NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2606 OF 2006
(Against the order dated 11-11-2005 in Appeal No. 203/2005
of the State Commission, Orissa)
M/s Subash Trading Company
Represented by its Proprietor
Shri Ashok Kumar Gupta
At/P.O. Chandan Bazaar
P.S./Distt. Bhadrak (Town)
Orissa ........ Petitioner (s)
Vs.
(1) The Divisional Manager
New India Assurance Co.Ltd.
Division Office
At P.O./P.S./Distt. Balasore (Town)
Orissa
(2) The Branch Manager
New India Assurance Co.Ltd.
Branch Office, Kacheri Road
At P.O./P.S./Distt. Balasore (Town)
Orissa
(3) The Branch Manager
Punjab National Bank
Branch Office
At P.O. – Kadambeda,
P.S. /Dist. – Bhadrak(Town)
Orissa
…….Respondent (s)
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner : Mr. Ajit Kumar Pande, Advocate
For Respondent Nos. 1 & 2 : Mr. Ambika Ray, Advocate
For Respondent No. 3 : N E M O
Dated : 24th May, 2012
ORDER
PER JUSTICE MR. J.M. MALIK, PRESIDING MEMBER
The facts leading to instant revision petition are these. Shri Ashok Kumar Gupta is the proprietor of M/s Subash Trading Company, the complainant/revisionist. The complainant has grocery wholesale shop at Chandan Bazaar, Bhadrak, Orissa. Insurance policy was obtained from New India Assurance Co. Ltd., Respondent No. 1, for a sum of Rs. 10 lakhs for the period from 06-04-1999 to 05-04-2000. Unfortunately, on 29-10-1999 flood water entered into complainant’s godown and destroyed grocery articles worth Rs.6,22,520/-. The complainant submitted its claim before respondent no. 1. First of all, the respondent no. 1 appointed a surveyor namely Shri S.K. Parhi on 03-11-1999. The following extract of his report is significant and is reproduced below:
“The stock of sugar, Atta, Maida bags were kept on stock basis on the floor inside the godown and on front right side corner of 1st portion few mustard oil tins were kept. Due to flood water logging inside the godown sugar bags got affected and counted 306 empty stitched bags were laying/floating above the flood water towards rear portion and sugar was melted and on left side 132 bags of wheat flour/Atta bags got affected i.e91 bags directly affected/wet on flood after contact and rest other soaked/damped along with 36 bags of Maida got affected placed on left portion near the entrance i.e. flood water contacted and made set of 13 bags and rest other got soaked/damped/damaged. Out of 116 stock of mustard oil tin found, 4 tins were floating above the flood water and in empty condition and on right portion godown on counting found, out of 105 number of R.B.D. oil tin 1st 34 numbers of empty tins packs were laying above the flood water and most among thirty four number tin were found in cracked/pressed and the inside water found a bit oily.”
2. Thereafter Shri S.S. Mohapatra was appointed as surveyor, who gave his report on 4th February, 2000. Relevant extracts of his report are as below:
“The flood water was reported to have remained accumulated with in the premises for more than 72 hours up to 03-11-1999. Due to resting of the water for more than 72 hours at a height of 4’, the grocery items like Atta, Maida, Sugar, etc. were damped with water and got damaged. The stalking above 4’ height soaked the water due prolonged restiveness and was damaged. We have physically verified the damages and ascertain the same to be true. Besides, we have inquired about the damage of 306 bags of sugar, which was completely washed off. We have inquired the stalking pattern and were confirmed that, the sugar stock was completely submerged in water and was completely washed off. We have also verified the sugar bags, which were shield from both the ends and were vacant, confirming to the fact that, there was no recovery.”
“BOOKS OF ACCOUNTS: The insured has a very good system for maintenance of records; so far it appears from our examination of the books. We have thoroughly verified the Stock Register of Tishalpur and Chandan Bazar along with the purchase bills, challans and ascertained the genuineness of the transactions. We have also checked the purchase register with the purchase bills, Sales register with Cash/Credit memos and the Balance Sheet with the Income Tax return, which are in agreement with each other. We have also verified the sales tax register with sales tax returns. The closing balance of book stock as on the date of our verification was found to be genuine and in agreement with the primary documents of entry. We have also stated that, the physical balance in stock was in agreement with the primary documents of entry. We have also stated that, the physical balance in stock was in agreement with the Book stock to imply that, the claimed losses were genuine.”
3. Thereafter, the claim was settled for the loss of Rs.4,39,925/-. The respondent, however, gave out that some amount would be paid after further scrutinization and verification of the claim. The appellant accepted the cheque of Rs.4,39,925/-. Subsequently, the respondent refused to pay the residue amount.
4. It also transpired that the respondent did not agree that all the 306 bags of sugar kept in the godown were damaged. Surveyor Shri S.K. Parhi gave the clarification on 07-06-2000 to the following effect:
“With regard to the discussion held with your official at Divisional office at Balasore on dated 07-06-2000 regarding the query details of stitched sugar bags, it is to clarify you that on further to my preliminary report submitted dated 11-01-2000 vide report no. SKP/MIsc-09-99-2000, out of 300 stitched empty sugar bags, it was ascertained that 256 were empty machine stitched bags and 50 bags found empty hand stitched bags.
This is for your information and hope will serve your purpose.”
(emphasis provided)
5. At the time of above said settlement, the price of these 56 bags of sugar was deducted and the balance was paid. The District Forum gave compensation for these 56 bags as well. On appeal, the learned State Commission held:
“On consideration of the materials available on record, it appears that all the 306 bags of sugar were not damaged. Out of the said stock 56 bags of sugar were very much in existence. Therefore, the respondent no. 1 cannot be compensated for these 56 bags of sugar. The observation made in the surveyor’s report dated 04-02-2000 that the preliminary surveyor (S.S. Mohaptra) was an eye witness to the washing of the sugar is misleading. There is no eye witness to the occurrence. In the final surveyor’s report dated 11-01-2000 the surveyor noted that 50 to 60 hand-stitching bags out of 306 bags of sugar were found by the surveyor at the time of preliminary survey. This undoubtedly indicates that there were 50 to 60 bags lying in the godown. The respondent no. 1 was in charge of godown. During the subsequent survey non –existence or disappearance of these 50 to 60 bags is a mystery. The respondent no. 1 has to show as to how these 50 to 60 bags of sugar vanished, because it was within his special knowledge. In these circumstances, adverse inference should be drawn against him as he failed to explain as to how these 50 to 60 bags of sugar disappeared.”
6. The State Commission accepted the appeal filed by the respondent and order passed by the District Forum was set aside.
7. We have heard counsel for the parties. It is true that the question of 56 bags is shrouded in mystery. However, the duty cast upon this Commission is to winnow the truth from falsehood. The Commission is to appreciate the evidence produced before it. It is not to be swayed away with suspicion and doubt. The evidence must be discussed in its proper perspective. The role of S.K. Parhi is wee bit doubtful. The volte-face on his part at the eleventh hour goes beyond the pale of our comprehension. He herms and haws and comes out on both sides of the above said knotty question. The unsavoury words used by him at the foot of document dated 07-06-2000 go to create a suspicion about S.K. Parhi. It is difficult to fathom what is meant by “will serve your purpose”. Was he going to oblige somebody? Why did not he report the truth at first instance? An integument of suspicion envelops the proceedings conducted by the respondents.
8. In the result, we accept the petition and restore the order passed by the District Forum. This revision petition is accordingly disposed of.
...…………………..………J
(J.M. MALIK)
PRESIDING MEMBER
..……………….……………
(SURESH CHANDRA)
MEMBER
aj/
