Per Mr S M Shembole, Hon’ble Presiding Member
This appeal is directed against the judgement and order dtd.06.06.2006 passed by District Consumer Forum, Amravati in complaint No.CC/01/176 partly allowing the complainant’s claim, directing opposite party / appellant to pay compensation of Rs.5.00 Lacs exclusion of amount Rs.2,52,700/- which was received by the complainant respondent. For the sake of brevity appellant is hereinafter referred as o.p. and respondent as complainant.
Brief facts giving rise to this appeal are that:-
1. Complainant Vijay Mohta is running Dal mill under the name as M/s Ashok Dal & Oil Mill at Amravati. It is a registered partnership Firm and complainant is its one of the partners. He runs the business of the said Firm. It stores goods for processing the Dal and other goods. For processing the same, machinery also installed in the said mill. Therefore, by way of safety the complainant had insured the goods with the o.p. – Insurance Co. for the period 19.05.2000 to 18.05.2001 and paid policy premium of Rs.14,963/- and obtained insurance policy bearing No.07012.
2. On 17.12.2000 at about 10.40 p.m. there was fire to the mill premises and in the fire some goods and machinery are burnt. According to the complainant he sustained loss of Rs.7.5 lacs by damaging goods and machinery and therefore, immediately he informed the incident to Mr J Chandak Development Officer of o.p. and also lodged complaint with Police Station, Ramdaspeth, Amravati. On receiving the information, Police visited the spot and made Panchanama, showing probable loss at Rs.5.5 lacs. The Fire Brigade authority also made a report, showing probable loss amounting to Rs.4 lacs.
3. Thereafter, complainant made insurance claim with the o.p. submitting some documents i.e. complaint lodged with Police, Police Panchanama, etc. However, on receiving the claim the o.p. appointed surveyor Mr Gupta to verify the loss sustained to the mill and deport. On 09.07.2001 said surveyor submitted report, showing loss of Rs.2,52,700/-. However, according to the complainant, copy the report was not supplied to him in spite of his repeated demand. On the basis of surveyor’s report, o.p. settled the claim at Rs.2,52,700/-. Alongwith settlement letter o.p. issued discharge voucher of Rs.2,52,700/- but it was not accepted by the complainant. However, thereafter on 23.07.2001 complainant wrote a letter to the o.p. and demanded copy of assessment made by the surveyor, informing that he is going to accept the cheque of Rs.2,52,700/- due to his financial crisis and to avoid closure of the mill. Thereafter, on 10.08.2001 the complainant received a letter by RPAD from o.p. and when he opened the envelope he found the cheque of Rs.2,52,700/- in envelope. According to the complainant he received the cheque under protest and accordingly informed the o.p. – Insurance Co.
4. It is further contended by the complainant that at the time of fire 242 quintal of Tur Dal and other goods which were stored in the mill premises, are completely damaged due to fire and also by using water for extinguishing the fire. Some machinery also damaged. According to the complainant, he sustained loss of Rs.7.5 lacs. But the surveyor without considering all these facts submitted false report, ignoring the situation from the mill and also the Police Panchanama and report submitted by the Fire Brigade authorities. Therefore, he has made complaint before the District Consumer Forum, claiming damages at Rs.5.00 Lacs, in addition to compensation of Rs.2,52,700/- which he has received from the o.p. under protest.
5. In response to the notice, o.p. appeared before the District Consumer Forum, Amravati and resisted the complaint by his reply, denying the claim, contending, inter alia, that the complaint itself is not tenable as complainant Vijay Mohta has no locus standi to file the complaint for claiming the compensation for the loss sustained to the partnership Firm. He is not authorized by the partnership Firm. According to the o.p., the Firm is necessary party and further the partners of the Firm are also necessary parties and in their absence the complaint is not tenable.
6. Moreover, according to the o.p. the surveyor has properly assessed the loss and on the basis of his report the claim is properly settled and the amount of claim is already paid to the complainant. But the complainant has filed false claim. According to the o.p. there is no evidence to show that the complainant sustained loss more than the assessment made by the surveyor. On these grounds, it is submitted to dismiss the complaint.
7. On hearing both the sides and considering the evidence led by the parties, the District Consumer Forum, Amravati partly allowed the claim, directing the o.p. to pay compensation of Rs.5.00 lacs in addition to compensation of Rs.2,52,700/- already received by the complainant, with interest @ 9% p.a. from the date of 17.03.2001. So also an amount of Rs.2,000/- towards cost of litigation.
8. Feeling aggrieved by the said judgement and order, the o.p. – Insurance Co. filed this appeal.
9. We heard the Ld. Counsel for both the sides at length and perused the copy of impugned judgement and order, so also, the copies of documents produced alongwith appeal.
10. Adv.Smt M Naik for the appellant / o.p. challenged the maintainability of the complaint and submitted that since the partnership Firm as well as partners of the Firm are not made party to the complaint, the complaint is not at all tenable. But the District Consumer Forum, Amravati ignored this legal position and straightaway partly allowed the complaint. Therefore, let us proceed to consider first the maintainability of the complaint.
11. Smt. M Naik, Ld. Counsel for the appellant vehemently argued that when the complainant is claiming the compensation on behalf of Firm, the Firm as well as its partners are necessary parties and in the absence of necessary parties the complaint claim is not tenable. She has submitted that in order to make the claim on behalf of partnership Firm, the deed of partnership should have been filed on record and unless the names of the partners are disclosed, the complaint is not tenable.
12. Per contra, Mr Kalantri, Ld. Counsel for the respondent / complainant denied the contentions of Smt. M Naik, Ld. Counsel for the appellant and submitted that undisputedly, the complainant Mr Vijay Mohta, who is running the business of partnership Firm, is entitled to make insurance claim and file complaint. In support of his submission he has produced copy of deed of partnership Firm, which is not disputed. He also supported his contention by relying on the decision of our Bombay High Court in the case of M/s Musaji Mohamadali Mater & Sons & Ors. Vs. Mr Gulamali Dadabhai Amreliwala & Anr. Reported in 2005 (1) BCJ 326 and also following decisions:-
a. K A Lona etc. Vs. M/s Dada Haji Ibrahim Hilari & Co & Ors. reported in AIR – 1981 Kerala 86
b. V O Devassy Vs. Periyar Credits & Anr. Reported in 1994 STPL (LE-Civil) 3859 KER
c. Oriental Fire & General Insurance Co Ltd. Vs. Union of India reported in AIR 1991 Patna 250
d. National Insurance Co Ltd. Vs. Smt Tarini Nikhare reported in I (2004) CPJ 58
13. We have gone through all these authorities and satisfied that a partner who deals the business of the Firm is entitled to make insurance claim and also file complaint. Hence, we are unable to accept the arguments advanced by Smt Naik, Ld. Counsel for the appellant. Therefore, we hold that the complaint filed by the complainant, who is undisputedly a partner of the partnership Firm, is entitled to make insurance claim and therefore, complaint filed by him is maintainable.
14. Now let us proceed to consider the claim made by the complainant. Undisputedly, there was fire to the Dal mill of the complainant and the stock was ensured with the o.p. Insurance Co. The policy was valid on the date of incident of fire. The only crux in this matter is about the quantum of loss sustained to the partnership Firm.
15. According to the complainant, the Firm sustained the loss more than Rs.7.5 lacs. Whereas according to the appellant / o.p. it was Rs.2,52,700/- as shown in assessment report made by surveyor Mr Gupta.
16. At the outset, we may point it out hear that the complainant is not firm about the loss sustained by his Firm. His pleadings are self contradictory. As per his pleadings, he sustained the loss of Rs.5.5 lacs and thereafter he changed his pleading and submitted that the Firm sustained the loss of Rs.7.5 lacs, etc.
17. A bare glance at the copy of the complaint, it reflects that as per Police Panchanama the Firm sustained the loss of Rs.5.5 lacs and as per report of Fire Brigade authorities the Firm sustained the loss about Rs.4.00 lacs. However, on the basis of the report submitted to the Collector regarding stock of Tur Dal, the complainant has claimed the loss of Rs.7.5 lacs. According to the complainant on his request the District Supply Officer allowed to delete the quantity of the stock, which was damaged in the fire. Further according to the complainant, the stock deleted has 240 quintal Tur Dal and considering the then prevailing price of Tur Dal, he calculated the amount of loss and by adding damages sustained to the machinery he has claimed total loss of Rs.7.5 lacs. It is submitted by Mr Kalantri, Ld. Counsel for the respondent that the Tur Dal was completely damaged due to fire and also due to water which was used by Fire Brigade authority for extinguishing the fire. He has further submitted that partly burnt Tur Dal was not fit for human consumption or cattle fodder and therefore, it was destroyed. But no evidence to that effect is produced. Even no affidavit of any other partner or their employee is produced on record. Therefore, in the absence of any evidence, it is difficult to accept the contention made by the Ld. Counsel for the complainant.
18. Apart from the above facts, we would like to mention here that though undisputedly some of Tur Dal was stocked in gunny bags, it is submitted on behalf of the respondent / complainant that entire Tur Dal from gunny bags was damaged due to fire and using of water by the Fire Brigade to extinguish the fire, but in our opinion if the Tur Dal was stored in gunny bags the entire Tur Dal could not have been burnt. In our view the upper portion of the Dal from gunny bags would have partly burnt and by using water for extinguishing the fire the entire Tur Dal might have become wetty, and same could have dried after extinguishing the fire within reasonable time. In such circumstances, the major portion of the Tur Dal stored in gunny bags could have used as cattle fodder. But this fact is suppressed by the complainant. Even after fire salvage value of the damaged goods is not at all shown by the complainant. Therefore, on any count, we are unable to accept the arguments advanced by the Ld. Counsel for the respondent / complainant. But it appears from the copy of impugned judgement and order that Members of the District Consumer Fourm erred in considering all these facts and straightaway came to the conclusion that the entire stock from the Dal mill was damaged.
19. Apart from the above facts, though the District Consumer Forum relied on the copy of the report submitted by the Fire Brigade authority, showing damage about Rs.4.00 lacs and copy of Police Panchanama showing the damage about Rs.5.5 lacs, allowed the excess claim. Copy of the impugned judgement and order reflects that the Ld. Members of the Forum by relying on the decision of National Commission in the case of Sudhakar Traders Vs. National Insurance Co & Ors report in IV (2005) – CPJ 25 (NC) and relying on the reports of Fire Brigade authorities and Police Panchanama, committed error in allowing the claim exceeding Rs.5.5 Lacs. When the District Consumer Forum relied on those reports of Fire Brigade authorities and Police Panchanama, the claim could not have been allowed exceeding Rs.5.5 lacs. But it reflects that the Forum committed error in allowing the excess claim merely on the basis of then the prevailing price of the entire Tur Dal stock. Any how, in our opinion there could not be loss exceeding Rs.5.00 lacs.
20. Therefore, though the appellant / o.p. allowed the claim of Rs.2,52,700/- on the basis of survey report same also cannot be sustained. Thus it is obvious that the complainant is not entitled to get compensation exceeding Rs.5.00 lacs. The complainant himself has claimed compensation of Rs.5 lacs in his complaint. However he has claimed it in addition to the compensation which he has already received from the o.p. When according to his complaint itself, he sustained total loss of Rs.5.5 lacs, relying on the Police Panchanama, impugned order passed by District Consumer Forum, allowing the claim in addition to the claim amount of compensation already received by him, cannot be sustained.
21. For the foregoing reasons, we are inclined to allow the appeal partly by restricting the compensation to Rs.5.00 lacs only. The impugned order passed by the Forum, directing the appellant / o.p. to pay compensation of Rs.5.00 lacs without considering the amount of Rs.2,52,700/- which the respondent / complainant has already received, is hereby set aside.
Accordingly, we pass the following order:-
ORDER
1. Appeal is partly allowed.
2. Impugned order is modified as under:-
i. The claim of the complainant is partly allowed to the extent of Rs.5.00 lacs.
ii. Since, admittedly the complainant has already received the amount of Rs.2,52,700/- from the appellant / o.p., appellant / o.p. is directed to pay the balance amount of Rs.2,47,300/- to the respondent with interest @ 9% p.a. w.e.f. 17.03.2001 till realization of entire amount.
3. No order as to cost.
4. Copy of this order be supplied to the parties.
Pronounced on 21.09.2011.
