JUDGMENT R.C. Gandhi, J.

1. These two appeals have arisen out of common order dated 23.05.2001 whereby J&K State Consumer Protection Commission (hereinafter to be referred to as "the Commission") has allowed the claim of the Appellant-complainant to the tune of Rs. 11,73,531/- with 9% interest from the date of the complaint.

2. Mushtaq Ahmad Sumji (hereinafter to be referred to as "the appellant") owned a shop at Anantnag wherein he was running the business as proprietor of M/S Mushtaq Ahmad Sumji, trading Company, dealing in sale and purchase of Pesticides, Insecticides, and Fungicides etc. The shop was insured with the respondent/Oriental Insurance Company, Srinagar for the year 1995-96. During the currency of policy on 21/22.06.1996 the whole area including the shop of the appellant was flooded due to heavy rains which caused damage to the stocks of the appellant lying in the shop. He raised the claim before the Insurance Company, (hereinafter to be referred as "the respondent") to assess the damage. The respondents appointed Mr. Soharwardy as Preliminary Surveyor for making report after spot inspection. He inspected the spot and prepared the inventory of the damaged stocks. To ascertain the final assessment of the loss and damage caused to the stock, the respondent appointed M/S Omkar Pajnoo and Sidhu as Joint Surveyors. They inspected the spot and submitted the report, estimating the loss to the tune of Rs. 1,39, 794/- The claim of the appellant was not settled by the respondents, therefore, he filed a complaint before the Commission for indemnification of loss and damages for an amount of Rs. 15,62,930/- Both the parties have led the evidence before the Commission. Statements of surveyors have also been recorded, On appreciation of the evidence, the report of the Joint Surveyors did not carry weight with the Commission and on the contrary the Commission relied upon the inventory of the damage and loss prepared by the Prelimnary Surveyor Mr. Soharwardy and assessed the loss, which ultimately came to be Rs. 11,73,531/- The Commission also recorded, in the course of the order under appeal, that the loss indicated by the Prelimnary Surveyor has been slashed by the Joint Surveyors without assigning any reason by them.

3. Both the parties, aggrieved of the order of the Commission have preferred appeals. The appellant has challenged the impugned order on the grounds (i) that in addition to the awarded amount, compensation has not been awarded by the Commission for the mental agony and inconvenience etc. caused to the appellant for not settling his claim within reasonable time, (ii) the interest has been awarded wrongly from the date of the complaint which should have been from the date of occurrence.

4. The Insurance Company has challenged the legality and correctness of the impugned order on the grounds that the Commission was not justified in assessing the loss on the basis of the inventory prepared by Preliminary Surveyor ignoring the report of the Joint Surveyors and that the loss has been exaggerated which is evident from the report of the Joint Surveyors indicating that huge stock has been added to the damaged stock lying in the stores after 26.6.1996 which came to be revealed on comparison of the photographs taken on 26.6.1996 and 3.9.1996 by one of the Joint Surveyors, Mr. Pajnoo. Therefore, the impugned claim award is not justified and should be set aside.

5. We have heard learned counsel for the parties and perused the record.

6. Learned Counsel for the Insurance Company has submitted that the Commission was not justified in relying upon, believing and accepting the inventory prepared by the Preliminary Surveyor of the loss and damage caused to the stock. The purpose of the Preliminary Survey of the spot is to have the tentative report with regard to the confirmation of the occurrence and the items damaged and lost. The Preliminary Surveyor has inspected the spot and confirmed that the occurrence has taken place and also made an inventory of the damaged stocks. To assess the loss and damage, the final joint surveyors visited the premises on 28.6.1996 and took the photographs of the damaged items. These items were thereafter shifted to the Godown. According to him in the Godown, damaged material was added to it. In support this plea he has drawn the attention of the Court on particular and relevant Para of the Joint surveyors report which indicates that Mr. Omkar Pajnoo visited the insured premises on 28.6.1996 and saw small quantity of stocks lying in the go-down. He took the photographs of the stocks on the same day. He again visited the premises on 3.9.1996 and similarly took the photographs and comparison of these two sets of photographs reveals that the material packed in jute bags was added later on in the go-down after the first visit of Mr. Pajnoo on 28.6.1996. For the additional material, the report also contains reasons that other shops in the vicinity having the same stock were also affected by the flood and the added stock would have been taken therefrom. Since there is no explanation tendered by the appellant with regard to the material found in addition to the material available on 28.6.1996, the possibility, therefore, of addition of the stocks found in jute bags cannot be ruled out. It was to be explained by the appellant to establish his claim as true and genuine. The learned Commission has not appreciated this piece of evidence.

7. Learned counsel for the respondents has convinced the Commission that the report of Mr. Soharwardy has been wrongly slashed by the Joint Surveyors. The findings of the Commission to that extent are wrong for the reason that there is no assessment report of Mr. Soharwardy on record. He was a Preliminary Surveyor. He inspected the spot and submitted the inventory of the damaged stock. He has not assessed the loss. Loss has been assessed by the Joint Surveyors and while assessing the loss they have cross checked and examined the inventory prepared by Mr. Soharwardy. Out of the items finding place in the report of Mr. Soharwardy, the Joint Surveyors have pointed out that some of the items were of expired stock for which the appellant was not entitled to indemnification. A list of the expired items prepared by the Joint Surveyors out of the items contained in the inventory prepared by Mr. Soharwardy has been placed on record. The Joint Surveyors in their report at Para 10 has stated that

"the damaged stocks were minutely inspected and verified. Manufacturing date, date of expiry and batch No. of each and every pack was verified. Out of total stocks most of the stocks were found expired, therefore, the same has been disallowed."

It was found that the expired stock was to the tune of Rs. 1,06,720/- to while the appellant was not entitled to. The Joint Surveyors which assessing the loss have also taken into consideration the inventory prepared by Mr. Soharwardy and assessed the loss to the tune of Rs. 2,46,514/-. After deducting the amount of the expired stocks amounting to Rs. 1,06,720/-. The Surveyors have found that the Company is liable to indemnify a sum of Rs. 1, 39, 794/- In this back drop it cannot be said that the assessment made by Mr. Soharwardy, Preliminary Surveyor, has been slashed by the Joint Surveyors. In presence of the final report of the Surveyors the preliminary report cannot be acted or relied upon unless the final report is proved to be unreliable. Therefore, the finding of the Commission that no reasons have been placed for slashing the assessment is not sustainable and cannot be maintained.

8. The Commission has ignored the evidence of addition of the stock which was evident on comparison of the photographs taken by Mr. Pajnoo on 28.6.1996 and 3.9.1996. The Commission, also ignoring the contents of the survey report of the Joint Surveyors, which specifically state that the assessment of the loss is based on final verification conducted by them jointly and compared with the inventory and Mr. Soharwardy and the inspection of Mr. Omkar Pajnoo on 28.6.1996 and 3.9.1996, thus has come to erroneous conclusion.

9. Attention of the Court has also been drawn on the statements of the witnesses wherefrom we have seen that the Commission has not rightly and appropriately appreciated the evidence particularly of M/S Sidhu and Pajnoo which is contrary to the statement of Mr. Soharwardy. Mr. Soharwardy, Preliminary Surveyor, has stated in cross examination also that he has not assessed the loss but submitted the rough estimate as a Preliminary Surveyor. He has also stated that some stocks were found expired but did not value it. The Commission without appreciating this glaring evidence has recorded the finding which led the Commission to draw wrong conclusions.

10. The finding of the Commission assessing the loss on the basis of the rough inventory which was subject to the final report of the Joint Surveyors is not justified and cannot be maintained.

11. So far as the claim of the appellant that the compensation in respect of the mental agony and inconvenience caused to the appellant has not been paid to him and that interest has been awarded from the date of the occurrence, is concerned, the Commission is justified in not granting him any such compensation except the alleged damages caused to the stocks, as such pay compensation is not within the frame of the policy. The policy does not stipulate or contain any condition for awarding such compensation. Even from the perusal of the record we could not find any evidence led by the appellant having sustained or suffered any such loss to be compensated. For delayed settlement of the dispute the appellant has been compensated by way of interest.

12. So far as the claim of interest is concerned, there is no substance in the plea of the learned counsel for the appellant that the interest should have been awarded by the Commission from the date of the loss. The claim is required to be settled by the Insurance Company immediately after the report of the surveyors and if any delay is caused, the Company incurs the liability of payment of interest, two months hence from the submission of the report by the Surveyors. This controversy has been settled by the Supreme Court in case titled "Hari Om Verma v. State of Punjab and Ors., reported in AIR 1997 SC 408 holding that:

"It is then contended that the appellant is not liable to pay interest from the time of the loss which occurred only from the date of the claim rejected by the appellant-Insurer. It is difficult to accept the contention in toto. It is axiomatic that the insured requires to pay specific claim fro damages giving details of the damages caused to the leather due to the strike organized by the workmen. On preferring claim thereof, admittedly, the surveyor, which is an independent agency, should inspect the factory and submit a report. From the record, it would be clear that the claim was made for the first time on November 13, 1989. Thereafter, all the particulars were furnished by the insured-respondent in August 1990. Thereon, the surveyor inspected and submitted his report on October 30, 1990. Thereafter, the insurance company is required to take a decision. Admittedly, 5 months have elapsed for taking decision to reject the claims. We think that a reasonable time of two months would be justified for them to take a decision whether claim requires to be settled or rejected in accordance with the policy. Therefore, two months would be computed from October 30, 1990. Accordingly, we give the benefit of the time taken to decide the claim upto December 31, 1990. The appellant-Insurer is liable to pay interest from January 1, 1991, till date of payment."

The appellant, therefore, is entitled to interest @ 9% from 16.01.1998 as the report has been submitted by the Joint Surveyors on 15.11.1997.

13. For the aforesaid reasons, the appeal No. 70/2001 filed by the Insurance Company is allowed and the order of the Commission under appeal is set aside making the Insurance Company liable to pay Rs. 1,39,731/- to the appellant with 9% interest from 16.01.1998 till realization. The appeal No. 60/2001 of the appellant is disposed in the aforesaid terms.