An insurance company is liable to pay damages for goods damaged in a cold storage in the absence of evidence to show that the damage was caused by a breakdown in the machinery or improper care of the goods by the insured.

Mr. Justice K.C. Bhargava, President— This is an appeal against the judgment and order dated 16.2.1999 passed by District Forum, Mainpuri in Complaint Case No. 369/1994. The facts of the case stated in brief are that the complainant filed a complaint for recovery of Rs. 3,72,115/- as damages towards cost of the potatoes kept in the cold storage.

2. The facts of the case on behalf of the complainant are that an insurance policy was taken on 14.4.1994 for potatoes of 35,490 quintals at the rate of Rs. 100/- per quintal. According to the complainant 3,917 bags of potatoes weighing 3,721 quintals and 15 kgs. kept in the Chamber No. 4 of Cold storage were damaged. The cost of damaged potatoes was Rs. 3,72,115/-.

3. The information of damages to the potatoes was given to the Insurance Company on 24.8.1994. A survey was done thereafter. Finally on 9.11.1994 the Insurance Company repudiated the claim of the complainant to pay any damages.

4. Opposite party Insurance Company, who is appellant in the present case, has alleged that there was no cause of action for filing the complaint and the complainant has suppressed the facts. It is further alleged that the complainant did not take adequate care of the potatoes kept in the cold storage. Hence the condition of the policy were violated and the complainant is not entitled to get any damages. It is further alleged that there was break-down in the machinery and due to other technical faults in the cold storage, the insured potatoes were damaged. It has further been alleged that the potatoes were damage as inferior quality of potatoes was kept by the complainant in the cold storage. A survey was got done by the Surveyor Sri P.C. Shukla who recommended repudiation of the claim by his report dated 9.10.1994 sent to the Divisional Office at Kanpur that it is a no claim case. This fact was communicated to the complainant by letter dated 9.11.1994.

5. The parties have filed evidence before the learned District Forum who after hearing the learned Counsel and scrutinising the evidence, came to the conclusion that the complainant is entitled to claim damages asked for.

6. Aggrieved against this order the Insurance Company has come in appeal and has challenged the correctness of the order passed by the District Forum.

7. We have heard learned Counsel for the parties and have perused the available evidence on record. Learned District Forum has in its judgment mentioned that the claimant has filed affidavit and other documents in support of his claim while the Insurance company has not filed any affidavit in support of its claim and has filed only six papers. It is clear that unless evidence is filed on affidavit it has no evidential value and the same cannot be taken into account. The Insurance Company has not denied the quantity and the price of the potatoes kept in the cold storage and it has also not denied the insurance policy. It has also admitted that the information of damage was given to the Insurance Company and it repudiated the claim. Thus the only question which arises for consideration is whether the damage was caused to the potatoes on account of some defect in the machineries of the cold storage and its break-down or due to inadequate care of potatoes which were kept in the cold storage.

8. As far as the question of replacement of good quality potatoes by bad quality potatoes is concerned, there is no evidence on record to support this contention besides the averment made in the written statement. Unless these averments are supported by some evidence on affidavit and accompanied by documentary evidence, no reliance can be placed on such a vague plea in support of which there is no evidence. Thus this objection of the Insurance Company has been rightly been overruled.

9. The next contention of the Insurance Company is that there was a break-down in the machineries and some other technical fault on account of which the potatoes got deteriorated. There is also no evidence to support this ple