State Consumer Disputes Redressal Commission
Jay Durga Traders vs The Oriental Insurance Co. Ltd. on 29 August, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/77/2014 ( Date of Filing : 31 Mar 2014 ) 1. Jay Durga Traders Represented by its Prop. Mr. Pawan Kumar More, 14A, Clive Row, P.S. Hare Street, Kolkata-700 001 & previously at 40, Strand Road, 4th Floor, Room No.18A, Kolkata-700 001. ...........Complainant(s) Versus 1. The Oriental Insurance Co. Ltd. Kolkata Divisional Office 5, Room no.33, Stephen House, 2nd floor, 4,B.B.D. Bag(East), Kolkata-700 001. 2. The Senior Divisional Manager, The Oriental Insurance Co. Ltd. Kolkata Divisional Office 5, Room no.33, Stephen House, 2nd floor, 4,B.B.D. Bag(East), Kolkata-700 001. ............Opp.Party(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Complainant: Mr. Rahul Agarwal. Ms. Soni Ojha. , Advocate For the Opp. Party: Mr. Kamal Krishna Das., Advocate Dated : 29 Aug 2018 Final Order / Judgement Sri Shyamal Gupta, Member
This complaint case is filed by M/s Jay Durga Traders against the Oriental Insurance Co. Ltd. & Others alleging unsatisfactory settlement of its claim.
In short, case of the Complainant is that, it took an insurance policy, namely, Standard Fire and Special Perils Policy from the OPs. During the currency of said policy, an incident of fire took place at its godown causing immense loss to it. The loss was assessed by the Complainant at Rs. 2,93,15,891/-. The OPs deputed a Surveyor to assess the loss. After sitting tight over its claim for long, the OPs offered to settle the claim by paying a sum of Rs. 2,06,61,278/-. In view of poor financial health of the company, the Complainant was compelled to accept the said sum. It is alleged that despite repeated requests, the OPs did not provide a copy of survey report or the computation made by the Chartered Accountant to whom the matter was referred to by the OPs. Smelling rat over stubborn refusal of the OPs to part with the said documents, this complaint case is filed.
On notice, the OPs turned up and contested the case by filing WV, wherein they denied all the material allegation of the complaint. It is submitted by them that after voluntary executing the discharge voucher, the Complainant could not claim further amount. It is further submitted that after examining the survey report and in terms of the opinion of the Chartered Accountant, the instant claim of the Complainant was settled by paying Rs. 2,06,61,278/-.
Decision with reasons Be it mentioned here that besides submitting WV, the OPs also filed Affidavit-on-Evidence, questionnaire in respect of the evidence of the Complainant and reply to the questionnaire of the Complainant. However, at the time of hearing, the OPs remained absent. Accordingly, the case was heard ex parte.
Besides hearing the Ld. Advocate for the Complainant, we have also gone through the documents on record carefully.
It appears from the photocopy of survey report on record that the Surveyor deputed by the OPs, after thorough scrutiny, including personal visit to the site, figured out the loss at Rs. 2,57,77,246.00. As against this, the OPs paid a sum of Rs. 2,06,61,278/- banking on the value reassessed by one Sri Subrata Bose, Chartered Accountant.
It is, however, not understood, what prompted the OPs to refer the matter to the concerned Chartered Accountant. In fact, it transpires from the copy of Chartered Accountant's report that, he too reassessed the value of loss at Rs. 2,47,35,235/- and from the said value, the OPs deducted Rs. 40,73,957/- on different pretexts without explaining the rationale of doing so. In any case, on closer scrutiny of such deduction, we notice several inconsistencies, e.g., OPs deducted a sum of Rs. 24,74,523/- for non-submission of valid licence, agreement with Kolkata Port Trust and Salvage; but under which clause of the policy such deduction was made, OPs did not disclose the same.
Again, it appears from the survey report that the Surveyor did not recommend any deduction applying average clause. However, applying said clause, the Insurance Company deducted a sum of Rs. 15,97,363/-.
It is though claimed by the OPs in their WV that they offered the settlement sum based on the value assessed by the Surveyor, on a comparison of the survey report vis-à-vis brief calculation given in the WV, we find that although the Surveyor assessed the 'total value of stock at affected location' as Rs. 3,13,56,373.06, in their calculation, the OPs considered the said value as Rs. 3,04,87,552/-.
The OPs though got the valuation reassessed through a Chartered Accountant, it appears that Insurance Company is not permitted to appoint a second Surveyor. Regulation 9 (3) to 9 (6) of the IRDA (Protection of Policyholders Interests) Regulations, 2002 runs as under:
"(3) If an Insurer, on the receipt of a survey report, finds that it is incomplete in any respect, he shall require the surveyor under intimation to the insured, to furnish an additional report on certain specific issues as may be required by the insurer. Such a request may be made by the insurer within 15 days of the receipt of the original survey report. Provided that the facility calling for an additional report by the insurer shall not be resorted to more than once in the case of a claim.
(4) the surveyor on receipt of this communication shall furnish an additional report within three weeks of the date of receipt of communication from the insurer.
(5) On receipt of the survey report or the additional survey report, as the case may be, an insurer shall within a period of 30 days offer a settlement of the claim to the insured. If the insurer, for any reasons to be recorded in writing and communicated to the insured, decides to reject a claim under the policy, it shall do so within a period of 30 days from the receipt of the survey report or the additional survey report, as the case may be.
(6) Upon acceptance of an offer of settlement as stated in sub-regulation (5) by the insured, the payment of the amount due shall be made within 7 days from the date of acceptance of the offer by the insured. In the cases of delay in the payment, the insurer shall be liable to pay interest at a rate which is 2% above the bank rate prevalent at the beginning of the financial year in which the claim is reviewed by it".
in Ravindra Nath Fruit Canning Industry (P) Ltd. vs. Divisional Manager, United India Insurance Co. Ltd., 2006 (1) CPR 270 (NC), the Hon'ble National Commission held thus:
"This Commission has taken a consistent view that under Section 64 UM Insurance Company cannot go on appointing Surveyors one after the other so as to get a tailor made report to the satisfaction of the concerned officers......
Stringent action is provided against surveyor or loss assessor who is guilty of breach of his duties or willfully making of false statement or acting in a fraudulent manner, entailing cancellation of license given to him. There are ten sub-sections of Section 64UM which it would appear prescribe a complete code as to how a surveyor or loss assessor should conduct.....
Scheme of Section 64UM particularly of sub-section (3) and (4) would show that insurer cannot appoint second surveyor just as a matter of course. If the report of the surveyor or loss assessor is not acceptable to the insurer it must specify reasons but it is not free to appoint second surveyor. Appointment by the insurer of a second surveyor itself would be a reflection on the conduct of the first surveyor. Surveyor or loss assessor is duty bound to give a correct report. If the insurer-Insurance Co. finds that surveyor or loss assessor has not considered certain relevant points or has considered irrelevant points or for any other account it has reservation about the report, it can certainly require the surveyor or loss assessor to give his views and then come to its own conclusion, but insurer cannot certainly appoint a second surveyor-cum loss assessor to counter or even contradict or rebut the report of the first surveyor. (emphasis supplied)".
In Oriental Insurance Co. vs. Bhushan Lal Pandita & anr., CIMA No. 65 OF 2001, the Division Bench of Hon'ble High Court of Jammu & Kashmir held thus:
"Assuming what the appellant is contending is correct, still then no interference is called for, in as much as, the report of the second surveyor, in law, could not be looked at by the Commission and, in fact, the Commission has not relied on said report, in as much as, appointment of the second surveyor, without the permission of the Inspector of the Insurance, was contrary to law".
Since the calculation done by Sri Subrata Bose, Chartered Accountant has got no legal footing to stand upon; no cognizance can be taken of the assessment made by him. In our considered opinion, the Complainant justifiably deserves the value assessed by the Surveyor, M/s Absolute Surveyors Pvt. Ltd.
Another issue raked up by the OPs is that after signing the discharge voucher and accepting the money, a claimant cannot stake further claim. We, however, do not think that execution of discharge voucher robs one of due liberty to stake further claim. Mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. Despite execution of the discharge voucher, the consumer may be in position to satisfy the Tribunal or the Commission that such discharge voucher or receipt had been obtained under the circumstances which can be termed as fraudulent or exercise of undue influence or by mis-representation. If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, mis-representation, under influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief.
The Complainant, in its petition of complaint vividly explained the circumstances under which it was compelled to execute the discharge voucher by the OPs. It is a statutory obligation of the Insurer to offer a settlement to the Insured within 30 days of receipt of the survey report. As against this, in this case, although the Surveyor prepared his Final Survey Report on 28-09-2011, the OPs offered to settle the claim by paying a sum of Rs. 2,06,61,278/- in September, 2012, i.e., after nearly one year. Clearly, it was purposely done to compel the Complainant to put its signature on the dotted line - a clear instance of exercise of undue influence by the OPs.
In the light of our foregoing discussion, we are inclined to allow this case.
Hence, O R D E R E D The case stands allowed ex parte against the OPs with a cost of Rs. 25,000/- being payable by the OPs to the Complainants. The OPs shall also pay, within 40 days from today, the sum of Rs. 51,15,968/- together with simple interest @ 9% p.a. over the aforesaid sum of Rs. 51,15,968/- from 31-03-2014 till full and final payment is made, i.d, the Complainant may execute this order in accordance with law. [HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER