(Delivered on 05/01/2017)
PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.
1. This appeal is filed by the original opposite party (for short O.P.) against the order dated 30/09/2008, passed in consumer complaint No. 66/2008, by the District Forum, Washim , by which complaint has been partly allowed.
2. The facts in brief giving rise to the present appeal are as under:
The original complainant who is respondent in this appeal had obtained loan of Rs. 2,00,000/- from the Credit Society namely Shegaon AgrasenSahakari Pat Sanstha, Shegaon, Branch Washim for purchasing automobile parts and for running shop. He had also insured the goods of that shop by taking policy from the O.P. for the period from 13/07/2007 to 12/07/2008. The policy was issued under title as “Shop Keepers Insurance Policy”. The sum assured under the policy was Rs. 2,00,000/-. The said shop caught fired on 09/10/2007 at about 3.00 to 3.15 a.m. and therefore insured goods of that shop were burnt. Intimation about the said incident was given by the complainant to the Tahsildar and also to the O.P. Talathi prepared panchanama of the shop. The O.P appointed the surveyor, who inspected the shop and made survey and assessed total loss at Rs.59,217/-. Accordingly the said amount was deposited by the O.P. with the aforesaid Credit Society, which accepted that amount under protest. The complainant had claimed total compensation of Rs. 2,15,110/- towards alleged loss. As balance amount was not paid to him. He issued notice to the O.P. claiming amount due. As it was not paid the complaint was filed before the Forum claiming from the O.P. balance amount of compensation of Rs. 1,55,893/- with interest and further claiming compensation of Rs. 25,000/- for physical and mental harassment and cost of Rs. 28,000/- . Thus he made total compensation of Rs. 2,08,893/- with interest
3. The O.P. resisted that complaint by filing reply. The O.P. admitted issuance of policy covering risk up to Rs. 2,00,000/- for the period from 13/07/2007 to 12/07/2008 . The O.P. also admitted that on 09/10/2007 the said insured shop had caught fire and some goods of that shop were burnt. However, the O.P. denied that in the said incident of fire the complainant sustained loss of Rs. 2,15,110/-. The O.P. admitted that it has paid Rs. 59,217/- for loss as assessed by the surveyor. The O.P. submitted that it has no concern with an amount of Rs. 2,15,000/- outstanding against the complainant towards loan taken by him. The O.P contended that complainant did not produce the bills of purchase of goods though demanded by him. The statement of accounts produced by the complainant cannot be relied on as they are pertaining to date 30/09/2007 as the incident of fire took place much time therefore i.e. on 09/10/2007. Thus according to the O.P. the amount of Rs. 59,217/- was paid as per report of the surveyor as prepared by him after conducting due survey. Therefore, the O.P. submitted that it is not liable to pay any such compensation and prayed that complaint may be dismissed
4. The District Forum below after hearing both the parties and considering evidence brought on record passed the impugned order and thereby held that the policy was for Rs. 2,00,000/- and only Rs. 59,217/- is paid by way of cheque. Therefore the complainant is entitled to balance amount of Rs.1,40,783/-. Accordingly, the Forum directed the O.P. to pay the said amount of Rs. 1,40,783/- to the Credit Society namely Shegaon Agrasen Sahakari Pat Sanstha. The Forum also directed that it is liability of the complainant to pay interest for that amount to the said Credit Society. The Forum also directed the O.P to pay the complainant compensation of Rs. 5,000/- towards loss sustained by the complainant. The Forum also directed the O.P to pay aforesaid amount within a period of 30 days from the date of receipt of copy of the said order and in case of default, the said amount will be payable with interest at the rate of 9% p.a.
5. As observed above, the O.P. has filed this appeal against that order. We have perused the copies of record of complaint filed before us by the appellant. We have also perused the written notes of argument filed by learned advocate of the appellant. We have also heard the appellant’s advocate.
6. Advocate Mr. V.D. Gawali had appeared for the respondent on 16/09/2016 and he had sought adjournment. Today he is not present. He has also not filed written notes of argument though several adjournment has been already granted to him since 26/10/2015. Therefore, we have proceeded to decide the appeal on merit.
7. The learned advocate of the appellant /original O.P. has drawn our attention to the copy of report of the surveyor dated 03/12/2007 in support of his submission that no bills of purchase of goods were submitted by the complainant though demanded and surveyor has conducted the survey after paying visit to the spot and considering stock statements produced by the complainant. He further submitted that as per loss assessed under survey report, Rs. 59,211/- have been already paid to the complainant. He also submitted that the Forum has not considered material fact that in the absence of bills of purchase, it cannot be proved that there was stock of Rs. 1,40,783/- in the shop of the complainant when incident of fire took place. He has also drawn our attention to the observation made in the impugned order to the effect that the insurance policy for Rs. 2,00,000/- was obtained by the Shegaon Agrasen Sahakari Pat Sanstha and that it also observed that loss of Rs. 3,60,000/- was occurred due to incident of fire. According to the learned advocate of the appellant there was no evidence to show that such loss of Rs. 3,60,000/- was occurred due to incident of fire. Therefore, the learned advocate of the appellant submitted that as the survey report is very clear and as it is issued after due consideration of documents and spot inspection it ought to have been believed by the Forum. He therefore, requested that the impugned order may be set aside as it is erroneously.
8. It is worthy to note that no bills of purchase were produced before the Forum and they were also not handed over by the complainant at the time of survey. No reason was given by the complainant for not producing the said bills of purchase. The complainant simply relied on stock statements dated 30/09/2007 which were handed over by him to the aforesaid Credit Society, from which loan of Rs. 2,00,000/- was obtained by him. However, incident of fire took place on 09/10/2007 and therefore stock statements dated 30/09/2007 cannot be said to be cogent evidence to show that on 09/10/2007 there was stock of Rs. 2,00,000/- in the insured shop.
9. The surveyor in his report has specifically stated in para No. 12 that insured has not submitted detail list of damaged/destroyed goods claiming to be worth of Rs. 1,95,000/- in spite asked for said list and that not a single purchase bill of damaged/destroyed goods is submitted by insured. Surveyor also observed in the report that the stock statements dated 30/09/2007 cannot be believed for the reason that on 30/09/2007 there was Sunday and how can same be submitted on Sunday to credit society and that how can said statement be prepared before close up of the day.
10. We find that above observations made by the surveyor in the survey report are well reasoned and therefore, the said report of the surveyor needs to be believed particularly in the absence of the bills of purchase and detail list of the stock on the date of the incident of fire. The Forum has not considered the said report of surveyor and thus erred in holding that the complainant is entitled to amount of Rs. 1,40,783/- towards balance amount of sum assured under the policy. Thus the impugned order is found to be erroneous and it needs to be set aside.
ORDER
i. The appeal is allowed.
ii. The impugned order is set aside. The complaint stands dismissed.
iii. No order as to cost in appeal.
iv. Copy of order be furnished to both the parties, free of cost.
