1. Present appeal preferred on behalf of the appellant (complainant) assails Order dated 06.10.2017 passed by the learned Chhattisgarh State Consumer Disputes Redressal Commission in CC No.37 of 2017 whereby the complaint was dismissed.
Appellant and respondent are hereinafter referred as complainant and opposite party respectively as appearing in the complaint preferred before the State Commission, for convenience.
2. In brief, a purchaser agreement dated 11.02.2010 was executed between Governor of State of Chhatisgarh acting through Conservator of Forests & Ex-officio General Manager of Federation, Durg Circle, Chhattisgarh and Shri Bandopant Shankar Rao Mallewar S/o Shri Shankar Rao Mallewar for purchase of tendu patta to be collected from the forests of Chhatisgarh for the year 2010. The purchaser agreed to purchase 1700 bags of tendu patta at Rs.2,461/- per standard bag from lot no.244 Gotatola Society. In the aforesaid context, Chhatisgarh Rajya Laghu Vanopaj Sahkari Sangh Maryadit (appellant no.1 herein) was appointed as Agent for collection and disposal of tendu patta (leaves) by the State Government of Chhatisgarh.
3. In terms of the Purchaser's Agreement dated 11.02.2010 the purchaser was obliged to get the tendu patta leaves insured to be kept in a godown against possible loss due to fire. Accordingly, a tripartite agreement dated 15.04.2010 was executed between complainant no. 2, purchaser and Shri Hemant Tiwari (godown owner) for the purpose of storage of tendu patta during the season 2010.
4. It is further the case of complainant that in terms of the Purchaser Agreement dated 11.02.2010, a Standard Fire & Special Perils Policy for assured sum of Rs.54,00,000/- was obtained by the purchaser from United India Insurance Co. Ltd. (opposite party). The policy covered the stock of "tendu-patta" and other goods placed in gunny bags of Lot No.244-Gotatola for the period 01.05.2010 to 30.04.2011. The policy was issued in the name of Managing Director, C.G.M.F.P. (T&D) District Union Rajnandgaon A/c Shri B.S. Mallewar. In view of destruction of tendu-patta (leaves) in a fire incident on 02.07.2010, information was forwarded to SHO Basantpur Police Station on 03.07.2010 as well as Insurance Company. A written intimation was also forwarded to the Insurance Company (opposite party) on 05.07.2010 for settlement of claim and claim form dated 12.07.2010 was lodged by the purchaser with the Insurance Company on behalf of complainant no. 2 for settlement of claim.
5. Thereupon, Shri Sudhir Joshi, Insurance Surveyor and Loss Assessor was appointed as preliminary surveyor by the Insurance Company/Opposite Party who submitted the preliminary survey report dated 31.07.2010. The report of the Surveyor indicates that preliminary survey was conducted in respect of four policies, as the nature and place of loss is similar in all the policies. In respect of policy in question, Surveyor observed that tendu leaves were packed in the gunny bags and stacked inside the godown, which did not have an electric connection. He further observed that insured is required to pay the royalty over collected quantity of tendu patta to the department whereupon it is free to dispose the stock to various beedi manufacturers situated all over the country. Also, proper records are maintained by insured as well as the department. He further observed that on initial visit since the fire was spread out, it was difficult to conclude the exact cause of loss.
6. Vide final survey report dated 18.09.2011, Alok Shankar and Company (Surveyor) concluded that the cause of loss could not be ascertained and out of the total bags, 586 bags of tendu patta were saved. Since there was a doubt regarding the contents of the burnt materials, insured was advised to get the debris collected from the spot for examination at Qualichem Laboratory. The insured had accordingly sent the sample to Qualichem Laboratory, Nagpur (Certified Lab) from which the results were directly received by the Surveyor and major variations were found in respect of the contents of the alleged burnt tendu leaves when compared with the ash of un-burnt tendu collected from the site (i.e. calcium, iron, magnesium, sodium, potassium). In order to confirm the results, the collected samples were again sent by Surveyor to National Test House, Mumbai a Government of India Laboratory, which also confirmed wide variations in the entire six tests of tendu leaves and sample of debris. The Surveyor, after discussion with Scientists from National Test House concluded that the colour of ash collected from the affected site and the colour of ash of tendu leaves are altogether different. Further, on comparison of the weight of the ash collected from the affected site vis-à-vis ash of fresh tendu leaves, the ash of affected location is heavier than ash of tendu leaves. In the aforesaid background, National Test House was again contacted by the Surveyor for clarification, who advised to get the chemical composition of tendu leaves. However, the chemical composition of tendu leaves could not be ascertained and it was found that chemical composition depends upon the soil and atmosphere. In the facts and circumstances, Surveyor concluded that tendu leaves which were recovered from the affected godown is the best option available to match the chemical composition of the burnt material. Further, relying upon reports of Qualichem Laboratory and National Test House, he inferred that ash recovered after the fire from the affected godown, is not of tendu leaves since quantum of basic components found in ash, when compared with ash of real tendu leaves varied astronomically. It is pertinent to notice that an observation was further made after discussion with laboratory that in spite of presence of rice bran and jute bags, there could not have been variation in results. Surveyor further observed that in some patches, in spite of severe fire, wherever tendu leaves were present, they were not burnt completely. The claim by insured, as such, was stated to have been fraudulently made in violation of condition no.8 of the policy and a recommendation was made for closing the claim on "no claim" basis.
7. Based upon the report of the Surveyor, Insurance Company/opposite party repudiated the insurance claim lodged on behalf of the complainant vide letter dated 26.04.2016 as under:-
"This is in reference to above said subject and your claim intimation letter no. NIL dt. 03.07.2010 and our letter no. 230200/Fire Claim/863/2011 dt. 28.02.2012. As per your claim intimation letter, surveyor M/s Alok Shankar & Co. was deputed for survey and assessment of loss.
On scrutiny of claim file & survey report, we noted that the cause of fire could not be ascertained. The police authorities have made a case against unknown person and closed the case. Moreover the test report submitted by different labs of burnt tendu leaves und unburnt tendu leaves varies astronomically.
As per the survey report and documents available on record, it has been established that the affected items were not tendu leaves as claimed by you. Hence the claim is being repudiated as per the policy condition no. 8 which reads as „If the claim be in any respect fraudulent, or if any false declaration to be made or used in support thereof or if any fraudulent means or devices are used by the insured or any one acting on his behalf to obtain any benefit under the policy or if the loss or damage be occasioned by the willful act, or with the connivance of the insured, all benefits under this policy shall be forfeited'."
8. In view of repudiation of claim, a consumer complaint was preferred on behalf of the complainants before the learned State Consumer Disputes Redressal Commission, Raipur, which stands dismissed vide impugned Order dated 06.10.2017. Aggrieved against the same, the present First Appeal has been preferred on behalf of the complainants.
9. Learned counsel for the complainant submits that complainants are registered Co-operative Societies governed by the State Government and the godown had been hired for storage of tendu-patta in terms of tripartite agreement. He points out that nothing has come on record during investigation to infer foul play in the incident of fire, after FIR was registered under Section 435 IPC. Further, there is no material on record in the final closure report submitted by police to make an adverse inference that the godown did not contain tendu-patta, as inferred by the Surveyor. The incident of fire is stated to have been immediately reported after fire, whereupon fire brigade reached the spot and 850 bags could be saved which were separately stored. The final report submitted by the surveyor is stated to be based upon presumptions and assumptions. He further contends that samples were taken by the Surveyor in the absence of employees of complainant. Learned counsel for complainant/appellant vehemently argues tht reports obtained from Laboratories cannot be relied upon, since the contents of burnt tendu leaves and fresh tendu leaves are bound to differ. It is also pointed out that the percentage of basic constituents of tendu leaves may vary depending upon climatic conditions and other factors and the stored gunny bags contained leaves collected from different areas. In support of the contentions, reliance is placed upon National Insurance Co. Ltd. v. M/s Hareshwar Enterprises & Ors., 2021 SCC OnLine SC 628 and New India Assurance Co. Ltd. v. Pradeep Kumar, (2009) 7 SCC 787.
10. On the other hand, learned counsel for Insurance Company/opposite party supports the impugned Order and submits that in view of apparent variations in the constituents of tendu leaves as revealed on analysis by the concerned laboratories, the repudiation of claim by the Insurance Company is in accordance with law. He emphasizes that storage and loss of tendu leaves in the alleged fire is doubtful and, as such, complainant is not entitled to be indemnified. Reliance is further placed upon United India Insurance Co. Ltd. v. Roshan Lal Oil Mills Ltd. & Ors., (2000) 10 SCC 19; Oriental Insurance Co. Ltd. v. Pavan Enterprises & Anr., I (2016) CPJ 503 (NC), Khatema Fibres Ltd. v. New India Assurance Co. Ltd. & Anr., 2021 SCC Online SC 818; Suraj Mal Ram Niwas Oil Mills (P) Ltd. v. United India Insurance Co. Ltd., (2010) 10 SCC 567 and Vikram Greentech (I) Ltd. v. New India Assurance Co. Ltd., (2009) 5 SCC 599.
11. We have given considered thought to the contentions raised and perused the record carefully. Admittedly, complainant No.1 i.e. Managing Director, Chhatisgarh Rajya Laghu Vanopaj Sahkari Sangh Maryadit keeps the control over all the District Societies of the State and complainant No.2 is the registered Cooperative Society at District level. An agreement to purchase the tendu leaves was executed between complainants and trader Bandopant Shankar Rao Mallewar. Further, for storage of tendu leaves, a tripartite agreement was prepared and the tendu leaves were kept in the godown of Hemant Tiwari situated at Paneka Road, Rajnandgaon. There is no dispute as to the incident of fire on 02.07.2010 which was immediately reported at police station, on which Crime No.187/2010 under Section 435 IPC was registered. Thereafter, the insurance claim was submitted by the complainant on 12.07.2010 but the same stands repudiated by OP vide letter dated 26.04.2016, as referred to above.
12. The detailed reasons recorded by the learned State Commission in paras 10 to 12, 18, 19 and 23 to 27 may be noticed for reference as they reflect the apparent difference in the ratio of inorganic elements in the debris of burnt tendu leaves recovered from the spot when compared with the ash of fresh tendu leaves stored in the godown :-
"10. The O.P. appointed Shri Sudhir Joshi, as Spot Surveyor, who inspected the spot and took photographs. He mentioned in Spot Survey Report dated 31.07.2010:-
Observation: According to the instruction received from the insurers on 03.07.2010, he immediately rushed to the spot. As observed the stock inside the godown was in flames. Fir fighting job was in progress. Photographs were taken to cover the maximum extend of loss...
Cause of loss: The undersigned inspected the entire area thoroughly, however, there was no evidence leading to the cause of fire. There is no electric connection in the godown. The fire was understood to have observed from the area near the first shutter of the godown where materials of lot no.244 was kept. However, the flames were spread all over the godown, more concentration was observed near first shutter. It is also given to understand that some labours were working on the roof to quote primer on GI sheets, however, they had gone before 6.00 PM. Under these circumstances it is difficult to conclude the exact cause of loss. The police investigation and departmental investigation is under progress.
11. Document Annexure OP-6 is letter dated 11.01.2011 which was sent by N.S. Mallewar, who is Beedi Leaves Contractor to the Qualichem Laboratories, Nagpur for testing the tendu leaves.
Qualichem Laboratories sent its report in which it is mentioned that "The sample submitted complies/does not comply with the prescribed standards of quality as per test No.
12. Alok Shankar & Company was appointed by O.P. as Surveyor and Loss Assessor and he submitted his final report dated 18.09.2011. Both the parties have filed copy of Final Survey Report given by Alok Shankar & Company, which is marked as Annexure 18 and Annexure OP-5 respectively, in which it is mentioned thus:-
"7. Inspection and verification of damages :
(a) (b )
(c) Cause of Loss : As per the witness, smoke was first observed at around 9.30 PM on 02.07.2010 emanating from the godown.
The godown was locked since long and nobody was present inside the premise except witness....... There was no electricity connection was provided and therefore chances of any short circuit was not possible. Chance of spontaneous combustion is also negligible as the green leaves were packed in small pack and there was no chance of any friction resulting in fire.
(d) ... It is most surprising that few bags which were stored near the first gate from where smoke was first observed emanating have been saved but not even a single hag could be saved from lot no.184 B, Sangam which was said to store on other corner of the godown. It is also pertinent to note here that during our first visit, we have inspected entire premise and found that 400 bags (220 of lot no. 127-A and 180 of lot No.127-B) pertaining to the insured, Shri N.S. Mallelwar stored at another godown which has not been found affected. Although as per description mentioned on wall of godown, record of insured and federation, entire material were stored at the affected location only.
(e) On our subsequent visit, when it was possible to enter inside the godown, we have visited and thoroughly inspected the godown & debris of burnt material. It was surprised to note that at some places, small heaps of partial burnt material were there and remaining area was full of burnt ashes only. As per our opinion, when fire was so severe and had been for more than 10 days, how it is possible that some materials (in patches) could not be burnt. It is also observed that color of ash is also different at the places where patches of partial burnt materials were found. We had requested the insured to collect the sample of the debris from different places and sent to laboratory for testing.
(f) Affected materials : It is most surprising that as per the record of federation, there were 2022.295 standard bags, however as per the insured records, it was 2019 standard bags. In our opinion, there should not be any difference in bags, had same materials stored at the affected godown. Out of total bags, 586 bags had been saved.
(i) ....It is to be noted that in entire process of drying up, packing up and transportation, there is no control of federation and as per our enquiry even after reaching the materials at godown, nobody is verifying the bundles.
(j) Test Reports : Since, case of fire could not be ascertained and create doubt in mind and from view of burnt materials, abnormality was found, we had suggested the insured to get the debris tested from laboratory. We had enquired about the laboratory who can do this type of testing and suggested the insured to collect the samples of debris from entire godown and send the same to the laboratory. Accordingly, the insured had sent the samples of ash collected from affected godown, fresh tendu leaves and fresh rice bran. We have received the report directly from the laboratory i.e. Quatichem laboratories, Nagpur an ISO 9001 : 2008. As per the report, there are major variations found in all test conducted in comparison to original tendu patta leaves. Results of the tests are as under:-
“TABLE”
To confirm further, we have once again collected samples and sent to National Test House (NTH), Mumbai, a Government of India laboratory. Test report of NTH has also confirmed wider variation in the entire 6 test of tendu leaves and samples of debris. We are of the opinion that there should not be any variations in result of test as tendu leaves were also collected from the alleged saved stock and as per the insured, only tendu leaves were stored inside the premise before the fire...
k. To confirm once again, we have made contact with National Test House and requested them to visit the affected location and do one more test if required. Scientist of National Test House has requested us to get the chemical composition of the tendu leaves so that to ascertain once again...
From the above, we can conclude that tendu leaves which was said to be recovered from the affected godown is best option to match the chemical composition of the burnt materials and in that results are varying and we may conclude that sample of ash collected from the affected godown is not entirely of tendu leaves.
10. Admissibility of Claim It has been established that affected items were not tendu leaves as claimed by the insured and insured has fraudulently made the claim to be benefitted and therefore has violated condition 8 of the policy. As per the condition no.8 of the policy, if the claim be in any respect fraudulent, or if any false declaration be made or used in support thereof or if any fraudulent means or devises are used by the insured or any one acting on his behalf to obtain any benefit under the policy, all benefits under this policy shall be forfeited. Since, it was also not established how this fire was occurred as there was no possibility to originated the fire at its own, the claim reported by the insured is not tenable and therefore, we recommend herewith closing the claim file on a "NO CLAIM BASIS".
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18. The O.P. has filed email dated 24.08.2011 sent by Mr. Alok Shankar to Mr. K.K. Panda, which is marked as Annexure OP-9, in which it is mentioned thus :-
"This has reference to above referred claim. As informed earlier also, we would like to put in record once again that on our request samples of the burnt debris were sent to Laboratory at Nagpur by the insured himself and as per the report, there are major variations in all test conducted in comparison to original Tendu patta leves. Results of the tests are as under :-
“TABLE”
If we study the figures in the last column, we find that the quantum of basic components found in ash and the real Tendu leaves varies astronomically. One can understand the variation, if observed in the range of 5-10%, but in no case the variation in the % of basic components of the same material burning could ever be of the order of 33% to 277%.
We are of the opinion that there should not be any variations in result of test as Tendu leaves were also collected from the saved stock & as per the insured, only tendu leaves were stored inside the premise before the fire.
Our view if further strengthened due to fact that fire had occurred in mysterious condition and it was not established how this fire could originated.
19. Alok Shankar and Company, Surveyor gave detailed survey report. The complainants have not filed any document to doubt or rebut the report submitted by the Surveyor Alok Shankar and Company, therefore, the report of Surveyor, is reliable and acceptable. According to the Surveyor‟s Report, it has been established that affected items were not tendu leaves, as claimed by the insured and insured has fraudulently made the claim to be benefitted and therefore, has violated condition No.8 of the policy.
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23. The O.P. filed copy of Standard Fire and Special Perils Policy along with terms and condition. The Condition No.8 of the terms and conditions of the policy runs thus the claim be in any respect fraudulent, or if any false declaration to be made or used in support thereof or if any fraudulent means or devices are used by the insured or any one acting on his behalf to obtain benefit under the policy or if the loss or damage be occasioned by the wilful act, or with the connivance of the insured, all benefits under this policy shall be forfeited.
24. V Annexure OP-9 is email dated 24.08.2011 sent by Mr. Alok Shankar to Mr. K.K. Panda, in which it is mentioned that "samples of the burnt debris were sent to Laboratory at Nagpur by the insured himself and as per the report, there are major variations found in all test conducted in comparison to original Tendu patta leaves." Even National Test House (WR), Mumbai, who received sample and analyzed the sample also found that the sample was not upto mark.
25. Surveyor Alok Shankar & Company also mentioned in his Survey Report that the insured had sent the samples of ash collected from affected godown, fresh tendu leaves and fresh rice bran. The report was directly by the Surveyor from the laboratory i.e. Qualichem Laboratories, Nagpur an ISO 9001 : 2008 certified lab and approved by food and drug Administration and Agmark. As per the report, there are variations found in all tests conducted in comparison to original tendu patta leaves. It appears that the sample which was sent to the laboratory was not sample of Tendu leaves. The Tendu leaves which was said to be recovered from affected godown is best option to match the chemical composition of the burnt materials and in that results are varying, therefore, the sample of ash collected from the affected godown is not entirely of tendu leaves. The Surveyor gave his finding that it was also not established how the fire was occurred as there was no possibility to originated the fire at its own, the claim reported by the insured is not tenable and therefore, we recommend herewith closing the claim file on a "No Claim Basis.
26. The report of the Surveyor is a reliable document, therefore, the Surveyor's report is genuine and dependable. The Report of Are Surveyor should be given due weightage and it cannot be discarded lightly. The complainants have not filed any document and did not give any reason to discard the Surveyor's Report, therefore, the Final Survey Report given by the Surveyor, Alok Shankar and Company, is reliable.
27. Looking to the Spot Survey Report and Final Survey Report, it is established that the claim of the complainants, is not genuine. The complainants are unable to prove that the sample of burnt leaves which were sent for laboratory for test, were tendu leaves, therefore, prima fade it is established that the claim of the complainants is not genuine. Therefore, the complainants are not entitled to get any amount from the O.P. under the insurance policy and the complaint is liable to be dismissed."
13. Admittedly, as advised by the Surveyor, sample of ash and debris of burnt leaves from godown was sent for comparison and analysis with ash of fresh tendu leaves and rice bran stored in the godown, to a duly approved laboratory. However, the quantum of inorganic components found in the ash of alleged burnt tendu leaves and fresh tendu leaves recovered from the spot varied astronomically. The result of the samples were again sent to National Test House (NTH), Mumbai, a Government of India Laboratory which confirmed the wide variation of inorganic constituents. Accordingly, the Surveyor concluded that the ash found from the affected godown is not that of tendu leaves and condition no. 8 of the policy stood infringed.
14. We may observe that based upon the scientific analysis using techniques like Laser Induced Break Down Spectroscopy (LIBS) and phytochemical investigation, the tendu patta leaves have been found to contain organic elements such as carbon, hydrogen, nitrogen and oxygen. Further, the key inorganic elements detected include sodium, magnesium, aluminium, calcium, potassium, silicone, iron etc. In view of above, chemical analysis of the burnt tendu leaves as found on site with the fresh tendu leaves recovered at spot, could have been the only method to ascertain, if the burnt debris consisted of stock of tendu leaves. There should not have been much variation in the percentage of constituents as the leaves were collected from the nearby area with similar climatic conditions. A mere comparison of the percentage of the inorganic elements as per the sample reports reveals an astronomical difference in the constituents i.e. calcium, iron, magnesium, sodium, potassium ranging from 37% to 619%. The variation stands re-confirmed even in the repeat tests got done from another laboratory.
15. In the aforesaid background, the affidavits of the Godown Keeper and Godown Guard regarding the storage of tendu leaves in the godown do not inspire confidence, as the scientific analysis of the constituents of the debris raises a serious doubt regarding storage of tendu leaves which are alleged to have been burnt in fire.
Apparently, there is no substantive evidence to rebut the scientific reports from accredited laboratories as relied by the Surveyor. Consequently, the conclusions drawn by the Surveyor that the affected items were not tendu leaves, cannot be said to be without any basis.
16. It is well settled that Survey Report carries immense significance and cannot be brushed aside unless perversity is established by leading some cogent evidence. Reliance in this regard may be placed upon United India Insurance Company Ltd. and Others v. Roshan Lal Oil Mills Ltd. and Others, (2000) 10 SCC 19; Oriental Insurance Co. Ltd. v. Pavan Enterprises & Anr., I (2016) CPJ 503 (NC); Khatema Fibres Ltd. v. New India Assurance Company Ltd. and Another, 2021 SCC OnLine SC 818.
For the foregoing reasons, we do not find any merits in the appeal. The same is accordingly dismissed. Pending applications, if any, also stand disposed of. No order as to costs.
A copy of this Order be provided to the concerned parties by the Registry.
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