State Consumer Disputes Redressal Commission
M/S.Manilal Dayalji & Co Gola Badhi Work vs The Oriental Insurance Co. Ltd. on 14 September, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2017/01
Instituted on : 02.01.2017
M/s. Manilal Dayalji & Co., Gola Bidi Works,
Through : Partner : Rajesh Mirani,
S/o Late Shri Manilal Mirani, Aged 54 years,
Sadar Bazar,
Dhamtari, District Dhamtari (C.G.) ... Complainant.
Vs.
The Oriental Insurance Company Limited,
Through : Divisional Manager,
Divisional Office, M.B. Trade Centre,
Near Ghadi Chowk,
Dhamtari (C.G.) ... Opposite Party
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri R.K. Bhawnani, Advocate for the complainant.
Shri P.K. Paul, Advocate for O.P.
ORDER
Dated : 14/September/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the O.P. seeking following reliefs :-
(a) The O.P. may be directed to pay a sum of Rs.34,75,632.00 (Rupees Thirty Four Lakhs Seventy Five Thousand Six Hundred Thirty Two) along with 18% interest from the claim date till date of payment.
// 2 //
(b) The O.P. may be directed to pay Rs.2,00,000/- (Rupees Two Lakhs) towards unfair trade practice, mental agony and harassment for non-settlement of the genuine loss.
(c) Any other relief, which this Hon'ble State Commission deems fit, may also be awarded in favour of the complainant as against the Opposite Party.
2. Briefly stated the facts of the complaint of the complainants are that the complainant is working in the name of M/s. Dayalji & Co. Golabidi Works. This Complaint is being filed through Partner Rajesh Mirani, who is authorised to file this complaint. The complainant has taken on Machinery Break Down Insurance Policy from O.P. The O.P. has issued the Policy No.152307/44/2009/28 and the period of validity was 20.10.2008 to 19.10.2009. The insured value was Rs.2,78,00,000/- (Rupees Two Crores Seventy Eight Lakhs) and for which the premium amount of Rs.1,09,324/- was taken by the O.P. and O.P. has issued three page policy schedule. On 29.09.2009 one Wind Energy Generator HTSC 1637 SF No.330 was damaged and regarding this, intimation was given to O.P. The O.P. has provided the claim form to complainant and the said claim form was submitted to O.P. along with all the documents. The O.P. has appointed the Surveyor Mr. P.S. Ramnathan and all the documents were provided to him. After receiving all the documents, Surveyor Mr. P.S. Ramnathan has assessed the loss of Rs.34,95,635/- and the said report was submitted to O.P. After receiving the survey report instead of making payment // 3 // of Rs.34,95,635/- to complainant, the O.P. has again appointed another Surveyor Mr. U. Singhvekar to intentionally reduce the claim amount according to O.P.'s wish, the 2nd Surveyor has modified the original survey report and reduced the claim amount to Rs.16,37,836/-. The O.P. has sent an intimation to complainant regarding the said 2nd Surveyor report, then complainant requested the O.P. to reconsider it lawfully and to arrange the meeting. In this regard, the complainant has written O.P. several letters. The O.P. has arranged one meeting in which O.P. himself along with Mr. E. Mathew and Surveyor Mr. U. Singhvekar and on behalf of complainant's Company Mr. Rajsh Mirani and their legal advisor Mr. Shriram were present. There were so many points raised by complainant and O.P. were agree with that at that moment. Even after request from Mr. Rajesh Mirani, complainant, the O.P. has not prepared the minutes of the meeting. On 02.08.2013, the complainant wrote O.P. a letter and has requested O.P. to pay the amount of loss of Rs.34,95,635/- but O.P. has not given any reply. After that complainant again on 03.12.2013 requested O.P. to solve the dispute, O.P. has given the reply of the said letter in O.P's letter dated 26.12.2013. The complainant has again on 06.01.2014 wrote O.P. a letter and again on 11.03.2014. The O.P. has replied the said letter on 12.03.2014 and a meeting was fixed on 22.03.2014 but even after that neither any action taken nor complainant's claim was settled. The O.P. has written a letter dated 26.02.2015 to complainant stating that O.P. has finally calculated the loss for Rs.16,37,836/-. In the letter dated // 4 // 26.02.2015, O.P. has again on wrong ground calculated the amount. The actual loss to the complainant is of Rs.34,75,632/- which is clear from the Survey Report of Mr. P.S. Ramnathan and documents which were submitted by complainant. The complainant has suffered the huge loss of Rs.34.75.632/- which is clear from the documents which complainant has submitted with the O.P. The re-assessment done by 2nd Surveyor is not correct and the deduction made by him is not as per law and the survey report prepared by 2nd Surveyor is not correct hence the complainant is suffering huge loss and by overlooking the documents which were submitted by the complainant his claim has not been considered which is clearly unfair trade practice on part of O.P. Insurance Company. The complainant has suffered heavy losses and his claim is a genuine claim and O.P. has unnecessarily deducted the amount from actual loss. The said act of O.P. clearly comes under the category of deficiency in service. The O.P. has not paid the claim to claimant because of which complainant is suffering financially and mentally. The O.P. has mentioned in its letter that the O.P. is ready to pay Rs.16,37,836/-. The said amount is not acceptable to the complainant. The complainant's actual loss is of Rs.34,75,632/-. The complainant has given notice through his Advocate on 23.03.2015, but even after that the O.P. neither give reply nor has paid the claim amount. The complainant after sending the notice has contacted several time with the O.P. and has continuously prayed for the amount of actual loss to be paid to complainant but upto this date the O.P. has // 5 // not paid the amount of actual loss to the complainant. Hence, the complainant filed instant complaint.
3. The O.P. has filed its written statement and averred that the juristic entity of the complainant is not established no any authority letter is placed on record to prove that Mr. Rajesh Mirani is authorized to file the present complaint in the capacity of a partner. A Machinery Breakdown Insurance Policy No.152307/44/2009/28 was issued by the O.P. to the complainant for the period from 20.10.2008 to 19.10.2009, but the above captioned policy is subject to conditions, clauses, warranties, exclusions and endorsement which form an integral part of the policy document and binding on the contracting parties thereto. The sum assured under the above policy was Rs.2,78,00,000/- (Rs. Two Crores Seventy Eight Lacs only) and the premium has been received conforming to the policy terms and guidelines. The receipt of the above premium would not automatically amount to admission of liability by the O.P. The O.P. did not tender 3 page policy schedule to the complainant. The complainant was fully aware of the terms and conditions governing the policy in question after having received the same along with the policy. The intimation regarding the damage to Wind Energy Generator HTSC No.1637 SF No.330 was sent only on 21.10.2009 i.e. after one month from the date of alleged incident, which happens to be an express infringement of the terms of the policy. Even after repeated requests and reminders by the Surveyor and also from the insurer O.P., the complainant failed to furnish the documents // 6 // in time. The result thereof, being that the captioned claim was closed on 30.12.2010 by the complainant. The copy of claim form along with required documents was submitted with the O.P. only on 28.01.2011 i.e. approximately after about 1 ½ years from the date of alleged incident, which itself explains that there has been an inordinate delay by the complainant in submitting the above claim form without any just reason. The present complaint is therefore, hopelessly barred by limitation and is liable to be dismissed on this premise only. Mr. P.S. Ramanathan was appointed as the Surveyor. The documents wee not provided to the above Surveyor. As the papers were not submitted by the complainant, the Surveyor sent a mail dated 25.12.2010 to the insurer O.P. advising closure of the claim file and sought instructions from the insurer O.P. regarding the same. The O.P. appointed M/s. Shivram Company, Tirunelveli as the Spot Surveyor, who inspected the subject insurance at Serandamangalam Village Tirunelveli, Tamil Nadu. Later Mr. P.S. Ramanathan was appointed as the Final Surveyor to inspect and assess the extent of damage due to the alleged breakdown of gear box. As the insured did not submit requisite papers, the process of assessment was aborted. The gross loss was assessed at Rs.34,95,635/- but the assessed loss was not computed. Several vital parameters such as the depreciation, salvage, under insurance and policy excess were not all at computed and were left blank without assigning any reason. After going through the above // 7 // survey report, the O.P. found many irregularities which are as follows :-
(a) The report was prepared without policy details.
(b) The Survey Report was incomplete as the assessment was not done.
© Actual loss was not assessed and damages were not certified by the Surveyor.
(d) Replacement not confirmed and address of the site visited by the Surveyor was not mentioned.
(e) Log - Book and Maintenance History was not verified by the Surveyor.
(f) Original invoice and proforma Invoice were neither seen nor obtained.
(g) Model of Gear Box was not mentioned.
The above shortcomings were duly apprised to the above Surveyor by the Insurer O.P. but the above Surveyor failed to respond. Because of the above lacunae in the Surveyor Report as mentioned in preceding para and the consequential failure to rectify the same, the O.P. was left with no other option but to seek the services of another licensed Surveyor, Mr. Utkarsh Shingvekar to correctly assess the loss to the subject matter of insurance. The replacement value was calculated by the Surveyor, which formed the basis for arriving at the under // 8 // insurance factor. Taking into account the applicable depreciation, salvage and the policy excess as per the policy terms, the underwriter's liability was computed at Rs.16,37,836/-. The incomplete Survey Report of the former Surveyor was rather corrected and rectified by the latter Surveyor in his report. A request to arrange a meeting for re-evaluation of the claim amount was made by the complainant to the O.P. The letter as above referred, nowhere specifies that the intimation was regarding the second Survey Report. In response to the above intimation of the complainant, the O.P. agreed to discuss the issue with its higher offices. The complainant has not written several letters to the O.P. regarding the above. The O.P. is unaware of any meeting, in which the O.P. along with one Mr. E. Mathew and Surveyor Mr. U. Shingvekar & Rajesh Mirani & the legal Advisor on behalf of the complainant were present. The complainant vide letter dated 02.08.2013 had not requested the O.P. to pay the amount of Rs.34,95,635/-. No such letter, has been received by the O.P. A letter dated 03.12.2013 was issued by the complainant seeking re-evaluation of claim and in reply thereto the O.P. tendered the complainant the second Survey Report along with their letter dated 26.12.2013, requesting therein to kindly convey them in writing the particular section / part of the settlement which was not agreed to by the complainant. The O.P. also assured the complainant every co- operation at their end. The complainant tendered letters dated 06.01.2014 and 11.03.2014 seeking discussion on the deduction part of // 9 // the Survey Report. A reply dated 12.03.2014 to the above letter dated 11.03.2014 was given informing thereby that the O.P. was ready to hold discussion and requested the complainant to be present on 22.03.2014. The complainant himself never turned up for the proposed meeting. An opportunity was already provided to the complainant to clarify their doubts on the point of assessment of the liability. Vide letter dated 26.02.2015,the O.P. again gave the final calculation of their liability. The letter dated 26.02.2015, only reproduced the calculation made by the second Surveyor Mr. Utkarsh Shingvekar, which was based on objective assessment. The calculation as arrived by the first Surveyor Mr. P.S. Ramnathan was not final as the loss assessment was not complete. The description, salvage, under insurance and policy excess were not computed in the first survey report. The O.p. did not commit any deficiency in service on unfair trade practice. The complainant was duly apprised of the final assessment, made by the Second Surveyor Mr. Utkarsh Shingvekar, twice but the complainant never contradicted and rebutted the calculations of the Surveyor by cogent material and substance. The reassessment done by 2nd Surveyor is correct and the deduction made by the above Surveyor is as per law. The complainant was given adequate time to clarify their stand on amount of assessed loss and the insurer's liability as a result thereof, but the complainant miserably failed to provide any logical base or findings to compute the underwriter's liabilities. The complainant's actual loss is not Rs.34,75,632/-. The O.P. is unaware of // 10 // any notice being sent by the complainant's advocate. After sending the above notice, the complainant has not contacted the insurer O.P. several times. By and for all the correspondences made by the complainant were promptly respondent and efforts were made by the O.P. through discussions and meeting for settling the above claim, but the belligerent attitude of the complainant stalled the entire process of settlement. The complainant in the present case has no locus standi and cause of action to file the present complaint. The bonafides of the O.P. can be judged from the facts that even after closing the file on 30.12.2010, the O.P. gave a considered and humane approach to the complainant's case by allowing him to file the documents even after a prolonged time period. Several important documents have been deliberately suppressed by the complainant with ulterior motives. The present complain is hopelessly time barred. After the date of alleged damage on 29.09.2009, the O.P. waited for approximately 1 ½ years for the complainant to submit the relevant papers and as a result of the failure to so provide, the claim was closed on 30.12.2010. The complaint be dismissed against the O.P. and compensatory costs be allowed to the O.P. from the complainant.
4. The complainant has filed documents. Annexure A-1 is copy of insurance policy schedule dated 20.10.2009, Annexure A-2 is letter of information regarding loss by complainant to the O.P. dated 21.10.2009, Annexure A-3 is letter of complainant to O.P. dated 26.11.2010, Annexure A-4 is letter of the O.P. to complainant dated // 11 // 30.12.2010, Annexure A-5 is letter of the complainant to O.P. regarding submitting of claim form along with documents dated 28.01.2011, Annexure A-6 letter of complainant to O.P. dated 14.02.2011, Annexure A-7 is letter of complainant to O.P. dated 10.06.2011, Annexure A-8 is letter of complainant to O.P. dated 17.04.2012, Annexure A-9 is Survey Report of P. S. Ramanathan dated 18.02.2012, Annexure A-10 is letter of complainant to O.P. dated 20.04.2012, Annexure A-11 is Email of complainant to O.P. dated 06.08.2012, Annexure A-12 is letter of complainant to O.P. dated 30.08.2012, Annexure A-13 is letter of complainant to O.P. dated 29.08.2013, Annexure A-14 is letter of complainant to O.P. dated 03.12.2013, Annexure A-15 is letter of complainant to O.P. dated 26.12.2013, Annexure A-16 is letter of complainant to Chief Manager Customer Service Department dated 04.04.2013, Annexure A-17 is letter / email sent by the complainant to O.P. dated 20.04.2013, Annexure A-18 is letter of complainant to O.P. dated 06.01.2014, Annexure A-19 is letter of complainant to O.P. dated 11.03.2014, Annexure A-20 is letter of O.P. to complainant dated 13.03.2014, Annexure A-21 is letter of complainant to O.P. dated 04.07.2014, Annexure A-22 is letter of complainant to O.P. dated 11.11.2014, Annexure A-23 is letter of complainant to O.P. dated 01.01.2015, Annexure A-24 is letter of O.P. to complainant dated 26.02.2015, Annexure A-25 is legal notice sent by Complainant's Advocate to O.P. 23.03.2015, Annexure A-26 is postal receipt. Annexure A-27 is letter of complainant, Annexure A-28 is Insurance // 12 // Company's acceptance, Annexure A-29 is Regarding non-submission of Survey Report, Annexure A-30 is Submission of Survey Report 18.02.2012, Annexure A-31 is email - dt. 15.06.2012, Annexure A-32 is letter written to Insurance Co. by the complainant regarding replacement value of wind mill with documentary proof attached as soft copy 30.08.2012, Annexure A-33 is email dated 08.12.2012.
5. The O.P. has filed documents. Documents are Machinery Breakdown Insurance Policy With Terms and Conditions Vide No.152307/44/2009/28 and Policy Endorsement Date : 08.03.2009, Machinery Breakdown Insurance Claim Form, Claim Closure letter of Oriental Insurance Company Ltd., Email Correspondence between parties, Final Survey Report of Surveyor Shri P.S. Ramnathan dated 18.02.2012, letter dated 26.12.2013 sent by the O.P. to the complainant, letter dated 12.03.2014 sent by the complainant to the O.P., Loss Analysis Report of Surveyor Mr. Utkarsh Shingvekar, Letter dated 26.02.2015 sent by O.P. to the complainant with literature of manufacturer company Wind Turbine Gearbox Technologies.
6. Shri R.K. Bhawnani, learned counsel appearing for the complainant has argued that the complainant obtained Machinery Break Down Insurance Policy from the O.P., which was effective for the period from 20.10.2008 to 19.10.2009.. The sum insured was Rs.2,78,00,000/-. On 29.09.2009 one Wind Energy Generator HTSC 1637 SF No.330 was damaged and regarding the above incident, intimation was given to the O.P. Mr. P.S. Ramnathan was appointed // 13 // as Surveyor. The complainant provided all relevant documents to Surveyor Mr. P.S. Ramnathan, who assessed the loss to the tune of Rs.34,95,635/- . Mr. P.S. Ramnathan, submitted his report to the O.P., but the O.P. did not seek any clarification from Mr. P.S. Ramnathan and without giving any intimation to the complainant and obtaining permission from the Insurance Regulatory and Development Authority, appointed Second Surveyor Mr. Utkarsh Shingvekar to intentionally reduce the claim amount . Mr. Utkarsh Shingvekar without any justified reason reduced the claim amount to Rs.16,37,836/-. The complainant wrote letter to the O.P. for arranging meeting. The O.P. has arranged one meeting in which Mr. E. Mathew and Surveyor Mr. U. Singhvekar, Mr. Rajesh Mirani and their legal advisor Mr. Shriram were present. Even after request from Mr. Rajesh Mirani, the O.P. has not prepared the minutes of the meeting. On 02.08.2013, the complainant wrote a letter to the O.P. and submitted his claim and requested that Rs.34,95,635/- be provided to the complainant, but the O.P. did not provide above amount and sent a letter to the complainant that the complainant is only entitled for Rs.16,37,836/-. Thus, the O.P. committed deficiency in service and unfair trade practice, hence the complainant has been forced to file instant complaint. The O.P. be directed to pay a sum of Rs.34,75,632/-, which was assessed by Surveyor Mr. P.S. Ramnathan along with interest @ 18% p.a. and also award Rs.2,00,000/- towards compensation for mental agony and harassment, and also cost of // 14 // litigation. He placed reliance on Revision Petition No.488 of 1988 - National Insurance Co. Ltd. Vs. New Patiala Trading Co., decided by Hon'ble National Commission vide order dated 8th February, 2002, Revision Petition No.4270 of 2012 - Vijay Singh Tomar Vs. National Insurance Co. Ltd., decided by Hon'ble National Commission vide order dated 07 August, 2013 and Revision Petition No.2303 of 2012 - National Insurance Co. Ltd. Vs. Giriraj Proteins, decided by Hon'ble National Commission vide order dated 03 September 2012.
7. Shri P.K. Paul, learned counsel appearing for the O.P. has argued that the complainant gave intimation regarding the incident belatedly i.e. after one month. The complainant also submitted documents to the O.P. after near about 1 ½ years from the date of the alleged incident, therefore, the instant complaint is barred by time and is liable to be dismissed. The O.P. appointed M/s. Shivram Company Tirunelveli as the Spot Surveyor, who inspected the subject matter of the insurance, thereafter Mr. P.S. Ramnathan was appointed as the Final Surveyor to inspect and assess the loss, but without giving any reason he assessed the loss to the tune of Rs.34,95,635/-. Mr. P.S. Ramnathan, Surveyor did not computed the depreciation, salvage, under insurance and policy excess and he prepared the report without policy details and without documents, therefore, the report was obtained from Mr. Utkarsh Shingvekar, who calculated the loss and computed applicable depreciation, salvage and policy excess and assessed the loss to the tune of Rs.16,37,836/-. Mr. Utkarsh Shingvekar // 15 // gave detailed reasons for computation, therefore, report of Mr. Utkarsh Shingvekar is more reliable. The Second Surveyor was not appointed by the O.P. only O.P. sought calculations from Mr. Utkarsh Shingvekar, hence report of Mr. Utkarsh Shingvekar is more reliable than the report of Mr. P.S. Ramnathan. Report of Mr. Utkarsh Shingvekar cannot be brushed aside. The complaint is hopelessly barred by time, therefore, the complaint is liable to be dismissed. The complaint is not entitled to get any compensation from the O.P. He placed reliance on Pentagaon Steel Pvt. Ltd. Vs. New India Assurance Company Ltd. and Ors. III (2010) CPJ 339 (NC); M/s Goel Jewellers Vs. M/s National Insurance Co. Ltd. 2011 (3) CPR 272 (NC); Niken Systems (P) Limited Vs. National Insurance Co. Ltd. Through Its Branch Manager, 2011 (1) CPR 250 (NC); Sikka Papers Limited Vs. National Insurance Co. Ltd. & Ors. 2009 (3) CPR 272 (NC); Nav Bharat International Ltd. Vs. National Insurance Co. Ltd. & Anr. III (2011) CPJ 518 (NC) and Sahib Exports India Vs. New India Assurance Co. Ltd., III (2011) CPJ 297 (NC).
8. We have heard learned counsels appearing for both the parties and have also perused the documents filed by them in the complaint case.
9. Firstly we shall consider whether the instant complaint is barred by time ?
10. According to the complainant one Wind Energy Generator HTSC 1637 SF No.330 was damaged on 29.09.2009 and intimation // 16 // regarding the incident was given to the O.P. Mr. P.S. Ramnathan was appointed as Surveyor and subsequently Mr. Utkarsh Shingvekar was also appointed as Surveyor by the O.P. In para 13 of the complaint, the complainant pleaded that the O.P. has written a letter dated 26.02.2015 to complainant stating that O.P. has finally calculated the loss for Rs.16,37,836/. Document Annexure A-24 is letter dated 26.02.2015 sent by Divisional Manager, Oriental Insurance Co. Ltd., to M/s Manilal Dayalji & Co. in which calculation was made for loss suffered to the tune of Rs.16,37,836/- and the Insurance Company sough consent from the complainant to take the above amount. Then the complainant sent legal notice dated 23.03.2015 (Annexure A-25) to the O.P.
11. It appears that the O.P. for the first time considered the claim of the complainant and calculated the loss to the tune of Rs.16,37,836/- and intimation was given to the complainant in that regard on 26.02.2015, therefore, the cause of action accrued on 26.02.2015, whereas the complaint has been filed by the complaint on 02.01.2017, hence the complaint is within limitation.
12. It is admitted fact that the complainant sent intimation to the O.P. regarding the damage of Wind Energy Generator HTSC 1637 SF No.330 and P.S. Ramnathan was appointed by the O.P. as Surveyor and Loss Assessor. It is also admitted fact that P.S. Ramnathan, Surveyor submitted his report to the O.P. // 17 //
13. Both the parties have filed Survey Report of P.S. Ramnathan, Surveyor. P.S. Ramnathan, Surveyor assessed the loss to the tune of Rs.34,95,635/- and submitted his report to the O.P. According to the complainant, the O.P. appointed Second Surveyor Utkarsh Shingvekar without giving intimation to the complainant and without obtaining permission from Insurance Regulatory Development Authority, therefore, the appointment of second Surveyor is illegal and Report of Utkarsh Shingvekar is not acceptable. On the contrary, learned counsel for the O.P. has argued that P.S. Ramnathan had not assessed the loss according to the procedure and reported was not prepared according to policy details and the report was incomplete. The loss was not assessed and damage was not certified by P.S. Ramnathan, Surveyor, therefore, the O.P. was left with no other option but to seek the services of another licensed Surveyor, Mr. Utkarsh Shingvekar to correctly assess the loss to the subject matter of insurance. Counsel for the O.P. argued that only clarification was sought from Utkarsh Shingvekar and he was not appointed as Second Surveyor.
14. In para 7 of the written statement of the OP., it is specifically mentioned that "Because of the above lacunae in the Surveyor Report as mentioned in preceding para and the consequential failure to rectify the same, the O.P. was left with no other option but to seek the services of another licensed Surveyor, Mr. Utkarsh Shingvekar to correctly assess the loss to the subject matter of insurance. The replacement value was calculated by the Surveyor, which formed the // 18 // basis for arriving at the under insurance factor. Taking into account the applicable depreciation, salvage and the policy excess as per the policy terms, the underwriter's liability was computed at Rs.16,37,836/-. The incomplete Survey Report of the former Surveyor was rather corrected and rectified by the latter Surveyor in his report. "
15. In judgment cited by the O.P - Pentagaon Steel Pvt. Ltd. Vs. New India Assurance Company Ltd. & Ors. (Supra), Hon'ble Supreme Court has observed that "Licensed Surveyors appointed by Insurance Company only authorized to assess damage. Complainant prayed for enhanced claim and compensation. Reports of 2 Surveyors appointed under Section 64UM of Insurance Act a valuable piece of evidence. Their reports given credence over reports of Surveyors appointed by the complainants, who are interested persons". So far as above judgment is concerned, it is not applicable the instant case because both the Surveyors have been appointed by the O.P. and the complainant has not appointed any Surveyor, therefore, the above judgment is not applicable in the instant case.
16. In Nikon Systems (P) Limited Vs. National Insurance Co. Ltd. Through Its Branch Manager (Supra), Hon'ble National Commission has observed that "Insurer has right to appoint a second surveyor but insurer must give valid reasons for doing so. Insurance Company had given valid reasons why in first instance, they felt it necessary to seek certain clarifications in view of discrepancies appearing in report of first Surveyor and thereafter took a conscious decision to appoint a second surveyor. Report // 19 // submitted by second surveyor is well reasoned report which takes into account several discrepancies existing in report of former surveyor and after reconciling the same, they assessed net loss at Rs.22,18,393/-. Earlier assessment of loss at Rs.34,40,486/- made by first Surveyor has lost its sanctity and cannot form the basis for determination of compensation. Assessment made by second Surveyor accepted."
17. In Nav Bharat International Ltd. Vs. National Insurance Company Limited & Anr. (Supra), Hon'ble National Commission has observed that "No prohibition for appointment of second Surveyor by Insurance Company. Insurance Company has to give satisfactory reasons for not accepting report of first Surveyor."
18. In Sahib Exports India Vs. New India Assurance Co. Ltd. (Supra), Hon'ble National Commission has observed that "Second Surveyor has given adequate explanation and justification for the stock position on date of incident being below Rs.50 lakh limits to insured amount."
19. In M/s Galada Power and Telecommunication Ltd. Vs. United India Insurance Co. Ltd. and Another Etc., 2017 (1) CPR 4 (SC), Hon'ble Supreme Court has observed thus :-
"1. When the Insurer appointed a surveyor on receipt of belated claim and the letter of repudiation does not whisper about delay in lodging claim, it can safely be concluded that the insurer had waived the right which was in its favour, under the duration clause.
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2. When the Insurer, after the first surveyor submitted its reports, appoints a second surveyor / investigator without explaining the reason for such appointment, report of the first surveyor prevails."
20. In New India Assurance Company Limited Vs. R.P.Oil Industries, IV (2016) CPJ 627 (NC), Hon'ble National Commission has observed that "If Insurance Company had some doubts on surveyor's report, it could have asked for clarification / documents from complainant. No evidence on record as to whether any documents / information / clarification had been sought from the complainant either by Insurance Company or the Investigator. Although there is no prohibition under Insurance Act, 1938 for appointment of second surveyor by Insurance Company but while doing so, Insurance Company has to give cogent and sufficient reasons for disagreeing with findings of first surveyor."
21. In Salem Textiles Ltd. Vs. United India Insurance Co. Ltd. , II (2013) CPJ 444 (NC), Hon'ble National Commission has observed that "There is no provision in Insurance Act to appoint second surveyor or an unlicensed investigator. Investigator can be appointed only if claim is found to be fraudulent."
22. Looking to the above cited judgments, it appears that there is no provision for appointment of second Surveyor by Insurance Company but while doing so, the Insurance Company has to give cogent and sufficient reasons for disagreeing with the findings of the first surveyor.
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23. Now we shall examine whether the O.P. has rightly took assistance of Second Surveyor Utkarsh Shingvekar for reassessment of the loss initially assessed by P.S. Ramnathan, Surveyor and Loss Assessor ?
24. The O.P. did not plead that Utkarsh Shingvekar was appointed only for giving clarification. Before appointing Utkarsh Shingvekar as Second Surveyor, the intimation in this regard was not given by the O.P. to the complainant, even permission was not obtained by the O.P. from Insurance Regulatory and Development Authority. No cogent and sufficient reason for disagreeing with the findings of the first Surveyor has been given by the O.P.
25. On behalf of the O.P., it has been stated that the first Surveyor P.S. Ramnathan did not compute under insurance and the assessment made by the first Surveyor is incomplete. Learned counsel for the O.P. drew our attention to internal page 6 of the Survey Report towards Summary of Loss Assessment, in which it is mentioned "Rs. to be computed". It shows that the Surveyor had not actually assessed the loss and only estimated loss was assessed by him.
26. So far as under insurance is concerned, In Sikka Papers Limited Vs. National Insurance Company Limited & Others, (Supra), Hon'ble Supreme Court has that observed that "if the sum assured is less than amount required to be insured than insurer will pay in such proportion as sum insured bears to amount insured."
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27. It appears that initially P.S. Ramnathan conducted survey and gave his report in which he mentioned that "the Preliminary survey was carried out at Wind farm site and by us at the repairer's shop and again wind farm site." P.S. Ramnathan gave detailed report in which he assessed the loss to the tune of Rs.34,95,635/-. On the contrary Utkarsh Shingvekar, Surveyor also gave his report and he mentioned that "Hence the under insurance factor is calculated as :-
2,78,00,000.00 = 0.812"
3,41,99,778.00
Thereafter Utkarsh Shingvekar assessed the loss to the tune of
Rs.16,37,836/-, but Utkarsh Shingvekar did not give any cogent
reasons regarding calculation and deduction made under the head
"under insurance". The complainant obtained insurance policy from
the O.P. and certainly the policy was issued by the O.P after
verification / inspection of the insured property. The sum assured was fixed as Rs.2,78,00,000/-, therefore, it cannot be held that there is any under insurance, hence, the deduction made by Utkarsh Shingwekar in the head "under insurance" is not acceptable.
28. P.S. Ramnathan, Surveyor assessed loss to the tune of Rs.34,95,635/-, but he did not deduct depreciation amount. Utkarsh Shingvekar, deducted depreciation of Rs.10,26,548/-, description of which is mentioned as below :-
// 23 // S.No. Description Invoice No. Amount Less : Depreciation @ 15% 10,26,548.00 per year for 3 years., hence 45% applicable on S.No.1, i.e. on Rs.22,81,219 The deduction made by Utkarsh Shingvekar towards depreciation is acceptable, but rest of the deductions made by him is not acceptable. Regarding rest of the assessment, report given by P.S. Ramnathan, Surveyor is reliable, therefore, the complainant is not entitled for compensation of Rs.34,75,632/- but he is entitled to get compensation from the O.P. to the tune of Rs.23,79,404/-.
29. P.S. Ramnathan, Surveyor & Loss Assessor, gave details in his Survey Report, but Utkarsh Shingvekar deducted depreciation @ 45% on Rs.22,81,219 i.e. Rs.10,26,548/-, only this deduction is acceptable. The depreciation deducted by Utkarsh Shingvekar is acceptable. Rest of the deduction made by Utkarsh Shingvekar, is not acceptable. According to Utkarsh Shingvekar, assessed loss is Rs.23,79,404/- and he wrongly assessed the amount payable Rs.16,37,836/-. P.S. Ramnathan, Surveyor did not deduct the above amount, therefore, the complainant is not entitled to get Rs.34,75,635/-, as assessed by P.S. Ramnathan, but the complainant is entitled for Rs.23,79,404/-.
30. Therefore, the complaint filed by the complainant is partly allowed and it is directed that :-
(i) The O.P. will pay a sum of Rs.23,79,404/- (Rupees Twenty Three Lakhs Seventy Nine Thousand Four Hundred // 24 // Four) to the complainant within 45 days from the date of this order.
(ii) The O.P. will also pay interest @ 9% p.a. on Rs.23,79,404/- from the date of filing of the complaint i.e. 02.01.2017 till realization.
(iii) The O.P. will also pay a sum of Rs.10,000/- (Rupees Ten Thousand) to the complainant towards cost of litigation.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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