rvaf HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench: Hon'bleShriDhlrendraMishra, & Hon'ble Shri R.N. Chandrakar, JJ Appellant PlaintiffNo.1 ResDondents Ftrst Appeal No.52 of 2007 M/s Bastar OUMill & Ind Ltd. Versus The New India Insurance Company Ltd. & anottier. JUDGMENT FOR COI^IDEI^TION Sd/- Dhirendra Mishra Judge roA.ZUTW Hon'bte Shri R.N. Chandrakar. J CL^^L-e^z-^ -(f tt\ Sd/- Rangnath Chandrakar Judge ) 9.4.2010 Postfor.ludflmenton i3 April,2010 Sd/- Dhirendra Mishra Judge ~y^ :-x- a HIGH CCURT OF CHHATTISGARH AT BILASPUR Diviston Bench: Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri R.N. Chandrakar, J*l FiratAppeal No.52of2007 Present: Mr. Vishnu Ko^tia, counsel fortheappellant Mr. Prashant Jaiswal, Sr. Advocate with Shri Shailendra Sharma, counsel for the respondent No.1 . JU IMENT 03elwered on J9 Aprih 2010) PerDhiiendfa Mfsftra. J This first appeal under SecUon 96 of the Code of Civil Procedure (in short"CPC") isdirected againstthejudgmentand decreedated 2^ February, 2007 passed in Civil Suit No.SBQOOO, whsreby leamed District Judge, Bastar at Jagdalpur, partly allowed the suit of the plaintifls witti cost and held ths* plainUff No.1 is entitled for damages of Rs.4,00,000/- wtth interest @ 6% per annum from the date of applteation againsl the total claim of Rs.10,00,000/- wittt Interest @ 24% p.a. from the date of filing of sult. (Partes shall hereinafter be referredto as pertheirdescriptton before the trial Court.) 02. A civil suit was filed by the plaintifl's with the averments that plaintiff No.ljs enaaaed in the business of extraction of oll from Sal seeds andselling .>1—.— Appellant Plaintiff^to.1 M/s BasterOil Mill & Ind Ltd. Regtetered under the Companies Act, Head Ofiice : Kurundl Road, Jagdalpur, District : Bastar, through Its Managlng Director, Prithviraj Agrawal, Son of late Kundanlal Agrawal, aged about 50 years, resident of Brindavan Colony, Jagdalpur, District : Bastar (CG) Plaintiff Vereus Respondents ~T The New India Insurance Company Ltd. Head Office : New India Insurance Bultding 87, Mahatma Gandhi Road Fort, h4umbai, Branch Office at Jagdalpur, DlslTkst: Bastar (CG) Defendante ^7 State Bank <rf India, Head CTBce : Nariman Point, Bank Way Reclamsrtion, Mumbai, Branch Ofltee : Jagdalpur through tts Manager: State Bank of India Main Branch Jagdalpur, Distrid: Bastar. PlaintiffNo^ the same within and outstde the country. He also exports Deoitect Cake (for brevity "DOC") -a byproduct, to the oBier countrles and for the aforssaid purpose, he had taken one B.V.S. Godown, Gatti Center, J. W. Pur, Kakinada (hereinafter referred to as "Godown") for sloring DOC. Cte28.2.1M8 the Godown caught fire, resuKing in destrucUon of 800 MT of Sat DOC powder. The Godownwas insured by thedefendant fortherelevant period. Sahraging of the goods stored in the Goctown began from 2 n4arch, 19^ and ttw bumt goods were separated from the goods which were not bumt, aftertaking out the entire goods from the Godown. The process <rf salvaging eould be completed only after 48 days and finalty, it was confirmed that 800 MT of DOC in meal form was fully bumt. Negotiatlon continued between plainW No.1 and the defendant for many months.however, his insurance claimKras notsettted. Plalntiff No.1 submltted his clalm before the Surveyor of the detendant, who submtttBd his report to the defendant/company. Howaver, when hts claim was not settled and limitatlon of 12 months for prrferring claim, as per ClauseS^) of the Insurance Policy, was about to e)q}lre, plaintlff No.1 fllad a cteil suit against the defendant and clatmed a sum of Rs.9,60,0<Xy- @ RB.1200 per MT for the bumt DOC mea\ powder of 800 MT, fte. 40,000/- towaidfceiqienses incurred in sah/aging; and intered: @ 24% per annum on Rs.10,00,000/- from the date offlling suit till thedate of realization. 03. The defendant, in Bs written stsrtement denymg the aveiments in the plaint, aven-ed that the defendant had appointet Murray Fenton (India) Surveyors Ltel. as Ns Surveyor. There was detay !n submisston of report by the Surveyor as plsiintiff No.1 did not fumish ttte necessary documents to the Surveyor, despHe being asked for the same. The Surveyor, after detailed enquiry, submitted tts report, according to which because of flrs aecident, the plaintiff suffered h^ of Rs.3,60,000/-. Since the Surveyor's reportwas not in accordance with law, compensatten was not paid to plaintifFNo.1. It was also averred that platatiff No.1, at the time of accklent, had stored goods in excess of the storage capacity of the Godown and dkl rwt take any ^eps for proper maintenance of the goods, which resulted in flre accident and therefore, the defendant is not liable to pay any compensation to pJaintiff No.1. 04. On the basis <rf pleadings of the respecUve partiro, issues were ftamed. Plaintiff fto.1 examined P.R.C. Murthy - Assistant Manager (PW-1) & Prilhvi Raj Agrawal- Managing Director pW-2) of Plaintiff/Company, and Ptaintiff No.2 examined Vasudev Dhora - RegionalOBteer of the State Bank of India as ite^witness. Whereas the defendant examined Captain P. Jacob Rao - ..!• A" Sunreyor (DW-1) and Kripal Singh - Branch Manager (DW-2) of the defendant/Company. 05. Leamed District Judge, based on Suiveyor's report of Ex.D/1 that ttte total loss of goods dus to burn was 425 MT and market price of the same at the relevant period was Rs.800 per MT, partly decreed the suitwith a fiiKling that plainW No.1 had sustained a loss of Rs.3,60,000/- due to fire accident and incurred Rs.40,000/- towards sah/aging of DOC powder. Thus, a decree for a sum of Rs.4,00,000/- towards the loss wfth interest @ 6% p.a. from the date of applicaUon till the date of rsalization has been psssed and thesuit was decreed with cost. 06. Shri Vishnu Kostha, learned counsel for the plaintilfe, a^ued that the leamed District Judge has committed an error by not considering the duty proved Fire Insurance Policy of Ex.P/2 issued by the defendant for a sum insured of Rs.1 crore covering sporrtaneous combustion of all the Godowns, list of which is appended with the policy and it also covered fire riskof B.V.S. Godown, Gatti Center, J.W. Pur, Kakinada (A.P.) and the same was valid for a period commencing from 22.1.1999 to 21.7.1999, for a period of six months. PW-2 Prithvi Raj Agrawal has proved the policy of Ex.P/2 in his deposition and the same has not been controverted In his cross-examination and thus, stock of goods stored in all the Godowns was for Rs.1,00,00,000/- vide Policy No.11451204 02416. This witness has categorically stated that plaintiff No.1 suffered loss of 80) MT due to fire accldent, and the market price of DOC was Rs.1200/- per MT at the relevant period. It was further argued ttiat award of interest @ 6% pa. from the date of suit Is also highly inadequate as from the conduct of the defendant, it would be evldent that the defendant deliberately did not settle ttie daim even after receMng report from the Surveyor on one pretext or the other and plaintiff No.1 was compelled to file the civil suit for recovery of loss uncter the Insurance Policy. 07. Retyjng upon ttie decislon of the SuprCTne Court In the matter of Sovlntorg (Imlla) LM. V3. State Bemk oflwlfa, NewOeUil, reported in WR 1999 SC 2963, it was argued that plalntiff No.1 was entitled tor interest @ 15% p.a. from 28.2.19^ when the insured DOC meal was destroyed due to flre in the Godown. 08. On the other hand, Shri Prashant Jaisvral, leamed Sr. Advocate for the defendant. would argue that learned District Juc^ie decreed the suit on tha \. /./ \ basis of Surveyor's report of Ex.D/1 duly proved by the Survewr Gaptain P. Jacob Rao as no evictence was led by the plalntBfe to substantiats their claim regardlng loss of 800 MT of DCX; powder and price of DOC @ Rs.1200 per MT. Since the Surveyor was not cross-examined by e plaintWfe wiBi respect to document of Ex.P/2 - Fire Insurance Policy fora sum of Rs.1 crore of the Godowns, and the same is not described in the Surveyor's report.contention of the plaintiffis that in the impugned judgment, the Fire tnsurance Policy <rf Ex.P/2 has not been considered, cannot be considered. It was also a^ued Uiat Interest @ 6% p.a. from the date of applicaUon is also just and proper, taking into consideration the prevailing rate of interest in ttw banks. 09. We have heard tearned counsel for the parties, perused flie pleadings of the respective parties as also the oral and documentary evidence adduced bythe parties and available on record. 10. So far as finding of the trial Court based on the evidence of Surveyor, who has also proved the Survey report of Ex.W1, ttiat trtal toss due to fire was only 425 MT cf OOC powcter and price of DOC powler was Rs.800/- per MT at the relevant tlme, is concerned, the same is just and preper as the plaintBf has not adduced any credlble evidence to subslantiate his ctaim in the plalnt regarding actuat loss as also priee ofthe gciods. So far as expendUure towards sahffiiging the goods after fire at Rs.40,(XX)/- is concemed, the same is not in dlspute as plaintiff No.1 had himseff claimed sah^aging expenditure of Rs.40,OOW-, whteh has been accepted by the trial Court based on the Surveyor's report. 11. Now coming to the questton - whether leamed Dtstrict Judge was Justified in awarding interest @ 6% p.a. from the date offlllng applicaton? 12. Indisputably, ptaintiffNo.1 had insuredthe Oodowns againstany loss occasioned due to fire for the relsvant pertod with the defendant. His claim was got investigated by the defendant through its Surveyor, who submittBd his report of Ex.D/1 to the defendant. However, the defendarrt did not settla the claim in terms of Survey report and plaintiff No.1 was compelted to fite suit for recovery of loss. 13. In the matter of Sovintmg (India) Ltd. (supra), the appeltent-company had a bank account with the respondent-bank, wherein a chequeof Rs.1 lac was deposited by tfis appeltant in the month of June, 1983. froceeds of the ^ /F' ^, ^.^^y/' c]. cheque were coltected on June 17, 1983. However, the same were not credited in the account of the appellant for a period of overseven years. In these circumstances, the appellant filed a complaint before the State Consumer Dispute Redressal Commission and prayed for penal interest and compensation for the business losses ete. to the tune of Rs.8^6,OOW-. The Supreme Court considering that there was no contract between the parties regarding payment of interesl ondelayed depostt, hetel that irrterest eannot be clalmed under Sectlon 34 of the CPC as tts pmvisions have not been specifically made applicabto to the proceedings under the Consumer Protection Act. However, applying the general provision of Section 34 being based upon justice, equity and good conscience, it was held that the Commlssion can also grant interest appropriately under Nie ctrcumstance of each case and accordingly, interest @ 15%p.a. was awarded in place of 12% awarded by the Commission. 14. In the instant case also, taking into conskleration the overall conduct of the defendanVlnsurance Company, we are oS the opinion that interest @ 6% per annum and that too, from thedate of applicaUon, is highty inadequate and improper, particulariy when the plaintW has claimed intorest from the date of filing of suit till the date of realization @ 24%. However, considering the prevailing rate of intwe^ in Ihe present days, we are of the opinion that ends of justice would be served if simple interest on the amount of actual loss of Rs.4,00,000/- is awarded @ 9% from the date <rf applteatfon till the date of realization. 15. In the result, the appeal is partly allowed. Impugned judgmerrt and decree awarding compensaUon of Rs.4,00,000/- with interest @ 6% per annum is modified, and it Is held that plaintiff No.1 shall be snBtled for a compensation of Rs. 4,00,0)0/- With simpleinterest @ 9% per annum ftom the data of apptication till the date of roalizaUon. Ths defendant shall pay the aforesaid amountto plaintifFNo.1 within a perkxl ofthreemwrths frora fte date of order. Plalntiff N^.1 is also enCtled for the cost throughout. Sd/- Dhirendra Mishra Judge Sd/- ,nattaCto»nC Judge ^ 'l )r-