ORDER
C.L. Chaudhary, J. (Member)
1. By this common order, we dispose of the four appeals, i.e. First Appeal No. 74 of 1995, First Appeal No. 75 of 1995, First Appeal No. 81 of 1995 and First Appeal No. 82 of 1995. All these appeals arise from common order dated 14th November, 1994, passed by the State Consumer Disputes Redressal Commission, Maharashtra, dealing with Complaint Nos. 138 of 1994, 139 of 1994, 140 of 1994 and 141 of 1994.
2. The State Commission disposed of the four complaints by a common order for the reason that the National Insurance Company is a common opposite party in all the four complaints and the insurance claims were arising out of the same incident of fire which broke out on 11.12.1990.
3. We also find that the circumstance of the case do warrant that for the proper appreciation of the facts and for the effectual decision, all the four cases, should be heard and decided together.
4. We have heard all the four appeals together.
FIRST APPEAL NO. 74 OF 1995
5. This appeal arises from Original Complaint Case No. 140 of 1994. Shree Laxmi Textile Industries, the Complainant, filed a complaint against the National Insurance Co. Ltd., and Gupta Polyster (Pvt.) Ltd. as an added Respondent No.2 The fire policy bearing no. 3100317 was issued in favour of the Complainant by National Insurance Co. Ltd., for a sum of Rs. 10 lakhs in respect of furniture, fixtures, fittings, in the three galas Nos. 35,36 and 37. There was a fire and the Complainant claimed a sum of Rs. 2,67,016/- on account of loss suffered by them due to fire. The Insurance Company assessed the loss at Rs. 90,430/-. After considering the material placed on record, the State Commission allowed the claimant’s claim to the extent of Rs. 2,67,016/-. Aggrieved by the order of the State Commission, the Insurance Company has filed the present appeal.
6. The main contention on behalf of the Insurance Company, is that the Complainant did not file any document to establish that it has suffered loss to the extent of Rs. 2,67,016/- and the State Commission wrongly returned the finding that the loss was supported by documents. The State Commission completely ignored to take into consideration the report of the independent Sureveyor, M/s. R.N. Thacker & Co. who had assessed the loss at Rs. 90,430/- which is very vital and important piece of evidence and. The State Commission had not adverted to the report in its order and it has led to miscarriage of justice.
7. We have perused the order of the State Commission. We find that the State Commission failed to take into consideration the report of the Surveyor on which the entire defence of the Insurance Co. rested. This was a very vital and important piece of evidence and the State Commission should have discussed the report of the Surveyors. If the report of the Surveyor was not acceptable, the State Commission should have recorded some cogent reasons for disagreeing with the report of the Surveyor. This has not been done. It has resulted in to mainfest miscarriage of justice. In view of this, the order of the State Commission is not sustainable and has to be set aside. We allow the appeal, set aside the order of the State Commission and remand the case to the State Commission for deciding the matter afresh in accordance with law. Since the matter relates to the year 1990, we hope that the State Commission will dispose of the matter as expeditiously as possible and within a period of six months from the date of receipt of a copy of the order, if possible. We make no order as to costs.
FIRST APPEAL NO. 75 OF 1995
8. This appeal arise from a Complaint Case No. 139 of 1994 filed by Gupta Polyester Pvt. Ltd. & Anr. against the National Insurance Co. Ltd., and the State Bank of India, Bombay. The Complainant had obtained a fire policy No. 310040 to cover the risk of stock-in-trade and stock-in-process for a sum of Rs. 20 lakhs. The policy was taken through A/c State bank of India. The case of the Complainant was that he had suffered a loss to the tune of Rs. 20,56,267/- due to fire which destroyed stock-in-process Rs. 20,56,267/- stored in Gala No. 36 on the loft particularly gala Nos. 35, 36 and 37. The claim was contested by the Insurance Company on the ground that there was no stock of the complainant lying in Gala No. 36 at the time of fire. A plea was also taken by the Insurance Company that the stock of M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. was lying in Gala No. 36 at the time of fire. The Complainant was doing job work for M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. got their stock insured from United India Insurance Co. Ltd. and lodged a claim with the Insurance Co. for Rs. 5,45,000/- for th eloss they had suffered due to the fire in respect of their stock lying in Gala No. 36. After taking into consideration, the material placed on the record, the State Commission allowed the complaint and directed the Insurance Company to settle the claim of the Complainant for the full amount of Rs. 20 lakhs. Regarding the plea raised by the Insurance Company in respect of goods belonging to M/s. Santosh Synthetics & Silk Mills Pvt. Ltd., the State Commission returned the following finding:
“The reason to reject this complainant’s claim by opposite party are very funny. The insurance company tatally rejected the complainant’s claim onthe ground that there was no stock with complainant. It is contended by insurance company that the stock of M/s. M/s. Santosh Synthetic Silk Mills Pvt. Ltd. was lying there. The complainant has already submitted that it was doing job work from M/s Santosh Synthetic Silk Mills Ltd. It is important to note that M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. were having their separate insurance claim besides the complainants stocks and their insurance claims have been settled by United India Insurance Co. Ltd. for the loss of their raw materials. Therefore, the insurance company confused with the claims of M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. and the opposite party while issuing the policy were fully aware about the stocks lying and knowing full well the situation issued the policy in question. While issuing the policy there is no description and identification made about the property. The policy in question is a hold-all policy covering all types of stocks lying in teh gala Nos. 35, 36 and 37. Thus, we find that the insurance company was quite clear about the nature of the stocks and the cover granted. Therefore, the reasons for rejection of the Complainant’s claim is very erroneous”.
9. The order of the State Commission is challenged by way of this appeal which is under disposal. On behalf of the Insurance Company, is is stated that the State Commission failed to appreciate that the two independent Surveyors, namely, M/s. R.N. Thakar & Co., deputed by the Appellant and M/s. C.P. Mehta & Co., deputed by another Insurance Co., M/s. United India Insurance Co., both concurrently reported that the stock lying in Gala No. 36 at the time of fire belonged to M/s. M/s. Santosh Synthetics & Silk Mills Pvt. Ltd., alone, who was getting the weaving fabric on a job work basis from the Complainant and there was no stocks belonging to the Complainant lying in Gala No. B-36 at the time of occurrence of the fire. In the reply filed by the Complainant before this Commission to the reply of grounds of appeal, it is stated that the claim has been falsely made by M/s. M/s. Santosh Synthetics & Silk Mills Pvt. Ltd., the entire stock of M/s. Santosh Synthetics & Silk Mills Pvt. Ltd., was lying in Gala No. B-35 at the time of fire and it is still lying there. According to the report of the Surveyor, the stock lying in B-35 was not damaged by fire while the entire stock in Gala No. B-36 has been destroyed in fire. The Surveyor wrongly relied on the alleged claim of M/s. M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. The alleged inventory taken by the Surveyors, namely, M/s. P.N. Thakar & M/s. O.P. Mehta & Co., is wrong and is not based on the factual position. The goods worth more than Rs. 20,56,000/- belonging to the Complainants were lying in Gala No. B-36 where the fire took place and the entire stock lying in Gala No. B-36, even according to the Surveyor, has been destroyed by fire.
10. On 3.8.98, after perusal of the record and hearing the Counsel for the parties for sometime, this Commission passed the following order:
“Give notice to Synthetic & Silk Mills Pvt. 13, Bhuleshwar (Rajmahal), 2nd Floor, Bombay-400002 and United India Insurance Co. Ltd., Bombay, to appear before this Commission. Notices are being give because an allegation has been made that in respect of the stocks of goods damaged (First Appeal No. 75 of 1995), the owner of goods i.e. Synthetic & Silk Mills (Pvt.) Ltd. has already lodged a complaint with its Insurance Company – United India Insurance Co. Ltd., Bombay.
This assertion made on behalf of the National Insurance Company is contradicted by the Respondents. Their case is that the claim of Synthetic & Silk Mills Pvt. Ltd. was in respect of different goods which were not burnt at all. The claim which has now been made by the respondent, Shree Laxmi Textile Industries is in respect of goods for which Synthetic & Silk Mills Pvt. Ltd. has not made any claim nor been paid by compensation.
The truth behind the allegation and counter allegations will have to be found out. The notified parties, United India Insurance Co. Ltd. and Synthetic & Silk Mills Pvt. Ltd. will appear before this Commission on the next date of hearing fully prepared to answer these charges.
On behalf of the National Insurance Co., it is stated that the claim of Synthetic & Silk Mills Pvt. Ltd. was not settled by the United India Insurance Co. Ltd.
Record of the State Commissoin in respect of this appeal should also be brought here on the next date of hearing of the case Adjourned for six weeks”.
11. As nobody appeared for the United India Insurance Co., and M/s. Santosh Synthetics & Silk Mills Pvt. Ltd., in response to the notice, this Commission passed the following order on 5.1.2000.
“It is necessary to have the presence of M/s. Santosh Synthetic Silk Mills Pvt. Ltd. and also United Insurance Co. Ltd. ascertain the question whether the claim has been made by Santosh Synthetic Silk Mills Pvt. Ltd., in respect of the same goods which are in dispute before us from the United India Insurance Co. Since in spite of notices, the United India Insurance Co. and Santosh Synthetic Silk Mills Pvt. Ltd. are not appearing, we direct that they should be made parties – Respondents to this dispute because their presence is necessary for disposal of the case. In that view of the matter, we direct Santosh Synthetic Silk Mills Pvt. Ltd. and United India Insurance Co., Divisional Office No.8, Bombay to be made party Respondents to this case. Mr. Vishnu Mehra will file the amended memo of parties in FA No. 75/95. Since United India Insurance Co. Ltd. and Synthetic Silk Mills are ignoring notices sent by this Commission from time to time, it is directed that on the next date of hearing, the Manager of United India Insurance Co. must be present in person. The Managing Director or Director of M/s. Santosh Synthetic Silk Mills Pvt. Ltd. must also be present in person on the next date of hearing. Post these appeals after six weeks. It has been stated by Mr. Vishnu Mehra that a complete set of documents have been sent to Santosh Synthetic Mills by this Commission.”
12. In Response to the notice issued by the Commission, M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. has filed a reply before this Commission. In the reply it is stated that they were the manufacturer of suiting and shirtings. M/s. Gupta Polyester Pvt. Ltd. were having weaving looms and they were taking yarn from them on job work basis for converting the same into fabrics. Their goods were lying in Gala No. B-36 when fire broke out. Their goods were insured with M/s. United India Insurance Co. Ltd. After the incident of fire, the Surveyor of the United India Insurance Co. Ltd., as well as the Surveyor of the National Insurance Company Ltd. visited the premises and both have submitted a report that goods of M/s. Santosh Synthetics & Silk Mills Pvt. Ltd., were lying inside the gala No. B-36 when the fire broke out and all the goods of M/s. Santosh Synthetics & Silk Mills Pvt. Ltd., were burnt in the said fire. They had not received any compensation from the United India Insurance Co. Ltd. On verbal inquiry from the Insurance Co., they have been told that Gupta Polyester Pvt. Ltd. had also filed insurance claim on the same goods, and therefore, till the National Consumer Disputes Redressal Commission decided the issue, they would not settle the claim. The State Commission erred in holding that the claim of M/s. Santosh Synthetics & Silk Mills Pvt. Ltd., had already been settled by the United India Insurance Co. Ltd. Their goods worth Rs. 5,45,000/- had been burnt in the fire and the Surveyor of both the Insurance Companies verified the fact. In spite of that, the insurance alcim had not been settled by M/s. United India Insurance Co. Ltd. as they are awaiting the final verdict of the National Commission. The Complainant filed the complaint with dishonest and mala-fide intention on the allegations that the entire goods belonged to them.
13. The United India Insurance Co. Ltd. also filed reply in response to the notice issued by this Commission. The stand taken by M/s. United India Insurance Co. Ltd. is that the fire policy No. 120200/0013/1/C/10330/90 effective from 3.7.90 to 2.7.91 , was issued in favour of M/s. M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. covering the risk of Rs. 9 lakhs in respect of their stock-in-trade and stock in process lying in the premises of M/s. Gupta Polyester Pvt. Ltd., Nand Bhawan, Industrial Estate No.21, Mahakali Caves Raod, at Andheri (E). It was reported that a mishap had taken place on 11.12.1990 in the premises and destroyed the stock insured, i.e. M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. M/s. United India Insurance Co. Ltd. appointed M/s. C.P. Mehta & Co., insurance surveyors, to assess the loss. They filed their report dated 14th March, 1992 where they had assessed the loss suffered by M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. at Rs. 3,36,779/-. The claim preferred by M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. had been processed by teh United India Insurance Co. Ltd. and stands approved for a sum of Rs. 3,36,008/-, but the payment has not been made so far as the Respondent in appeal No. 75/95 had claimed that the stocks which were destroyed in the fire accident actually belonged to them though earlier they had issued a ‘n objection certificate’ if the claim amount was paid to M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. As the Respondent has moved the National Consumer Forum claiming the amount and the matter has not been finally decided, the claim of M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. though approved has not been satisfied and the result of the legal action is being awaited.
14. We have heard the learned Counsel for the parties including the representative of M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. and the Counsel for M/s. United India Insurance Co. Ltd. The plea raised by the Appellant Insurance Co.Ltd. before the State Commission was that the stocks of M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. were lying in Gala No. B-36, was disposed of with the observation that the insurance claim of M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. was settled by the United India Insurance Co. Ltd. for the loss for their stocks. The case of the Complainant before the State Commission was that the entire stock in Gala No. B-36 which was destroyed in the fire belonged to them and the goods of M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. were not lying there. On the other hand, M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. claims that the goods belonging to them which were on job work with M/s. Gupta Polyester Pvt. Ltd., were lying in Gala No. 35,. when the fire broke out. Their goods worth Rs. 5,45,000/- were brunt in the fire. The report of both the Surveyors appointed by M/s. National Insurance Co. Ltd. and the United Insurance Co. Ltd., states that the goods belonging to M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. were lying in Gala No. 36 at the time of fire and were destroyed. The United India Insurance Co. Ltd. has finalised the claim of M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. for a sum of Rs. 3,36,779/-, but the amount has not been paid to them for the reason that the Complainant had claimed that the entire goods lying in Gala No. B-36 at the time of fire belonged to them.
15. We find that there is a bona fide dispute between the Complainant and M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. as to whose goods were lying in Gala No. 36 which were destroyed in the fire. This controversy can only be resolved if M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. are impleaded as a party to the complaint filed by the Complainant before the State Commission. It is necessary to do so in order to Completely and effectively determine the respective claims of the parties so that the matter is finally decided. It will also avoid multiplicity of proceedings and conflicting decisions. This can only be done if M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. is given an opportunity to present its case before the State Commission. This will meet the ends of justice and will save other litigations. It will also be necessary to implead the United Insurance Co. Ltd. in the complaint filed by the Complainant so that they may also have the opportunity of being heard. As a result of the above discussions, we allow the appeal, and we set aside the order of the State Commission M/s. Santosh Synthetics & Silk Mills Pvt. Ltd. and M/s. United India Insurance Co. Ltd. are added as Respondents in the Complaint No. 139/94 filed by the Respondent/Complainant before the State Commission. The Complainant will file the amended complaint before the State Commission by adding M/s. Santosh Synthetics & Silk Mills (P) Ltd. and M/s. United India Insurance Co. Ltd. as the Respondents. The State Commission will decide the matter afresh in accordance with law. Of course, the State Commission will afford reasonable opportunity of being heard to the newly added Respondents to present their cases before the Commission. In the peculiar circumstances of the case, we direct that the parties shall bear their own costs. As the matter relates to the year 1990, we hope that the State Commission will decide the matter expeditiously and within a period of six months from the date of receipt of the copy the order, if possible. The appeal is disposed of as above.
FIRST APPEAL NO. 81 OF 1995
16. This appeal arises from the Complaint Case No. 138/94. Shree Laxmi Textile Industries is the Complainant in this case. A fire policy bearing No. 3101939 was issued in favour of the Complainant by the National Insurance Co. Ltd., for a sum of RS. 3,50,000/- and the policy is through Gupta Polyester Pvt. Ltd., who was the formal Opposite Party No.2. The risk covered was in respect of the building, plant and machinery due to fire. The fire policy was in respect of the building, plant and machinery due to fire. The fire policy was in respect of gala No. 36. The Complainant claimed compensation from the Insurance Company for an amount of Rs. 5,10,000/- towards the loss sustained in the incident of fire. The Insurance Company decided to settle the Complainant’s claim for building at Rs. 23,106/- and for the machineries and accessories at Rs. 1,22,260/- the total amount offered was Rs. 1,45,366/-. As the Complainant was not agreeable for the aforesaid amount, it filed a complaint claiming Rs. 5,10,000/-.
17. The claim was contested by the Insurance Company on the basis of various pleas. After considering the material placed on the record, the State Commission allowed the claim of the Complainant and returned the finding that the Complainant had established on the record the quqantum of loss to the building, plant and machinery more thatn the insured sum of Rs. 3,50,000/-. In view of that finding, the State Commission directed the Insurance Company to settle the claim for the amount of Rs. 3,50,000/- as the loss suffered was more than the sum assured.
18. Aggrieved by the order of teh State Commission, the Insurance Co. has filed the present appeal. It was stated that the State Commission without appreciating and discussing the Survey report and the loss assessed by the Siurveyor, relied upon certain estimates filed by the Respondent No.1. The Appellant was fully justified in demanding the proof of ownership in respect of machinery/accessories from the Complainant at the time of settlement of the claim.
19. We find force in teh contention raised on behalf ofhte Insurance Company. We have perused the order of the State Commission. The State Commission failed to take into consideration the report of teh Sureveyor, a very vital and material piece of evidence produced on behalf of the Insurance Co. Ltd. The State Commission ought to have adverted to and discussed the report of the Surveyor. If the report was not acceptable, the State Commission should have given cogent reason s for discarding the report of the Surveyor. This has not been done. It has resulted in to mainfest miscarriage of justice. In view of this, the order of the State Commission cannot be legally sustained. As a result, we allow this appeal, set aside the order of the State Commission and remand the case to the State Commission for fresh disposal in accordance with law. Since the matter relates to the year 1990, we hope that the State Commission will dispose of the matter as expeditiously as possible and within a period of six month from the date of receipt of a copy of hte order, if possible. We make no order as to costs.
FIRST APPEAL NO. 82 OF 1995
20. This appeal arises from Complaint Case No. 141 of 1994 filed by Raghuvir Textile Industries Ltd. against the National Insurance Company Ltd., and Gupta Polyster Pvt. Ltd.
21. The facts of the case are that the Insurance Company issued a fire policy bearing No. 31001938 in favour of the Complainant, C/o Gupta Polyester Pvt. Ltd. for a sum of Rs. 5,50,000/- in respect of the premises known as Gala No. 35. The incident of fire took place on 11.12.1990 and the Complainant claimed a compensation of Rs. 1,25,000/- for the loss of material etc., and the loss of weighing scale amounting to Rs. 70,820/-.
22. The claim was contested on behalf of the Insurance Company on the ground that there was a specific finding recorded by the Surveyor that the fire which occurred on 11.12.1990 was restricted to Gala No. B-36. The fire policy in question issued to the REspondetn No. 1 related to Gala B-35 which was not affected by fire even as per the report of the fire brigade. The Complainant did not lodge any claim in respect of the alleged loss/damage to building, machinery situated at Gala No. B-35. The other point taken by the Appellant before the State Commission was that the claim was barred by time. The State Commission by the impugned order allowed the claim and directed the Insurance Company to settle the claim for an amount of Rs. 70,820/-.
23. The Order of the State Commission has been challenged by the Insurance Company by way of an appeal which is under disposal. It is stated that the State Commission failed to appreciate that there was a specific finding in the report by the Surveyor that the fire which occurred on 11.12.1990 was restricted to Gala No. 36 and the fire policy in question was issued to Respondent No. 1 related to Gala B-35 which was not affected by the fire and as such the claim was not entertained.
24. We have perused the order of the State Commission. We find that the State Commission has not adverted to or discuss the report of the Surveyor, wherein it was stated that the policy related to Gala no. B-35 which was not affected by the fire at all. The State Commission failed to take into consideration the vital and important piece of evidence. The plea of the Appellant that there was no fire in Gala B-35 was not considered by the State Commission. The State Commission ought to have considered the report of the Surveyor which was a very vital piece of evidence. If the report of the surveyor was not acceptable to the State Commission, then the State Commission should have rendered cogent reason for discarding the same. The State Commission could not ignore the report of the Surveyor on which the entire case of the Insurance Company rested. It has resulted into manifest miscarriage of justice. In view of this, the order of the State Commission cannot be legally sustained. As a result we allow this appeal set aside the order of the State Commission and remand the case to the State Commission for fresh disposal in accordance with law. Since the matter relates to the year 1990, we hope that the State Commission will dispose of the matter as expeditiously as possible and within a period of six months from the date of receipt of a copy of the order, if possible. We make no order as to costs.
25. After conclusion of the arguments the REspondents have filed an application for re-hearing of the case. It is alleged that the newly added parties, namely, M/s. United India Insurance Co. Ltd. and M/s. Santosh Synthetics & Silk Mills (P) Ltd. filed certain documents in the form of written version and also a letter in reply. The letters dated 26.12.1994 allegedly written by M/s. Gupta Polyester (P) Ltd. to M/s. Santosh Synthetics Mills (P) Ltd. copies whereof were produced by M/s. United India Insurance Co. Ltd. are forged and fabricated and no such letters have been written by M/s. Gupta Polyester to M/s. Santosh Synthetics or to M/s. United India Insurance Co. Ltd. It is also alleged that during the hearings, it was pointed out that certain facts mentioned in the written version of M/s. United India Insurance Co. Ltd. and the letter filed by M/s. Santosh Synthetics are contradictory to each other. M/s. United India Insurance Co. Ltd. and M/s. Santosh Synthetics have mislead the Commission. In the premises, it is prayed that the case may be re-heard by providing appropriate opportunity to the REspondents to authenticate the pleas of fabrication and forgery of the documents on record.
26. We have considered the application. We find no merit in the application for rehearing filed by the Respondent. This Commission has remanded the cases to the State Commission for a fresh decision. It will be open to both the parties to urge all the points in accordance with law before the State Commission. In view of this, the application is dismissed.
