At, National Consumer Disputes Redressal Commission NCDRC
By, THE HONOURABLE MR. JUSTICE K.S. CHAUDHARI
By, PRESIDING MEMBER
For the Appellant: Kishore Rawat, Advocate. For the Respondent: Ex-parte.
This appeal has been filed by the appellant against the order dated 18.11.2009 passed by the State Consumer Disputes Redressal Commission, Gujarat (in short, ‘the State Commission’) in Complt. No. 116/2000 – M/s. Krishna Industries Vs. National Ins. Co. Ltd. by which, complaint was allowed.
2. Brief facts of the case are that Complainant/respondent obtained policy from OP/appellant to cover 11455 kgs. of groundnut oil in tanker from Navagadh (Jetpur) to Sarkhej (Gujarat) for a total sum of Rs.5,68,378/-. Complainant despatched groundnut oil vide Bill No. 019 dated 5.11.1998 through Mahesh Roadline
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anker GTY 5760. Tanker met with an accident. Oil in the tanker spread on the road. On 25.11.1998, Mahesh Roadline gave certificate of shortage and FIR was also lodged at Police Station. It was further submitted that complainant’s surveyor conducted spot survey and gave report on 10.11.1998. Complainant lodged claim with OP. OP entrusted the matter to investigator – M/s. Contact Cargo Claims Consultant, who submitted false report on the basis of which, OP repudiated claim. Alleging deficiency on the part of OPs, complainant filed complaint before State Commission.3. OP resisted complaint and submitted that as per investigators report; all documents submitted by complainant were fake. It was further submitted that complainant was not owner of oil in question and complainant had no insurable interest in the oil lying in the tanker. It was further submitted that 11455 kgs. of groundnut oilwas not in the tanker and further submitted that claim was rightly repudiated and prayed for dismissal of complaint. Learned State Commission after hearing both the parties allowed complaint and directed OP to pay Rs.5,50,717/- with 8% p.a. interest along with cost of Rs.10,000/- against which, this appeal has been filed along with application for condonation of delay.4. None appeared for respondent even after service of notice and respondent was proceeded ex-parte. Delay was condoned by order dated18.5.2010 subject to cost.5. Heard learned Counsel for the appellant and perused record.6. Learned Counsel for the appellant submitted that learned State Commission has committed error in placing reliance on complainant’s surveyors report by discarding OP’s report; hence, appeal be allowed and impugned order be set aside and matter may be remanded back to learned State Commission to give opportunity to the parties to file evidence by way of affidavit and decide complaint afresh.7. Perusal of impugned order reveals that learned State Commission has allowed complaint on the basis of complainant’s surveyor Umesh G. Kekre’s report, who inspected site and submitted report without any notice to the OP and learned State Commission observed that as complainant has submitted surveyors report and documents on oath and OP has not filed affidavit of investigator; so, investigators report cannot be relied on. Perusal of record reveals that intimation to Insurance Company of the incident was given on 9.11.1998, i.e., after 4 days of the accident and complainant’s surveyor submitted report on 10.11.1998 without any notice to OP. No doubt, OP should have appointed surveyor, but it appears that on account of complainant’s surveyors report, OP appointed investigator, who submitted report on 24.9.1998 in which after investigation it was observed as under:“7.1 The records presented to us and the inquiries conducted by us indicated that the insured is virtually closed. The premises are closed long time back (photograph enclosed). The insured is not operating from the said premises.7.2 The insured is not declaring all the consignments failing under the purview of the open policy issued to them.7.3 The alleged Bill No. 019 dated 05.11.1998 was ceased by the collector in the month of May 1998. The insured was therefore not authorized to issue the alleged Bill No. 019 on the date of shipment. The insured has therefore submitted bogus bill.7.4 Anmol Weigh Bridge did not issue the weigh slip submitted by the insured. The insured has therefore submitted bogus weigh slip.7.5 The carrier also stated that the consignment was loaded from Jamnagar and not from M/s. Krishna Industries, Jetpur. The insured submitted bogus L.R.7.6 The carriers have confirmed that they have not issued shortage certificate to Krishna Industries. The insured have therefore submitted bogus shortage certificate.7.7 The claim therefore appears to be based on Faise & Forged documents. The said transaction can therefore be assumed “illegal” and against the “law”.”8. Perusal of aforesaid investigation report reveals that according to investigator, all documents filed by complainant were fake. Perusal of record further reveals that surveyor of complainant has also not filed affidavit to prove his surveyors report and in such circumstances, learned State Commission committed error in allowing complaint on the basis of complainant’s surveyors report and rejecting OP’s investigator report for not filing affidavit of the investigator. Learned State Commission should have either not believed both the reports or should have believed both the reports or should have given opportunity to both the parties to file affidavit of respective surveyors and investigators and should have decided complaint.9. In the light of aforesaid discussion, it would be appropriate to set aside impugned order and remand the matter back to the learned State Commission to give opportunity to both the parties to lead evidence by way of affidavit to prove their documents and decide complaint afresh after giving an opportunity of being heard to both the parties.10. Consequently, appeal filed by the appellant is allowed and impugned order dated 18.11.2009 passed by the learned State Commission in Complaint No. 116/2000 – M/s. Krishna Industries Vs. National Ins. Co. Ltd. is set aside and matter is remanded back to learned State Commission to decide complaint afresh in the light of observations made above.11. Parties are directed to appear before State Commission on 13.02.2017.
"2017 (1) CPR 102,"