UNITED INDIA INSURANCE CO LTD vs East Indian Produce Limited

THERE is delay of 61 days'' in filing the First Appeal, by the insurance company, for which an application for condonation of delay has been filed. For the reasons stated in the said application, the delay is hereby condoned.

THE respondents/complainants above -named, obtained policies from the United India Insurance Company, Appellant No.1/Opposite Party No.1 and Appellant Nos. 2 and 3/Opposite Party Nos. 2 and 3, its functionaries. The Tea Crop Policy and other policies covered theft of tea and all other things, such as, factory, plant, machineries with accessories, building structures, furniture, fixtures and fittings.

DURING the subsistence of these policies, the complainants declared ''suspension of the work'' of Tea Estates and requisite notices were issued to the labourers and one copy of the same was also sent to the Insurer. The disputes by Management were settled on 20.03.2006. At the time of re -opening, the complainants apprehending theft and damages, intimated the insurance company with a request to depute a Surveyor to conduct a joint Survey on the date of opening to assess the loss of damage, if any. Sh. Indranil Bhattacharjee, was appointed as a Surveyor. There was theft, including ''made tea'', of about 11002 kgs. He submitted joint inspection report, on 27.03.2006, after inspection. According to the complainants that report is not correct.

ON 28.03.2006, the Manager of the Tea Garden lodged an FIR with the Pulbazar Police Station, informing the loss and damage due to theft of plant and machineries and other articles, in question. On 30.03.2006, the complainant requested the insurance company to pay compensation towards loss and damage due to theft in the Tea Garden. Sh. Bhattacharjee had not investigated the case as per the FIR, lodged. Subsequently, he again visited the spot. He also found that the police was not acting in accordance with law. The Surveyor assessed the loss at ? 94,250/ - towards the loss of plant and machinery and assessed ? 57,290/ - towards the loss of residential building but no loss was assessed for 11002 kgs of ''made tea''. The total value of the tea was calculated at ? 200/ - per kg and total claim of ? 23,51,940/ - was made before the State Commission. When it refused to pay the same, a complaint was filed before the State Commission, wherein a sum of ? 23,51,940/ - towards loss of damage to ''made tea'', due to theft, along with interest @ 18% p.a., and ? 1,00,000/ - towards compensation for mental harassment and agony was filed.

THE OPs/respondents have contested this case. The State Commission by a majority decision allowed the complaint partly and directed the OPs to pay an amount of ? 22,00,400/ - within a period of sixty days from the date of the said order, along with interest @ 8% p.a., by way of compensation.

WE have heard the learned counsel for the parties. Counsel for the complainants/ respondents vehemently argued that the reasons given by the Majority Judgment are valid and it rightly rejected the Surveyor''s report. He contended that in the closing letter, it was not written that there was a theft. He admitted that in the FIR there was no mention of theft of 11002 kgs of ''made tea''. He further admitted that the Appellants/Opposite parties had cited a number of authorities before the State Commission, but the State Commission held, as under : - "On behalf of the respondents reference has been made to judgments in the case of Vikram Greentech India Ltd Vs. New India Assurance Co. Ltd, 2009 5 SCC 599, Birdi Chand Vs. United India Insurance Co. Ltd, 2008 1 CPJ 111, National Insurance Co. Ltd. Vs. Aleyamma Verghese, 2006 2 CPJ 193, Mastana Jogi International Pvt. Ltd. Vs. New India Assurance Co. Ltd, 2009 4 CPJ 262 and Champalal Verma Vs. Oriental Insurance Co. Ltd., 2008 3 CPJ 93. But in view of the findings on fact recorded hereinabove, further discussion on the said law is not required".

ALL these findings appear to be legally not tenable.

FIRST of all, we asked the counsel for the Appellants/Opposite Parties to take us through the notice issued to all workmen concerned of the Tea Estate wherein the factory was closed. The copy of said notice was placed on record at Annexure A -4, dated 13.01.2006, where reason ''e'' runs, as follows : - "Notice to all workmen concerned of this Tea Estate e) Pilferage and theft of substantial quantities of green leaf and made teas".

THE majority judgment authored by Hon''ble Mr. Justice A. Chakrabarti, President, further observes, as under : - "As regards Surveyor''s Report, the facts recorded therein are to be accepted. But as regards conclusion by the Surveyor on the facts available before him, the same can be assessed by this Commission. The findings adverse to the claimant were recorded as casting doubt about admissibility of the claim. This doubt cannot be a conclusive finding. While recording the reason of loss the Surveyor has mentioned closure of the tea estate as the reason of loss. This is again a wrong finding as the reason of loss is theft during closure of the tea estate and not the closure itself. The fact that losses due to other thefts of tea leaf were not mentioned in the RG/Register showed the quantum of stock in the storage and the thefts prior to bringing the tea in the storage, is not to be reflected in the RG -I Register. It is not the case of the OPs that after the tea is stored recording it in the RG -I Register any theft had occurred before suspension of work. The application of Section 115 of the Evidence Act in the said fact is also correct".

IT , therefore, means that there was pilferage and theft of substantial quantities of green leaves tea and ''made tea'' before the temporary closure of the factory. Though, the counsel for the complainants / respondents tried to mislead us and denied the existence of point ''(e)'', noted above, it is surprising to note that the majority judgment has also tried to twist this fact for rejection of Surveyor''s repot.

SECONDLY , it was not explained as to when these thefts were committed. The reasoning given by the Single Member, Smt. Shilpi Majumdar are laudable and correct. At the end of the judgment, very succinctly, it mentions, as under : - "I have noticed that the Surveyor has waved the insurer from the liability for payment of damages on the grounds that 1. Producing any cogent evidence by the complainant, 2.Has not substantiated theft/ burglary. Made Tea, if any, was of the previous year termed as held back tea, 3. Current entry of the stock was not in the RG -I, register, 4. No mark of forcible entry or breaking the lock and grill was happened. 5. Factory along with its valuable articles, machineries and tea leaves were kept unattended for a long period and no guard was there, so no protective measure was taken by the complainant to protect the valuable things, 6. As there was continuous theft of green leaf and made tea for a prolonged period as per the closure notice given by the Management, but the books of accounts do not reflect any such loss.

The OPs have relied on some judgments, i.e., 1 (2008) CPJ 111 (NC) passed by the Hon''ble National Commission, where their Lordships have held that ''as there was no mentioning of the stolen articles in the FIR and list given at the later stage, claimant is not entitled to any relief, in the instant case though FIR was made but loss of made tea has not been mentioned in the said FIR. In another citation II (2006) CPJ 193 (NC), the Hon''ble National Commission have held that report of the Surveyor is an important document, which cannot be brushed aside. In another judgment, III (2008) CPJ 93 (NC), the Hon''ble National Commission have held that Surveyor''s report is to be given due weightage and Consumer Forum cannot go into quantum dispute".

MOREOVER , the complainant''s did not disclose at the time of proposal that there was theft, as well. The Single Bench further held : - "The quantity of finished products stolen prior to 13.01.2006 was not mentioned in the record and it was further revealed that out of 11002 kgs of made tea was from the weight gain by absorption of moisture, so the demand of theft of made tea of 11002 kgs is not acceptable. The fact of theft of tea lodged with Bazaz Allianze in the year 2003 -04 prior to taking this policy in the year 2005 was not disclosed in the proposal form and there was deliberate suppression of material facts. The OPs have contended that the alleged theft of tea was held back tea of the previous year and coverage for held back, the complainant did not take tea as such the question of admitting claim under held back cover does not arise. According to the OPs, the complaint petition is not maintainable and liable to be dismissed with costs".

THE report given by the Surveyor carries enough value. This is a vital piece of evidence. There is no allegation against the Surveyor. He appears to be guileless and there is no reason to discard his report. The Hon''ble Supreme Court of India has already held that a Surveyor''s report has significant evidentiary value, unless it is proved otherwise, which the complainants have failed to do so, in the instant case. This view was taken in United India Insurance Co. Ltd. Vs. Roshanlal Oil Mills and Ors., 2000 10 SCC 19 and also by this Commission in D.N.Badoni Vs. Oriental Insurance Co.Ltd, 2012 1 CPJ 272.

IN the result, we accept the First Appeal filed by the Insurance Company, set aside the majority order of the State Commission, confirm the order passed by the Single Bench and partly allow the complaint to the extent mentioned by the Single Member.