ORDER
B.K. Taimni, Member
1. This Appeal has been filed by the Appellant, M/s. SVL Food
Products Pvt. Ltd. against the order of State Commission dismissing the
complaint.
2. Brief facts of the case are that the Complainant had obtained a
policy to cover his loss of fish in 7 lakhs which were lost during the cyclone
in August, 1989. A claim was preferred by the Appellant before the
Respondent Company claiming Rs. 4,20,000/-. Damage was assessed
through two surveyors, who gave different assessments. The claim was
also got investigated. As a result of all this, the claim was repudiated by
the Respondent Company on the ground that some fish had already been
disposed off before the cyclone; the terms of policy excludes settlement of
claim arising out of partial sale or harvesting. On the Complainant’s filing a
complaint before the State Commission, the complaint was dismissed on
the ground that the complaint has not been able to rebut the contention of
the Respondent based on report of one of the surveyor and the
Investigator that the complaint had indeed sold off some of the fish in
Howrah before the date of incident of cyclone. It is in these circumstances,
that the complainant has filed this appeal.
3. The Respondent vide our order dated 16th October, 2001 has
directed both parties to file their written arguments on the next date of
hearing which was fixed for 3rd January, 2002. Both the parties did not file
their written arguments by this date. They were given an opportunity to do
so and case fixed for 1.2.02. The Respondent neither filed the written
arguments nor was present while the appellant had filed his written
arguments. It was decided to proceed ex-parte viz-z-viz the Respondent.
4. It was argued by the Learned Counsel for the Appellant, Shri
Krishnamani that the State Commission erred on two counts. Firstly not
appreciating the report of two surveyor in a proper perspective. Senior
Surveyor, Mr. P.M. Mohan Rao had properly investigated the case from all
angles and had recommended payment of Rs. 2.85 lakh whereas the
Junior Surveyor B. Nageshwar Rao after a short investigation came to the
conclusion that there was indeed disposal of fish by the appellant before
the date of cyclone. The State Commission erred in relying upon the
report of the junior surveyor which itself was based on wrong premises.
On this ground alone, the order of State Commission need to be set aside.
Secondly, reliance of the Respondent company on the report of the
Investigator Deshpande is also misplaced. This report was never shown to
the Complainant, hence cannot be relied upon. The appeal need to be
allowed and the claimed amount be awarded to him with costs.
5. On perusal of material on record and on hearing of arguments, we
find that report of Investigator Deshpande is not on record before us,
hence we are not going to reply upon it. Since at the appeal stage, we
need to go to questions of fact and law, non-availability of the report on
record does not help us in the matter before us. We are left with two
reports of the surveyors. One surveyor P.M. Mohan Rao after proper
enquiry and investigation found there was no sale of fish before the
incident of cyclone, the other surveyor came to the opposite conclusion
based on material before him. According to the second surveyor one K.
Satya Narayana sent 10 tonnes of fish on 18.4.89 by Truck No. AIC 4365
and another Truck No. AAI 2799 carried 10 tonnes of fish on 21.6.89,
consignor being S.V.L. Ganapavasan; enquiries from check-post reveal
that a truck on 21.6.89 carried 52 baskets of while fish belonging to SVL
Ganapavram. We see no corroborative evidence with regard to any
transportation of fish on 18.4.89, which movement of fish on 21.6.89 is
corroborated by the entries in check-post records. It is the name of the
consignors which is material for our purpose. We are inclined to agree with
the contention of the Appellant that their unit is SVL Food Products Pvt.
Ltd. and are located in Chanamilli village of West Godawari District and are
in no way connected with any SVL Gonapovram. It is the latter who had
sent fish to Howrah. It definitely is a different unit. No effort is made by
the Respondent to solve this key variant. Similarly called SVL
Gonapovram selling fish in Howrah cannot be equated with the Appellant
selling fish. Rejection the claim of the appellant appears to us a flimsy and
unsubstantiated ground. State Commission in our view erred in reading
SVL Gonapavram as identical with SVL Food Products Pvt. Ltd. based in
Chanamilli Village. State Commission has relied upon this sole ground –
corroborated by the report of Investigator Deshpande. Even though this
report is not on record but in our view State Commission had erred in
reading the two names, as of one and the same entity, which on the face
of it does not appear to be correct.
6. The order of this State Commission is set aside and the Respondent
Company is directed to pay Rs. 2,85,600/- as assessed by their surveyor
P.M. Mohan Rao along with interest @ 9% from 1st February, 1990 till the
date of payment which must be made within eight weeks of the order
failing which rate of interest shall be 15% p.a.
7. No order on costs.