RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Appeal No. 622 of 2000

United India Insurance Co. Ltd. Through its

Dy. Manager, Regional Office, Kapoorthala,

Aliganj, Fire Deptt., Lucknow. (Representing

All the Opp. Parties before District Forum)    ….Appellant.

Versus

M/s Kisan Sugar Factory, Dwarikapuri,

Muzaffarnagar (U.P.)

1- Smt. Kiran Mala Jain (wife)

2- Pawan K. Jain (son)

3- Smt. Uma Jain (daughter)

4- Smt. Sudha Jain (daughter)

5- Neeraj K. Jain (son)

6- Smt. Sushma Jain (daughter)

7- Smt. Suman Jain (daughter)

8- Sanjai Kumar (son)                                ….Respondents.

Present:-

1- Hon’ble Sri Vijai Varma, Presiding Member.

2- Hon’ble Sri Raj Kamal Gupta, Member.

Sri Ashok Mehrotra, counsel for the appellants.

Sri Isar Husain, counsel for the respondent.

Date 8.6.2018

JUDGMENT

(Delivered by Sri Vijai Varma,  Member)

This appeal has been filed against the judgment and order dated 25.1.2000, passed by the District Forum, Muzaffarnagar in complaint case no.170 of 1998.

The facts leading to this appeal, in short, are that the respondent/complainant had taken an insurance policy for its Bagasse stock against fire from the appellant/OP for an assured sum of Rs.4 lacs for the period 13.5.1996 to 12.5.1997. The complainant was having a factory for producing Khandsari sugar. The main raw material of the insured was sugar cane the waste of which is known as

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Bagasse which is used as fuel for the furnaces of the insured factory for heating of the sugar cane juice. A fire broke out in the factory of the complainant in the night of 17/18.6.1996 whereby a large chunk of Bagasse was gutted. An FIR was lodged and Fire Brigade was pressed into service which doused the fire. On being informed, preliminary and final surveyors were appointed who inspected the spot but as there were conflicting reports by two surveyors appointed hence a third surveyor was appointed who assessed the loss to the tune of Rs.66,421.00. The appellant/OP offered the complainant for payment of Rs.66,374.00 but the  same was not accepted by the complainant and he filed a complaint in the Forum below wherein the OP submitted their WS mentioning therein that the claim was much inflated by the complainant therefore, on the basis of final survey a sum of Rs.66,374.00 was offered to the complainant but the same was not accepted by the complainant. Therefore, the appellant/OP did not commit any deficiency in service. Hence, this complaint is liable to be dismissed. The ld. Forum, thereafter, passed the impugned order on 25.1.2000, as under:-

"परिवादीगण का वाद विपक्षीगण के विरूद्व आंशिक रूप से आज्ञप्‍त करते हुए विपक्षीगण को आदेश दिया जाता है कि वे परिवादीगण को उनके क्रेसर में खोई में आग लगने से हुए नुकसान अंकन 1,78,687.00 दिनांक 15.01.97 से अदायगी तक 18 प्रतिशत ब्‍याज की दर सहित एवं 3,000.00 रू0 वाद व्‍यय व वकील फीस के मद में आदेश की तिथि से एक माह के अन्‍दर अदा करें।"

          Feeling aggrieved with the impugned order that this appeal has been filed by the appellant mainly on the

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grounds that surveyor Shri Rakesh Kumar was deputed for preliminary survey but he was confronted by another surveyor Shri Vinit Kumar who was deputed to conduct  final survey by Divisional Office and not tolerating the presence of the preliminary surveyor Shri Vinit Kumar filed the report which suffered clarity and incompleteness and hence, a third surveyor Shri Shakti Kumar was appointed who had submitted his report and assessed the loss of Rs.66,421.00 only which was offered to the complainant but he refused to accept that therefore, the appellant had not committed any deficiency in service. The ld. Forum has without properly appreciating the report of Shri Shakti Kumar passed the impugned order which is against the facts and evidence and therefore, the impugned order is liable to be set aside and the appeal allowed.

Heard counsel for the parties and perused the entire records.

In this case, it is not disputed that the complainant’s stock of Bagasse waste of sugar cane material was insured for a sum of Rs.4 lacs and that during the validity of the period of insurance, fire had damaged the stock. The disputed point according to the appellant/OP is that the surveyor Shri Shakti Kumar has assessed the loss to the tune of Rs.66,421.00 which was offered to the complainant but he refused to accept it therefore, the appellant/OP did not commit any deficiency in service whereas according to the respondent/complainant another surveyor Shri Vinit Kumar had assessed the loss to the tune of Rs.1,78,687.00 but the appellant/OP only offered them, a sum of

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Rs.66,374.00 and therefore, the appellant/OP committed deficiency in service and hence, the ld. Forum has passed the impugned order very correctly.

  So, now it is to be seen as to whether the loss assessed by surveyor Shri Vinit Kumar or by Shri Shakti Kumar was correct and the consequences thereof.

In this regard, we find that for assessing the loss caused by fire to the stock of the complainant two surveyors were appointed, one for preliminary survey by Shri Rakesh Kumar and the other for final survey by Shri Vinit Kumar. Incidentally, both surveyors reached the spot nearly on the same time. It transpires that Shri Vinit Kumar objected to the preliminary survey being conducted by Shri Rakesh Kumar as has been clearly allegeded by the preliminary surveyor Shri Rakesh Kumar. Even though Shri Vinit Kumar has not admitted any conflict with the surveyor Shri Rakesh Kumar but from his report, it transpires that he questioned Shri Rakesh Kumar as to why he reached later than him to the spot though Shri Rakesh Kumar has contended that he reached the spot earlier to Shri Vinit Kumar. He has also stated that Shri Rakesh Kumar reached the residence of Mr. Sukhbir Singh at 10 p.m. when he was busy with Sukhbir Singh for  taking his statement and examining the account books. Shri Vinit Kumar’s these statements become meaningful once it is clearly stated by surveyor Shri Rakesh Kumar that Shri Vinit Kumar had advised Mr. Sukhbir Singh not to give any written statement and a single paper to him in this case, whereupon Shri Sukhbir Singh refused to give any

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statement to him and to produce any document to him. All these things show that Shri Vinit Kumar, the final surveyor was not at all pleased with the presence of the preliminary surveyor Shri Rakesh Kumar who was conducting the investigation on being appointed by the appellant/OP. It is in this backdrop of a detailed letter sent by Shri Rakesh Kumar and considering the report of Shri Vinit Kumar to be lacking, the authenticity of the stock gutted in the fire and its value which was largely dependent on the statement made by the complainant himself that third surveyor Shakti Kumar was appointed and Shri Shakti Kumar considering the reports of the preliminary and final surveyors has thereafter given a rationale analysis of the stock and the loss consequent to the fire and has thereafter, assessed the loss to the tune of Rs.66,421.00. While scrutinizing the reports of the final surveyor and that of Shri Rakesh Kumar, it is found that the report prepared by the surveyor Shri Rakesh Kumar was based on rationality. He has also observed in his report about “insured moral hazard appears not to be such strong”, on the basis of non-cooperation of Shri Sukhbir Singh with him whereas Shri Vinit Kumar in his report has suggested for ignoring the contents of letter of Shri Rakesh Kumar in estimating the moral hazard of the insured and this is possibly because Shri Vinit Kumar had instructed the complainant not to give the statement and producing the documents before the surveyor Shri Rakesh Kumar. So the report given by Shri Vinit Kumar appears to be highly dubious in proper estimation of the assessment of loss. It is in this backdrop

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that the report submitted by Shri Shakti Kumar appears to be more logical and authentic. For example he has assessed the loss of Bagasse @ Rs.25.00 per quintal which is 25% more than the rate of Bagasse of sugar mill where as per Khatauli Sugar Mill the rate of Bogasse is shown as Rs.20.00 per quintal. Therefore, application of rate @ Rs.25.00 per quintal appears to be more logical than the rate assessed by Shri Vinit Kumar at Rs.30.00 per quintal. Accordingly, the quantity affected by fire 5893 quintals appears to be correct as the preliminary surveyor has assessed the stock of 182520.50 c. feet was found to be correct as each Bagasse had a gravity of 4 Kgs per c. foot which made total quantity of Bagasse as 7298.1  quintals and if 10% is added between the quantity turned into ashes the quantity prior to loss comes to 8109 quintals and it is on basis of this calculation, it was found that 5893 quintals was found burnt and accordingly the loss assessed @ Rs.25.00 per quintal was Rs.1,47,325.00 and accordingly the loss value of 5009 quintals Bagassee @ Rs.16.25 per quintals was found to be Rs.81,396.00. The justification of quantity of Bagasse considered as salvage was fresh but wet which could be valued a little less than the fresh one as in the month of June temperature rise to between 45-47 degree which does not take much time to dry up without deploying any extra labour and accordingly the salvage was considered 15% less to 5893 quintals which comes to 5009 quintals and since the salvage could be used later after being dried up as stated above, hence considering a little less value of it, the rate of Rs.16.25 per quintal was applied

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by surveyor Shri Shakti Kumar. So there is rationality in the report submitted by Shri Shakti Kumar whereas the report of Shri Vinit Kumar is not much based on rationality as it considers the value of Bagasse at Rs.30.00 per quintal whereas Khauli Sugar Mill shows the rate to be at Rs.20.00 per quintal. Astonishingly, Shri Vinit Kumar’s report found the salvage value at the rate of Rs.6.00 per Kg. though it appears to be a clerical mistake as he has assessed the loss @ Rs.6.00 per quintal for the salvage of 6500 quintals and he has stated that it “is most reasonable and is agreed upon by the insured”. Is he suggesting that this report was submitted as per the agreement with the insured. So, on the basis of the aforesaid arguments, it is clear that the report submitted by Shri Vinit Kumar surveyor was not at all reliable. On the contrary, the report submitted by surveyor Shri Shakti Kumar with proper reasoning and rationale appears to be quite correct. Therefore, the appellant/OP committed no deficiency in service when they offered the complainant to make payment as per report submitted by surveyor Shri Shakti Kumar. The ld. Forum has erred in giving the award on the basis of the report submitted by surveyor Shri Vinit Kumar, therefore, the impugned order is liable to be set aside and the appeal allowed.     

ORDER

The appeal is allowed. The impugned judgment and order dated 25.1.2000, passed by the District Forum, Muzaffarnagar in complaint case no.170 of 1998 is set

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aside. The appellant is directed to make payment of Rs.66,374.00 with 9% interest as per the report of the surveyor Shri Shakti Kumar.  

No order as to costs.

Certified copy of the judgment be provided to the parties in accordance with rules.

         (Vijai Varma)                       (Raj Kamal Gupta)

    Presiding Member                             Member

Jafri PA-II

Court No.2