AI Structured Summary
Not yet generated for this judgment
Judgment
THIS is an appeal against the judgment and order dated 16.2.1999 passed by District Forum, Mainpuri in Complaint Case No. 369/1994. The facts of the case stated in brief are that the complainant filed a complaint for recovery of Rs. 3,72,115/- as damages towards cost of the potatoes kept in the cold storage.
THE facts of the case on behalf of the complainant are that an insurance policy was taken on 14.4.1994 for potatoes of 35,490 quintals at the rate of Rs. 100/- per quintal. According to the complainant 3,917 bags of potatoes weighing 3,721 quintals and 15 kgs. kept in the Chamber No. 4 of Cold storage were damaged. THE cost of damaged potatoes was Rs. 3,72,115/-. The information of damages to the potatoes was given to the Insurance Company on 24.8.1994. A survey was done thereafter. Finally on 9.11.1994 the Insurance Company repudiated the claim of the complainant to pay any damages.
Opposite party Insurance Company, who is appellant in the present case, has alleged that there was no cause of action for filing the complaint and the complainant has suppressed the facts. It is further alleged that the complainant did not take adequate care of the potatoes kept in the cold storage. Hence the condition of the policy were violated and the complainant is not entitled to get any damages. It is further alleged that there was break-down in the machinery and due to other technical faults in the cold storage, the insured potatoes were damaged. It has further been alleged that the potatoes were damage as inferior quality of potatoes was kept by the complainant in the cold storage. A survey was got done by the Surveyor Sri P.C. Shukla who recommended repudiation of the claim by his report dated 9.10.1994 sent to the Divisional Office at Kanpur that it is a no claim case. This fact was communicated to the complainant by letter dated 9.11.1994.
THE parties have filed evidence before the learned District Forum who after hearing the learned Counsel and scrutinising the evidence, came to the conclusion that the complainant is entitled to claim damages asked for. Aggrieved against this order the Insurance Company has come in appeal and has challenged the correctness of the order passed by the District Forum.
WE have heard learned Counsel for the parties and have perused the available evidence on record. Learned District Forum has in its judgment mentioned that the claimant has filed affidavit and other documents in support of his claim while the Insurance company has not filed any affidavit in support of its claim and has filed only six papers. It is clear that unless evidence is filed on affidavit it has no evidential value and the same cannot be taken into account. The Insurance Company has not denied the quantity and the price of the potatoes kept in the cold storage and it has also not denied the insurance policy. It has also admitted that the information of damage was given to the Insurance Company and it repudiated the claim. Thus the only question which arises for consideration is whether the damage was caused to the potatoes on account of some defect in the machineries of the cold storage and its break-down or due to inadequate care of potatoes which were kept in the cold storage. As far as the question of replacement of good quality potatoes by bad quality potatoes is concerned, there is no evidence on record to support this contention besides the averment made in the written statement. Unless these averments are supported by some evidence on affidavit and accompanied by documentary evidence, no reliance can be placed on such a vague plea in support of which there is no evidence. Thus this objection of the Insurance Company has been rightly been overruled. The next contention of the Insurance Company is that there was a break-down in the machineries and some other technical fault on account of which the potatoes got deteriorated. There is also no evidence to support this plea. Copy of the report of the Surveyor, which is on record, does not reveal this fact and he has not mentioned that he has taken statement of any witness or any mechanic to show that there was a technical break-down or other fault in the cold storage machinery. This is also a plea only merely to delay and defeat the claim and to harass the complainant. There was no basis for making such allegations and no support has been given to this allegation by tendering any evidence of any sort by the opposite party Insurance Company.
A further false and baseless plea has also been taken by the Insurance Company by saying that proper care has not been taken in keeping the potatoes in the chamber. This plea is based on the assumption of the survey report in which it has been mentioned that in absence of any break-down in the machinery and maintenance of adequate temperature in the cold storage at all times and non-failure of electricity supply, shows that sprouting has occurred due to some carelessness on the part of the insured during loading/storage or on account of any post-harvesting deficiency in the potatoes tuber. How the Surveyor has reached this conclusion is not clear from the copy of the survey report. The Surveyor has merely acted on surmises in order to come to the conclusion that there was some carelessness on the part of the insured during loading/unloading or storage etc. This is the brain child of the Surveyor and he has not tried to support the same by any evidence which might have been found by him in the cold storage. He has further mentioned that partial sprouting in the cold storage chamber is due to (a) improper turning of bags, (b) insufficient air circulation at various locations; How the Surveyor has reached this conclusion that there was improper turning of bags ? He has not cited any example or particular location of Chamber No. 2 in order to show what was the defect in turning and how he reached this conclusion without examining any witness. The size of the Chamber No. 2 as given by the Surveyor is 37'' x 80'' x 54'' 6 storeys 78 rakes in each storey. It is a huge chamber and generally there are large rooms in the cold storage and the potatoes are stored in 2 bags and kept on the rakes. From time to time they are displaced from their original position and the bags are turned upside down or side- ways as the case may be so that the cold air passes through the bags and reaches the potatoes to maintain the level of required temperature at every point in the bag in order to avoid deterioration in the condition of the potatoes.
THUS we do not find any evidence on record to support this plea. It may also be stated that there was no affidavit in support of the report of the Surveyor, therefore, no reliance could have placed on the report of the Surveyor as has been rightly done by the learned District Forum. The allegations of the complainant on affidavit have not been controverted by the Insurance Company and evidence filed by the complainant goes unrebutted and unchallenged and there is no reason to disbelieve the version of the complainant. Moreover the learned District Forum has mentioned in its report that only a copy of the survey report has been filed and the original has been with-held by the Insurance Company for reasons best known to it.
The judgment of the learned District Forum is quite a detailed one and every fact raised by the Insurance Company has been taken up and answered. There is no flaw in this judgment and there is no reasons to differ from the findings of the learned District Forum. We are also of the view that the claimant has been able to prove his claim that the potatoes worth Rs. 3,72,115/- was damage and Insurance Company is liable to make good the loss. The appeal is, therefore, liable to be dismissed. ORDER
THE appeal is dismissed and the judgment and order of the learned District Forum confirmed. Let compliance of the order be made within a period of two months from today.
LET copy of this order be made available as per rules. Appeal dismissed.