IMPORTANT POINT
Second Surveyor cannot be appointed without any cogent reasons.

K.S. Chaudhari, Presiding Member—This appeal has been filed by the appellant against the order dated 05-09-2009 passed by the Learned State Commission in Complaint No. 477 of 1999 – M/s Sparkling Traders Pvt. Ltd. v. M/s New India Assurance Co. Ltd. & Anr., by which complaint was dismissed.

2. Brief facts of the case are that complainant/appellant sent consignment of 400 kgs. of PM Oil to its Branch Office at New Delhi through Opposite party no. 2/Respondent no. 2. Goods were insured with opposite party no. 1/respondent no. 1 and there was pre-survey report pertaining to consignment. At the destination consignment was not delivered and containers were empty. Complainant lodged complaint with the opposite parties but opposite party no. 1 repudiated claim vide letter dated 12-07-1999 on the ground that there were holes at different places in the drums and that loss cannot be attributed to the transit hazards. Alleging deficiency on the party of opposite parties, complainant filed complaint before State Commission. Opposite party no. 1 resisted complaint and submitted that as loss was recorded due to holing and cuttings on drums and such loss cannot be attributed to transit hazards and claim was directly repudiated and prayed for dismissal of complaint. Opposite Party no. 2 did not appear before State Commission. Learned State Commission, after hearing both the parties, dismissed complaint by impugned order against which this appeal has been filed.

2. None appeared for R-2 even after service and he was proceeded ex-parte.

3. Heard learned counsel for the parties and perused record.

4. Learned counsel for the appellant submitted that inspite of proof that insured consignment was not delivered at the destination, learned State Commission committed error in dismissing the complaint, hence appeal be allowed and impugned order be set aside and complaint be allowed. On the other hand, learned counsel for R-1 submitted that order passed by learned State Commission is in accordance with law, hence appeal be dismissed.

5. It is admitted case of the parties that complainant got his 400 kg. P.M. oil consignment insured from opposite party no. 1 by policy dated 28-09-1998, which was subject to Inland Transit Clause (All risks). It is also not disputed that consignment was sent through Opposite Party No. 2 and as per report dated 13-10-1998 of opposite party no. 2, consignment was delivered totally empty with a shortfall of 400 kgs. of material.

6. Now, the core question to be decided is whether opposite parties were responsible for loss of consignment. As per pre-dispatch survey done by M/s A.S. Pappu Technocrats on 28-09-1998, consignment of 400 kgs. PM oil in two sealed drums was found extremely in sound condition. As per surveyor M/s S.S. Kashyap & Co. report dated 13.10.1998, loss occurred due to leakage which occurred due to holing and cutting of drums. It was further mentioned in the report that drums were completely empty at the time of inspection by surveyor and after deducting salvage value of two drums, total loss was Rs.5,81,900/-.

7. It appears that after report of surveyor

M/s S.S. Kashyap, opposite party no. 1 appointed 2nd surveyor M/s J. Basheer and associates, who furnished questionnaire to the complainant on 13-01-1999 which was replied by complainant by letter dated 18-01-1999. M/s J. Basheer & Associates mentioned in its questionnaire that pre-consignment survey was done by complainant’s surveyor M/s A.S. Pappu Technocrats but complainant in its reply to the questionnaire submitted that M/s A.S. Pappu Technocrats was nominated by opposite party and not by the complainant. Admittedly pre-dispatch surveyor was appointed by O.P. Opposite party no. 1 by letter dated 12-07-1999 repudiated claim on the basis of M/s J. Basheer & Associates report on the ground that pre-dispatch surveyor did not notice any specific marks namely, “L.K.PNET – India” on the drums, hence it could not be established that drums surveyed by pre-dispatch s