AI Structured Summary
Not yet generated for this judgment
Judgment
BOTH these appeals arise out of the same order of State Commission; hence, decided by one order. Appeal No. 724 of 2013 has been filed by the appellant against the order dated 5.8.2013 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ''the State Commission '') in Complaint Case No. CC/09/22 - M/s. Harishree Aromatics & Chemicals (P) Ltd. Vs. Oriental Ins. Co. Ltd. and Appeal No. 55 of 2014 has been filed against the order dated 5.8.2014 in Complaint Case No. CC/09/22 - M/s. Harishree Aromatics & Chemicals (P) Ltd. Vs. Oriental Ins. Co. Ltd. along with application for condonation of delay by which learned State Commission partly allowed complaint.
BRIEF facts of the case are that complainant/appellant got his factory including plant & machinery, stock and electrical installations insured from OP for the period 23.3.2006 to 22.3.2007. On 14.6.2006, there was an explosion in the factory as a result of which, extensive damage took place. Complainant lodged claim with OP and surveyor was appointed and OP after considering surveyors report repudiated claim. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and reiterated that claim was rightly repudiated as per surveyors report and prayed for dismissal of complaint. Learned State Commission after hearing both the parties allowed complaint partly and directed OP to pay Rs.36,14,058/ - with 9% p.a. interest from 12.11.2007 till realization and further awarded cost of Rs.25,000/ - against which, both the parties filed appeals before this Commission.
HEARD learned Counsel for the parties finally at admission stage and perused record. As there is delay of only 11 days in filing Appeal No. 724 of 2013and as State Commission has not considered affidavits of OP, I deem it appropriate to allow application for condonation of delay for the reasons mentioned in the application and condone delay of 11 days in filing appeal.
LEARNED Counsel for the Insurance Co. submitted that inspite of filing affidavits of the concerned witnesses, learned State Commission wrongly observed that original affidavits of the witnesses have not been filed and has committed error in allowing complaint without considering affidavits of both the witnesses; hence, appeal be allowed and impugned order be set aside. On the other hand, learned Counsel for the appellant -complainant submitted that learned State Commission rightly rejected evidence of witnesses, but committed error in reducing claim; hence, his appeal be allowed.
LEARNED State Commission in paragraph 5 observed as under: "Policy documents and the correspondence between the parties i.e. the Complainant and the Insurance Company are placed on the record which are not in dispute. Final Survey Report dated 12.4.2007 of the Surveyors is referred by both the parties and hence, same is taken into consideration. However, it may be pointed out that the conclusions drawn by the Surveyor were not accepted by the Complainant, nay seriously disputed and, therefore, this consumer dispute arose. Besides this, the Complainant relied upon an affidavit of Mr. Sudhir Gudal while the Insurance Company has relied upon an affidavit of its Divisional Manager, Mr. S.P. Johari. It may be pointed out that in fact, the document placed on the record is not an affidavit of Mr. S.P. Johari as it is not at all a sworn document. Thus, it left with an affidavit of another Divisional Manager, Mrs. Neeta Kumar which was filed just to affirm the contents of the written version. One photocopy of the affidavit dated 6.2.2010 sworn by Mr. R. Srivatsan - Director of Srivatsan Surveyors Pvt. Ltd. is placed on the record. However, we did make an enquiry by way of an abundant precaution with the Insurance Co. as to where is the original affidavit of Mr. R. Srivatsan. It is submitted that except for this photocopy the Insurance Co. has not produced the original affidavit of Mr. R. Srivatsan. Same is the case in respect of so -called affidavit of Mr. S.P. Johri supra. Therefore, both these documents styled as affidavit of Mr. S.P. Johari and photocopy of an affidavit of Mr. R. Srivatsan cannot be read in evidence."
Perusal of aforesaid observation reveals that learned State Commission did not consider affidavits filed by Mr. S.P. Johari and Mr. R. Srivatsan as only the photocopies were filed. Perusal of record reveals that original affidavit of Mr. R. Srivatsan which was notarized on 8.2.2010 was filed before the State Commission on 10.2.2010. Learned Counsel for the Insurance Company further submitted that notarized affidavit of Mr. S.P. Johari was also filed in original with the State Commission, but it appears that those affidavits have been misplaced and learned State Commission committed error in rejecting affidavits being photocopies.
AS original affidavits of witnesses have been filed by Insurance Company with the State Commission, order passed by learned State Commission is liable to be set aside as order is to be passed after considering affidavits filed by Insurance Company and appeal filed by Insurance Company is to be allowed.
AS impugned order is to be set aside, Appeal No.55/2014 filed by complainant for enhancement of compensation becomes infructuous.
IN the light of aforesaid discussion, Appeal No. 724 of 2013 filed by the appellant/OP is allowed and order dated 5.8.2013 passed by learned State Commission in Complaint Case No. CC/09/22 - M/s. Harishree Aromatics & Chemicals (P) Ltd. Vs. Oriental Ins. Co. Ltd. is set aside and matter is remanded back to learned State Commission to decide the complaint afresh after considering original affidavits filed by the Insurance Co. after giving an opportunity of being heard to both the parties. In case the original affidavits are not traceable, Insurance Co. may be permitted to file another similar affidavits. Appeal No. 55 of 2014 filed by the complainant is dismissed as infructuous.
PARTIES are directed to appear before State Commission on 17.12.2014.