1. Upon hearing Mr. k. Khan, learned counsel appearing for the appellant and, Mr. V.K. Jindal, learned senior counsel assisted by Mr. L. Lyngdoh, for the respondent Oriental Insurance Company Ltd, and also on perual of the available materials on record, we are of the view that this appeal can be disposed off at this stage. Accordingly, the same is finally disposed of with the following short order.

 

2.      In terms of the order and judgement dated 15.11.2001 passed by the District Forum in CP(S) Case No. 10(S)1997, a sum of Rs.18,000/-, has been awarded as compensation which has to be paid by the respondent Insurance Company to the present appellant within 45 days from the date of judgement, failing with interest at the rate of 18 p.c. will be charged and apart from that, costs of Rs. 2000/- was also awarded to the claimant. Being aggrieved by the impugned judgement and order dated 15.11.2001, the appellant claimant preferred this appeal.

 

3.      The facts of the case in a short compass are as follows:

 

A burglary took place at the shop premises of the claimant at Bara Bazar, Shillong, in the little hour of 8.12.95 where shoes worth Rs 41 lakhs were stolen. The claimant informed the authority of the Insurance Company about the occurance on 18.12.95 and the claimant also furnished a list of stolen goods/shoes, the total value of which was shown as Rs.4,00,019/- and made total claim of Rs.5,40,593/- by filing complaint before the District Forum. The learned District Forum, awarded a sum of Rs.18,000/- as compensation to be paid by the respondent Insurance Company to the claimant, as highlighted above.

 

4.      Before going into the merits of the case, this commission vide, order dated 12.4.2003 directed the respondent Insurance Company to make assessment of the loss of properties by a surveyor’s assessment report within a period of 45 days. In compliance with the said order, the respondent Insurance Company sudmitted a report dated 9.7.2003. This report is relevant and important for just determination of the real points in controversy between the parties and accordingly, it is hereby formed as part of the record and mark as ‘X’ for identification. A bare perusal of the Surveyor’s report shows that the Surveyor assessed the loss and the loss which the Surveyor assessed is Rs.94,934.59p. The relevant observation and finding of the Surveyor is important and accordingly, it is quoted below-

 

“10.0.0 Value at risk

         The sum insured being Rs.10.00.000.00 and the value at Risk being higher than the sum insured as on the date of the occurrence of peril, the insurer’s liability will stand reduced as per policy conditions on pro-rata condition of average.

11.0.0 Inventory of sound goods were taken by the preliminary surveyor Mr.Nabendu Das at the time of his Survey but the same could not be valued by him as the insured had not submitted the incoming invoices at that time. I have gone through the inventory and compared the same with the stock list submitted by the insured firm before and after burglary. It was observed that the stock list submitted by the insured had the following drawbacks-

1. Accurate cost price of the items were not considered.

2. The list prior to burglary was purposely reduced to avoid application of average clause.

3. The list after burglary was made just to accommodate the claim amount. After comparing the inventory submitted by the preliminary surveyor, the list submitted by the insured before and after burglary and incoming voices/purchase vouchers, I have valued the inventory on the basis of cost process which is enclosed as Annexure-19. I have also added 3.66p.a on the inventory value as freight charges to arrived at the landed cost at Shillong except a few, almost all the items purchased were out of Shillong.

The loss is assessed as under-

Value at risk              Rs.12,98,719.30

Less: Value of sound

Goods left over         Rs.12,03,784.78

After burglary       ---------------------------

Loss Assessed           Rs.94,934.59p.

 

 

12.0.0                                          But as the value at Risk was higher than the Sum Insured, so the Indemnity figure stands reduced as under-

Assessed Maximum Liability

(subject to acceptance)    =Rs94,934.59×10,00,000.00

                                                   -----------------------------------

                                                               12,98,719.30

                                                   = Rs. 73,098.62p.

 

12.1.0                                          It has to be noted that it has to be consider average figures after subjecting the accounts to various tests and accounting ratios and the representatives of the insured did not produce the necessary data required for the purpose of assessment and wanted the assessment to be drawn up on the basis of arbitrary papers submitted by them without any authenticity. Accounting done on the basis of average calculations is may contain some degree of ambiguity which is required to be avoided. Moreover, while doing the inventory valuation, I had observed that 14587 pairs of footwear costs Rs.1203784.03p which accounts for average costs of Rs.82.52 per pair of footwear. So the assessed amount of Rs.94,934.59 becomes the cost for approximately 1150 pair of footwear. Taking physical aspects into consideration, I am of the opinion that to steal away 1150 pairs of footwear coming from the roof of a four storied building and making their exit in the same way and then to carry away the stolen goods from the place in a few hours of dark night is next to impossible. Hence I recommended a deduction of 25p.a. from the above figure to arrive at the fair and reasonable indemnity that can be provided to the insured under the claim.

      RECOMMENDED LIABILITY = Rs. 54,824.00p.

                (Rupees fifty four thousand eight hundred twenty four only)”

 

 

5.      After proper application of our minds in the matter, we hereby accept the recommended liability to the tune of Rs.54,824/- as assessed by the Surveyor of the respondent Insurance Company. In view of the above position, we hereby disposed off this appeal with a direction to the respondent Insurance Company to afford/make payment of the recommended liability/compensation to the tune of Rs.54,824/- with interest at the rate of 10p.c. per-annum from the date of the filing of the complaint petition on 21.4.97 (vide order dated 21.4.97 of the District Forum) till the date of full payment of the entire amount within a period of one month from today. It is made clear that the respondent Insurance Company is at liberty to deposit the money with the office of the commission and liberty is also granted to the claimant to withdraw the same after the claimant is duly identified by a learned lawyer.

 

6         In the result, appeal is partly allowed thus modifying the impugned judgement and order passed by the learned District Forum, but no order as to costs. Office is directed to supply a copy of this judgement an order to the learned counsel for the parties.