Sree Devi Cold Storage & Others V/S Sarmas Vali P - Consumer Court Case

Karnataka

Bellary

CC/311/2015

Sarmas Vali P - Complainant(s)

Versus

Sree Devi Cold Storage & Others - Opp.Party(s)

R Pandu

31 Dec 2016

ORDER

FILED ON:	18-12-2015
ORDER ON:	31-12-2016

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL

FORUM, AT BELLARY

C.C.No.311 of 2015

Present:-

(1) Smt.Chanchala.C.M. ……President

B.A.L.,LL.B.

(2) Smt Mary Havila,

B.A. …… Member

DATED THIS THE 31^st DAY OF DECEMBER 2016.

COMPLAINANT

By-Shri R. Pandu,

Advocate, Ballari.

//VS//

Sri Sarmas Vali P, S/o Nabi Rasool,

Age: 38, Agriculturist, R/o No.35/1,

Somadri Street, Ballari.

RESPONDENTS

By-Smt.K. Pushpa,

Advocate, Bellary.

For R-1.

By-Shri N. Basavaraj,

Advocate, Bellary.

For R-2.

By-Shri Sunkad N.B.Rao,

Advocate, Bellary.

For R-3.

1.Sreedevi Cold Storage, A registered partnership Firm, Plot No.108/191, 2^nd Stage, Mundrigi Industrial Area, Bangalore road, Ballari City, By its Managing Partner Sri. B.Thimmareddy, S/o. Late Ramareddy, age: 52, Mundrigi Industrial Area, Bangalore road, Ballari City.

2. M/s. United India Insurance Co. Ltd., A company registered under the companies Act, having its registered office at No.24, Whites road, Chennai, Tamil Nadu and having its Divisional Office at Opp: Radhika Theater, Raghavachari road, Ballari city, represented by its Divisional Manager.

3. Canara Bank, A body Corporate, Having branch Office at Cantonment, near Sudha Cross, Ballari City, by its Branch Manager.

// O R D E R //

Per Smt C.M. Chanchala.

The complainant filed the complaint against the respondents U/Sec-12 of the Consumer Protection Act, 1986.

2. The brief facts of the complaint are that, the complainant is an agriculturist and had grown Bengal Gram Crop. It is usual for agriculturists to store crop/agricultural product in cold storage facility so that the said agricultural product remains intact without any deterioration in quality for any number of years and the product can be sold when it will fetch fair and better price. The banks advance loan to the farmer on the security of such agricultural products stored in the cold storage and it is usual for the farmer to avail loans from the banks by hypothecating the crop/agricultural product kept in the cold storage facility. The respondent no-1 offers cold storage facility for the farmers accordingly the complainant deposited his crop in the cold storage of respondent no-1 for which they issued a Goods Receipt Note noting the details of the agricultural produce deposited. The details of the agricultural produce deposited by the complainant in the cold storage of respondent no-1 are as under:

G.R.No.	Date	Nature of product	No. of Bags	No. of Kgs per Bag	Quantity (KGs)
67	16-02-2011	Bengal Gram	113	100	11300
90	24-02-2011	Bengal Gram	130	100	13000
201	15-03-2011	Bengal Gram	110	100	11000

The charges levied by respondent no-1 for storing the agricultural produce in the cold storage is for both storage charges (rent) and also the proportionate charge for insurance premium. The respondent no-1 takes out the insurance policy to insure the entire stock stored in the cold storage including the agricultural produce deposited by him and proportionate premium of the insurance policy, he need not take out separate insurance policy to insure his agricultural product stored in the cold storage of respondent no-1. The respondent no-1 as custodian of the agricultural produce stored in the cold storage has taken out a Standard Fire & Special Perils Policy with the respondent no-2 company insuring the entire agricultural products stored in the cold storage and respondent no-2’s company collected the premium and issued policy no.241100/11//09/11/00001612 dt. 23-03-2010 and same was renewed from year to year and for the year 2013-14, the total sum insured under the said policy was Rs.30 crores and period of insurance was from 23-03-2013 to 22-03-2014. The complainant availed loan of Rs.8,50,000/- from the respondent no-3’s bank by hypothecating the agricultural products stored in the cold storage of respondent no-1 under loan A/c.no.1425844005697 dt.31-03-2011. A tripartite agreement dt. 31-03-2011 is entered into between him and respondent no-1 & 3 under which it is stipulated that the respondent no-1 agreed to insure the agricultural products stored in the cold storage. The respondent no-1 issued a warehouse receipt which gives details of the agricultural products stored in the cold storage and also details of the insurance policy taken with the respondent no-2 and the original of the said warehouse receipt is kept with respondent no-3. The agricultural products of complainant was being stored in the cold storage of respondent no-1, in the early hours of 14-01-2014 a fire broke out in the cold storage of respondent no-1 and in spite of the best efforts of the fire brigade, the fire gutted the entire building and the entire stock stored in the cold storage were destroyed, the respondent no-1 has given a complaint to the Sub Inspector, Ballari PS on 14-01-2014 and after investigation in which the Police recorded the statement of 33 witnesses and after calling for the report from the Regional Fire Brigade Officer, Ballari. The Deputy Electrical Inspector, Ballari Forensic Science Lab, Madivala, Bangalore, the Police filed the final report dt. 19-09-2014 the fire was caused by electrical short circuit. The final report filed by the Police along with the complaint dt. 14-01-2014. In the said report of the Forensic Science Lab at Paragraph 3and 10 it is noted as follows:

Para3 (end) “The walls and pillars of the building were said to be made up of sandwiching the thermo coal and tar in between the concrete in order to maintain the cooling effect”.

Para-10 “The debris found scattered on the ground floor was examined layer by layer at various places and noted that no smell of accelerants such as kerosene, diesel and petrol”.

At the end of the report it is stated as follows:

“From the above examination, the following observations have been made

Presence of combustible materials like Thermo coals which are used to insulate the walls pillars, wooden partitions and the grains stored inside the building could have enhanced the spread of the fire.
The congested space in the building might have accelerated the smoldering fire.
The fire might have originated at the sixth front side of the building. But it was not possible to locate the exact place of origin of fire since the complete building was involved in fire.

The respondent no-2 has not made any payment under the insurance policy either to the respondent no-1 in respect of the entire stock gutted by the fire or to the complainant in respect of his portion of the agricultural produce gutted in the fire. The respondent no-1 which has taken the fire insurance policy from respondent no-2 in respect of the entire stock stored in the cold storage, the insurance is taken for the benefit of the complainant and other forms who have deposited their agricultural produce in the cold storage and hence he is the beneficiary of the insurance policy and further he is charged for the proportionate share of the insurance premium and it was only because the comprehensive insurance policy was already taken by the respondent no-1 with respondent no-2 that he did not take out separate insurance policy to insure his portion of agricultural produce deposited in the cold storage and therefore he is the consumer as defined u/sec. 2(d) of C.P. Act, and hence the locus standi of complainant to seek indemnification of loss from respondent no-2 stands established and therefore he called upon the respondent no-2 several times orally, soon after the fire to indemnify the loss suffered by him, but respondent no-2 kept postponing the settlement of claim on one pretext to other. He was constrained to get issued legal notice dt.18-07-2015 to respondent no.1 & 2. The respondent no-2 repudiated the claim of the complainant by letter dt. 13-08-2015 by taking contention that as the insurance policy is taken by the respondent no-1, he does not have locus standi to make the claim and other untenable contentions. The respondent no-3 is the bank which has advanced loan to complainant on security of the agricultural produce stored in the respondent no-1 cold storage and the bank will not advance the loan without verifying the gaudiness, quality, and quantity of the agricultural produce stored in the cold storage at any time and he is also made understand that there is a tie up between the bank and insurance company whereby the bank would advance loan on security of agricultural produce stored only if the said stored agricultural produce is insured with the respondent no-2 and also in view of the clauses of the tripartite agreement. The said act of the respondents amounts to deficiency of service which made the complainant to suffer mentally, physically and financially. Therefore, the complainant with no other alternative approached this Forum seeking reliefs. Hence this complaint.

3. The respondent no-1 filed the written version, which in brief is as follows;

The respondent is running the cold storage since 2007 and has taken the insurance policies to insure the entire stock stored in the cold storage and also the building, plant and machinery, initially for first two years. The insurance policies were taken from National Insurance Company and later on at the insistence of Canara Bank, Ballari from whom this respondent has taken financial assistance, this respondent started taking the insurance policies from respondent no-2, respondent no-2 had issued the insurance policies after collecting the huge premium and the latest insurance policies are for the period from 23-03-2013 to 22-03-2014 bearing policy No. 241100/11/12/11/00001385 in respect of the cold storage building, plant, machinery, generator, accessories, furniture, fixtures and fittings sum insured is Rs.5 crores and policy no.241100/11/12/11/00001384 in respect of stock of agricultural produce stored in the cold storage premises and in respect of this insurance policy sum insured is Rs.30 crores. He admitted the averments made in para-2 to 6 of the complaint. He further contended that the Managing Partner of the respondent No.1 has given Police complaint on 14-01-2014 also informed about the fire accident to the insurance company and further cooperated in the investigation conducted by the Police, Fire Department and FSL and also investigation of the surveyor and investigator appointed by the respondent no-2 and been diligently furnishing all particulars and also duly made the insurance claim to the respondent no-2. Thus, there is no deficiency of service on his part and liability for loss and damage caused to the complainant has to be borne exclusively by the respondent no-2 which was unjustifiably repudiated the insurance claim. The reasons stated by the respondent no-2 to repudiate the claim are all destroyed. The said legal notice dt. 05-12-2015 may be read as part and parcel of the written version in order to avoid repetition of facts, the respondent has categorically stated in the said legal notice calling upon the respondent no-2 to directly indemnify the respective farmers, the claim of the complainant is maintainable only against the respondent no-2 and not against the respondent no-1. Hence there is no deficiency in service on the part of the respondent no-1. Hence, they prayed to dismiss the complaint.

4. The respondent no-2 filed the written version, which in brief is as follows;

The complainant has no locus-standi to file the complaint and as non-existence of any contract between the complainant and the respondent no.2 there is no any statutory obligation to pay the alleged loss by the respondent no.2. The complainant has not taken any insurance policy in his name covering the said agricultural produce from the respondent no.2. The respondent no-1 had obtained the standard fire & special perils policy No.241100/11/09/11/00001612 for the period covering 23-03-2010 to 22-03-2011. The sum insured in respect of building is upto Rs.2,00,00,000/- and in respect of plant & machinery/ fixtures & fittings, the sum insured is Rs.15,00,00,000/- towards insured in respect of the stock in trade of the respondent no-1. There is no any specific insurance policy is taken in the name of the complainant covering his agricultural produce stored with respondent no-1. When the respondent no.1 reported about the fire incident immediately the respondent no.2 inspected the site along with technical expert i.e. spot surveyor. The respondent no.2 has obtained investigation report and Forensic Analysis report from Truth Foundation. As per the material collected, spot surveyor and loss assessor of the company, the respondent no.2 comes to the conclusion that the alleged fire incident is not an accident one but it is created one. The complaint is got filed by the respondent no-1 with an intention to defraud the respondent no-2 and also Canara bank from which the complainant has allegedly availed loan of Rs.8,50,000/- on 16-02-2011 against the manipulated goods receipts note. As per the loan application, the alleged loan was repayable within 12 months from the date of sanction, but the said bank for the reasons best known to them never took any action to recover its dues after lapse of time given to borrower, which sounds ridiculous. As per alleged Tripartite agreement the said loan was repayable after selling of hypothecated goods or within 4 months whichever is earlier. At the belated stage the respondent no-3 became active in this case and is trying to support the complainant by filing its distorted and perverse written version, without filing the supporting documents. The period from 20-07-2013 to 13-01-2014 why the banker has kept quite without selling the hypothecated stocks after lapse of 4 months from the date of release of loan as contemplated in their “Tripartite Agreement “at page no-1 line two from bottom line. Why not the agriculture produce of the complainant found to be stored in the cold storage of the respondent no-1 not sold and sale proceeds adjusted to the loan account by the Canara bank. The respondent no-3 has no legal right to insist the respondent no-2 to pay the loan dues of complainant as per its account extract, and the alleged “Tripartite agreement” for which the respondent no-2 is a stranger. The complainant is not a farmer as alleged by him. The respondent no-1 cold storage was started and managed by an advocate for their commercial purposes. The respondent no-1 has not shown the quantity of goods fully burnt, the quantum of half burnt goods and the quantum of un-burnt goods. The respondent no-1 appears to have managed to get piloted 22 complaints through alleged farmers on the basis of the manipulated goods receipts note before this Forum. Similarly the respondent no-1 has got filed another batch of 89 complaints before the Karnataka State Commission, at Bangalore on similar grounds. The respondent no-3 has also co-operated with them by providing the copies of the loan applications, which no borrower will be provided in normal course of banking transactions. The respondent no-1 pursuing false claims for their windfall gains and to cause the wrongful loss to respondent no-2 by means of mis-representation. The complainant has suppressed the material facts, then the respondent no-2 has to produce plethora of documents and the complainant needs to be cross examined by summoning documents to elicit the truth, with regards to alleged loss to have been suffered in the said fire incident dt. 14-01-2014. In fact neither a farmer nor a trader will keep their agricultural produce in a cold storage for a long period awaiting for good market price. Even otherwise the agricultural produce like, chilly, coriander, Bengal gram and the pulses cannot be stored in cold storage for such a long period, because such goods will get deteriorated. Due to the repeated fumigation process to be taken to protect the goods, will render such goods to become unfit for human consumption. That storage of agricultural produce for longer period requires periodical fumigation to protect the quality of the goods records, so complainant is called upon to produce Fumigation reports to prove that such preventive measures taken by the respondent no-1 to stop degradation of the quality of goods stored. When the rate of interest is so high no farmer can think of keeping the hypothecated goods for such a long period expecting higher market price for his goods. These aspects will certainly falsify complainant’s case. The small farmers cannot grow such huge quantity and avail storage facilities. Alleged fire incident occurred on 14-01-2014. So no small farmer will be capable of keeping such huge stocks for a long period of 10 months in cold storage by paying huge rentals and services charges and the heavy interest to banker. Since the alleged loan transaction was for period of one year, no banker would wait for long time after default without filing suit for recovery of the loan dues from the borrower, or would have taken early steps to sell the stocks of the hypothecated goods immediately after lapse of 4 months agreed upon. Under these circumstances the respondent no-3 will also be required to produce the documents and to show as to what steps they have taken against the complainant. The very conduct of the complainant shows that he joined hands with the respondent no-1 to create the alleged goods receipt notes and the fire incident to make wrongful loss to the respondent no-2. The alleged Tripartite agreement between the complainant, Canara bank, 1^st respondent is not at all binding on the respondent no-2. The said agreement also provides that the complainant therein had pledged his goods only for a period of 12 months and under taken to sell the goods and clear the loan to Canara bank within 4 months from the date of loan. If the hypothecated goods are stored for more than 24 months in cold storage the produce like Bengal Gram, chilies and other agriculture produce will be subjected to natural degradation, and it will be totally unviable for anyone to store such perishable commodity for such long time. These circumstances alone show that the claim of the complainant even as against the respondent no-1 is a concocted story and it is made just to defraud the financial institutions. It is strange to note that during the period from 16-07-2011 to 13-01-2014 for what reasons the banker kept quiet without selling the stocks to recover its loan dues from the complainant. The fire accident alleged by the complainant is itself cannot be termed as genuine incident. So the claim made by the respondent no-1 was repudiated by the respondent no-2 by sending letter dt. 13-08-2015. The claim of the respondent no-1 becomes payable only in case of bonafide fire and loss occurred strictly in the terms of the contractual terms, conditions and exceptions of the policy obtained by the respondent no-1 from respondent no-2. The fire in the premises of the respondent no-1 was not due to any accident OR electrical short circuit as sought to be made out, this opinion rendered by the expert from “Truth Labs”. There was no spontaneous combustion on account bacterial, chemical fire OR due to electrical mishap caused by short circuit. The fire was on account of extraneous ignitable fire accelerants such as “kerosene” used deliberately for ignition, initiation, propagation and burning of stocks in the cold storage through human intervention. The respondent no-2 has also appointed Indian Institute of Technology, Chennai sought for submission of report pertaining to the structural stability of the fire affected cold storage building of the respondent no-1. The said IIT after conducting detailed inspection has reported that for the kind of claimed fire intensity, the structure should have either depicted outwardly on all sides OR should have collapsed leading to the conclusion that combustible material inside the cold storage was much less than what has been started by the respondent no-1. M/s. Rank Surveyors Pvt Ltd., appointed by the respondent no-2 after thorough investigation of the stock said to have been stored in the said cold storage building, verified the same with the account books maintained by the respondent no-1 and carried out physical inventory of the stocks in the presence of the partners of the first respondent. The products, fully burnt and half burnt were of low quality in the fire affected area fresh red chillies had been sprinkled on 18-01-2014 to prove that good quality chilly was stored in their cold storage. They deliberately delayed the production of registers which they had been kept in another building, adjutant to the fire building. The ledgers and documents were made available to the surveyors belated only on 10-02-2014 after getting them manipulated and hand written in one or two days time as if certain transaction had taken place on different dates. Those documents contained apparent manipulations such as corrections, over writings and erasing of entries and writing dates, such as 31-04-2013. The surveyor noted that those stock registers were brought from neighbouring building. The respondent no.1 has not produced the receipts/bills relating to their plant & machinery, furniture and fixtures with their proposal form. Since the claim submitted by the respondent no.1 was not payable as per General Condition No-8 of the contract the complainant cannot be alleged deficiency in service against the respondent no.2. The complainant has no legal right to claim any amount from the respondent no.2, the claim of the respondent no-1 has been duly processed, investigated and has been repudiated on the basis of the credible information and records. The respondent no-2 may be permitted to produce one set of documents in such clubbed complaints in support of their defense. Hence, they prayed to dismiss the complaint.

5. The respondent no-3 filed the written version, which in brief is as follows;

The complainant is a borrower and irrespective of the above complaint, he is bound to repay the loan dues along with interest to the bank and he cannot become an excuse to wither away the liability of the borrower to the bank. That it has entered into an Tripartite agreement between the complainant and respondent no-1 & 3 and also it is true that the bank has insisted for insurance cover along with storage space in the cold storage for the agricultural produce and the bank has also a right to periodically inspect the cold storage. The clause in the Tripartite agreement states that, in case of any causality or accident, the produce goods stored in the cold storage are to be insured to cover the loan dues and the respondent no-2 has to deposit the insurance claim amount with the bank to cover the loan dues as the complainant and the respondent no-1 have agreed according to the tripartite agreement. The fire accident that took place on 14-01-2014 destroying the cold storage as well as the produce are borne by records in view of the report by the Police, Forensic lab and also the photographs produced by the respondent no-1. The statement of loan account clearly reflects the loan granted to the complainant to the extent of product given as security as well as the outstanding dues and the insurance company is bound to pay the loan dues, as per the statement of accounts. The company instead of honouring its commitment is trying to escape its liability which is bad in law and the insurance company not honoring its agreement to indemnify at this hour of need and when the interest is been charged on the complainant is a travesty of justice. Hence, the insurance company is bound to indemnify the loss along with interest. The insurance company did not response faith in the policy holder then the insurance company ought not to have accepted the premium all along and renewed the policy from time to time and now at this stage after receiving the premium the insurance company is bound to honour its commitment. Hence there is no deficiency in service on the part of the respondent no-3. Hence, they prayed to dismiss the complaint.

6. To prove the case, the complainant filed his affidavit evidence, which is marked as P.W.1 and got marked 06 documents as Ex.P.1 to Ex.P.6. The respondent no-1 filed his affidavit evidence and that he has filed affidavit of one witness Sri.Vinayakumar who is a Clerk of respondent no-1 (in CC-289/2015) cold storage and got marked documents as Ex.R-1 to Ex.R-5. The respondent-2 filed his affidavit evidence and they filed affidavit of Sri.D.Venkatraman, Rank Surveyor Pvt. Ltd., and Sri.G.V.H.V.Prasad, Director of Truth Labs and got marked documents as Ex.R-6 to Ex.R-11 (in CC-289/2015). The respondent no-3 filed his affidavit which is marked as Rw-3. The respondent no.2 and 3 produced same documents in CC-289/2015.

7. The common written arguments are filed by both the parties and heard the arguments on both sides.

8. The points that arise for our consideration are;

1.	Whether the complainant is a consumer as defined in Section 2(1)(d) of the Act?
2.	Whether the complainant has proved deficiency in service on the part of the respondents towards him, as alleged in the complaint?
3.	Whether the complainant is entitled for the reliefs prayed for in the complaint?
4.	What Order?

9. The findings on the above points as follows:

Point No.1:	In the Affirmative
Point No.2:	In the Affirmative
Point No.3:	Partly in the Affirmative.
Point No.4:	As per final order.

// R E A S O N S //

Point No.1: -

10. The 2^nd respondent contended that the complainant is not a consumer, the complainant has not hired or availed of any services from respondent No.2 and hence he has no locus-standi to file the present complaint, as non-existence of any contract between the complainant and the respondent no.2 there is no any statutory obligation to pay the alleged loss by the respondent no.2.

11. For the purpose of the Consumer Protection Act, the word “ consumer” has been defined separately for ‘goods’ and ‘services’.

For the purpose of ‘goods’ a consumer means a person belonging to the following categories.

One who buys or agrees to buy goods for a consideration which has been paid of promised to partly paid and partly promised or under any system of deferred payment.
(ii) It includes any user of such goods other than the person who actually buys goods and such use is made with the approval of the purchaser.
EXCEPTION- A person is not a consumer if he purchases goods for commercial or resale purposes. However, the word "commercial" does not include use by consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self employment.
For the purpose of "services", a "consumer" means a person belonging to the following categories:
(i) One who hires or avails of any service or services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment
(ii)It includes any beneficiary of such service other than the one who actually hires or avails of the service for consideration and such services are availed with the approval of such person.

            12.   In the present complaint, the 2^nd Respondent admitted that the stock of the complainant was stored in 1^st respondent cold storage and the insurance of the stock was arranged with 2^nd Respondent on behalf of the complainant, he also admitted that storage charges and part of insurance premium were collected by 1^st respondent from the complainant at the time of storage of the stock. It is also admitted that stock of the complainant was damaged due to fire accident on           14-01-2014 during subsistence of Insurance policy. Hence it shows that respondent No.1 has taken fire declaration from respondent No.2 on benefit of all depositors of the stock. As the complainant is beneficiary under the policy, he has locus-sandi to file present complaint as a consumer.
                  13. Sri.R.P. Advocate appearing for the complainant has produced the Judgment reported in AIR 1998 SC 1801 which is not applicable to the present case as the same is related to medical negligence. However he also produced the judgment of National Commission passed in Original petition No.165/2000 decided on     19-02-2013 where it was held that “ beneficiary under the policy are also falls within the definition of ‘consumers’ under the Act”. Accordingly, we answered this point in the Affirmative.
Point No.2:-
                      14. It is undisputed fact that during the policy period fire broke out in the 1^st respondents’ cold storage on 13/14-01-2014, the fire in the cold storage was notices by the security guard of neighbor building Sri.Mahadevaiah, who in turn informed the Managing partner of the 1^st respondents cold storage, on being informed, the fire squad reached the premises within one hour and finally extinguished the fire completely. An FIR was lodged at the Rural police Station on the same day i.e., on 14-01-2014. Information about the breaking out of fire was given to the 2^nd respondent insurance company.
                  15. The case of the complainant is that the respondent no-1 offered cold storage facility for the farmers accordingly, he deposited his crop in the cold storage of respondent no-1 for which they issued a Goods Receipt Note noting, the details of deposited corps as under:

G.R.No.	Date	Nature of product	No. of Bags	No. of Kgs per Bag	Quantity (KGs)
67	16-02-2011	Bengal Gram	113	100	11300
90	24-02-2011	Bengal Gram	130	100	13000
201	15-03-2011	Bengal Gram	110	100	11000

16. The charges levied by respondent no-1 for storing the agricultural produce in the cold storage is for both storage charges (rent) and also the proportionate charge for insurance premium paid by him , as the respondent no-1 taken insurance policy to insure the entire stock stored in the cold storage including the agricultural produce deposited by him, hence there was no need to take separate insurance policy to insure his agricultural product stored in the cold storage of respondent no-1, respondent no-2’s company collected the premium and issued policy no.241100/11/09/11/00001612 dt. 23-03-2010 and same was renewed from time to time and for the year 2013-14, the total sum insured under the said policy was Rs.30 crores and period of insurance was from 23-03-2013 to 22-03-2014, the complainant availed loan of Rs.8,50,000/- from the respondent no-3’s bank by hypothecating the agricultural products stored in the cold storage of respondent no-1 under loan A/c.no.1425844005697 dt. 31-03-2011, in this regard a tripartite agreement dt.31-03-2011 is entered into between him and respondent no-1 & 3 under which it is stipulated that the respondent no-1 agreed to insure the agricultural products stored in the cold storage. The respondent no-1 issued a warehouse receipts which gives details of the agricultural products stored in the cold storage and also details of the insurance policy taken with the respondent no-2, in the early hours of 14-01-2014 a fire broke out in the cold storage of respondent no-1 and in spite of the best efforts of the fire brigade, the fire gutted the entire building and the entire stock stored in the cold storage were destroyed.

17. On 14-01-2014 the surveyor appointed by the insurance company visited the spot of incident and submitted preliminary survey report on 13-03-2015 which is marked as Ex.R-9 (In CC-289/2015). In the said report he has stated that “cause of fire in Electrical Inspector reported and police report has been mentioned as short circuit in the electrical wiring. However the same left to the final surveyors to conclude in their report”.

18. Further important note mentioned in his report Ex.R-9 (In CC-289/2015) that, in page No.3 para 2 he has stated that “the front portion and the ground floor was full of smoke, the east side wall partition in between the pillars found forcibly opened to fight the fire”. In para 4 it is stated “the walls of the building developed cracks and smoke found emanating from the crocked portion from all the floors”. He further observed in para 7 that “the smoke was intense in the ground floor and was not possible to enter for recovering portions of unaffected stocks at the time of my visit, as already more than 10 hours had elapsed from the time the fire was observed for the first time”. In Para-9 observed that, the partner Mr. Thimma Reddy and Mr. Bhogesh made no efforts/attempts for any recovery of the stocks. In para-10 observed that, the partners were asked to produce the stock registers, inward/outward registers, gate passes, goods receipt note, receipt/acknowledgement handed over to the farmers whose stocks were held in trust at the insured cold storage for which they have stated that they have safely removed the stock registers and would produce the same for scrutiny. In the mean time Sri. Anjinappa, A.O. UII, Ballari, Divisional Office also arrived and they were asked why the partners to sit in the neighbouring chemical industry so that they would show us the stock registers. In Para-11 observed that, they have produced the stock register, GRN and party wise ledger and the same were scrutinized and initialed by the undersigned with date. The stock registers from 01-04-2013 up to the date loss were produced. On our careful scrutiny I am of the pinion that the stock register had been prepared very recently with same type of hand writing and initials and pages found fresh. The stocks for the month of April were entered upto 31^st, even though there are only 30 days in the month of April. The stocks for 14-01-2014 and 15-01-2014 were also entered in advance and later smudged with whitener. On enquiry the partners have informed that since 14 and 15^th January were festivals and holidays the accountant had written them in advance knowing that there would not be entries on those dates. The copy of the stock register extract enclosed as Annexure-IX. In para-12 it is observed that, for the other documents such as gate passes, inward/outward registers receipts and acknowledgments issued to the farmers, they have informed that their accountant has kept them in a steel alimarah and had gone to his native village for festival with the keys. They have also stated that he is expected by evening and the other records would be furnished immediately on his return. They showed us the alimirah which had been removed from the cold storage and kept in open within the compound. The insured was advised to break open the alimirah lock and produce the records for our scrutiny. However they did not comply with it. The same was not produced till late in the evening at about 6:30 PM when we left the premises. The records were finally produced on the 15^th evening directly to the insurers. The insured has produced the photographs and video arranged by them which are enclosed as Annexure-XI. The insured has estimated the loss for Rs.27,49,38,940.00 for the stocks and Rs.5,06,05,250.00 for building, plant & machinery, furniture, fittings, electrical installations. As stated in the claim form which is enclosed. The detailed estimates are enclosed as Annexure-XII. This preliminary report is issued without prejudice. I thank you for the assignment and assure you of best services.

19. Thereafter the 2^nd respondent taken the service of Rank surveyor Pvt.Ltd.,, Chennai and obtained their report on 24-07-2015 regarding loss of goods and property and cause of fire based on the material collected from Truth Lab, Hyderabad and IIT Chennai.

20. Thereafter, in spite of repeated requests, as the insurance company failed to settle the claim, notice was issued to the 2^nd respondent on 18-07-2015 , the insurance company repudiated the claim of the complainant vide reply notice Dtd: 13-08-2015. Hence the complainant filed present complaint as he a beneficiary under the policy, he is entitled to get benefit under the insurance policy.

21. The 1^st respondent admitted that the crop deposited by the complainant in his cold storage and said stock destroyed by fire accident. He further contended that as the stock stored in the cold storage insured with the 2^nd respondent, he is not liable to pay any compensation, liability for loss and damage caused to the complainant has to be borne exclusively by the respondent no-2. He fully supported the case of the complainant.

22. As against this, it is contended by the 2^nd respondent that, on the basis of the final report of the Rank surveyor the claim is repudiated on the ground that (a) the insurance policy taken by the 1^st respondent, the complainant have no locus-standi to make the claim (b) The fire incident on 14-01-2014 is false and created one (c) the documents are cooked up and manipulated and therefore, it had forfeited all the benefits in view of condition No.8 of the policy.

23. It is the contention of the 2^nd respondent that, after receipt of the preliminary report, Rank surveyor was appointed for the survey of the 1^st respondent cold storage, the Rank surveyor with the assistance of Truth Lab and IIT Chennai submitted their final report on 24-07-2015. Hence we would first refer to some part of final survey report ( Ex.R-10) (In CC-289/2015).

In Page-4 of Ex.R-10 it is mentioned thus:

The insured M/s. Sree Devi Cold Storage is a partnership firm started during the year 2007, with the 4 partners (Doc Ref: P.No.50-53) and the details are tabulated below.
Sl.No.	Name of the partner	Share as per partnership Deed	Share as per Annual Report
1	Mr. B.Thimma Reddy, Managing Partner	25%	25%
2	Mr.K.V.Thimma Reddy	25%	25%
3	Mr.H.Abinash	30%	25%
4	Mr.A.Bogesh Reddy	20%	25%
The cold storage is locate at plot NO.108 & 191 KIADB Industrial Estate 2^nd stage, Mundargi Industrial Area, Bangalore Road Ballari- 583 103, Karnataka (Doc. Ref: P.No.43-49). The insured’s cold storage has been constructed on a leased land (Doc Ref: P.No.54-62). The cold storage building, facing North, is of 122 ft. length and 102 ft width with a open platform in its front portion for unloading the arrivals from the farmers. The cold storage building is a six storied building with ground 1^st, 2^nd 3^rd, 4^th & 5^th floors. Industrial’s cold Storage unit is divided into two chambers namely, Chanmber “I” (on Western side) and chamber II (On eastern side) admeasurng 122 ftx56 ft and 122 ft.46 ft. respectively. The cold storage has two separate entrances in the ground floor at the front side of the building for each of the chamber. The cold storage building has also been provided with two more entrances on the top most floor i.e, 5^th floor, for each chamber in the front side. The two chambers were divided by a wall and it is reported that te 2^nd & 4^th floors were provided, which connects the two chambers. The Insured has two office rooms on the north west corner of cold storage.

In Page-9 of Ex.R-10 it is mentioned thus:

About the Damage:

During our first visit on 17-01-2014, we found the entire cold storage (Chamber-I&II) filled with full of smoke. Side walls of the ground & 1^st floors were found broken on both sides of the cold storage and the fire affected stocks of various varieties of pulses were dragged out of the cold storage and found lying on both sides of the cold storage. Stocks along with the wooden reapers inside the cold storage were still burning and fire along with dense smoke was found emanating out of the cold storage. Hence there was no accessibility to the inner chambers of cold storage. The entire stocks in the cold storage were gutted except some bags which were strewn around just closer to the building. Even these materials were either damaged by fire/water/smoke and none could be salvaged.

An important aspect noticed by us during the physical verification on the first day of our visit i.e, on 17-01-2014 was that most of the chilly varieties which were in un-burnt condition (from the half burnt/water damaged bags dragged out from inside) found to be of inferior quality, we have to point out here that nearly 70% of the Insured’s claim is towards chilies only. Wherever the unaffected stocks of chillies were seen, all these were observed to of inferior quality/deteriorated quality due to passage of time. Please refer the photographs attached to this report. We also observed that the coriander seeds were mixed with shoots, stems, refuse of plants which clearly indicated that the coriander seeds stock were of infer quantity, mixed up with other plant refuse materials. In addition we observed in some unaffected bags which were near steps of the office room, Jowar seed stock were mixed up with maize, some red chillies etc.,

In Page-12 of Ex.R-10 it is mentioned thus:

It is reported that, on receipt of information about the fire at the Insured’s cold storage, the Insurer’s from the Divisional Office, Ballari and Regional Office, Hubli, rushed to the spot on 14-01-2014 morning. On observing the fire only at the North East corner of the cold storage in chamber-II, they instructed the Insured to take immediate steps to save the stocks from the western side of the cold storage in chamber-I. In spite of repeated instructions from the Insurers. The Insured failed to co-operate and take steps to save the stocks, which could have minimized the loss. Not even a single bag of stock/commodity was recovered by the Insured. From the discussions with the Divisional Manager and other officials, we were given to understand that the Insurers have communicated to the Insured in this regard. The Insured reportedly stated a lame reason that fearing safety of their workers they did not do so. In our opinion, even some minimum attempts soon after the excavators were brought into action would have resulted in salvaging some good quantities of stocks. Two accountants and the operator who were involved in day to day operations of the Insured’s cold storage were not present during our visit on 17-01-2014 and despite our repeated requests, none of them turned up and present before us for questioning. Similarly Mr.A.Bogesh, Partner, who is involved in day to day operations of the Insured’s cold storage was present during our 1^st day (17-01-2014) visit and was keeping distrance form us. While he was not at all present during our 2^nd day (18-01-2014) visit and came with some of the documents/records at the end of the day at 5:00 PM only.

In Page-14 of Ex.R-10 it is mentioned thus:

Inspected Stocks None of the stocks were recovered by the insured. Most of the stocks stored inside the cold storage were completely burnt. These burnt materials which were dragged outside were found affected by water/smoke. As discussed supra, the Insured could have saved some materials/stocks at the time of burning of stocks. The fire did not spread initially to the western side of the cold storage and the fire was mainly confirmed to the opposite side, i.e, Eastern side. The relevant points are discussed in the later part of the report
	Samples Collected 27 nos. of samples were jointly collected & attested by both of us (RANK & Sree Devi Cold Storage) from various places at the fire affected premises. A drawing showing the locations from where these samples were collected was made attested by both of us. Later M/s. Truth Labs, an independent reputed Forensic Investigating agency was appointed and they also collected joint samples. M/s. Truth Labs, being a forensic investigating agency, were assigned the job of carrying out testing of samples. Hence testing was not carried out with the samples collected by us.
	Chronology of Events There was a considerable delay from the Insured in providing the documents/records/details relating to their claim. Chronology of events that had taken place since the date of loss (14-01-2014) are tabulated in statement- I attached to the report.

In Page-15 of Ex.R-10 it is mentioned thus:

We abstain to state anything on the contents of the closure report of FIR. However, we confirm our views as per following paras under the heads.” Forensic and Field investigation Report of Truth Labs”. “Cause of fire” and IIT’s Report for forensic study and assessment of structural stability.” “Volumetric Analysis”. Delay in provision of Registers”. “Sprinkling of good quality chilies during the course of our first visit.

In Page-44 of Ex.R-10 it is mentioned thus:

The Insured has stated in the claim form, the cause of fire as “Electrical short circuit”. As indicated earlier, since our physical observations revealed anomalies, we took the option of appointing one of the leading Forensic Expert M/s. Truth Labs, Hyderabad to analyze and report the cause of loss in particular. The lab analysis report of “Truth Labs” states……The GCMS Instrumental analysis of the 12 burnt debris samples collected from interiors of the cold storage unit at different locations revealed the presence of hydrocarbons in the range C* to C20 in all the 12 samples whereas the control sample collected from outside the cold storage did not show the presence of any hydrocarbons which clearly indicate the use of extraneous ignitable fire accelerants such as kerosene in different locations for initiation for fire….”. They concluded in P.no.17 & 18 of their report stating that, Based on a thorough and in depth inspection of the incident site, forensic examinations, field investigations, documentary evidence analysis and personal evidence obtained, it is concluded that the fire occurred in M/s. Sree Devi Cold Storage, Ballari on the intervening night of 13/14^th January 2014. Was not due to spontaneous combustion on account of bacterial/chemical fires. Was not due to electrical failure caused by short circuit, and was an account of extraneous ignitable fire accelerants such as kerosene used deliberately for ignition, initiation, propagation and burning of stocks in the cold storage through human intervention. Based on the motive, means and opportunity to carry out such malicious acts the possibility of the involvement of management in such a nefarious act cannot be ruled out. We have also dealt elaborately in the earlier part of the report as to various reasons that point the finger on the Insured in attempting/resorting to unfair means to willful destruction of the property. Expert has analysed in detail in ruling out the other probable accidental causes. We therefore, concur with the finds of the Forensic Experts and conclude to a particular cause namely willful destruction/arson committed by the insured.

24. Finally he concluded that the claim is not genuine one and clearly attars and justices invocation of condition No.8 of the policy referred above and the insured is not entitled to recover any amount from the insurer.

25. Sri.B.Sharanappa Shau, (RW-2) (In CC-289/2015) Divisional Manager of respondent no-2 Insurance Company filed his evidence by way of an affidavit. He reproduced the statement made in his written version. In support of the 2^nd respondent case, Sri.D.Venkataraman, Director of Rank Surveyor filed his evidence by way of an affidavit (RW-3) and Sri.G.V.H.V Prasad, Director of Truth Labs filed his evidence by way of an affidavit (RW-4) (In CC-289/2015).

26. Rw-2 at para No. 14 of his affidavit evidence he has stated that “ the loss caused to him is due to fire accident, the said claim itself not bonafide one nor t is result of genuine incident. So claim made by first respondent was repudiated by our company as per letter dt. 13-08-2015 explaining the reasons for the repudiation and said letter be marked as Ex.R series. I state that fire occurred in the premises of first respondent was not accidental one. It is not due to any electrical short circuit as sought to be made out by cold storage owners, this opinion is rendered by the experts from “Truth Foundation Labs” report copy produced. They opined that there was no spontaneous combustion on account bacterial, chemical fire or due to electrical mishap caused by short circuit. It is clearly shown in the report that the fire was on account of extraneous ignitable fire accelerants such as ‘kerosene’ used deliberately for ignition initiation, propagation and burning of stocks in the cold storage through human intervention. The copy of the report of “Rank Surveyors Pvt Ltd., is produced at page 16 in Para’s 3 to 7 and at page 17 shows that “ fresh red chillies slightly wrinkled found within the black, brown and light brown burnt chilies which appear to have been missed in burnt stock deliberately by some one after the incident…. A polythene bag containing some remaining fresh good quality red chilies found concealed inside the heap etc., Further their opinion states that “there is no Blackening of wires, the Fuses of Transformer supplying power to cold storage found to be intact without symptoms of any short circuit, such blackening, melting, tripping in the electrical connections. So fire due to any electrical short circuit in cold storage is ruled out”.

27. So, the statement made by RW-2 shows that on the basis of report given by Truth Lab and IIT, he issued final report.

28. RW-3 in his affidavit evidence stated that on the request of the 2^nd respondent company on16-01-2014, he visited the spot on 17-01-2014 and conducted physical verification of the fire affected agricultural produce. RW-3 in his affidavit evidence at para-4 stated that, “ I, submit that, we collected 27 samples from various places at the fire affected premises. Later on Truth Labs, being Forensic Investigating Agency, were assigned the job of carrying out testing of samples. The testing was not carried by us.” He stated in para- 7 to 9 of his affidavit that, (7) “The Forensic examination of documentary evidence clearly showed many alternations, erasures, corrections and over writings in the Registers, Note books which indicated that there was a deliberate attempt to build up the records in a mechanical manner to lodge claim with insurer. The entries in accounts had been made in a hurry, which were subsequently erased with whitener. This shows that the management of Sreedevi Cold Storage had indulged in manipulating and creating records to inflate the claim. (8) Based on the IIT report it has been established that the ambient temperature due to the combustion of claimed mass of material would have been much higher in the range of around 5000C, wheras the physical conditions of the structure indicated a very lesser damage and hence the claim was grossly exaggerated. (9) I perused the forensic experts report as well as IIT report and concur with the findings of these reports to conclude that insured had committed willful destruction/arson. The cause of fire in the Sreedevi Cold Storage was not due to spontaneous combustion and the same was an account of extraneous ignitable fire accelerant (such as kerosene) used for burning the stocks in the cold storage through human intervention”.

29. RW-4 in para- 6 to 10 of his affidavit that “ I state that our report at Page-7 and findings at No.12 speaks that all the rooms, including the “condenser until, compressor unit located in back side of cold storage building were totally unaffected by fire incident. i) Findings No.13, at Page-7 states that “ Electrical Panel Board located on back side of building shows that Electrical connections in the panel board were intact, without any external symptoms of short circuit, such as blackening, melting charging, annealing and beading of metallic wires”. ii) Further the findings NO.14 at page 9 of the report states that “ the team examined switches knobs & circuits in the main electrical control panel and found the electrical connections in the panel board to be intact without any internal symptoms of short circuit, such as tripping or blackening due to electrical surges and overages”. iii) I, state that our findings No.15 states that” the transformer supplying power located in the north western corner of cold storage, and found that main fuses to be intact and there were no signs of blackening, melting or any other effects of short circuit in the transformer, electric connections”. It is submitted that we conducted forensic analysis of the documentary evidences viz., registers, note books which were given by cold storage owners to the insurer. The method of examination of said registers and books done is stated in page 13,14 and 15 of the report. “that stock register of 20-13-2014 contains several alterations, additions, over writngs, deletions and interpolations in index pages etc, and in the stock statement book opening page dt. 01-04-2013 opening balance in the column Byadgi NO.62153 was altered as 60145 and under column Gunturu 10816 was altered as 101114, as the phot of at page 14 of the report discloses it.” It is submitted that our report at page no. 15 at para(c) shows that in first five pages of the book in date column 31-04-2013 was mentioned as the last date of April month, and against it stock figure is written, this shows the manipulation of records by the insured with ulterior motive (Because there is no such date like 31-04-2013 in the calendar) its picture is shown in page 15 of our report. Hence similar observations made in page 17 of the report be read as part of this affidavit by the Hon’ble authority (to avoid repeation). Therefore, we come to conclusion that the sad fire incident dt.13/14^th January 2014 took place at Sridevi cold storage at Ballari. (a) was not due to spontaneous combustion on account of bacterial chemical fires, (b) was not due to electrical failure causes by short circuit, (c) it was due to extraneous ignitable fire accleratants such as kerosene used deliberately for ignition, initiation, propagation and burning of stocks through human intervention”.

30. When the matter is posted for argument, Sri.R.P. Advocate appearing for the complainant filed application for recall the order and permit him to cross examination of RW-4 ( Sri.G.V.H.V.Prasad) and RW-3 (Sri.D Venkataraman) by way of interrogatory. The said application is allowed in view of the submission of respondent No.2 counsel, and served the interrogatory to him and posted the matter to 17-12-2016 to reply of the RW-3 & RW-4. As the said witnesses failed to file their reply on the said day, their reply to the interrogatory taken as nil on record. However, the complainant filed memo along with the copy of interrogatory and reply of RW-3 & RW-4 filed before the Hon’ble Karnataka State Commission in the same subject matter which is pending for consideration.

In these circumstances, it is necessary to appreciate some important question and answer given by RW-3 before the Hon’ble Karnataka State Commission.

Q.No-5

a) Have you seen the report dt. 19-09-2014 submitted by the Police Officer, Balari to the Tahasildar, Ballari in connection with the enquiry proceedings against M/s. Sreedevi Cold Storage in Crime No.1/2014, in which it is categorically stated at the opening para itself that, the police officials and the Fire Brigade official stopped anybody going near the fire affected building as the fire was dense and the pungent smell was enormous and ay cause danger to the life. When this was the situation, how could the insured could take any steps to reduce/minimize the loss any prudent man would do.

b) What according to you a prudent man would do under such situation

c) Do you agree that when you visited on 17-01-2014, the entire building was caught with dense fire, smoke and pungent smell

Answer a & b :-It is reported that, on receipt of information about the fire at the insured’s cold storage, the Insurer’s from the Divisional Office. Ballari and Regional Office, Hubli, rushed to the spot on 14-01-2014 morning. On observing the fire only at the North East Corner of the cold storage in Chamber-II they instructed the insured to take immediate steps to save the stocks from the Western side of the cold storage in Chamber-I. In spite of repeated instructions from the insurers, the Insured failed to cooperate and take steps to save the stocks which could have minimized the loss. Not even a single bag of stock/commodity was recovered by the Insured. From the discussions with the Divisional Manager and other officials, we were given to understand that the Insurers have communicated to the insured in this regard. The insured reportedly stated a lame reason that fearing safety of their workers they did not do so. In our opinion, even some minimum attempts soon after the excavators were brought into action would have resulted in salvaging some good quantities of stocks.

Answer c:- During our first visit on 17-01-2014, we found the entire cold storage (Chamber-I & II) filled with full of smoke. Side walls of the ground and 1^st floors were found broken on both sides of the cold storage and the fire affected stocks of various verities of pulses were dragged out of the cold storage and found lying on both sides of the cold storage.

Q.No. 6

ä) Do you agree with your statement in your report at page 9 that On receipt of our appointment for survey on 16-01-2014, we immediately visited the insured’s fire affected cold storage at Ballari on 17-01-2014. Mr.B. Thimma Reddy, Managing Partner, explained us about the fire accident and we give below observations.

b) Do you agree that the first opposite party, namely, Sreedevi cold storage had submitted/handed over all the records pertaining to the year 2013-14 to the Divisional Manager, United India Insurance Company, Ballari on 14-01-2014 itself under the acknowledgement signed by Sri.V.Anjanappa, Asst. Manager, United India Insurance Company, Ballari and it is endorsed on the very said acknowledgement that the said documents were handed over to the Rank Surveyor and handed over on 18-01-2014 under the acknowledgement, the documents pertaining to the previous years, that is earlier to 2013-14.

c) What is the scrutiny and scrutiny of which you could reasonably conclude that, the insured newly prepared documents and submitted only on 10-02-2014.

d) What documents are produced according to you on 10-02-2014.

e) What is the basis for you to say that, newly prepared documents were submitted on 10-02-2014.

f) Do you agree that when all the current year documents, that is 2013-14 were produced on 14-01-2014 itself, it is humanly impossible to prepare any new document as the documents pertaining to 2013-14 for the current year were already submitted on 14-01-2014 itself.

Answer : a) Yes it is mentioned in our final survey report dt 20-07-2015.

Answer: b to f): All the documents received from the insured from time to time have been carefully categorized and furnished in 10 volumes running 3354 pages have been attached to this report. The various anomalies, new additions have been detailed and discussed in this report.

Q.No. 7

a) Whether you noticed or not noticed tripping of 5 MCBs in the panel board.

b) The Deputy Chief Electrical Inspector, Ballari has categorically stated in the report that, totally 5 MCBs was tripped in the panel board. Whether your team noticed the said tripping or not.

c) Do you agree that, when the MCBs are tripped the question of blackening, melting etc., does not arise as the very purpose of installing the MCBs is to get tripped, when the electrical wiring running from that MCB line is affected in any manner, such as on account of short circuit.

d) Do you agree that, when once it is tripped the electricity becomes dead at that point and avoid any damage like blackening, melting etc., and there is no question of any anything happening to the transformer as the transformer is at a distance from the accident building.

e) Why your Expert team has not discussed with the Deputy Electrical Inspector, Ballari when the Deputy Chief Electrical Inspector in hi s report dt. 26-02-2014 submitted to the Government categorically stated at para 20 that, wearing out of installation has taken place on account of biting by the rats, and on account of said wearing out of installation, two neutral wires happened to come in contact, resulting in emeregence of fire sparks are evident for short circuit.

Answer : a) We have checked the main panel board for any tell tale signs of charging and fusing of wire connections and there were no such signs. Hence we have not checked for the tripping of the miniature circuit brakers(MCBs).

Answer : b to e: Please refer the answers given by me against point no. 10(f)

Q.No. 8

ä) Where you unable to take the decision and give report in respect of accidental fire and destruction of stock in the cold storage of first opposite party, without appointing IIT Chennai.

b) When did you come to the decision of appointing IIT Chennai-Date

c) Why the delay of more than 1 year 2 months in appointing IIT Chennai.

d) Is your suggestion to appoint IIT Chennai in writing or oral.

e) What is the Date of Suggestion.

f) What is the date of approval from the insurance company and is it in writing.

Answer : a) The appointment of IIT Chennai was done in line with insurance regulatory and development authority of India (IRDA) notification chapter IV laying down the duties and responsibilities of a surveyor and loss accessor point (p) stipulating taking expert opinion wherever required we appointed IIT Chennai which is a premier institution.

b) During the first week of February 2015 (04-02-2015)

c) Till August 2014 rekindling of fire was observed in sporadic places of the cold storage and close access was not possible. Inspection was carried out by our own team of engineers thereafter from the month of September 2014 onwards. There is no delay in the appointment of IIT. Letter to IIT was sent on 06-02-2015, IIT acceptance was given in their mail dt. 06-03-2015.

d) In Writing.

e) 16-02-2015

f) 19^th March 2015 by Mail.

Q.No. 9

ä) Do you agree that, the Forensic examination of documentary evidence has pointed out only three purported errors in the stock register i.e, 01-04-2013 opening balance error, writing 31-04-2014 and erase entries on 14-01-2014 and no mistake/error found out in spite of microscopic search.

b) How do you say that, the said three purported errors would inflate the claim

c) How do you say it is manipulation.

d) The meaning of the word manipulation is to do something cunningly or cleverly in order to gain some advantage or benefit or gain. Is there any gain or any advantage or any benefit in writing the same figure as on 30-04-2014, on the date written as 31-04-2014.

Answer : a, b, c: please refer to our answer to 10 f para 10 which read as under: The result of tests has received the ingenious ways the corrections have been made which cannot be detected by naked eye and calls for sophisticated instrument. The corrections especially in the stock register prove the clever and igneous way the corrections have been made obviously with an ulterior for gaining undue advantage.

Q.No. 10

ä) Do you agree that, the report of IIT at Para 4.1 say that “however the overall weight of the mass claimed to be combusted needs further examination, as at such high temperature, the entire reinforcement could have melted and the structure should have collapsed.

b) When the report of the IIT is inchoate, cannot be complete without further examination, how have you come to the conclusion that, insured has committed willful destruction on an inchoate report.

c) Apart from the above do you agree that, when you say “such as kerosene”or such other, you are not definite as to whether kerosene or any other.

d) Do you agree that, kerosene itself is not the fire or the flame or a fire spark.

e) Do you agree that, the fire was first noticed/emerged at the top floor of the opposite party cold storage if human intervention had ignited the fire it would have been humanly impossible for any person to come down from the top floor to the ground floor and escape from the danger of being burnt himself, as all the floors, flooring are made up of wood.

f) Do you agree that, you have deliberately ignored the reports of Deputy Chief Electrical Inspector, Ballari, report of the directors of forensic laboratory and the report of the Police, who have categorically held after thorough investigation that, the fire accident is o account of short circuit which reports are impeccable.

Answer : a & b) There is no incoherency in the statement. IIT has reported the overall weight of the mass claimed to be combusted needs further examination

c) Such as kerosene means kerosene is a readily available domestic fuel and on ignitable fire accelerant.

d) I have already stated kerosene is ignitable fire accelerant.

e,f) We are in agreement with the opinion of the electrical Inspector BAllari the presence of rodents such as rats & mice in great numbers gnawing the electrical wires resulting in frequent short circuit and instantaneous tripping of MCB cutting of power supply. The insured cold storage has been functioning from the year 2007. In the 7 years service many short circuits due to presence of mice and rats in good number gnawing the electrical wiring would have happened. But no incident of fire has ever been reported. We also do not discount the occurrence of a short circuit in the subject case especially the MCBs have been found in tripped condition by the Electrical Inspector of Electrical Inspectorate of Government of Karnataka. Our observations is that such a short circuit alone could not have resulted in the colossal fire accident. This proves the fire has been set by human intervention using fire accelerant.

Report of Assistant Director (Ballistics) Forensic Science Laboratory

The author of this report terms the cold storage, which is the location of fire as crime scene. This connotes that the fire is due to a criminal act of human intervention. The author, against point no.10 has stated that the debris scattered on the ground floor were examined and noted that no smell of accelerants such as kerosene, diesel or petrol. This is purely by sense of smell and not by conducting any scientific laboratory tests; moreover the fire accelerants such as kerosene, diesel, petrol once completely burnt do not yield any smell. Hence concluding from mere sense of smell that no fire accelerants have been used is an erroneous statement. Further as per the report it was not possible for the author to locate the exact place. The final passing remark that an electrical short circuit may have the fire is only a surmise. It is pertinent to note that the Assistant Director (BAllastics) Forensic Science Laboratory had visited the scene of fire on 25 & 26-02-2014, which is nearly 40 days after the date of fire. In contrast, truth labs assigned by the Regional Manager of UIIC/Hubli visited the cold storage with a four member expert team headed by Dr . Gandhi PC Koza, Chairman Truth labs, Dr. TSN Murthy Director Technical M/s. A.Jayanth and HV Naveen Scientific Officers Truth Labs on 22^nd & 23^rd January 2014, which is within the 2 days of intimation from UIIC and within 8 days of the date of fire in the cold storage. The team has collected as many as 18 samples of burnt debris from 12 locations in the cold storage in the presence of the insured. These samples were subjected to CG-MS (Gas chromatography mass spectrometer) analysis with a control sample of un burnt red chilies’ 12 nos. of samples showed the presence of varied nature of hydrocarbons as against no hydrocarbons in the control sample collected from the same scene in the unaffected area. These results are authentic and accepted by law courts in the country. In respect of examination of documents, truth labs has used sophisticated video spectral comparator manufactured by Foster & Fireman UK. This is a widely accepted instrument for the examination of altered or obliterated entries and entries which have faded or been washed out. The result of tests have revealed the ingenous ways the corrections have been made which cannot be detected by naked eye and calls for sophisticated instrument. The corrections especially in the stock register prove the clever and igneous way the corrections have been made obviously with an ulterior motive for gaining undue advantage. Finally we proclaim that we have conducted the survey in a very impartial manner without any prejudice whatsoever.

It is also necessary to appreciate some important question and answer given by RW-4 before the Hon’ble Karnataka State Commission for proper adjudication of the matter.

Q.No. 1

ä) What is the qualifications, experience, specialization/ expatriation of all the 5 team members,

b) What is the total fees received for conducting the entries investigation and submitting the report, to file this affidavit.

c) What is the fee charged for filing the affidavit.

Answer : a) Expert profiles:1) Dr. Gandhi PC Kaza- Attached as Annexure-I, 2) Mr.G.VHV Prasad- Attached AnnexureII, 3) Dr. TSN Murthy- Attached AnnexureIII, 4) Mr. A.Jayanth- Attached AnnexureIV, 5) Mr.H.P.Naveen- Attached AnnexureV.

b) Rs. 3,89,670/- was received towards fees for conducting the entire investigation and submitting the report.

c) There is no fee charged for filing the affidavit.

Q.No. 3

ä) The Deputy Chief Electrical Inspector, Ballari has categorically stated in the report that, totally 5 MCBs were tripped in the panel board. Whether your team noticed the said tripping or not.

b) Do you agree that, when the MCBs are tripped the question of blackening, melting etc, does not arise as the very purpose of installing the MCBs is to get tripped, when the electrical wiring running from that MCB line is affected in any manner, such as on account of short circuit.

c) Do you agree that, when once it is tripped the electricity becomes dead at that point and avoid any damage like blackening, melting etc., and there is no question of anything happening to the transformer as the transformer is at a distance from the accident builing.

d) Why your expert team has not discussed with the Deputy Electrical Inspector, Ballari when the Deputy Chief Electrical Inspector in his report dt. 26-02-2014 submitted to the Government has categorically has stated at para 20 that wearing out of installation has taken place on account of biting by the rats, and on account of said wearing out of installation two neutral wires happened to come in contact resulting in emergence of fire sparks are evident for short circuit.

Answer : a) Our expert team did not find tripping off not even one MCB

b) We have no comments.

c) Transformer from where the electrical supply to the cold storage is taken was thoroughly examined by the expert team and was found intact. No effects of short circuit were observed.

d) Report dt. 26^th Februry 2016 of Deputy Chief Electrical Inspector, Ballari was not brought to our notice. Expert team was not even provided with the copy of complaint made by the management to the electrical department entire investigation process was carried out independently and impartially by us.

Q.No. 5

ä) . Who has done the chemical analysis

b) What is his qualification and experience

c) How the samples were sent for chemical analysis

d) Is there any written report signed by the person, who did the analysis

e) Why the report is in kept in dark till date.

f) When it is stated such as kerosene do you agree that, you are not definite whether it is kerosene.

g) Do you agree kerosene is not an ignitable fire.

h) Do you agree that, the kerosene to become fire or flame requires ignition by a fire spark or fire flame.

i) Do you agree that, the ground floor flooring and top floor inside portion of the cold storage along with 169 pillars are insulted by sandwiching the thermocoal and tar in between the concrete in order to maintain cooling effect inside entire cold storage building and each floor flooring of the cold storage is made up of wooden flooring.

Answer : a) Dr. R.Srinivas, Chief Scientist and Head National Centre for Mass Spectroscopy, Indian Institute of Chemical Technology, Hyderabad and his team had done the chemical analysis.

b) Dr.R.Srinivas, MSc, Phd, Chemistry Chief Scientist and Head, National Center for mass spectroscopy, Indian Institute of Chemical Technology)

c) Samples were sent by a person, in a sealed envelope in which twelve separate polythene covers label from sample 1 to sample 12 and the control sample were kept.

d) There is a written report signed by Dr.R.Srinivas

e) It is incorrect to say the report was kept in dark. The chemical analysis report containing 27 sheets was submitted along with our expert.

f) It is incorrect to say that we are not definite about the use of kerosene just because it is mentioned such as kerosene based on the chemical analysis report and the chain of hydrocarbons present in the debris samples it was constructed that extraneous ignitable fire accelerants such as kerosene were used for initiation of fire.

g) Kerosene facilitates and hastens the process of ignition.

h) Ignition is requied for a fire.

i) We are not aware of how this cold storage was built.

Q.No. 6

ä) Do you agree that, no comment is made because there is no presence of any Hydro Carbon.

Answer : a) During the first visit of the expert team to the affected premises, it was observed that fire was still in progress and so samples were collected from peripheral areas of the affected premises which were 18 in number. Expert team made a second visit on 28^th February 2014 fire was totally off. The team has collected pertinent physical evidence from the debris all over the affected premises and the samples were 12 in number. After thorough discussion at Truth Labs by the experts, it was concluded an decided to subject all the 12 samples collected by the team during the second visit for CGMS analysis and the samples collected during the first visit need not be subjected to GCMS analysis. Hence it is not correct to say that there is no presence of Hydrocarbons in these 18 samples

Q.No. 8

ä) Do you agree that, the presence of hydrocarbons in all the 12 samples is because, thermocoal and tar is used in the entire cold storage ground floor flooring along with 169 pillars and the presence of the hydrocarbon both in Tar (bitumen) and Thermocoal is the reason for presence of hydrocarbon in all the 12 samples.

b) Do you agree that, the Thermocoal and Tar are combustible materials, contains hydro carbons.

c) Do you agree that, you have gone thorough the report given by the Director of Forensic Science Laboratory dt. 14-03-2014, in which it is stated at Para 10 that the debris layer by layer at various places and noted that no smell of accelerants such as kerosene, diesel and petrol. And further stated in the said report at the conclusion portion that:

1) Presence of combustible materials like thermocoals (which are used to insulate the walls) pillars, wooden partitions and the grains stored inside the building could have enhanced the spread of fire.

2) The congested space in the building might have accelerated the smoldering fire.

3) The fire might have originated at the sixth floor front side of the building. But it was not possible to locate the exact place of origin of fire since the complete building was involved in fire.

4) An electrical short circuit may have initiated the fire

d) Do you agree that, the above report by the Director of Forensic Science Laboratory, is given after thorough enquiry, in response to the requisition by the Deputy Superintendent Police, Ballari in the Crime No. FA1/14 listed by the police against the first opposite

3) Do you agree that, the said Forensic Science Laboratory is the Government Department and which is one of the most reputed Forensic Science Laboratory in India.

Answer : a) The control sample was collected from a plastic bag containing fresh (unaffected) red chillies found in the burnt stock in the south east corner of the affected premises. The control sample did not show the presence of any hydrocarbons. If the hydrocarbons found in the 12 samples were because of Thermocoal and Tar, the control sample also should have been positive for the same hydrocarbons that were found in the 12 samples, which is not the case.

b) Thermocoal and Tar combustible materials. They contain hydrocarbons which are different from those found in the 12 samples. The hydrocarbons found in the 12 samples indicate the presence of extraneous ignitable fire accelerants.

c) We are not aware of the report dt.14-03-2014, given by the Director of Forensic Science Laboratory.

1. The report of the director says, that the thermocoal pillars, wooden partitions and the grains store inside the building could have enhanced the spread of fire but did not say that they fire is ignited because of these materials.

2. Report comments that congested space in the building might have accelerated the smoldering fire but did not say that the congested space has ignited the fire.

3. The report is not sure the place of origin of the fire.

4. The report stated that the electrical short circuit might have initiated fire which establishes that the fire may be or may not be due to electrical short circuit and without any substantiation.

d) We have no comments.

e) We have no comments.

Q.No. 9

ä) Do you agree that, the above errors are shown in the report given by the Truth Lab.

b) Do you agree that, the errors pointed out/found out/discovered are only the above 3 errors and nothing else.

c) Do you agree that, as per page 14 of the truth lab report the opening balance on 01-04-2014, the Byadagi is altered as 60145 from 62153 the Guntur is altered as 10114 from 10816

d) Do you agree that, as per page 15 of the truth lab report, no transaction is shown, on date written as 31-04-2013 and what were the figures written on 30-04-2013, the same figures are written on the date written as 31-04-2013 also.

e) Do you agree that, 14-01-2014 was a holiday on account of Makara Sankranti and 15-04-2014 was a holiday on account of Eid-Milad

f) Do you agree that as shown by the Truth Lab report at Page 15 that whatever the figures written/shown on 13-01-2014 the same figures are written/shown on 14-01-2014 and 15-01-2014.

Answer : a) The errors quoted were found in the stock registers submitted to us and were recorded in the report.

b) Only a few of the errors identified were incorporated in the report.

c) It is not the mere alterations to be looked into but the motive and modus operandi of the management behind these alterations.

d) It reflects the intentions of the management to manipulate the data.

e) We are not aware of the holidays and for what purposes, the holidays were given.

f) Intention of the management in manipulating the records was established

Q.No. 10

ä) Do you agree that when you say such as kerosene or such other you are not definite as to whether kerosene or any other.

b) Do you agree that the fire was first noticed/emerged at the top floor of the first opposite party cold storage if human intervention had ignited the fire it would be humanly impossible for any person to come down from the top floor to the ground floor and escape from the danger of being him burnt himself as all the 6 floors, flooring are made up of wood.

c) Do you agree that, you have deliberately ignored the report of the Deputy Chief Electrical Inspectorate and report of the Director of Forensic Laboratory Bangalore and report of the police who have held on thorough investigation that, the fire accident is on account of short circuit.

Answer : a)GS-MS analysis results have proved the presence of hydrocarbons ranging from C-10 to C20 in all the burnt debris samples which indicate the use of extraneous ignitable fire accelerants for initiation of fire. We are definite that kerosene is the ingredient used along with the range of materials having similar hydrocarbons.

b) We cannot offer any comments on hypothetical issues it is incorrect to draw conclusions on that basis. However it should be noted that fire was not first noticed but only the smoke was first noticed at the top floor of the affected premises as stated by the eye witness.

c) We are not aware of the report of the Deputy Chief Electrical Inspectorate. It is incorrect to say that his report is deliberately ignored. Truth Labs is an independent professional organization with eminent and experienced persons on the expert board and advisory board and the sole objective is to thoroughly investigate and collect evidence and in the process record observations and findings and thereby draw conclusions after an in depth analysis to establish truth and nothing but the truth.

31. The answers given by RW-3 and RW-4 before the Hon’ble Karnataka State Commission clearly shows that they are not aware of how the cold storage built and did not conduct the investigation in proper manner as per their duly contemplated under Fire insurance–Law and practice.

In clause 12-17.3 of the Fire insurance –law and practice reads thus,

“ The surveyors/loss ascertain detail of the cover granted by the insurance company and also verify the account books, police record, inquire persons in the locality and record statements of witnesses to the occurrence as well as other whose statement may be useful in deciding the liability of the insurer for the claim and quantum of loss suffered by the insured and that which may have to be paid by the company”. Hence duty cost upon the surveyors to ascertain true cause of incident which is not done in the present complaint.

32. The RW-4 stated in his affidavit that the team had been constituted consisting of experts namely, 1, Dr.T.S.N.Murthy, 2.A.Jayanth, 3.H.V.Naveen. The RW-2 also furnished the profiles of the experts. RW-4s qualifications shows that M.Sc in chemistry, University of Mysore, M.Phil in chemistry, University of Hydrabad, PG Diploma in cyber Forensics, University of Hyderabad. Dr.T.S.N.Murthy qualifications shows that M.Sc,Ph.D in physics. A.Jayanth qualifications shows that Masters in Criminology and Forensic science from Karnataka University. H.V.Naveen qualification shows that he made B.E Electronics & Communication Engineering, Anna University. M.Sc computer Forensics and Systems Security, University of Greenwich. The profiles of the expert team shows they are all expert their own field and none of them is qualified as Electronical engineer.

33. It has been submitted by Sri.R.P.Advocate as well as 1^st respondent that the report submitted by surveyor, truth lab as well as IIT are totally against the documentary evidence. They further stated that when the Managing partner of respondent No.1 lodged the complaint to the police, the police registered a complaint and after thorough investigation, recorded statements of 33 witnesses and after calling reports from Regional Fire Brigades officer, report from Deputy Electrical Inspector, and Forensic Lab, Bangalore, sub-inspector of police filed his final report on 19-09-2014 stating that the fire caused due to electrical short circuit. Hence there is no reason to disbelieve the statement of the Respondent No.1.

34. In our view, the contention raised by the complainant as well as respondent No.1 requires to be accepted for the following reasons.

In the complaint given by the respondent No.1 on 14-01-2014 to the Rural Police it is stated that “ ¢£ÁAPÀ 14-01-2014 gÀAzÀÄ ¨É¼ÀV£À eÁªÀ 12:45 UÀAmÉUÉ £ÀªÀÄä PÉÆÃ¯ïØ ¸ÉÆÖÃgÉÃeï£À°è DPÀ¹äPÀªÁV «zÀÄåvï ±Álð DV ¨ÉAV ºÀwÛ PÉÆAqÀÄ PÉÆÃ¯ïØ ¸ÉÆÖÃgÉÃeï CzÀgÀ°èAiÀÄ zÀªÀ¸À zsÁ£ÀåUÀ¼ÀÄ ¸ÀÄlÄÖ MlÄÖ gÀÆ.340734950/- £ÀµÀÖªÁVgÀÄvÀÛzÉ. F ¨ÉAQ C¥ÀWÁvÀzÀ°è AiÀiÁªÀÅzÉÃ ¸ÁªÀÅ £ÉÆÃªÀÅ DVgÀÄªÀÅ¢®è. ¨ÉAQ £ÀA¢¹zÀ £ÀAvÀgÀ £Á£ÀÄ JµÀÄÖ £ÀµÀÖªÁVzÉ JAzÀÄ w½zÀÄPÉÆAqÀÄ FUÀ oÁuÉUÉ F zÀÆj£ÉÆA¢UÉ §A¢zÀÄÝ ªÀÄÄA¢£À PÀæªÀÄ dgÀÄV¸À®Ä PÉÆÃjPÉ”. The 1^st respondent vide complaint Dtd: 15-01-2014 stated that “ §¼Áîj-¨ÉAUÀ¼ÀÆgÀÄ gÀ¸ÉÛ ªÀÄÄAqÀæV EAqÀ¹ÖÃAiÀÄ¯ï KjAiÀiÁ 2 ªÀÄvÀÄÛ 3 £ÉÃ ¸ÉÖÃd£À°ègÀÄªÀ £ÀªÀÄä ªÉÄÃ: ²æÃzÉÃ« PÉÆÃ¯ïØ ¸ÉÆÖÃgÉd£À 6 CAvÀ¹Û£À ©°ØAUÀ£À°è ¢£ÁAPÀ 14-01-2014 gÀAzÀÄ ¨É¼ÀV£À eÁªÀ (gÁwæ) 12:45 UÀAmÉ ¸ÀÄªÀiÁjUÉ PÉÆÃ¯ïØ ¸ÉÆÖÃgÉd£À°è DPÀ¹äPÀªÁV «zÀÄåvï ±Álð DV ¨ÉAQ ºÀwÛPÉÆAqÀÄ PÉÆ¯ïØ ¸ÉÆÖÃgÉeï, CzÀgÀ°èAiÀÄ zÀªÀ¸À zsÁ£ÀåUÀ¼ÀÄ ¸ÀÄlÄÖ MlÄÖ gÀÆ.340734950/- £ÀµÀÖªÁVgÀÄvÀÛzÉAzÀÄ zsÀªÀ¸À zsÁ£ÀåUÀ¼À°è zsÀ¤AiÀÄ MlÄÖ 2292 aÃ®UÀ¼ÀÄ EzÀÄÝ MlÄÖ 1031 PÀéAmÁ¯ï ¸ÀÄlÄÖ gÀÆ.4948800/- £ÀµÀÖªÁVgÀÄvÀÛzÉAzÀÄ ¥ÀgÀ¥Án¤AzÀ w½¹zÉÝ£ÀÄ. F ¢£À £Á£ÀÄ F ªÀÄgÀÄ zÀÆgÀÄ ¤ÃqÀÄªÀÅzÉÃ£ÉAzÀgÉ, zsÀªÀ¸À zsÁ£ÀåUÀ¼À°è zsÀ¤AiÀÄ MlÄÖ 2292 aÃ®UÀ¼ÀÄ EzÀÄÝ ¥ÀæwAiÉÆAzÀÄ aÃ®zÀ°è 45 PÉ.f zsÀ¤AiÀÄ vÀÄA©gÀÄvÀÛzÉ. 45 PÉ.f vÀÆPÀzÀ zsÀ¤AiÀÄ aÃ®PÉÌ gÀÆ.4800/- ¨É¯É EgÀÄvÀÛzÉ. MlÄÖ 1031 QéAmÁ¯ï zsÀ¤AiÀÄ ¨É¯É gÀÆ.11001600/- (MAzÀÄ PÉÆÃn ºÀvÀÄÛ ®PÀëzÀ ºÀ¢£ÁgÀÄ) DUÀÄvÀÛzÉ. £À£Àß PÉÆ¯ïØ ¸ÉÆÖÃgÉeï, CzÀgÀ°èAiÀÄ zÀªÀ¸À zsÁ£ÀåUÀ¼ÀÄ ¸ÀÄlÄÖ £À£ÀUÉ MlÄÖ gÀÆ.346787750/- (ªÀÄÆªÀvÀÄÛ £Á®ÄÌ PÉÆÃn CgÀªÀvÀÄÛ K¼ÀÄ ®PÀëzÀ JA§vÉÛÃ¼ÀÄ ¸Á«gÀzÀ K¼ÀÄ£ÀÆgÀ LªÀvÀÄÛ gÀÆ¥Á¬ÄUÀ¼ÀÄ) £ÀµÀÖªÁVgÀÄvÀÛzÉAzÀÄ F ªÀÄÆ®PÀ vÀªÀÄä°è F ªÀÄgÀÄ zÀÆgÀÄ ¤ÃrgÀÄvÉÛÃ£É”. It clearly goes to show that on the date of incident the 1^st respondent reported the incident to the police by stating the quantity and price of destroyed agricultural produce.

In Ex.P-2 (In CC-289/2015) the jurisdictional Rural Police reported the Tahasildhar, Ballari vide letter Dtd:19-09-2014 that “ªÉÄÃ®ÌAqÀ «µÀAiÀÄ ªÀÄvÀÄÛ G¯ÉèÃRzÀ §UÉÎ ªÀgÀ¢ ªÀiÁqÀÄªÀÅzÉÃ£ÀzÀAgÉ ¢£ÁAPÀ 14-01-2014 gÀAzÀÄ ¨É¼ÀV£À eÁªÀ £Á£ÀÄ «±ÁæAwAiÀÄ°èzÁÝUÀ oÁuÉAiÀÄ J¸ï.ºÉZï.N ºÉZï.¹-126 gÀªÀgÀÄ £À£ÀUÉ zÀÆgÀªÁtÂ ªÀÄÄSÁAvÀgÀ ªÀÄÄAqÀæV EAqÀ¹ÖçÃAiÀÄ¯ï KjAiÀiÁ 2 £ÉÃ ªÀÄvÀÄÛ 3 £ÉÃ ¸ÉÖÃeï£À°è ªÉÄ:²æÃzÉÃ« PÉÆÃ¯ïØ ¸ÉÆÖÃgÉÃeï ©°ØAUïUÉ ¨ÉAV ºÀwÛgÀÄvÀÛzÉAzÀÄ ªÀiÁ»w §AzÀ ªÉÄÃgÉUÉ £Á£ÀÄ ¨É¼ÀV£À eÁªÀ 1:15 UÀAmÉUÉ oÁuÉUÉ ºÁdgÁV ¹§âA¢AiÀÄªÀgÁzÀ ºÉZï.¹-48 ºÉZï.¹.389 ¦.¹.200-919 gÀªÀgÉÆA¢UÉ ¨É¼ÀV£À eÁªÀ 1:50 UÀAmÉUÉ ¸ÀÜ¼ÀPÉÌ ºÉÆÃV ¥Àj²Ã°¹ £ÉÆÃqÀ¯ÁV F PÀlÖqÀªÀÅ CAzÁdÄ 6 CAvÀ¹Û£À PÀlÖqÀªÁVzÀÄÝ, CAzÁdÄ 60 Cr JvÀægÀ«gÀÄvÀÛzÉ JgÀqÀÄ ¨sÁUÀªÁV «AUÀr¹gÀÄvÀÛzÉ. PÉÆÃ¯ïØ ¸ÉÆÖÃgÉf£À F±Á£Àå ¨sÁUÀzÀ°è ¨ÉAV ºÀwÛPÉÆArzÀÄÝ ¥ÀÆªÀð¨sÁUÀzÀ PÉÆ¯ïØ ¸ÉÆÖÃgÉÃfUÉ ¥ÀÆwðAiÀiÁV ¨ÉAV ºÀwÛzÀÄÝ ¥À²ÑªÀÄ ¨sÁUÀzÀ°è ¸ÀºÀ ¨ÉAQ ªÁå¦¹PÉÆArzÀÄÝ CzÀgÀ°è zÁ¸ÁÛ£ÀÄ ªÀiÁrzÀ zÀªÀ¸À zsÁ£ÀåUÀ¼À£ÀÄß ¸ÀºÀ gÀQë¸À®Ä ¸ÁzsÀåªÁVgÀÄªÀÅ¢®è. ¸ÀÜ¼ÀPÉÌ §¼ÁîjAiÀÄ CVß ±ÁªÀÄPÀ oÁuÉAiÀÄ Dgï.J¥sï.N ²æÃ.JA.Dgï.£ÀgÀ¹AºÀ ªÀÄÆwðgÀªÀgÀ £ÉÃvÀÈvÀézÀ°è ¹§âA¢AiÀÄªÀgÀÄ §AzÀÄ ¨ÉAQAiÀÄ£ÀÄß £ÀA¢¸ÀÄªÀ PÁAiÀÄðzÀ°è vÉÆqÀVzÀÄÝ PÉÆÃ¯ïØ ¸ÉÆÖÃgÉÃf£À J¯Áè ¨sÁUÀPÉÌ ¨ÉAQ ªÁå¦¹PÉÆArzÀÝjAzÀ ¥À²ÑªÀÄ ¨sÀUÀzÀ PÉÆÃ¯ïØ ¸ÉÆÖÃgÉÃfUÉ ¸ÀºÀ ¨ÉAQ ªÁå¦¹PÉÆAqÀÄ zÀlÖªÁzÀ ºÉÆUÉAiÀiÁqÀÄwÛzÀÄÝ ªÀÄvÀÄÛ M¼ÀUÀqÉ zÁ¸ÁÛ£ÀÄ ªÀiÁrzÀ ªÉÄt¹£ÀPÁ¬Ä ¸ÀÄlÄÖ WÁlÄ ªÁ¸À£É §gÀÄwÛzÀÄÝ PÉÆ¯ïØ ¸ÉÆÖÃgÉÃf£À°è zÁ¸ÁÛ£ÀÄ ªÀiÁrzÀ zÀªÀ¸À zsÁ£ÀåUÀ¼À£ÀÄß ºÉÆgÀUÉ vÉUÉAiÀÄ®Ä ºÉÆÃzÀ°è ¥ÁæuÁ¥ÁAiÀÄªÁUÀÄªÀ ¸ÁzsÀåvÉ EzÀÄÝzÀjAzÀ CVß ±ÁªÀÄPÀ zÀ¼ÀzÀªÀgÀÄ ªÀÄvÀÄÛ £ÁªÀÅ PÉÆ¯ïØ ¸ÉÆÖÃgÉÃf£À M¼ÀUÉ ºÉÆÃV zÀªÀ¸À zsÁ£ÀåUÀ¼À£ÀÄß ºÉÆgÀ vÉUÉAiÀÄ®Ä CªÀPÁ±À ªÀiÁrPÉÆnÖgÀÄªÀÅ¢®è. CVß±ÁªÀÄPÀ zÀ¼ÀzÀªÀgÀÄ ¢£ÁAPÀ 14-01-2014 gÀAzÀÄ ªÀÄzÁåºÀß 1:00 UÀAmÉ ¸ÀÄªÀiÁjUÉ ¨ÉAQAiÀÄ£ÀÄß £ÀA¢¹gÀÄvÁÛgÉ. Further in the said report it is stated that “ CVß ±ÁªÀÄPÀ oÁuÁ¢üPÁj, PÀ£ÁðlPÀ gÁdå CVß ±ÁªÀÄPÀ ªÀÄvÀÄÛ vÀÄvÀÄð ¸ÉÃªÉUÀ¼ÀÄ, CVß ±ÁªÀÄPÀ oÁuÉ §¼ÁîjgÀªÀgÀÄ vÀªÀÄä wÃªÀæ CVß PÀgÉ ªÀgÀ¢ ¸ÀASÉå 1/2014 gÀ°è ªÀgÀ¢ ¤ÃrzÀÄÝ ªÀgÀ¢AiÀÄ°è ²æÃzÉÃ« PÉÆÃ¯ïØ ¸ÉÆÖÃgÉÃeï EArAiÀiÁ ¥ÉæöÊ.°. CAzÁdÄ 103*104 C¼ÀvÉAiÀÄ f+05 §ºÀÄªÀÄºÀr PÀlÖqÀzÀ PÉÆÃ¯ïØ ¸ÉÆÖÃgÉÃeï, ºÁUÀÄ ¸ÉÆÖÃgÉÃf£À°è ±ÉÃRj¹zÀ 39149 aÃ® ¨ÁåqÀV ªÉÄt¹£ÀPÁ¬Ä, 1423 aÃ® UÀÄAlÆgÀÄ Mt ªÉÄt¹£ÀPÁ¬Ä 1475 aÃ® vÉÆUÀj, 1397 aÃ® ¹Ãqïì ©½eÉÆÃ¼À, 65 aÃ® ºÀÄt¸É ºÀtÄÚ, 2292 aÃ® zsÀ¤AiÀÄ 3471 aÃ® ºÀ¹PÀqÀ¯É EvÁå¢ DºÁgÀ ¥ÀzÁxÀðUÀ¼ÀÄ EvÀgÉ zsÀªÀiÁð PÉÆÃ¯ï, ©mÁ«Ä£ï, vÁgï, ¥À®à eÉÆvÉUÉ 5 ºÉZï. ¦ ªÉÆÃmÁgï, JgÀqÀÄ »ÃlgÀUÀ¼ÀÄ, ¨ÉAQ £ÀA¢¸ÀÄªÀ G¥ÀPÀgÀtUÀ¼ÀÄ, vÁ¼É §A§ÄUÀ¼ÀÄ, eÁ°ªÀÄgÀzÀ jÃ¥ÀgïUÀ¼ÀÄ ªÀÄvÀÄÛ CzÀgÀ°èAiÀÄ G¥ÀPÀgÀtUÀ¼ÀÄ ¨ÉAQAiÀÄ°è ¹®ÄQ ºÁ¤AiÀiÁVgÀÄvÀÛªÉ JAzÀÄ D©ü¥ÁæAiÀÄ ¤ÃrgÀÄvÁÛgÉ. qÉ¥ÀÆån aÃ¥sï J¯ÉnæPÀ®è E£ïì¥ÉPÀÖgï, §¼ÁîjgÀªÀgÀÄ vÀªÀÄä ªÀgÀ¢ ¸ÀASÉå GªÀÄÄ«¥À(§¼Áîj)C¥ÀWÁvÀ/13-14/4508-14 ¢£ÁAPÀ 26-02-2014 gÀ°è ¯ÉÊnAUï ¸ÀPÀÆåðmïUÀ¼À «zÀÄåvï ªÀåªÀ¸ÉÜAiÀÄ «zÀÄåvï ¤AiÀÄªÀÄUÀ¼À£ÀÄ¸ÁgÀ E®èzÉÃ EzÀÄÝ E°UÀ¼ÀÄ, ºÉUÀÎtUÀ¼ÀÄ ¸ÀºÀ ºÉZÁÑV EzÀÄÝzÀjAzÀ ªÁºÀPÀUÀ¼À E£ÀìAiÀÄ¯ÉÃµÀ£ï PÀr¢gÀÄªÀAvÀºÀ ¸ÁzÀåvÉUÀ½zÀÄÝ EzÀjAzÀ «zÀÄåvÀ ªÁºÀPÀUÀ¼À E£ÀÄì¯ÉÃ±À£ï ªÁºÀPÀUÀ¼ÀÄ ¯ÉÆÃºÀzÀ J½UÀ¼ÀÄ MAzÀPÉÆÌAzÀÄ ¸ÀA¥ÀðPÀPÉÌ §AzÀÄ «zÀÄåvï ±Ámïð ¸ÀPÀÆåðmï ¸ÀA¨sÀ«¹gÀÄªÀÅzÀÄ F C¥ÀWÁgÀ PÁgÀtªÁVgÀÄªÀÅzÁV C©ü¥Áæ¬Ä¸À¯ÁVzÉ JAzÀÄ vÀªÀÄä C©ü¥ÁæAiÀÄ ¤ÃrgÀÄvÁÛgÉ. So, the reports show that, after investigation and enquire with the localist the police reported that the fire was occurred due to short circuit.

In Ex-P-3 (In CC-289/2015), District fire officer, Fire Station, Ballari reported that “F ªÉÄÃ°£À «µÀAiÀÄ ºÁUÀÆ G¯ÉèÃRPÉÌ ¸ÀA§A¢ü¹zÀAvÉ, vÀªÀÄä°è w½¸ÀÄªÀÅzÉÃ£ÉAzÀgÉ ¢£ÁAPÀ 14-01-2014 gÀAzÀÄ ªÀÄÄAeÁ£É §¼Áîj £ÀUÀgÀzÀ ºÉÆgÀªÀ®AiÀÄzÀ ²æÃzÉÃ« PÉÆÃ¯ïØ ¸ÉÆÖÃgÉÃeï£À°è ¸ÀA¨sÀ«¹zÀ wÃªÀæ CVßPÀgÉ ¸ÀASÉå 01/14 gÀ ªÀgÀ¢ ºÁUÀÆ CVß PÀgÉAiÀÄ°è ¨sÁUÀªÀ»¹zÀ C¢üPÁj/¹§âA¢AiÀÄªÀgÀ ªÀiÁ»wAiÀÄ£ÀÄß vÀªÀÄä PÉÆÃjPÉAiÀÄAvÉ F ¥ÀvÀæzÉÆA¢UÉ ®UÀwÛ¹ PÀ¼ÀÄ»¹PÉÆqÀ¯ÁVzÉ.”. The contents of this report reveal that totally “²æÃzÉÃ« PÉÆÃ¯ïØ ¸ÉÆÖÃgÉÃeï, EArAiÀiÁ ¥ÉæöÊ.°. CAzÁdÄ 103µÀ143 C¼ÀvÉAiÀÄ f+ §ºÀÄªÀÄºÀr PÀlÖqÀzÀ PÉÆÃ¯ïØ ¸ÉÆÖÃgÉÃeï, ºÁUÀÆ ¸ÉÆÖÃgÉd£À°è ±ÉÃRj¹zÀ 39149 aÃ® ¨ÁåqÀV MtªÉÄt¹£ÀPÁ¬Ä, 1423 aÃ® UÀÄAlÆgÀÄ MtªÉÄt¹£ÀPÁ¬Ä, 1475 aÃ® vÉÆUÀj, 1397 ¸Á«gÀ aÃ® ¹Ãqïì ©½eÉÆÃ¼À, 65 aÃ® ºÀÄt¸ÉºÀtÄÚ 2292 aÃ® zsÀ¤AiÀiÁ, 3471 aÃ®UÀ¼ÀÄ ºÀ¹PÀqÀ¯É, EvÁå¢ DºÁgÀ ¥ÀzÁxÀðUÀ¼ÀÄ EvÀgÉ zsÀªÀÄðPÉÆÃ¯ï, ©mÁ«Ä£ï, vÁgï ¥É¯ïÖ eÉÆvÉUÉ 5 ºÉZï. ¦ ªÉÆÃmÁgï, JgÀqÀÄ »ÃlgïUÀ¼ÀÄ ¨ÉAQ £ÀA¢¸ÀÄªÀ G¥ÀPÀgÀtUÀ¼ÀÄ vÁ¼É §A§ÄUÀ¼ÀÄ, eÁ°ªÀÄgÀzÀ jÃ¥Àgï ¥ÀnÖUÀ¼ÀÄ ªÀÄvÀÄÛ CzÀgÀ°èAiÀÄ G¥ÀPÀgÀtUÀ¼ÀÄ, ¨ÉAQAiÀÄ°è M¼ÀUÉÆArgÀÄvÀÛzÉ (ºÉaÑ£À ªÀiÁ»w ®UÀwÛ¹zÉ).were destroyed due to fire accident.

The Deputy Chief Electrical Inspector has stated in 2^nd page para 10 of his report (Ex.P-4 in CC-289/2015) “ PÀlÖqÀªÀÅ ¸ÀA¥ÀÆtð ¸ÀÄnÖzÀÄÝ M¼ÀUÉ ºÉÆÃV PÀÆ®APÀÆ±ÀªÁV ¥Àj²Ã®£É ªÀiÁqÀ®Ä ¸ÁzsÀåªÁVgÀÄªÀÅ¢®è. £É®ªÀÄºÀrAiÀÄ°ègÀÄªÀAvÀºÀ «zÀÄåvï ªÀåªÀ¸ÉÜ ªÀÄvÀÄÛ £É® ªÀÄºÀrAiÀÄ°èAzÀ ªÉÄÃ°£À ªÀÄºÀrAiÀÄ°è PÀAqÀÄ§AzÀAvÀºÀ «zÀÄåvï ªÀåªÀ¸ÉÜAiÀÄ£ÀÄß ¥Àj²Ã°¹ ªÀÄvÀÄÛ UÁæºÀPÀgÀ ªÀÄvÀÄÛ C°è PÉ®¸À ªÀiÁqÀÄªÀAvÀºÀ PÉ®¸ÀUÁgÀjAzÀ ªÀiÁ»w ¥ÀqÉAiÀÄ¯ÁVgÀÄvÀÛzÉ. In para No. 18 and 19 of the report he also stated that “J¯ï.n PÀAmÉÆæÃ¯ï ¥Áå£À¯ï£À°è 250 DA¥ïì JA.¹.¹.© ¬ÄAzÀ §¸ï ¨ÁgïUÀ¼À£ÀÄß C¼ÀªÀr¹zÀÄÝ, E°èAzÀ 4 * 4.5 ºÉ.Zï.¦ ªÉÆÃmÁgÀÄUÀ½UÉ 4*16 DA¥ïì 3 ¥sÉÃ¸ï JA¹©UÀ¼À£ÀÄß C¼ÀªÀr¹ «zÀÄåvï ¸ÀgÀ§gÁdÄ ¤ÃrzÀÄÝ EªÀÅUÀ¼À°è JgÀqÀÄ JA¹©UÀ¼ÀÄ næÃ¥ï DVgÀÄªÀÅzÀÄ PÀAqÀÄ§A¢gÀÄvÀÛzÉ. C®èzÉ E°èAzÀ ¯ÉÊnAUï ¸ÀPÀÆåðmïUÀ½UÉ «zÀÄåvï ¸ÀgÀ§gÁdÄ ¤ÃrgÀÄªÀAvÀºÀ 16 DA¥ïì 1 ¥sÉÃ¸ï, 2 ¥ÉÆÃ¯ï JA¹©, 32 DA¥ïì 3 ¥sÉÃ¸ï JA¹© ªÀÄvÀÄÛ 63 DA¥sïì JA¹©UÀ¼ÀÄ næÃ¥ï DVgÀÄªÀÅzÀÄ PÀAqÀÄ§A¢gÀÄvÀÛzÉ”. He also mentioned in his opinion and conclusion in last paragraph of his report that “ the lighting circuits electric system is not accordingly to the rules and as there are too much of Rats, there are chances of the Rats biting the insulation of the electrical, resulting in wires coming into contact with one another, thereby causing short circuit could be the reason for the fire accident”.

35. In Ex.P-5 (In CC-289/2015) the Assistant Director, Forensic Laboratory made an observation as follows:-

Presence of combustible materials like thermocoals ( which are used to insulate the walls) pillars, wooden partitions and the grains stored inside the building could have enhanced the spread of fire.
The congested space in the building might have accelerated the smoldering fire.
The fire might have originated at the sixth floor front side f the building. But it was not possible to locate the exact place of origin of fire since the complete building was involved in fire.
An electrical short circuit may have initiated the fire.

So, above observation made by the Deputy Chief Electrical Inspector, Bellary and Assistant Director of Forensic Laboratory shows that fire may have initiated by the Short circuit.
            36. In page No.8 of para No.13 of Ex.R-8 (In CC-289/2015) it is stated that “the expert team examined the electrical panel board located in the rear western side room and found the electrical connections in the panel board to be intact without any external symptoms of short circuit such as blackening, melting, charring ,annealing and beading of metallic wires’. They further contended in para No.14 that “ the expert team examined the switches, knobs and circuits in the main electrical control panel and found the electrical connections in the panel board to be intact without any internal symptoms of short circuit such as tripping or blackening due to electrical surges and overages”. Further in para No.15 it is stated that “ the expert team examined the transformer supplying power located in the north western corner of the cold storage and found that main fuses to be intact and there were no signs of blackening melting or any other effects of short circuit in the transformer electric connections”.
               37.   In page No. 12 of EX-R-8 (In CC-289/2015) it is stated that, RESULTS OF PHYSICAL EVIDENCE ANALYSIS: The burnt debris samples collected from chamber DE and Chamber ABC along with control un burnt sample were sent for chemical analysis by means of GC-MS technique and the results of analysis revealed the presence of hydrocarbons indicating that extraneous ignitable fire accelerants such as kerosene could have responsible for initiation of fire.
            38. In page No.18 of Ex.R-8 (In CC-289/2015) the expert team were made conclusion that “ Based on thorough and in-depth inspection of the incident site, forensic examination, field investigations, documentary evidence analysis and personal evidence obtained, it is concluded that the fire occurred in M/S. Sree Devi Cold Storage, Bellary on the intervening night of 13/14^th January 2014.
Was not to spontaneous combustion on account of bacterial/chemical fires.
Was not due to electrical failure caused by short circuit.
And was on account of extraneous ignitable fire accelerants such as kerosene used deliberately for ignition, initiation, propagation and burning of stocks in the cold storage through human intervention.
Based on the motive, means and opportunity to carry out such malicious acts the possibility of the involvement of management in such a nefarious act cannot be ruled out.

               39. Electronical Engineering study says that “in normal working conditions of the low voltage electrical network, a rated amount of current flows through the network. When any fault occurs in the network, current exceeds the rated limit. This increased flow of current can cause permanent damage to the electrical appliances. To save these appliances and individuals (operating those appliances) from any burn or damage, this high rated current needs to be interrupted as fast as possible. This is where MCB comes into picture. The MCB detects the excess current flow and immediately breaks the circuit. Nowadays we use more commonly miniature circuit breaker or MCB in low voltage electrical network instead of fuse. The advantages of MCB are,(1). It automatically switches off the electrical circuit during abnormal condition of the network means in over load condition as well as faulty condition. (2) as the switch operating knob comes at its off position during tripping, the faulty zone of the electrical circuit can easily be identified. In the case of MCB quick restoration is possible by just switching on operation. Hence MCB is commonly using”.
            40. RW-2, 3, & 4 did not deny using of MCBs in the 1^st respondents’ cold storage. Hence we cannot accept the contention of the above witness that in short circuit cases there will be internal symptoms as blackening, melting, charring, annealing, in the transformer electric connections
                  41. The main contention of the 2^nd respondent to repudiate the claim that the fire in the premises of the respondent no-1 was not due to any accident OR electrical short circuit, the fire was on account of extraneous ignitable fire accelerants such as “kerosene” used deliberately for ignition, initiation, propagation and burning of stocks in the cold storage through human intervention”.
                   42. RW-3 in his final report stated that the GC-MS instrumental analysis of the 12 burnt debris samples collected from interiors of the cold storage unit at different locations revealed the presence of hydrocarbons in the rang C8 to C 20 in all the sample, it clearly indicate the use of extraneous ignitable fire accelerants such as kerosene. Because of presence of hydrocarbons in the samples they came to the conclusion that use of extraneous ignitable fire accelerants such as kerosene. It is not denied by the RW-2, 3, and 4 that ground floor flooring all the walls and the roofs inside portion of the cold storage along with 169 pillars are insulated by sandwiching thermacoal and tar. In his reply to the interrogatory before the Hon’ble State Commission he admitted that Thermocoal and Tar are combustible matateals and they contain hydrocarbons.
                    43. Deputy Chief Electrical Inspector who is expert in the field has issued the report stated that electrical short circuit has initiated the fire. The complainant produced the judgment reported in 2006 NCJ 116 (NC) where it was held that “ Insurance claim- building, material and machinery destroyed due to fire- repudiation that fire was not accidental- consideration of- appreciation of evidence and circumstances- fire brigade took 14 hours 20 minute to control fire- report of police and electrical engineer proved the fire was accidental- legality of – effect of- held- repudiation is totally unjustified- allowed complaint- direction given to assess quantum of damage”.
                  44. To prove his contention RW-3 and 4 have not produced any analysis report. They have also not specifically stated that kerosene is used to initiate the fire. The citations produced by the 2^nd respondent are not applicable to the present case as the facts and circumstances of both the cases are different from each other.
                   45. Similarly, the final surveyor even though there is no direct evidence, had come to the conclusion that fire was on account of extraneous ignitable fire accelerants such as “kerosene” used deliberately for ignition, initiation, propagation and burning of stocks in the cold storage through human intervention. Such presumption can hardly be a ground for rejecting the claim as the said presumptions is without any basis or foundation. The complainant has produced the judgment reported in AIR 1994 KERALA 308 wherein it was held that “ expert opinion- court not bound to follow it blindly- expert cannot act as a judge or jury- final decision is to be made by judge”. He also produced the judgment reported in 2007 (I) CPR 492(NC) which is squarely applicable to the present case.
                 46. The next question is regarding the quantity of produce stored in the cold storage of 1^st respondent at the time of fire incident.
                  47. The complainant stated that he has deposited total 353 bags of Bengal GRAM (100kgs) under GRN No.67, 90 and 201 on           16-02-2011, 24-02-2011 and 15-03-2011 respectively totally 35,300 kgs of the value of Rs.14,12,000/-. These produce are destroyed in the alleged fire accident.
                48. The 1^st respondent contended that the details of the agricultural produce stored in his cold storage at the time of fire were as under.

Sl. NO.	Commodity	Weight (inKgs) Per bag	Measurement in Inches equallent to feet						Volume (in Cu.ft) per bag	Volume in Cu.ft. when chilli bags compresed by 2 inches
			L		W		H		Volume (in Cu.ft) per bag	Volume in Cu.ft. when chilli bags compresed by 2 inches
			Inches	Feet	Inches	Feet	Inches	Feet	6.111	4.888
1	Guntur chilli	35	48	4	22	1.10	10	10^t^h 12	6.111	4.888
2	Byadagi Chilli	35	48	4	22	1.10	10	10^t^h 12	6.411
3	Dhaniya	45	42	3.60	22	1.10	12	1	2.55
4	Tamrind	30	35	2.11	21	1.9	6	½	2.75
5	Bengal Gram	50	28	2.40	17	1.5	10	10^t^h 12	2.75
6	Jowar Seeds	50	28	2.40	17	1.5	10	10^t^h 12	2.75

The measurement of chilli bag is wrongly and hypothetically taken by the second party’s surveyor as shown in the above table and compared with the actual as shown in the second table above, demonstrates the egregious wrong approach by the surveyor, because, as shown in the II table, the occupied area of the cilli bag is 6.111 cubic feet that is 48x22x10=10560 divided by 1728 (12x12x12) and the maximum number of bags that can be stored in each block is 163 bags that is 1000 divided by 6.111 but 102 bags shown by the surveyor at page 33 of his report is hypothetical with deliberate wrong and erroneous approach. Further, it is the common knowledge that the chillies at the time of filling into the bags, water is sprinkled in order to dampen the chillies to see that the chillies are not broken and with the cooling effect in the cold saturate, the chilli bags get contracted at least by 2 to 2 ½ inches and if this practical, natural and actual process is applied to volume of the chilli bags which occupies in the cold storage is 4.888 cu.feet, that is 48x22x8=8448 divided by 1728 and the storage capacity in each block is 204 bags, that is 1000 cu.ft. divided by 4.888 cu.ft. It is exactly double the figures shown by the surveyor. The maximum number of bags stored in the cold storage and destroyed in the accidental fire is the chilli bags, and therefore, the other commodities are not further demonstrated and however the egregious mistake, because of wrong, erroneous and theoretical approach is manifested by the tables shown above.

He further submitted that, the Rank surveyor in their report at Page 36 have shown in the table that, the maximum capacity of chilli that can be stored in the first party’s cold storage is 73440 at 102 bags per block and what is the first opposite party has claimed to have stored in the intervening night of 13^th and 14^th January 2014 is 42722, which is very much less than the number of bags storable as shown by the surveyors in their report.

49. The 2^nd respondent had denied that the complainant is a bonafide farmer and stored his agriculture produce in the cold storage of 1^st respondent, he also denied the deposit Bengal Grams as alleged in the complaint in the cold storage of the 1^st respondent. He has taken the contention that practically small farmers cannot prow such huge quantity and ask for storage facilities, so no small farmer will be capable of keeping such huge stocks for long period of 10 months in cold storage by paying huge rent, service charges and high rate of Bank interest on his Debt. He also denied the alleged storage in the cold storage of 1^st respondent at the time of fire incident. He further stated that 1^st respondent has manipulated the documents by showing the execrated loss figures, the investigators observed that A/c Books produced to surveyor contained visible manipulations such as corrections, over writing and erasing of entries and in hot hurry they entered the date of transaction as 31-04-2013.

50. GRN marked as Ex.P-1. This document shows that the total 353 bags of Bengal GRAM (100kgs) under GRN No.67, 90 and 201 on 16-02-2011, 24-02-2011 and 15-03-2011 respectively totally 35,300 kgs of the value of Rs.14,12,000/-. These produce are destroyed in the alleged fire accident.

51. As per the 1^st respondent, on the date of fire incident he stored the agricultural produce as below:

Sl. NO.	Commodity	Weight (inKgs) Per bag	Measurement in Inches equallent to feet						Volume (in Cu.ft) per bag	Volume in Cu.ft. when chilli bags compresed by 2 inches
			L		W		H		Volume (in Cu.ft) per bag	Volume in Cu.ft. when chilli bags compresed by 2 inches
			Inches	Feet	Inches	Feet	Inches	Feet	6.111	4.888
1	Guntur chilli	35	48	4	22	1.10	10	10^t^h 12	6.111	4.888
2	Byadagi Chilli	35	48	4	22	1.10	10	10^t^h 12	6.411
3	Dhaniya	45	42	3.60	22	1.10	12	1	2.55
4	Tamrind	30	35	2.11	21	1.9	6	½	2.75
5	Bengal Gram	50	28	2.40	17	1.5	10	10^t^h 12	2.75
6	Jowar Seeds	50	28	2.40	17	1.5	10	10^t^h 12	2.75

52. The 2^nd respondent contended that as per the rank surveyor report the respondent no-1 stored in his cold storage as under:

		As per Physical Verification						As per Sreedevi Cold Storage
		In feet
Sl.No.	Commodity	Weight (in Kgs) per Bag	L	W	H	Volume (in Cu.ft) per Bag	Weight (in Kgs) per Bag	Volume (in Cu.ft) per Bag
1	Guntur Chilli	35	4.17	2.17	1.0	9.780	35	9.780
2	Byadagi Chilli	35	4.17	2.17	1.08	9.780	35	9.780
3	Dhaniya	45	2.50	1.92	1.00	4.792	45	4.792
4	Tamrind	30	2.67	1.75	1.00	4.667	30	4.667
5	Bengal Gram	50	2.25	1.83	1.00	4.125	100	8.250
6	Jowar Seeds	35	2.92	2.17	1.00	6.319	100	18.056

53. At the time of arguments, counsel appearing for the 2^nd respondent submitted that on the basis of volumetric analysis of the surveyor, storage of produce in 1^st respondent cold storage on the date of incident is 23292 bags. He made analysis as under:-

Based on single storage
Commodity	No. of Bags reported to have been stored (stored)	Maximum no. of bags that can be stored (capacity)	Stored Quantity (in Bags) arrived (Minimum of Two)
Bengal Gram	4279	4598	3029
Chilli	42722	24276	22194
Dhaniya	2542	3344	2097
Jawari seeds	1397	495	495
Tomrind	20	214	20
TOTAL	50960	32927	27835
Based on Multiple storage
Commodity	No. of Bags reported to have been stored (stored)	Maximum no. of bags that can be stored (capacity)	Stored Quantity (in Bags) arrived (Minimum of Two)
Bengal Gram	4279	3993	2760
Chilli	42722	21828	20006
Dhaniya	2542	3344	2097
Jawari seeds	1397	440	440
Tomrind	20	214	20
TOTAL	50960	29819	25323
Commodity	Stored quantity (in bags) arrived based on multiple storages (Annexure-VIII)	Deductions for overloaping storages (Annexures-XI)	Final/Net stored quantity (in bags)
Bengal Gram	2760		2760
Chilli	2006	2031	17975
Dhaniya	2097		2097
Jawari seeds	440		440
Tomrind	20		20
TOTAL	25323	2031	23292

54. The 1^st respondent contended in Page No.21 and 22 of common written argument that “the measurement of chilli bag is wrongly and hypothetically taken by the second party’s surveyor as shown in the above table and compared with the actual as shown in the second table above, demonstrates the egregious wrong approach by the surveyor, because, as shown in the II table, the occupied area of the cilli bag is 6.111 cubic feet that is 48x22x10=10560 divided by 1728 (12x12x12) and the maximum number of bags that can be stored in each block is 163 bags that is 1000 divided by 6.111 but 102 bags shown by the surveyor at page 33 of his report is hypothetical with deliberate wrong and erroneous approach. Further, it is the common knowledge that the chillies at the time of filling into the bags, water is sprinkled in order to dampen the chillies to see that the chillies are not broken and with the cooling effect in the cold saturate, the chilli bags get contracted at least by 2 to 2 ½ inches and if this practical, natural and actual process is applied to volume of the chilli bags which occupies in the cold storage is 4.888 cu.feet, that is 48x22x8=8448 divided by 1728 and the storage capacity in each block is 204 bags, that is 1000 cu.ft. divided by 4.888 cu.ft. It is exactly double the figures shown by the surveyor. The maximum number of bags stored in the cold storage and destroyed in the accidental fire is the chilli bags, and therefore, the other commodities are not further demonstrated and however the egregious mistake, because of wrong, erroneous and theoretical approach is manifested by the tables shown above. I, further most respectfully submit that, the Rank surveyor in their report at Page 36 have shown in the table that, the maximum capacity of chilli that can be stored in the first party’s cold storage is 73440 at 102 bags per block and what is the first opposite party has claimed to have stored in the intervening night of 13^th and 14^th January 2014 is 42722, which is very much less than the number of bags storable as shown by the surveyors in their report”.

55. In Ex.P-2 (In CC-289/2015) the jurisdictional Rural Police reported the Tahasildhar, Ballari vide letter Dtd:19-09-2014 that “ªÉÄÃ®ÌAqÀ «µÀAiÀÄ ªÀÄvÀÄÛ G¯ÉèÃRzÀ §UÉÎ ªÀgÀ¢ ªÀiÁqÀÄªÀÅzÉÃ£ÀzÀAgÉ ¢£ÁAPÀ 14-01-2014 gÀAzÀÄ ¨É¼ÀV£À eÁªÀ £Á£ÀÄ «±ÁæAwAiÀÄ°èzÁÝUÀ oÁuÉAiÀÄ J¸ï.ºÉZï.N ºÉZï.¹-126 gÀªÀgÀÄ £À£ÀUÉ zÀÆgÀªÁtÂ ªÀÄÄSÁAvÀgÀ ªÀÄÄAqÀæV EAqÀ¹ÖçÃAiÀÄ¯ï KjAiÀiÁ 2 £ÉÃ ªÀÄvÀÄÛ 3 £ÉÃ ¸ÉÖÃeï£À°è ªÉÄ:²æÃzÉÃ« PÉÆÃ¯ïØ ¸ÉÆÖÃgÉÃeï ©°ØAUïUÉ ¨ÉAV ºÀwÛgÀÄvÀÛzÉAzÀÄ ªÀiÁ»w §AzÀ ªÉÄÃgÉUÉ £Á£ÀÄ ¨É¼ÀV£À eÁªÀ 1:15 UÀAmÉUÉ oÁuÉUÉ ºÁdgÁV ¹§âA¢AiÀÄªÀgÁzÀ ºÉZï.¹-48 ºÉZï.¹.389 ¦.¹.200-919 gÀªÀgÉÆA¢UÉ ¨É¼ÀV£À eÁªÀ 1:50 UÀAmÉUÉ ¸ÀÜ¼ÀPÉÌ ºÉÆÃV ¥Àj²Ã°¹ £ÉÆÃqÀ¯ÁV F PÀlÖqÀªÀÅ CAzÁdÄ 6 CAvÀ¹Û£À PÀlÖqÀªÁVzÀÄÝ, CAzÁdÄ 60 Cr JvÀægÀ«gÀÄvÀÛzÉ JgÀqÀÄ ¨sÁUÀªÁV «AUÀr¹gÀÄvÀÛzÉ. PÉÆÃ¯ïØ ¸ÉÆÖÃgÉf£À F±Á£Àå ¨sÁUÀzÀ°è ¨ÉAV ºÀwÛPÉÆArzÀÄÝ ¥ÀÆªÀð¨sÁUÀzÀ PÉÆ¯ïØ ¸ÉÆÖÃgÉÃfUÉ ¥ÀÆwðAiÀiÁV ¨ÉAV ºÀwÛzÀÄÝ ¥À²ÑªÀÄ ¨sÁUÀzÀ°è ¸ÀºÀ ¨ÉAQ ªÁå¦¹PÉÆArzÀÄÝ CzÀgÀ°è zÁ¸ÁÛ£ÀÄ ªÀiÁrzÀ zÀªÀ¸À zsÁ£ÀåUÀ¼À£ÀÄß ¸ÀºÀ gÀQë¸À®Ä ¸ÁzsÀåªÁVgÀÄªÀÅ¢®è. ¸ÀÜ¼ÀPÉÌ §¼ÁîjAiÀÄ CVß ±ÁªÀÄPÀ oÁuÉAiÀÄ Dgï.J¥sï.N ²æÃ.JA.Dgï.£ÀgÀ¹AºÀ ªÀÄÆwðgÀªÀgÀ £ÉÃvÀÈvÀézÀ°è ¹§âA¢AiÀÄªÀgÀÄ §AzÀÄ ¨ÉAQAiÀÄ£ÀÄß £ÀA¢¸ÀÄªÀ PÁAiÀÄðzÀ°è vÉÆqÀVzÀÄÝ PÉÆÃ¯ïØ ¸ÉÆÖÃgÉÃf£À J¯Áè ¨sÁUÀPÉÌ ¨ÉAQ ªÁå¦¹PÉÆArzÀÝjAzÀ ¥À²ÑªÀÄ ¨sÀUÀzÀ PÉÆÃ¯ïØ ¸ÉÆÖÃgÉÃfUÉ ¸ÀºÀ ¨ÉAQ ªÁå¦¹PÉÆAqÀÄ zÀlÖªÁzÀ ºÉÆUÉAiÀiÁqÀÄwÛzÀÄÝ ªÀÄvÀÄÛ M¼ÀUÀqÉ zÁ¸ÁÛ£ÀÄ ªÀiÁrzÀ ªÉÄt¹£ÀPÁ¬Ä ¸ÀÄlÄÖ WÁlÄ ªÁ¸À£É §gÀÄwÛzÀÄÝ PÉÆ¯ïØ ¸ÉÆÖÃgÉÃf£À°è zÁ¸ÁÛ£ÀÄ ªÀiÁrzÀ zÀªÀ¸À zsÁ£ÀåUÀ¼À£ÀÄß ºÉÆgÀUÉ vÉUÉAiÀÄ®Ä ºÉÆÃzÀ°è ¥ÁæuÁ¥ÁAiÀÄªÁUÀÄªÀ ¸ÁzsÀåvÉ EzÀÄÝzÀjAzÀ CVß ±ÁªÀÄPÀ zÀ¼ÀzÀªÀgÀÄ ªÀÄvÀÄÛ £ÁªÀÅ PÉÆ¯ïØ ¸ÉÆÖÃgÉÃf£À M¼ÀUÉ ºÉÆÃV zÀªÀ¸À zsÁ£ÀåUÀ¼À£ÀÄß ºÉÆgÀ vÉUÉAiÀÄ®Ä CªÀPÁ±À ªÀiÁrPÉÆnÖgÀÄªÀÅ¢®è. CVß±ÁªÀÄPÀ zÀ¼ÀzÀªÀgÀÄ ¢£ÁAPÀ 14-01-2014 gÀAzÀÄ ªÀÄzÁåºÀß 1:00 UÀAmÉ ¸ÀÄªÀiÁjUÉ ¨ÉAQAiÀÄ£ÀÄß £ÀA¢¹gÀÄvÁÛgÉ. Further in the said report it is stated that “ CVß ±ÁªÀÄPÀ oÁuÁ¢üPÁj, PÀ£ÁðlPÀ gÁdå CVß ±ÁªÀÄPÀ ªÀÄvÀÄÛ vÀÄvÀÄð ¸ÉÃªÉUÀ¼ÀÄ, CVß ±ÁªÀÄPÀ oÁuÉ §¼ÁîjgÀªÀgÀÄ vÀªÀÄä wÃªÀæ CVß PÀgÉ ªÀgÀ¢ ¸ÀASÉå 1/2014 gÀ°è ªÀgÀ¢ ¤ÃrzÀÄÝ ªÀgÀ¢AiÀÄ°è ²æÃzÉÃ« PÉÆÃ¯ïØ ¸ÉÆÖÃgÉÃeï EArAiÀiÁ ¥ÉæöÊ.°. CAzÁdÄ 103*104 C¼ÀvÉAiÀÄ f+05 §ºÀÄªÀÄºÀr PÀlÖqÀzÀ PÉÆÃ¯ïØ ¸ÉÆÖÃgÉÃeï, ºÁUÀÄ ¸ÉÆÖÃgÉÃf£À°è ±ÉÃRj¹zÀ 39149 aÃ® ¨ÁåqÀV ªÉÄt¹£ÀPÁ¬Ä, 1423 aÃ® UÀÄAlÆgÀÄ Mt ªÉÄt¹£ÀPÁ¬Ä 1475 aÃ® vÉÆUÀj, 1397 aÃ® ¹Ãqïì ©½eÉÆÃ¼À, 65 aÃ® ºÀÄt¸É ºÀtÄÚ, 2292 aÃ® zsÀ¤AiÀÄ 3471 aÃ® ºÀ¹PÀqÀ¯É EvÁå¢ DºÁgÀ ¥ÀzÁxÀðUÀ¼ÀÄ EvÀgÉ zsÀªÀiÁð PÉÆÃ¯ï, ©mÁ«Ä£ï, vÁgï, ¥À®à eÉÆvÉUÉ 5 ºÉZï. ¦ ªÉÆÃmÁgï, JgÀqÀÄ »ÃlgÀUÀ¼ÀÄ, ¨ÉAQ £ÀA¢¸ÀÄªÀ G¥ÀPÀgÀtUÀ¼ÀÄ, vÁ¼É §A§ÄUÀ¼ÀÄ, eÁ°ªÀÄgÀzÀ jÃ¥ÀgïUÀ¼ÀÄ ªÀÄvÀÄÛ CzÀgÀ°èAiÀÄ G¥ÀPÀgÀtUÀ¼ÀÄ ¨ÉAQAiÀÄ°è ¹®ÄQ ºÁ¤AiÀiÁVgÀÄvÀÛªÉ JAzÀÄ D©ü¥ÁæAiÀÄ ¤ÃrgÀÄvÁÛgÉ. qÉ¥ÀÆån aÃ¥sï J¯ÉnæPÀ®è E£ïì¥ÉPÀÖgï, §¼ÁîjgÀªÀgÀÄ vÀªÀÄä ªÀgÀ¢ ¸ÀASÉå GªÀÄÄ«¥À(§¼Áîj)C¥ÀWÁvÀ/13-14/4508-14 ¢£ÁAPÀ 26-02-2014 gÀ°è ¯ÉÊnAUï ¸ÀPÀÆåðmïUÀ¼À «zÀÄåvï ªÀåªÀ¸ÉÜAiÀÄ «zÀÄåvï ¤AiÀÄªÀÄUÀ¼À£ÀÄ¸ÁgÀ E®èzÉÃ EzÀÄÝ E°UÀ¼ÀÄ, ºÉUÀÎtUÀ¼ÀÄ ¸ÀºÀ ºÉZÁÑV EzÀÄÝzÀjAzÀ ªÁºÀPÀUÀ¼À E£ÀìAiÀÄ¯ÉÃµÀ£ï PÀr¢gÀÄªÀAvÀºÀ ¸ÁzÀåvÉUÀ½zÀÄÝ EzÀjAzÀ «zÀÄåvÀ ªÁºÀPÀUÀ¼À E£ÀÄì¯ÉÃ±À£ï ªÁºÀPÀUÀ¼ÀÄ ¯ÉÆÃºÀzÀ J½UÀ¼ÀÄ MAzÀPÉÆÌAzÀÄ ¸ÀA¥ÀðPÀPÉÌ §AzÀÄ «zÀÄåvï ±Ámïð ¸ÀPÀÆåðmï ¸ÀA¨sÀ«¹gÀÄªÀÅzÀÄ F C¥ÀWÁgÀ PÁgÀtªÁVgÀÄªÀÅzÁV C©ü¥Áæ¬Ä¸À¯ÁVzÉ JAzÀÄ vÀªÀÄä C©ü¥ÁæAiÀÄ ¤ÃrgÀÄvÁÛgÉ

56. In the complaint to the police dt. 15-01-2014 annexed to Ex.P-2 (In CC-289/2015) the 1^st respondent reported that “§¼Áîj-¨ÉAUÀ¼ÀÆgÀÄ gÀ¸ÉÛ ªÀÄÄAqÀæV EAqÀ¹ÖÃAiÀÄ¯ï KjAiÀiÁ 2 ªÀÄvÀÄÛ 3 £ÉÃ ¸ÉÖÃd£À°ègÀÄªÀ £ÀªÀÄä ªÉÄÃ: ²æÃzÉÃ« PÉÆÃ¯ïØ ¸ÉÆÖÃgÉd£À 6 CAvÀ¹Û£À ©°ØAUÀ£À°è ¢£ÁAPÀ 14-01-2014 gÀAzÀÄ ¨É¼ÀV£À eÁªÀ (gÁwæ) 12:45 UÀAmÉ ¸ÀÄªÀiÁjUÉ PÉÆÃ¯ïØ ¸ÉÆÖÃgÉd£À°è DPÀ¹äPÀªÁV «zÀÄåvï ±Álð DV ¨ÉAQ ºÀwÛPÉÆAqÀÄ PÉÆ¯ïØ ¸ÉÆÖÃgÉeï, CzÀgÀ°èAiÀÄ zÀªÀ¸À zsÁ£ÀåUÀ¼ÀÄ ¸ÀÄlÄÖ MlÄÖ gÀÆ.340734950/- £ÀµÀÖªÁVgÀÄvÀÛzÉAzÀÄ zsÀªÀ¸À zsÁ£ÀåUÀ¼À°è zsÀ¤AiÀÄ MlÄÖ 2292 aÃ®UÀ¼ÀÄ EzÀÄÝ MlÄÖ 1031 PÀéAmÁ¯ï ¸ÀÄlÄÖ gÀÆ.4948800/- £ÀµÀÖªÁVgÀÄvÀÛzÉAzÀÄ ¥ÀgÀ¥Án¤AzÀ w½¹zÉÝ£ÀÄ. F ¢£À £Á£ÀÄ F ªÀÄgÀÄ zÀÆgÀÄ ¤ÃqÀÄªÀÅzÉÃ£ÉAzÀgÉ, zsÀªÀ¸À zsÁ£ÀåUÀ¼À°è zsÀ¤AiÀÄ MlÄÖ 2292 aÃ®UÀ¼ÀÄ EzÀÄÝ ¥ÀæwAiÉÆAzÀÄ aÃ®zÀ°è 45 PÉ.f zsÀ¤AiÀÄ vÀÄA©gÀÄvÀÛzÉ. 45 PÉ.f vÀÆPÀzÀ zsÀ¤AiÀÄ aÃ®PÉÌ gÀÆ.4800/- ¨É¯É EgÀÄvÀÛzÉ. MlÄÖ 1031 QéAmÁ¯ï zsÀ¤AiÀÄ ¨É¯É gÀÆ.11001600/- (MAzÀÄ PÉÆÃn ºÀvÀÄÛ ®PÀëzÀ ºÀ¢£ÁgÀÄ) DUÀÄvÀÛzÉ. £À£Àß PÉÆ¯ïØ ¸ÉÆÖÃgÉeï, CzÀgÀ°èAiÀÄ zÀªÀ¸À zsÁ£ÀåUÀ¼ÀÄ ¸ÀÄlÄÖ £À£ÀUÉ MlÄÖ gÀÆ.346787750/- (ªÀÄÆªÀvÀÄÛ £Á®ÄÌ PÉÆÃn CgÀªÀvÀÄÛ K¼ÀÄ ®PÀëzÀ JA§vÉÛÃ¼ÀÄ ¸Á«gÀzÀ K¼ÀÄ£ÀÆgÀ LªÀvÀÄÛ gÀÆ¥Á¬ÄUÀ¼ÀÄ) £ÀµÀÖªÁVgÀÄvÀÛzÉAzÀÄ F ªÀÄÆ®PÀ vÀªÀÄä°è F ªÀÄgÀÄ zÀÆgÀÄ ¤ÃrgÀÄvÉÛÃ£É”.

In the mahazar drawn by the police annexed to Ex.P-2 (In CC-289/2015) it is stated that “………… F ¨ÉAQ C¥ÀWÁvÀ¢AzÀ PÉÆÃ¯ïØ ¸ÉÆÖÃgÉÃf£À PÀlÖqÀ ¸ÀÄlÄÖ CAzÁdÄ gÀÆ. 6,00,00,000/- £ÀµÀÖªÁVzÀÄÝ PÀlÖqÀzÀ°è zÁ¸ÀÛ£ÀÄ ªÀiÁrzÀ CAzÁdÄ 13701 QéAmÁ¯ï ¨ÁåVUÉ ªÉÄt¹£ÀPÁ¬Ä (39149 aÃ®) 498 QéÃAmÁ¯ï (1423 aÃ¯) UÀÄAlÆgÀÄ ªÉÄt¹£ÀPÁ¬Ä 19.05 QéAmÁ® (65 aÃ®) ºÀÄt¸ÉÃ ºÀtÄÚ 1397 QéAmÁ® PÀqÀ¯É, 1031 QéAmÁ® (2292 aÃ®) zsÀ¤AiÀiÁ 1475 QéAmÁ® vÉÆUÀj ¸ÀÄnÖzÀÄÝ PÀAqÀÄ §gÀÄvÀÛzÉ. PÉÆÃ¯ïØ ¸ÉÆÖÃgÉÃf£À zÀªÀ¸À zsÁ£ÀåUÀ¼ÀÄ ¸ÀÄlÄÖ CAzÁdÄ gÀH. 28,00,00,000/- £ÀµÀÖªÁVgÀÄvÀÛzÉ. ºÁ° ¸ÀÜ¼ÀzÀ°è C½zÀÄ½zÀ zsÀªÀ¸À zsÁ£ÀåUÀ½UÉ ¨ÉAQ ºÀwÛ GjAiÀÄÄwÛzÀÄÝ F ¨ÉAQ C¥ÀWÁvÀzÀ°è MlÄÖ gÀÆ.34,00,00,000/- CPÀëgÀzÀ°è gÀÆ. ªÀÄÆªÀvÀÄÛ £Á®ÄÌ PÉÆÃnAiÀÄµÀÄÖ £ÀµÀÖªÁVgÀÄvÀÛzÉ.

57. In EX-P-3 (In CC-289/2015) the Inspector of District Fire Office stated that “F ªÉÄÃ°£À «µÀAiÀÄ ºÁUÀÆ G¯ÉèÃRPÉÌ ¸ÀA§A¢ü¹zÀAvÉ, vÀªÀÄä°è w½¸ÀÄªÀÅzÉÃ£ÉAzÀgÉ ¢£ÁAPÀ 14-01-2014 gÀAzÀÄ ªÀÄÄAeÁ£É §¼Áîj £ÀUÀgÀzÀ ºÉÆgÀªÀ®AiÀÄzÀ ²æÃzÉÃ« PÉÆÃ¯ïØ ¸ÉÆÖÃgÉÃeï£À°è ¸ÀA¨sÀ«¹zÀ wÃªÀæ CVßPÀgÉ ¸ÀASÉå 01/14 gÀ ªÀgÀ¢ ºÁUÀÆ CVß PÀgÉAiÀÄ°è ¨sÁUÀªÀ»¹zÀ C¢üPÁj/¹§âA¢AiÀÄªÀgÀ ªÀiÁ»wAiÀÄ£ÀÄß vÀªÀÄä PÉÆÃjPÉAiÀÄAvÉ F ¥ÀvÀæzÉÆA¢UÉ ®UÀwÛ¹ PÀ¼ÀÄ»¹PÉÆqÀ¯ÁVzÉ.”. The contents of this report reveal that totally “²æÃzÉÃ« PÉÆÃ¯ïØ ¸ÉÆÖÃgÉÃeï, EArAiÀiÁ ¥ÉæöÊ.°. CAzÁdÄ 103µÀ143 C¼ÀvÉAiÀÄ f+ §ºÀÄªÀÄºÀr PÀlÖqÀzÀ PÉÆÃ¯ïØ ¸ÉÆÖÃgÉÃeï, ºÁUÀÆ ¸ÉÆÖÃgÉd£À°è ±ÉÃRj¹zÀ 39149 aÃ® ¨ÁåqÀV MtªÉÄt¹£ÀPÁ¬Ä, 1423 aÃ® UÀÄAlÆgÀÄ MtªÉÄt¹£ÀPÁ¬Ä, 1475 aÃ® vÉÆUÀj, 1397 ¸Á«gÀ aÃ® ¹Ãqïì ©½eÉÆÃ¼À, 65 aÃ® ºÀÄt¸ÉºÀtÄÚ 2292 aÃ® zsÀ¤AiÀiÁ, 3471 aÃ®UÀ¼ÀÄ ºÀ¹PÀqÀ¯É, EvÁå¢ DºÁgÀ ¥ÀzÁxÀðUÀ¼ÀÄ EvÀgÉ zsÀªÀÄðPÉÆÃ¯ï, ©mÁ«Ä£ï, vÁgï ¥É¯ïÖ eÉÆvÉUÉ 5 ºÉZï. ¦ ªÉÆÃmÁgï, JgÀqÀÄ »ÃlgïUÀ¼ÀÄ ¨ÉAQ £ÀA¢¸ÀÄªÀ G¥ÀPÀgÀtUÀ¼ÀÄ vÁ¼É §A§ÄUÀ¼ÀÄ, eÁ°ªÀÄgÀzÀ jÃ¥Àgï ¥ÀnÖUÀ¼ÀÄ ªÀÄvÀÄÛ CzÀgÀ°èAiÀÄ G¥ÀPÀgÀtUÀ¼ÀÄ, ¨ÉAQAiÀÄ°è M¼ÀUÉÆArgÀÄvÀÛzÉ (ºÉaÑ£À ªÀiÁ»w ®UÀwÛ¹zÉ)”.

58. We agree with the contention of the complainant and as well as 1^st respondent that usually, at the time of filling the chillis into the bag, water will sprinkled in order to dampen and with the cooling effect in the cold saturate, the chilli bags get contracted at least by 2 to 2 ½ inche.

59. The respondent no. 2 did not challenge Ex.P-3 (In CC-289/2015). They further in their reply before the State Commission admitted that they do not know how the cold storage was built. When they have no knowledge about the cold storage, how can they analyze the capacity of deposited produce in the cold storage. Such presumptions is imaginary and without any basis.

60. Ex.R-11 shows that loan of Rs. 8,50,000/- was taken by the complainant from respondent No.3 on the bengal grams deposited in the 1^st respondents’ cold storage. Ex.R-16 proves the periodical stock inspection by respondent No.3. The 2^nd respondent contended that these documents are subsequently created for the purpose of having wrong full gain and to support the 1^st respondent. To deny these documents, he has not produced any documents and chosen to cross examine the 3^rd respondent. Hence we cannot accept the contention of 2^nd respondent.

61. The 2^nd respondent further contended that the 1^st respondent was manipulated the documents. To prove that he relied on the observation of survey report. In the survey report it is stated that the opening balance of Byadgi chilli and Guntur chilli as on 01-04-2013 are respectfully altered as 60145 from 62153 and 10114 from 10816, which shows the reduction of 1008 bags in byadgi chilli and reduction of 72 bags in guntur chilli. Hence they contended the documents have been altered.

62. 1^st respondent contended that they are oversight mistakes and hence they made corrections. Admittedly bags of above produce altered reducing the quantity of the produce. If really the 1^st respondent wanted to have wrongful gain, he could have altered the same by increasing the quantity of bags. He has not done so. Hence the contention of the 2^nd respondent is not accepted.

63. On perusal of Ex.P-1, Ex.R-11, Ex.R-16 it shows that on the date of fire incident, there was a deposit of produce of 353 bags of Bengal grams by the complainant in the cold storage of 1^st respondent.

64. The 2^nd respondent further alleged regarding quality of the produce deposited in the cold storage of 1^st respondent.

65. The complainant stated that, the 3^rd respondent while advancing the loan, they were verified the quality and quantity of the stocks and also carrying out periodical inspections to the cold storage.

66. The 3^rd respondent produced periodical inspection report as Ex-R-16. In this document Dtd: 16-04-2013,16-7-2013, 15-10-2013 and 10-01-2014 it has been mentioned by the Godown inspecting official ‘ yes’ for the query of ‘whether stocks are sufficient to cover our advance with required margin’. If the stocks were low quality, the bank officials would not grant the loan and there was no necessity to the complainant to store the same in the storage of 1^st respondent by paying huge rent. Hence we cannot accept the allegation of the 2^nd respondent that stocks deposited by the 1^st respondents’ cold storage were poor quality. The Hon’ble Supreme Court in its judgment reported in AIR 2009 SC 1000 held that “ insurance amount cannot be reduce on ground that certain stocks and raw materials were unfit for human consumption as it was not intention or deliberate act on the part of complainants”.

67. The 2^nd respondent further alleged that the 1^st respondent delayed to produce the documents which were asked by them. The documents produced by the parties reveal that the 1^st respondent has produced the documents to surveyor as well as the 2^nd respondent on 14-01-2014 and 17-01-2014. If any delay in producing the document either the surveyor or the insurance company could have issued a notice to the 1^st respondent demanding him to produce the required documents. No such demand notice is produced. When they admitted the receipt of documents on the date of incident and subsequent to date of incident, they cannot made allegation regarding the delay in producing the documents.

68. There is no dispute between the parties regarding the respondent no-1 had obtained the standard fire & special perils policy for the period 23-03-2013 to 22-03-2014, covering building, plant & machinery/ fixtures & fittings, the respondent no-1 also had taken the standard fire & special perils policy from the respondent no-2 for the period from 23-03-2013 to 22-03-2014 covering the stock which is stored in his cold storage. It is also admitted that during subsistence of policy, fire accident had taken place in the cold storage of the 1^st respondent. It is also proved that deposit of the produce by the complainant in the cold storage of the 1^st respondent and all the stocks including the complainants, stock destroyed in the fire accident. The complainant, as he is the beneficiary under the said policy, he is entitled for recovery of the compensation under the policy.

69. 1^st respondent has admitted the contents of the complaint and he also admitted that the complainant deposited his crop in his cold storage, for that he had issued EX-P1. The complainant has also stated that the 1^st respondent had taken charges for storing the agricultural produce in the cold storage is for both storage charges (rent) and also the proportionate charge for insurance premium.

70. The documents produced by the parties show that no roll of the 3^rd respondent is involved in destroying the agricultural produce of the complainant. Hence he is not liable to pay any compensation to the complainant. However the Tripatal Agreement is entered, he is at liberty to recover the loan amount.

71. On perusal of legal notice issued by the complainant shows that it had been issued to 2^nd respondent on 18-07-2015. The 2^nd respondent repudiated the claim of the complainant on 13-08-2015 i.e., after receipt of the legal notice.

72. Chapter IV of Insurance law provided that “ A surveyor or loss assessor whether appointed by insurer or insured, shall submit his report to the insurer as expeditiously as possible, but not later than 30 days of his appointment, with a copy of the report to the insured giving his comments on the insured’s consent or otherwise on the assessment of loss. Where, in special circumstances of the case, either due to its special and complicated nature, the surveyor shall under intimation to the insured, seek an extension, in any case not exceeding six months from the insurer for submission of his report”.

73. In the present case the above said provision of law not complained by the surveyor appointed by the 2^nd respondent. The 2^nd respondent also went on appointing one or another surveyor and investigator in the present case. The Hon’ble Supreme Court has made clear observation in Sri.Venkateshwara Synticate VS Oriental Insurance Company limited that ‘there has to be cogent and convincing ground to discard the report of the 1^st surveyor and to take decision to appoint another surveyor’.

74. The contract entered between the complainant and the 1^st respondent. Hence it is the duty of the 1^st respondent to keep the produce in good condition as assured and return the same whenever the complainant asked for return the same. If he failed to return the same to the complainant, he is liable to pay the price of the agricultural produce deposited in his cold storage. As the 1^st respondent has taken insurance policy from the 2^nd respondent for the agricultural produce stored in his cold storage and fire accident had taken place during subsistence of policy, the 2^nd respondent is liable to pay the assured amount to its beneficiaries.

75. As per Ex.P-1 agricultural produce deposited by the complainant in the cold storage of respondent no-1 are that,

G.R.No.	Date	Nature of product	No. of Bags	No. of Kgs per Bag	Quantity (KGs)
67	16-02-2011	Bengal Gram	113	100	11300
90	24-02-2011	Bengal Gram	130	100	13000
201	15-03-2011	Bengal Gram	110	100	11000

The complainant submitted that the agricultural produce stored in the 1^st respondent’s cold storage fully destroyed due to fire accident. The respondent No.1 also has not denied the statement of complainant, however he supported the case of the complainant. EX-P-8 (In CC-289/2015) produced by the complainant shows that rate fixed for Bangal gram is Rs.40/- per k.g. Admittedly, as per EX-P1 the complainant stored 35,300 kgs of Bangal Gram in the cold storage of the 1^st respondent which amounting to Rs.14,12,000/-. As the agricultural produce of the complainant destroyed due to fire accident taken place in the 1^st respondents’ cold storage during subsistence of insurance policy, the 2^nd respondent is liable to pay the cost of the agricultural produce, along with other compensation to the complainant. Non-payment of assured amount to the complainant is amounts to deficiency of service on the part of the 2^nd respondent. Accordingly, we answered this point in the Affirmative.

Point No.3:-

76. For the reasons discussed under Point No.1 to 3, the complainant is entitled for refund of Rs.14,12,000/- along with interest, compensation towards deficiency in service and cost of the proceedings, which shall be as per final order, from the respondent no-2. Accordingly, this point is answered partly in the affirmative.

Point No.4:-

77. In view of the discussions made under point No. 1 to 3, we pass the following;

// ORDER //

The complaint filed by the complainant is partly allowed against respondent No.2.

The complaint against the respondents No.1 and 3 is hereby dismissed.

The complainant is entitled to get refund of Rs.14,12,000/- with interest @ 9% p.a. from the date of complaint i.e. 18-12-2015 till realization of the said amount, from the 2^nd respondent.

The complainant is also entitled to recover Rs.10,000/- towards compensation for deficiency in service, from the 2^nd respondent.

The complainant is also entitled to recover Rs.2,500/- towards cost of the proceedings, from the 2^nd respondent.

The respondent no-2 is liable to pay the above said amounts to the complainant within 45 days from the date of this order.

Inform the parties accordingly.

(Dictated to the Stenographer, typescript edited, corrected and then pronounced in the open court this 31^st day of December 2016)

PRESIDENT.

MEMBER

Karnataka

Bellary

CC/311/2015

Sarmas Vali P - Complainant(s)

Versus

Sree Devi Cold Storage & Others - Opp.Party(s)

R Pandu

31 Dec 2016

ORDER

C.C.No.311 of 2015

COMPLAINANT

RESPONDENTS

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