Nakipuria Oil Mills vs National Insurance Co. Ltd. and Ors.

COMPLAINANT /Appellant herein has filed this Appeal against the judgment and order dated 7.9.2007 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 12.5.1995 for stock, plant and 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 and 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APPELLANT , being aggrieved, initially filed the complaint before the District Forum which was subsequently withdrawn for want of pecuniary jurisdiction and the appellant, thereafter, filed the complaint before this Commission.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 Hon''ble 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 1.10.1995, 16.10.1995, 10.11.1995, 15.12.1995, 31.1.1996 and 27.2.1996, thus, it cannot be said that he never visited premises.

Appellant, being aggrieved, has filed the present appeal.

We have heard the learned Counsel for the parties at length. Learned 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 4.9.1995 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, learned 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 and 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 and machinery which amount has already been paid by the respondent. The dispute centres 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.