opposite party has not given any basis in appointing the second surveyor. Even Hon'ble National Commission in plethora of cases held that appointment of second surveyor or investigator can only be permitted in exigencies and that too at the earliest, otherwise the practice of the appointment of second surveyor is to be deprecated. The second surveyor without having any inspection gave the false and wrong report dated 08-09-2003 assessing loss of Rs.19,57,490/-. The opposite party acted upon this second report asked the complainant to sign the discharge voucher vide letter dated 22-12-2003. This letter of Branch :9: Manager of opposite party at Meerut is in gross ignorance of recommendation of payment of complete amount as per first surveyor assessment. The complainant objected for the said payment of meagre amount which is even half of the assessed amount as assessed by the first surveyor and sent reply letters dated 21-01-2004, 19-07-2004, 20-07-2004 and various other letters sent in protest. The complainant has prayed that the complaint be allowed with reliefs and cost against the opposite party.
Learned Counsel for the opposite party has argued that the complainant papers and information required by the preliminary/spot surveyor Mr. Ravi K. Singhal by his letter dated 27-07-2002 were provided by the complainant as late as on 03-10-2002. He was in fact gaining time in creating false records for the purpose of claiming more and more amount. Thereafter Sri Ravi Kumar Singhal submitted his report dated 05-03-2003 before the opposite party and since there were so many short comings and mistakes in his report, the competent authority appointed Sri Khanna Thaker & Company, a Chartered Accountant Firm to conduct the final survey/assessment. Sri Ravi Singhal has assessed the loss at Rs.38,58,696/-, while Sri Khanna Thaker & Company assessed the amount payable as Rs.19,57,490/-. A brief comparative study and analysis of the two reports sufficiently reveals that the assessment made by Khanna Thaker & Company is more realistic and authentic and is based upon proper and honest reasoning and findings. Learned Counsel further submitted that as per the fire brigade report that the value of the goods damaged in the fire was Rs.20,00,000/- and the goods worth Rs.55,00,000/- belonging to M/s. B D Mahajan & Sons were saved and the goods belonging to another firm M/s. Sports and pass time worth Rs.3,00,000/- were also damaged. It is submitted that the Insurance Company is fully authorized to appoint the final or the second surveyor if it is not satisfied with the report of the first/spot surveyor of if the report of first surveyor suffers from mistakes and from the defect of unreasonable findings. The appointment of second surveyor or one surveyor after the other is quite justified and within the powers of the Insurance Company. There are so many cases wherein the Hon'ble Apex :10: Court and the Hon'ble National Commission as well have been pleased to upheld and justify the appointment of second/final surveyor and has also been pleased to hold the report of second surveyor over the report of first surveyor.
Learned Counsel pleaded that as per report of Sri R K Singhal no storage of bat was done at the first floor of B-10 Sports Complex and also no semi finished items used to be kept at the first floor. The storage of bat and semi finished material was done in the godown at floor no.2 sand there is no manufacturing and production activity is done at the first floor. The Managing Director's room and account section situated on this very first floor are not affected by the fire. It means the fire did not effect the entire area of first floor. The amount of Rs.69,65,785/- is the cost/value of the stock lying at B-10 Sports Complex at its all the floors including the basement. Since no damage was caused to the stock kept at the basement and at the second floor of this building, hence the surveyor R K Singhal should have tried to find out as to what was the cost/value of the items/stock lying at the first floor portion of the building at the time of fire. The aggregate value/cost of the items/stock lying on all the three floors of the building is not at all relevant and cannot at all be made the basis for calculating the amount of loss sustained due to the fire which had occurred only on a portion of a first floor. As per report of Sri R K Singhal the total value/cost of the stock not effected in the fire was Rs.28,87,122/-. Since the sum insured for the various items of stock kept at B-10 Sports Complex was Rs.55,00,000/- only and also since the value of stock not effected by the fire is Rs.28,87,122/-, hence the cost/value of the items destroyed in fire cannot at all be more than Rs.26,12,878/-. This aspect has been totally ignored by the first surveyor. The assessment of Rs.38,58,696/- made by Sri R K Singhal is quite unreasonable and has been made by ignoring the extent of liability under the insurance policy. Learned Counsel further submitted that the case of the complainant falls/comes under the category of 'Under Insurance'. When the value of the items insured or kept in the insured premises is more than the sum insured the principle/condition of under insurance is applicable. The validity and :11: application of the principle/condition of under insurance in such cases has been accepted and upheld by the Hon'ble Supreme Court in the case of Sikka Papers Ltd. V/s National Insurance Company (III-2009 CPJ 90 Supreme Court. Thus by applying the condition/principle of under insurance the amount payable to the complainant would be much less i.e. it may be around Rs.15 lacs but the opposite party has ignored it and is allowing the payment of Rs.19,57,490/- to the complainant. This is only with a view to providing as much amount as is permissible under the facts and circumstances of the case and also assessed by final surveyor. The complainant had obtained different insurance policies for three premises, yet he does not maintain the premises wise details of the stock insured. There is no record or document to show as to how much stock was stored at which premises. Learned Counsel for the opposite party further pleaded that if the complainant was acting fairly and if he had nothing to conceal, there would have been no reason for denying the inspection of factory etc. to be done by the final surveyor. No harm would have been caused to the complainant if he had allowed them to inspect the premises. The second surveyor has thoroughly analysed all the documents and record which had been provided by the complainant to the spot surveyor Mr. R K Singhal and has rightly touched those points which were not properly considered by the spot surveyor and which apparently required attention. It is further argued that it was unbelievable that the complainant had purchased 9 tons of hydrogen peroxide on 22-04-2002 and was storing it at first floor of the building. If the 9 tons hydrogen peroxide had been kept on the first floor which caught fire, there would have been very huge explosion and devastation causing damage to the entire building and the locality, but in the instant case the fire which had started in the leg guard section at the first floor did not spread beyond the first floor and it remained contended in a small portion of the first floor. Thus the final surveyor deducted the cost of hydrogen peroxide from the amount assessed by the first surveyor. It is submitted that the complainant firm is running purely on commercial activity at the very large scale. There is no element of livelihood in its business activity and hence being a commercial consumer, the :12: complainant does not come under the category of consumer as defined under the Consumer Protection Act. The complainant has refused to accept the amount of Rs.19,57,493/- as offered by the opposite party and claimed more amount. Thus it is purely a dispute within a realm of a dispute of quantum. Apparently there is no question of deficiency in services or negligence on the part of the opposite party, thus the subject matter being related to the quantum only is beyond the scope and purview of the Consumer Protection Act.
Learned Counsel for the opposite party has relied upon the following decisions.
III(2009) CPJ 81 (SC) - Venkateswara Syndicate V/s Oriental Insurance Company and another wherein the Hon'ble Supreme Court has held that as per Insurance Act, there must be sufficient ground to disagree with the findings of the surveyor and the appointment of second surveyor is not prohibited under the Act. The material facts if not considered in surveyor's report, another surveyor can be appointed. The reasons for appointing second surveyor and not accepting the report of joint surveyor should be explained.
III(2011) CPJ 366 (NC) - Goel Jewellers V/s National Insurance Company Limited and others wherein the Hon'ble National Commission has held in the case of theft of jewellery wherein the surveyors were appointed and the claim was repudiated and the delay in lodging the F.I.R. reflects that the claim was bogus, fabricated since the jewellery having been snatched, it would be expected of victim to lodge a complaint/FIR with the police narrating complete incident and in the FIR there was no mention or reference to any miscreants coming on a motorcycle duly armed and snatched bag containing jewellery at gun point and there being number of discrepancies in story set up by complainant, in such case it cannot be said that insurer had been appointing one surveyor after the other without any reason or that such appointments were arbitrary.
:13:III(2010) CPJ 339 (NC) - Pantagoan Steel Pvt. Ltd. V/s New India Assurance Company wherein the Hon'ble National Commission in a case of fire policy and damage due to cyclone held that licensed surveyors appointed by Insurance Company only authorized to assess damage and two surveyors appointed under section 64UM of Insurance Act a valuable piece of evidence, their reports given credence over reports of surveyors appointed by complainants who are interested persons and otherwise also report cryptic and does not provide sufficient basis for compensation demanded as the complainant highly exaggerated amount.
I(2010) CPJ 80 (NC) - New India Assurance Company Limited V/s Ravindra Narayan wherein the Hon'ble National Commission has held in a case of insurance of theft/burglary wherein consecutive surveyors were appointed and the insurer was directed to pay loss assessed by the first surveyor by the State Commission that first surveyor being spot surveyor, submitted preliminary report, appointment of second surveyor justified while appointment of third surveyor neither justified nor warranted and the surveyor's report being important piece of evidence is to give weight and relied upon unless proved unreliable and therefore the report of second surveyor was upheld and the insurer was held liable to pay the loss assessed by the second surveyor.
Looking into the entire facts and circumstances on record as are narrated above and the submissions of both the parties, we are of this view that here in this case, the second surveyor appointed by the insurer seems not justified there being no reason or showing any shortcomings or mistakes in the report of the first surveyor and merely this much submission that many shortcomings and mistakes in the report of the first surveyor was found is not sufficient to appoint the other surveyor unless such shortcomings are reduced in writing. The survey report is an important piece of evidence for assessment of loss though cannot be a :14: conclusive proof of the loss assessed by the surveyor unless the facts and circumstances on record warrants it. The first surveyor Mr. Ravi Singhal has assessed the loss to the tune of Rs.38,58,696/- while the second surveyor assessed the loss to the tune of Rs.19,57,490/- there being no dispute of occurrence of the fire but since the second surveyor was not permitted by the complainant to inspect the premises, the report of the second surveyor cannot be given any weight in respect to the loss assessed by the second surveyor on the basis of the accounts as well as narrating the spot occurrence circumstances. The assessment made by the second surveyor may not be held more realistic and authentic as is suggested by the learned Counsel for the opposite party. The recourse of the fire brigade report that the value of the goods damaged in the fire was Rs.20,00,000/- for the goods of worth Rs.55,00,000/- may not be a fact to be considered by the second surveyor for giving reason of his assessment. The fire brigade report may not be the authentic report on assessment of loss as the purpose of the report of the fire brigade is restricted merely upto the factum of occurrence of the fire and the condition of the damaged goods. The description given by the first surveyor for the spot inspection is more reliable in comparison to the discussions made by the second surveyor for the factum of fire and the goods damaged. The first surveyor assessed the amount of Rs.69,65,785/- the cost/value of the stock lying at B-10 Sports Complex. The opposite party/insurer in the month of March, 2003 had informed the complainant that as per survey report and recommendations the opposite parties have approved the sum of Rs.38,58,696/- as claim amount as against the complainant's legitimate claim of Rs.43,30,395/-. The Divisional Office, Meerut of the insurer had recommended that amount for the approval by Dehradun Regional Cell, who had also approved and forwarded that claim with their recommendation for the payment to the Regional Office, Lucknow and confirmed it vide letter dated 18-06-2003 to the complainant. What was occurred suddenly after one year that Mr. P K Khanna from Lucknow the second surveyor was appointed by the opposite party who reduced that claim to the tune of Rs.19,57,493/-. Even in these circumstances he was :15: not permitted to inspect the spot by the complainant there being no identity established that he was the surveyor appointed by the insurer. Though it is submitted on behalf of the opposite party that after going through the entire papers/file it was decided by the opposite party that the matter deserve to be resurveyed/reinvestigated thereby appointing a second surveyor and there were certain discrepancies in the report of the first surveyor but what type of discrepancies were found, that have not been disclosed prior to appointment of the second surveyor. The first surveyor as per volume analysed that the fire occurred at the first floor in main working hall, where the major portion of finished goods/raw materials and some parts of semi finished goods were stored regularly. On verifying the damaged stock it was found that the damaged stock could easily be stored in that space. Therefore, this much submission of the learned Counsel for the opposite party is not acceptable that the first surveyor report discloses that no storage of bat was done at the first floor of B-10 Sports Complex and also no semi finished items used to be kept at the first floor and the storage of bat and semi finished material was done in godown at floor no.2 and as such there is no manufacturing and production activity is done at the first floor.
Much stress has been pressed by the opposite party that it was unbelievable that the complainant had purchased 9 tons of Hydrogen Peroxide on 22-04-2002 and it was stored at first floor of the building as had it been the fact there would have been very huge explosion and since the fire did not spread beyond at the first floor and it remained contended in a small portion of the first floor the purchase of Hydrogen Peroxide is not believable. We are not convinced with this contention of the learned Counsel for the opposite party as there is no reason not to accept the purchase of that material duly accounted for merely on this count that there would have not been a huge explosion. Where the occurrence of fire was occurred, it cannot be said that there had not been any explosion there being no specific evidence in this regard. Hence looking into the entire scenario of the facts we are of this view that second surveyor report seems to have been procured merely to reduce the amount of claim of the :16: complainant and which is not acceptable in the light of the report of the first surveyor which is not found unbelievable on the basis of any of the material facts and evidence on record. Hence, we are of this view that this complaint deserves to be allowed for the claim of the complainant to be awarded to the complainant in the light of the first surveyor report.
ORDER The complaint of the complainant is allowed against the opposite party with this direction that the opposite party has to pay a sum of Rs.38,58,696/- towards the claim of the complainant assessed by the first surveyor with an interest of 9% per annum from the date of this complaint to the date of final payment is made. That amount shall be paid within two months, failing which the interest of rate as is stated above shall be calculated @ 14% per annum from the date of the complaint till the date of payment is made. A sum of Rs.25,000/- is further allowed to the complainant to be paid by the opposite party as cost of the litigation.
( JUSTIVE VIRENDRA SINGH ) PRESIDENT ( J N SINHA ) MEMBER pnt [HON'BLE MR. JUSTICE Virendra Singh] PRESIDENT [HON'BLE MR. Jitendra Nath Sinha] MEMBER