B.N. Shaikh, Judicial Member:
1. This appeal is preferred against the order dated 21/10/2008 passed in CC No.174/2008 by District Forum, Yavatmal by which the said complaint has been partly allowed.
2. The case of the complainant/Respondent herein, in brief is that he operates crushing machine for crushing of ground nut pods and he also deals in ground nuts under the title as M/s Mahalaxmi Agro Products. He had obtained insurance policy from the Ori.Opposite Party/appellant covering the risk of building, plant and machinery and the stock in trade for the period from 17/3/2006 to 16/3/2007. The sum insured for stock in trade was Rs. 5 lac. There was a flood in Arunawati river on 6/8/2006. The water of that river flood entered into the premises of the complainant of which the risk was covered under the aforesaid policy. The said water caused damage to the premises of the complainant as well as to the stock in trade stored therein. Therefore, the complainant sustained heavy losses. He gave its intimation to the Ori.Opposite Party/appellant and concerned police station and also to the Tahsildar of Arni. Panchnama was prepared by the police and Tahsildar. The surveyor appointed by the OP paid visit to the said premises on 9/8/2006 and inspected the said premises. The complainant also furnished to the Ori.Opposite Party/appellant all the documents alongwith the claim form. The surveyor assessed the loss to the tune of Rs. 3,47,870/- on the basis of the estimate of Rs.4,27,570/- submitted by the complainant. The Ori.Opposite Party/appellant repudiated the claim on untenable ground. Therefore, the complainant claimed compensation of Rs.4,27,570/- towards loss sustained by him. He also claimed Rs.25,000/- towards mental harassment and Rs.10000/- towards cost of complaint.
3. The Ori.Opposite Party/appellant appeared before the District Forum and filed written version. It came with a case that it had appointed independent surveyor Shri.Abhay Gandhi for assessment of loss, who paid visit to the premises of the complainant on 8/8/2006 and, thereafter, two times and minutely inspected the said premises and also obtained necessary information and submitted a report on 17/12/2006. The Government authorities had given warning of the flood prior to 72 hours and on 6/8/2006, police authorities had also intimated the villagers to shift their belongings to a safer place. Despite of said warning and intimation, the complainant did not shift his belongings to safe place and ignored the said warning and intimation. Therefore, the loss was sustained by him due to his own negligence and thus, he committed breach of terms and conditions of the policy. It is further submitted that the surveyor during inspection found only some kilograms of groundnut at the spot and the complainant, after much delay furnished to him the stock record. It is therefore prayed by the Ori.Opposite Party/appellant that complaint may be dismissed as it is false.
4. The District Forum below, after considering evidence brought on record, came to the conclusion that the complainant is entitled to compensation of Rs.3,47,870/- as assessed by the surveyor. The District Forum also held that the complainant is entitled to interest @6% p.a. over that amount from 25/5/2008 till its realization and he is also entitled to Rs.5000/- towards mental harassment and Rs.1000/- towards cost of complaint. Accordingly it gave direction under impugned order to Ori.Opposite Party/appellant.
5. Feeling dissatisfied by the said order, Ori.Opposite Party has preferred this appeal. The Ld.advocates of both the parties filed written notes of arguments. We have also heard them orally and we have also perused the papers placed before us by both the sides.
6. The sum and substance of the arguments of Ld.advocate of the appellant is that the District Forum below has not considered the material fact that there was own negligence of the Ori.complainant as despite of warning of flood given in advance i.e. prior to 72 hours and despite of giving alert by police, the complainant did not shift his goods. Even he did not close the shutter on the opening of the shop and that Tahsildar made no Panchnama on the ground that already warning was given to everybody in that area. He has drawn our attention to the averment made in para No.5 of the complaint to the effect that the complainant had received information of the flood and that he could not shut down the shutter at the time of river flood. He thus submitted that on the basis of the said pleading, it is clear that inspite of getting information of river flood, the complainant did not take necessary steps for shifting of his stock to a safer place, and, therefore, due to intentional and deliberate negligence on the part of complainant, he is not entitled to claim compensation and this material fact was not considered by District Forum. He also submitted that under condition No.8 of the policy, there is an exclusion clause that in case of deliberate loss, compensation can not be placed. He, therefore urged that the appeal may be allowed as the impugned order suffers from the illegality pointed out by him.
7. On the other hand, the Ld.advocate of the complainant/Respondent supported the impugned order and submitted that there is no document in support of the contention of the appellant that warning was given prior to 72 hours of the river flood and police authorities had also given intimation of the river flood to the villagers and despite of said warning complainant took no steps.
8. The appellant has not disputed about the river flood and entering of water of river flood in the premises of the complainant on 6/8/2006. Moreover, issuance of policy by the appellant covering the risk of the building,plant and machinery and stock in trade of the said premises of the complainant is also not disputed. The sum assured for the stock in trade to the tune of Rs.5 lac is also not disputed. The surveyor’s report produced on record is also not disputed by the appellant. As per that report, the estimate of the loss submitted was Rs.4,27,570/-. The surveyor assessed the actual loss sustained by the complainant due to that flood to the tune of Rs.3,47,870/-. The said loss is assessed on the basis of the record of the stock submitted by the complainant to the said surveyor and on the basis of actual visit paid by the said surveyor to the premises of the complainant. Therefore, on the basis of that report, the District Forum below has rightly assessed the loss sustained by the complainant/Respondent herein as Rs.3,47,870/-.
9. The material question involved in the appeal is as to whether the complainant committed breach of policy condition by not taking immediate steps after receiving intimation of river flood in time. Besides the bare words of appellant, there is no evidence to prove that any such warning or intimation well in advance was given by any authority either to the villagers or to the complainant. The appellant simply relied upon the averment made in the complaint about receiving of intimation by the complainant. The complaint does not show that the said intimation was given to the complainant well in advance so as to get him sufficient time to shift his belongings. On the contrary, the complaint is very specific to the effect that on getting that information, the complainant tried to save his goods but the water of the river flood entered into his premises was such that he could not shut down his premises. It is clear from
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the said complaint that there was no sufficient time to the complainant to shift his stock in trade after getting that information. It was also a Sunday when the river flood took place and it is stated in the complaint that on that day market was closed and the labours were not available to shift the goods. There is no reason to disbelieve the said averment. Therefore, we find no substance in the submission of the Ori.Opposite Party/appellant that due to own negligence of Ori.complainant he sustained loss and that he committed breach of policy conditions. 10. We thus hold that the District Forum below has rightly considered the evidence brought on record and there is no error in the impugned order. Thus the appeal deserves to be dismissed. ORDER The appeal is dismissed. No order as to costs.