NATIONAL INSURANCE CO LTD vs SHEIKH MOHD YASEEN

THIS appeal is by opposite party/insurer-the National Insurance Company Ltd. which has been directed by the Forum below (D. F. , Balaghat) to pay to respondent-insured compensation Rs. 1,43,340 with interest @ 9% p. a. from the date of complaint, besides cost Rs. 140.

THE compensation is awarded for the loss allegedly caused by fire to the stock of waste cotton of the respondent-complainant insured with the appellant-Insurance Company for a sum of Rs. 1,50,000 for the period from 11. 3. 1999 to 10. 3. 2000. The godown of the respondent is situated at Balaghat. The fire in question broke out some time in the afternoon of 26th May, 1999 about which report was lodged with the police and fire brigage as also with the appellant-Insurance Company. The Surveyor appointed by appellant-Insurance Company vide his report dated 5. 8. 1999 assessed the loss at Rs. 21,143 and after making deductions under excess Clause Rs. 10,000 and Rs. 7,402 for salvage advised the Insurance Company to pay to complainant net compensation Rs. 4,041. However, the offer made by the appellant-Insurance Company to respondent in this regard was rejected by the latter who approached the Forum below claiming th entire compensation. The claim was resisted by the appellant which reiterated its offer in terms of the assessment of loss made by the Surveyor. However, the Forum below accepted the respondent''s claim and passed order as aforesaid. We have heard Mr. G. K. Shrivastava, learned Counsel for appellants and Mr. V. K. Saxena, learned Counsel for respondent and also gone through the evidentiary material on record.

The dispute is regarding the extent of loss only. Admittedly, the respondent maintained no stock register or account books and could produce bills and invoices only to the Surveyor-Shri Vinod Nema appointed by the appellant-insurer. We have very carefully gone through the survey report. In fact, the Surveyor has accepted all the bills of purchase submitted by the respondent except the three bill Nos. 315, 316 and 337 dated 25. 4. 1999, 3. 5. 1999 and 22. 5. 1999 purported to have been issued by Taj Enterprises, Nagpur for Rs. 37,500, Rs. 64,000 and Rs. 48,000 respectively. The respondent has also produced corresponding transport Biltis dated 28. 4. 1999, 3. 5. 1999 and 22. 5. 1999 to establish that the waste cotton purchased from said Taj Enterprises was transported from Nagpur to Balaghat through one Devendra Mini Transport Agency. While the respondent-complainant has filed affidavit of himself and Abdul Karim, the proprietor of said Taj Enterprises, the appellant-Insurance Company has filed affidavit of Surveryor Vinod Nema in suport of their rival contentions. Surveyor-Vinod Nema was also cross-examined on questionnaire by the complainant. We have considered all these depositions very carefully. It is pertinent to note that two of the three bills dated 25. 4. 1999 and 3. 5. 1999 issued by Taj Enterprises carry successive serial numbers 315 and 316 as if said Taj Enterprises had no sale in between these two dates i. e. , for the period of 7 days. The corresponding two transport Biltis dated 25. 4. 1999 and 3. 5. 1999, also carry similar successive numbers 005 and 006, as if this transport company also had no business in the intervening period of 7 days. It appears that the said two bills as also two Biltis have been issued and made available to the respondent in one go making respondent and claim under these two bills, highly suspicious. Although proprietor of firm-Taj Enterprises, Abdul Karim has testified as to the genuineness of these bills in his affidavit, and he was not suspected to any cross-examination by the appellant-Insurance Company. However, he said nothing not even a word in his affidavit to clear the suspicion surrounding these bills. Although the Surveyor has raised similar doubt about the bill dated 22. 5. 1999 carrying serial No. 337, but there appears to be nothing wrong with this bill and it could thus, safely be presumed that the goods shown in this bill were purchased by the respondent for Rs. 48,600. This amount in our opinion, was wrongly deleted by the Surveyor and the same, therefore, deserves to be added to the assessment of loss. However, the deletion of the amount of the other two bills dated 25. 4. 1999 and 3. 5. 1999 for Rs. 37,500 and Rs. 64,000 from the respondent''s claim, made by the Surveyor is found fully justified.

FOR what we have said above, a sum of Rs. 48,600 deserves to be added to the assessment of loss made by the surveyor. Deduction of Rs. 7,402 on account of Salvage was also not justified as it was a case of total loss. In our considered judgment, therefore, the respondent-complainant was entitled to a total sum of Rs. 4,041 + Rs. 48,600 + Rs. 7,402 = Rs. 60,043 from the appellant-Insurance Company only. The order impugned thus, deserves to be modified accordingly. We thus allow the appeal in part and reduce the amount of compensation from Rs. 1,43,340 to Rs. 60,043. Remaining order regarding payment of interest and cost shall however, remain unaltered. We make no order as to the cost of this appeal. Appeal partly allowed.