1.       Both these connected appeals are directed against the order dated 30.10.2007 passed by District Forum, Nanded in C.C.No.2/2007, whereby the said complaint has been partly allowed.

2.       The case of the complainant as set out in the complaint in brief is that, he is dealing in teak wood at village Islapur.  He had obtained insurance policy from original opposite party under the head ‘Standard Fire and Special Perils’ to recover risk of said teakwood.  He paid premium of Rs.8640/-.  The  period of policy was 18.6.2005 to 17.6.2006.  Sum insured was Rs.14 lakh.  On 9.7.2005 there was heavy rain and river of village Islapur was flooded and hence teak wood pieces admeasuring 25.605 cubic meters were flown away and lost. Thereby complainant sustained loss of Rs.4,60,813/-.  Again on 26.7.2005, there was heavy rain and same river was flooded and hence other teak wood pieces admeasuring 44.520 cubic meters were flown away and lost. Therefore at that time complainant sustained loss of Rs.8,11,931/-.  Complainant gave intimation of said loss to various authorities who prepared panchanamas.  Opposite party also deputed surveyor to inspect the sight and to submit the report.  Said surveyor submitted false report.  Complainant served legal notice on 1.11.2006 to the opposite party seeking compensation.  Opposite party repudiated the claim.  Therefore complainant filed complaint, claiming total compensation of Rs.12,72,744/- with interest towards loss sustained by him. He also claimed Rs.50,000/- toward mental agony.

3.       Opposite party filed written version and denied the claim.  It is defense of the opposite party that after conducting survey by surveyor, he submitted report giving opinion that complainant failed to substantiate his claim.  It therefore denied that complainant sustained loss in the river flood as claimed by him.  It therefore submitted that complaint may be dismissed.

4.       District Forum below after considering evidence brought on record and hearing both the parties came to the conclusion that opinion given by surveyor is based on assumption and presumption and therefore it cannot be relied upon. It also held that panchanamas prepared by authorities, statements of witnesses recorded by them, which are filed on record and other documents produced on record by the complainant are sufficient come to the conclusion that complainant sustained loss of Rs.12,72,744/-.  However, it is also observed that 30% amount is to be deducted from that amount towards salvage.  On making deduction of said 30% towards salvage, District Forum below assessed the loss of Rs.8,90,921/- to which complainant is entitled.  It therefore gave direction to opposite party to pay said amount to the complainant with interest @ 9% p.a. from 4.1.2007 till it`s realization. It also gave direction to opposite party to pay to the complainant Rs.10,000/- towards mental agony and Rs.2000/- towards cost of the complaint.

5.       Original complainant preferred appeal No.142/2008 whereas original opposite party preferred appeal N.1390/2007, feeling dissatisfied by said order. Both the parties hereinafter referred by their original status in the aforesaid complaint. 

6.       Shri.M.M.Ambhore advocate appearing for original opposite party filed common written notes of argument in both the appeals on 18.2.2013.  Advocate of original complainant also filed written notes of argument on 14.3.2013.  We have also perused the papers placed before us by both sides in both these appeals. Original complainant preferred appeal No.142/2008 only on the ground that District Forum below erred in deducting 30% amount, to the extent of Rs.3,81,823/- towards salvage when terms and conditions of the insurance policy did not provide for deduction of the same. Complainant though had claimed total amount of Rs.12,72,744/-, District Forum found that he proved loss of Rs.8,11,931/- only. District Forum below deducted 30% amount out of Rs.12,72,744/- toward salvage and granted compensation  of Rs.8,90,931/-.  We found that deduction of 30% amount towards salvage is just and proper since the documents produced before us as discussed below prove saving of waste material of teak wood after river flood.  Therefore we find no error in deduction of 30% amount under the head of salvage.  Appeal No.142/2008 filed by original complainant therefore deserves to be dismissed.

7.       Learned advocate of original opposite party in his written notes of argument made the following submission.

          i)        There is breach of terms and conditions of the policy on                   the part of complainant,

          ii)       Complaint suffers from non-joinder of the necessary                         party and mis-joinder of the party.

          iii)      Complainant has shown his income as Nil to Income Tax                 Department and he did not avail any loan facility and that               complainant did not establish loss and failed to submit                            gate   pass from Forest Department to claim                                      compensation on account of flood.  

8.       We find on perusal of record that there is no evidence showing breach of any terms and conditions of the policy  on the part of complainant.  Moreover  complaint is not suffered from non-joinder of necessary party or mis-joinder of party. 

9.       It is not disputed that opposite party had issued policy  under the name and title of ‘Standard Fire and Special Perils’ to cover risk of teak wood and furniture of the complainant for the period from 18.6.2005 to 17.7.2006 and sum assured was Rs.14 lakhs.  It is further not disputed that due to heavy raining, the river which was nereby the place of shop of complainant was flooded twice and water of that flood had entered twice into the place where shop of the complainant was situated. It is also not disputed that complainant gave information of that incident to various authorities and original opposite party. It is also not disputed that those authorities prepared various panchanamas in respect of the said incident and loss sustained by complainant in those two incidents of river flood. Complainant produced before the District Forum, copies of panchanamas prepared by Talathi, Revenue Circle Inspector and Forest Guard of village Islapur and also produced copies of the statement of three witnesses recorded, certificate issued by Revenue Circle Officer, Islapur, no objection certificate issued by Forest Range Officer, Islapur, copy of list of stock statement showing loss, balance sheet, list of cutting material, purchase letter, further copies of panchanamas prepared by Talathi, Forest Guard and Revenue Circle Officer.

10.     The said documents have been considered by District Forum below. The aforesaid panchanamas proved that due to river flood the teak wood logs kept in the shop of the complainant were flown away twice and some of the small pieces of the teak wood were found in the bushes of adjoining agriculture land. Panchanama prepared by Forest Guard shows that the teak wood admeasuring 25.613 sq.meter has been flown away in the river flood on 9.7.2005. The rate of that teak wood is shown as Rs.28,000/- per sq.mtr. and loss assessed at Rs.7,17,000/- under that panchanama.  In another panchanama prepared by Forest Guard relating to loss sustained by complainant due to river flood on 26.7.2005 is shown to the effect that teak wood admeasuring 45.877 sq.mtr. was flown away in the river flood from the shop of complainant and thereby he sustained loss of Rs.12,85,000/-. The rate of said teak wood is shown as Rs.28,000/- per sq.mtr.  The other documents discussed above produced by complainant also proved that he is doing business in teak wood and his teak wood was lost in river flood.

11.     The surveyor under his report came to the conclusion that complainant established no loss.  We find that said conclusion is based on assumption and presumption only as observed by District Forum below in the impugned order. It is the defense of the opposite party that complainant had shown his Nil income from agriculture to the Income Tax Department.  We find that showing of Nil income from agriculture has got no relevance of income of complainant from business of teak wood. It is also defense of the opposite party that complainant has not maintained stock register, purchase bills and vouchers and that inspite of having compound fencing intact there was no question of loss of wood in river flood.  In our view when aforesaid documents produced on record by the complainant are sufficient to hold that complainant`s aforesaid teak wood was flown away and lost in the aforesaid heavy river flood then there is no question of drawing any such inference as drawn by surveyor under his report. There is no reason to disbelieve the aforesaid documents produced by complainant showing the loss sustained by him.  Therefore we hold that surveyor`s report has been rightly disbelieved by the District Forum below.

12.     District Forum below under the impugned order rightly came to the conclusion that complainant has proved loss to the extent of Rs.12,72,744/- sustained by complainant due to aforesaid river flood.  Moreover District Forum below has rightly deducted 30% amount from total claim of Rs.12,72,744/- and assessed actual loss of Rs.8,90,921/-.  Grant of interest over it and grant of compensation  on account of mental agony and cost of complaint under impugned order is also just and proper.  Hence both appeals deserve to be dismissed. Following order is thus passed.

O   R    D    E    R

1.     Both appeal Nos. 1390/2007 & 142/2008 are hereby dismissed.

2.     No order as to costs in these appeals.

3.     Copies of this judgment and order be issued to both the parties.

Pronounced on dt.26.03.2013.