Hon’ble Mr. Ajeya Matilal, Presiding Member
Both parties are present through their Ld. Advocates.
Appellant files BNA, copy served. Respondent has already filed BNA on the previous date of hearing.
Being aggrieved by and dissatisfied with order dt. 22.12.2017 passed by the Ld. DCDRC, Hooghly, Chinsurah dismissing the CC/109/2016 on contest appellant / complainant preferred this appeal.
Heard the submission of the Ld. Advocates for both sides.
Perused the impugned judgment alongwith pleadings and evidence adduced by the parties.
Considered.
The appellant / complainant filed the aforesaid complaint case alleging that the predecessor of the complainants had insurance policy bearing no. 51250/11/14/010000038 in respect of his business namely “Ganesh Chemicals”. The said Purusottam Lal Agarwal sent an application to the OP no. 2 of the complaint case on 10.09.2015 for resolution of claim from the OP no. 1 as the articles in the petition has been damaged due to flood. Thereafter, on 21.04.2016 the predecessor of the petitioner died to as such the petitioners became partners of the said business, accordingly they filed the application before the Ld. Forum below for obtaining the damaged of goods claimed from the OP no. 1.
The further case of the petitioner was that the OP no. 2 enquired the matter of flood and the justification of the petition for claim of the petitioners. The matter of claim was enquired by the OP and at the time of enquiry the petitioners submitted relevant documents about their claim and also noticed the articles damaged due to flood. The OP no. 1 assured that the claim of the petitioner was absolutely right and they would obtain the claimed amount. As the OPs did not consider the claim of the petitioners for damage so the right of the petitioners became cloudy on and from 22.03.2016. Finding no other alternative the petitioners filed the complaint case.
The OP no. 1 of the complaint case contested the case by filing a W.V denying the material allegations. The case of the OPs is that they appointed CMA Sourent Chatterjee, Surveyor, Loss assessor and investigator for survey work and after proper enquiry/ survey they submitted the first survey report on 06.11.2015. After such submission when they insured submitted some documents the said surveyor submitted his addendum dt. 06.02.2016. During survey, it was found clearly that the insured purchased paints were damaged. Thereafter, reprocessing the same by mixing and repacking the articles were sold by the insured. During such survey the insured categorically confirmed that keeping business materials permanently on the open yard and doing business of salvage materials from auction sale. The surveyor clearly made observation to treat the claim as “no claim”. On receipt of survey report the OP no.1 sent a letter to the insured on 03.12.2015 intimating about the closure of the file as “No claim”. So, the OP no. 1 prayed for dismissal of the case.
Considering the rival contention of the pleadings, the Ld. Forum below framed the following points:
- Whether the petitioner is a Consumer?
- Whether there is any deficiency in service on the part of the OP?
- Whether the complainant is entitled to get relief as prayed for?
In para 5 of the Judgment the Forum below observed that the complainant did not adduce any evidence regarding articles damaged by the flood or any other reason. It is also observed that there was no evidence from the complainant to substantiate the reason as to why the OP was unable to consider the prayer which was repudiated at last. In spite of lack of required documents relating to stock of the articles, nature of the articles and quantum of the articles, no evidence has been adduced before the Forum concerned.
It was also submitted before the Forum below that the complainants did not get the related documents regarding the substances alleged to have been damaged by flood.
It appears that the complainant case was dismissed because the complainant failed to produce appropriate documents.
Ld. Advocate for the respondent drew our attention to annexure C3 of the Appeal where particulars of documents have been furnished.
The Ld. Advocate for the respondent also referred to a decision of the Hon’ble NCDRC reported in CDJ 2013 (Cons.) Case No. 184 wherein it was observed “that the Surveyor’s report has significant evidentiary value and cannot be displaced unless it is contradicted by credible evidence to the contrary.”
He files another decision of the Apex Court dt. 10.10.2013 wherefrom it was observed that the complainant has right to prove his case and he is required to adduce evidence.
In reply the Ld. Advocate for the appellant submits that the aforesaid decisions are not applicable in the facts and circumstances of the case.
We are of the view that the matter should be remanded back to the Ld. Forum below for fresh adjudication.
So the appeal succeeds.
Hence it is ordered
The appeal is allowed with cost of Rs. 1000/- payable by the appellants to the SCWF.
A/61/2018 is disposed of accordingly.
Impugned order is set aside.
Parties are directed to appear before the Ld. Forum below on 02.09.2024.
The parties are given liberty to file fresh evidence. After consideration of the evidence likely to be adduced by both sides, Ld. Forum below is requested to decide the case on merit without being influenced by any observation made by this Commission within 3 months from the date of appearance of the parties before the Ld. Forum below.
Let a copy of this order be sent to the Ld. Forum below.
Joint Registrar of this Commission is directed to do the needful in this regard.
