The present Appeal has been filed against the order dated 28.06.2019 passed by the State Consumer Disputes Redressal Commission, Orissa, Cuttack hereinafter referred to as State Commission, whereby the Complaint filed by the Respondent herein has been allowed and the Appellant herein was directed to pay to the Complainant Rs.25,20,000/- towards insurance claim with interest @ 12% per annum from the date of filing of the Complaint i.e. 16.10.2007 till the date of actual payment alongwith the cost of litigation of Rs1,00,000/- within a period of two months from the date of passing of the order failing which the entire amount shall be payable with interest @ 18% per annum.  The Office has reported eight days delay in filing the Appeal.  We have heard the learned counsel for the Appellant seeking condonation of delay.  The cause shown is sufficient.  The delay of eight days in filing the Appeal is condoned and the appeal be treated as having been filed within limitation. 

IA No. 13247 of 2019 stands disposed of. 

2.       We have heard Mr. Rajiv Jaiswal, learned counsel for the Appellant and have perused the impugned order dated 28.06.2019 passed by the State Commission.  The learned counsel for the Appellants submits that the Surveyor who was produced as a witness was a public witness and therefore, if he was not produced, no adverse inference could have been drawn by the State Commission and one more opportunity ought to have been given.  The learned counsel for the respondent stated that a fire broke out on 24.09.2006 in the Complainant’s Rice Mill and the Mill was gutted.  According to the Complainant, it suffered heavy loss to the tune of Rs.30,00,000/- and a claim was made for the reimbursement.  The Surveyor made inspection and assessed the loss of Rs.3,42,912/- as on account of stock damage and Rs.41,310/- as against the damage to the building.  After compulsory deduction, the net loss was calculated at Rs.3,64,222/-. The Complainant preferred a Complaint before the State Commission.  The State Commission initially, vide order dated 08.09.2011, had allowed the Complaint and directed the payment of Rs.3,64,222/- with interest @ 12% per annum from the date of Complaint till actual payment is made as also Rs.10,000/- as compensation and Rs.5,000/- towards litigation.  The Complainant feeling aggrieved by the said order, preferred an Appeal before the National Consumer Disputes Redressal Commission, hereinafter referred to as the National Commission.  The National Commission, vide order dated 09.02.2017, had allowed the Appeal and directed the State Commission to decide the Complaint afresh after giving an opportunity to the Insurer to either examine the Surveyor as a witness or file his affidavit by way of evidence and the Complainant was given an opportunity to cross-examine the Surveyor.  On remand, the State Commission gave opportunity to the present Appellant to either file an affidavit of the Surveyor by way of evidence or produce him or examine the Surveyor himself.   The Appellant produced the Surveyor on 22.03.2018 and conducted the Examination-in-Chief of the Surveyor and sought for an adjournment for his cross-examination.  The matter was adjourned to 08.05.2018 for further cross-examination and Examination-in-Chief.  However, the Appellant, on 08.05.2018, did not produce the Surveyor and an adjournment was prayed for which was allowed and the next date fixed was 20.06.2018 subject to payment of cost of Rs.5,000/-. On 20.06.2018, when the matter was taken up by the State Commission, adjournment cost was not paid and also the Surveyor was not produced whereupon the State Commission discarded the report of the Surveyor and the Examination-in-Chief, by passing the following order:

“Learned counsel for both the parties are present.

As per order dated 08.05.2018, neither surveyor Er. Suvendu Sekhar Jena is present today nor the opposite parties 1 to 3 have paid the cost of the adjournment granted on that date.  Again the learned counsel for OPs 1 to 3 prays time for production of the surveyor on the ground that the brother of the surveyor is still admitted at Apollo Hospital.  None payment of the cost indicates that the OPs 1 to 3 are not willing to produce the said surveyor for cross examination.  Prayer for time is therefore rejected.  Consequently, report of the surveyor and the examination in chief are discarded for consideration of evidence.

3.   Thereafter, the State Commission considered the affidavit sworn by the Complainant on 19.07.2018 as also other materials on record and came to the conclusion that the Complainant is entitled for payment of Rs.25,20,000/- towards insurance claims with interest @ 12% per annum from the date of filing of the Complaint till 16.10.2012 within a period of two months failing which the entire amount shall be payable with interest @ 18% per annum.  The submission made by the learned Counsel for the Appellant that the Surveyor was a public witness and therefore, the Appellant cannot be held responsible or no adverse inference should be drawn against the Appellant merely the cross-examination and further statement was not recorded on account of some personal difficulty, is devoid of any merit.  The Surveyor is not a public witness but a witness produced by the Appellant.  It was always upon for the Appellant not to insist upon examining the Surveyor as a witness.  Having exercised the option to produce the Surveyor as its witness, if for any reason, the witness did not appear for the further examination-in-chief and cross-examination, the report of the Surveyor cannot be said to have been proved.  The State Commission have considered the entire material and evidence on record and had come to the conclusion that the Complainant had suffered loss of more than Rs.25 lacs and entitled for reimbursement as insurance claim.  In view of the foregoing discussion we are of the considered opinion that the Appeal is devoid of any merits and is therefore, dismissed.  The amount of statutory deposit be transferred to the Consumer Legal Aid Account.