FIRDOUS ENTERPRISES Vs. ORIENTAL INSURANCE COMPANY LIMITED

JUDGEMENT

(1.) THE complainant in this case is a business firm which carries on its business under the name and style of M/s. Firdous Enterprises, Court Road, Anantnag. Mr. Firdous Ahmad Qadri is its proprietor. The firm deals in the business of sale of G.C. iron sheets and B.C. iron sheets. The said proprietor Mr. Firdous Ahmed Qadri has filed the complaint with the averments that the business concern had insured the shop premises vide policy No. C/Note: 652405 which became effective from 11.9.1996 and had to expire on 10.9.1997. That in the month of August 1997, the Kashmir Valley experienced heavy and torrential rains which caused floods thereby damaging existing structures and washing away of standing crops. The area where the shop of the insured firm was situated was also affected by the floods and the shop of the complainant was damaged. The complainant immediately informed the OPs and they vide their office communication dated 29.9.1997 deputed Saraf Investigators Pvt. Ltd. to survey and assess the loss caused due to the floods to the stocks in trade. With the co -operation of the complainant, the Surveyor investigated and surveyed the loss and submitted their report on 20.12.1997 wherein the loss caused to the complainant was assessed to the tune of Rs. 5,39,523 (Rupees five lakh thirty nine thousands five hundred and twenty three only). The complainant did not raise any objection to the report and accepted it. In support of the occurrence of floods, the complainant has annexed the certificates issued by the Asstt. Executive Engineer, Flood Control Sub -Division, Anantnag which has been marked as Annexures D, E and F. These certificates indicate that the shop of the complainant was submerged in the floodwaters. The OPs failed to settle the claim despite repeated requests. When nothing was done the complainant filed the complaint herein on 20.9.2001 wherein an amount of Rs. 5,39,523 as loss assessed by the Surveyor has been claimed along with prevalent rate of interest from the date when the damage was caused. In addition to that, Rs. 2,00,000 have been claimed as business loss and Rs. 1,00,000 has been claimed for mental agony.

(2.) IN the wrinen version, the O.Ps. have raised the preliminary objection that the complaint is not maintainable, as the same has been filed after the stipulated period of two years. On facts, they have denied the correctness of the assessment report prepared by M/s. Saraf Investigators on the ground of nature of stocks because the goods allegedly damaged were of the nature of G.C.I. and B.C.I. sheets and in case they were marooned in no circumstance there could be any damage to them. The reason assigned was that they could not be destroyed by floods. The G.C. sheets being galvanized so there could be no possibility of damage to them by oxidation as well. However, in case of B.C. sheets due to process of oxidation rust might accumulate on them but that could easily be removed by manual cleaning. In other words, they could be restored to their original shape. M/s. Saraf Investigators have done unfair assessment with the connivance of the complainant in order to provide him a chance of getting "unjust enrichment". The OPs did not accept the assessment of M/s. Saraf Investigators as fair and appointed another Surveyor namely, Mr. Ishtiaq Hussain Allaqband for reassessment of the loss who submitted his report dated 24.9.1999. He assessed the loss to the tune of Rs. 1,98,019 and the breakup of the loss of G.C. sheets was Rs. 55,372 and loss of B.C. sheets was Rs. 1,42,647. On the above stated assessed amount of Rs. 1,98,019, 15% deduction was made on account of non -maintenance of books of account and inventory errors. In this way, a deduction of Rs. 29,703 was made and the net assessed amount made payable was Rs. 1,68,316. The OPs have raised the objection that item stocks in question had been purchased from John Enterprises (Regd.) Retail Dealer Anantnag and their purchase bills were fabricated.

(3.) IN order to prove the allegations made in the complaint, the complainant himself has appeared as a witness as well as examined Mr. Ahmadullah Mangray and Mr. Mohammad Yousaf Kumar as witnesses. The OPs have not produced any evidence.