National Consumer Disputes Redressal
M/S Remo Syntha Resech & Chem(P) Ltd. vs The National Insurance Co. Ltd. on 14 December, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 179 OF 2003 1. M/S REMO SYNTHA RESECH & CHEM(P) LTD. 15,ACHARYA SHOPPING CENTER,DR. CHOITTHRAM GIDWANI MARG NEAR BASANT TALKIES, CHEMBUR MUMBAI-400074 ...........Complainant(s) Versus 1. THE NATIONAL INSURANCE CO. LTD. DIVISION -1 STERLING CINEMA BUILDING ,65TH ,6TH FLOOR MURZBAN ROAD ,FORT MUMBAI 400001 ...........Opp.Party(s)
BEFORE: HON'BLE MRS. REKHA GUPTA,PRESIDING MEMBER
For the Complainant : K.P.S. RAO For the Opp.Party : PANKAJ BALA VERMA
Dated : 14 Dec 2017 ORDER
REKHA GUPTA, PRESIDING MEMBER
The instant complaint has been filed by the complainant-company (M/s Remo-Synth Resins and Chemicals Pvt. Ltd.) alleging deficiency in services on the part of the opposite party - insurance company for not settling the insurance claim of the complainant.
2. Briefly put the facts relevant for the disposal of the present consumer complaint are that the complainant was a manufacturer of synthetic resin, oils, chemicals, etc. For the insurance of their premises, stocks, machines, etc., the complainant had obtained a Fire Policy 'C' bearing no. 260100/11/96/31/00241 from the opposite party for a total sum of Rs.50,00,000/- by paying Rs.32,813/- as premium amount. The insurance policy was valid with effect from 05.12.1996 to 04.12.1997. During the currency of the policy, on 28.11.1997 at about 3.30 a m a fire broke out in the factory premises of the complainant. Fire brigade was informed and the fire was extinguished. The complainant had lodged a FIR in this regard to Taloja police station and had also given a written intimation of the said incident to the opposite party by a fax message on 28.11.1997, along with the statement of loss suffered by the complainant for a sum of Rs.29,17,750/- asking them to appoint insurance surveyors and valuers.
3. After the receipt of the letter dated 29.11.1997 by which the loss was intimated in writing, the opposite party appointed M/s M S Tamhane Consulting Engineer, surveyor for assessment of loss, who along with their team of engineers visited the complainant's factory premises on 03.12.1997. On the same day, the complainant was asked by the said surveyor to produce certain documents such as (1) statement of occurrence, (2) Fire Brigade Report, (3) Police Report (4) Claim Bill giving details of quantity rate, along with proper bills, (5) Report of Machinery damages with quotations of repairs, (6) original bills of machinery purchased, (7) note on the company giving details of inception, business and type of company and the number of employees, (8) sales turnover (9) rent receipt of premises, (10) plan layout, (11) electricity bills, (12) balance sheet and profit and loss account of last financial years (13) photographs, etc. and other relevant documents, more particularly described in the letter no. MST/02/F/NIC/1/97 dated 03.12.1997. After receipt of the letter the complainant submitted all the desired documents to Mr Tamhane.
4. Thereafter, the complainant received a letter from M/s Bhatawadekar and Company claiming that they have been appointed as surveyors. Since no such information had been received from the opposite party they were asked to get a letter from the opposite party. The opposite party vide letter dated 31.12.1997 appointed M/s Bhatawadekar as second surveyor and sought cooperation and submission of all the relevant documents again from the complainant. On enquiry, the opposite party informed that Mr Tamhane had only been appointed as a preliminary surveyor.
5. Thereafter, Mr Tamhane after verification of all the documents submitted its report dated 15.08.1998. With regard to the occurrence, it was mentioned that the material in process caught fire due to chemical reaction and thereafter the factory premises got affected. The surveyors further observed that the insured was maintaining all records systematically and the same was submitted before them for inspection. The surveyors calculated the value of stock at Rs.25,00,000/- and after considering all the relevant aspects, assessed the net loss to the tune of Rs.24,15,150/-, which included the loss of machinery and accessories. The surveyor in its report had observed as under:-
"We have verified the stock statement, purchase bills and all the records and statements submitted by the insured. To the best of our knowledge, no breach of policy conditions/ warranties was observed.
The loss as assessed has been specifically caused by the insured peril, i.e. fire and does not fall under any exclusion.
We had given the samples for damaged goods for testing purpose to the U.D.C.T., Mumbai. The results clearly show that the material cannot be reused in the process.
Issued without prejudice to the rights of the insurer subject to the terms, conditions and warranties of the policy issued.
6. Despite this, the Insurance Company repudiated the claim vide letter dated 28.11.2000 on the ground that the insured had not cooperated with the second surveyor - M/s Bhatawedkar & Company. It was also stated that the report submitted by M/s M S Tamhane was not acceptable to the Insurance Company, further, he had refused to hand over the relevant papers to M/s Bhatawadekar & Company and had issued the report on his own. It was stated that as per condition no. 6 of the Fire Policy "C", bearing number 260100/11/96/31/00241 cooperation of the insured with the Insurance Company and complying with the requirements is a condition precedent to the acceptance of liability and since that condition was not followed, no claim was payable. Hence, the claim was repudiated.
7. Being aggrieved by the aforesaid repudiation, the complainant has filed instant consumer complaint against the opposite party with the following prayers:
"(a) direct the respondent to pay a sum of Rs.29,17,750/- together with interest @ 18% p.a. from 28.11.1997 till the payment to the complainant;
direct the respondent to pay compensation ofRs.5,00,000/- towards mental agony and compensation;
award cost of the complaint;"
8. The opposite party by filing their written version resisted the complaint and raised various preliminary objections. It was contended by the opposite party that the complaint is time barred under section 24 A of the Consumer Protection Act, 1986, as the claim of the complainant was repudiated on 28.11.2000 and the instant consumer complaint was filed in 2003, after a delay of more than two years from the said date. It was further contended by the opposite party that the complainant vide letter dated 02.12.1997 (whereas in the annexure the date is mentioned as 29.11.1997) , enhanced their original estimate of loss toRs.24,00,000/- to Rs.28,00,000/- from the earlier intimated amount of Rs.10,00,000/-. In the meantime, Mr Tamhane, surveyor had issued a preliminary survey report wherein the loss was estimated at Rs.14,00,000/-. The insurance company then appointed M/s Bhatawadekar & Company on 17.12.1997 as final surveyor, on the recommendation of the competent authority due to the fact that the revised estimated loss was beyond the financial authority of Sr. Divisional Manager of the insurance company. As per condition no. 6 of the policy, the complainant was required to keep the damaged stocks, machinery, etc. for assessment of losses. However, since the complainant had failed to do the needful, as they had started the renovation work, before the final survey could be done by M/s Bhatawadekar & Co. - the final surveyor had informed the Insurance Company vide letter dated 15.04.1998 to close the file as 'No Claim'.
9. It was further contended by the opposite party that the claim file was closed due to non-cooperation by the complainant. The complaint filed by the complainant was time barred, false and vexatious and the same did not disclose any deficiency in services on the part of the opposite party and therefore it was liable to be dismissed with costs.
10. I have heard the learned counsel for the parties. Learned counsel for the complainant has contended that the claim of the complainant was repudiated on 20.11.2000 and as per the stamp of the Registry of this Commission, the complainant has stated that the complaint was filed in person on 04.10.2000 which was well within the limit of two years from the date of repudiation. As per the repudiation letter the claim had been repudiated because of non-cooperation by the complainant due to which M/s Bhatawadekar and Company were not allowed to assess the loss and give its report. Counsel for the complainant states that at the first instance M/s M S Tamhane and Co., had been appointed as a surveyor and all the documents as asked for had been made available to Mr Tamhane. Thereafter, all the documents as asked for were also made available to M/s Bhatawadekar and Co. As per the letter dated 25.12.1998, M/s Bhatawadekar and Company, the second surveyor had asked for the following documents:
Copy of annual accounts for 1995-96 and 1996-97;
Stock register for raw material, WIP and finished goods;
List of stocks as on the date of loss;
List of damaged stocks;
Supporting documents for valuation of stocks;
Copies of reports from authorities;
Copies of statement of stock submitted to bank for four months prior to the date of fire;
List of machinery with details regarding year and cost of purchase;
Copies of bills in support of repairs to machinery;
Claim bill; and Copy of policy (full set)
11. In their own letter dated 06.02.1999 M/s Bhatawadekar and Co., have acknowledged the receipt of all the documents except the supporting documents for valuation of stocks and the claim bill. The counsel for the complainant states that without the claim bill, the surveyor could not have been appointed hence, this was obviously a wrong statement. He further claimed that all the supporting documents for valuation of stocks were also made available. The claim was repudiated three years after the fire incident had occurred during which time the complainant has been harassed by the opposite party and the second surveyor. He has also contended that Mr Tamhane was appointed to do a detailed survey on 03.12.1997. Soon after on 18.12.1997, the opposite party had appointed M/s Bhatawadekar and Company for the final survey. This was done on the pretext that earlier the opposite party had been informed that the loss was Rs.10 lakh and later on it came to know that the loss was above Rs.20 lakh. Realizing that this was beyond the financial powers of the Divisional Officer, M/s Bhatawadekar and Company had been appointed for final survey by making a reference to the Regional Office. However, Shri K P S Rao learned counsel for the complainant contended that this was untrue. It is apparent from the letters addressed to the complainant that M/s Bhatawadekar and Company was also appointed by the Divisional Office and not by the Regional Office. He further contended that as far as back on 28.11.1997, the complainant had informed the opposite party that the loss was likely above Rs.20 lakh. The increase value of loss was seized as a pretext by the opposite party to appoint the second surveyor. He further stated that Mr Tamhane in his report dated 15.08.1998 had assessed the loss at Rs.24,15,150/-.
12. Learned counsel for the opposite party Ms Pankaj Bala Verma, on the other hand, contended that the opposite party had sent the intimation of fire vide letter dated 28.11.1997 which was received on 02.12.1997. She further contended that the complaint should be dismissed on the preliminary objections of limitation as the complaint was filed much after the cause of action, i.e., the fire took place on 28.11.1997.
13. She further contended that the OP had informed that the loss was likely to be Rs.10 lakh so Mr Tamhane was appointed. Later on realizing that the loss is likely to be above Rs.20 lakh, as the Divisional Manager did not have the financial authority beyond Rs.15 lakh, the second surveyor was appointed by the Regional Office for the final survey. She admitted that there was no document or evidence to show that the loss had been intimated as Rs.10 lakh by the complainant but said it was so intimated during the course of a telephonic call to the Divisional Office.
14. Vide order dated 03.02.2016 the OP had been directed to produce the official file vide in which the claim of the insured was dealt with. The said file was not produced. On 16.08.2016, the file was produced but she had informed that there are no specific orders relating to the appointment of second surveyor in the file. The OP was then directed to file an affidavit of the Regional Manager of the Company to state the reasons why the second surveyor was appointed and whether on his appointment any communication had been sent to the first surveyor to stop his survey. Learned counsel for the opposite party drew my attention to the affidavit filed on 23.01.2017. The said affidavit reads as under:
"3. Vide letter dated 28.11.1997 the petitioner had informed our Divisional office regarding occurrence of fire at his Taloja factory and requested for appointment of surveyor. Our Divisional office had appointed M/s M S Tamhane as surveyor, who had visited the site on 03.12.1997 and requested the petitioner to furnish the documents pertaining to the subject claim. The said surveyor informed the Divisional Office that the estimate of loss (on the basis of verbal enquiry from the petitioner) would be about Rs.14 lakh as against the estimate of Rs.10 lakh given by the petitioner earlier.
6. Vide fax dated 31.12.1997 petitioner had indicated that the loss estimate would be Rs.29 lakh approximately. Again, vide letter dated 01.01.1998 in reply to petitioner's letter dated 31.12.1997 they were informed that M/s M S Tamhane was appointed to conduct preliminary survey on the basis of estimate initially furnished by him and that M/s Bhatwadekar and Co. was appointed to conduct final survey ( in view of the revision of estimate).
7. Appointment of M/s Bhatwadekar and Co. was done considering the quantum of the claim and as per rules and procedures. Therefore, the petitioner was requested to extend all cooperation to M/s Bhatwadekar and Co. to enable him to complete his assignment and issue his report at the earliest.
9. On appointment of M/s Bhatwadekar and Co. for conducting final survey, letters dated 18.12.1997(copy), 31.12.1997 and 01.01.1998 were sent to the claimants, specifically mentioning that M/s Bharwadekar and Co. were appointed to conduct final survey. In view of this, no separate communication was sent to earlier appointed surveyor Mr Tamahne."
15. I have heard the counsel for the parties and have carefully gone through the documents on file.
16. The opposite party has not filed the preliminary report of Mr Tamhane assessing the loss at Rs.14 lakh. It is also quite apparent from the above affidavit that when M/s Bhatawadekar & Company were appointed M/s Tamhane was neither kept informed nor was he asked to stop his survey and hand over the records and documents filed by the complainant to the second surveyor.
17. I also find that, the complaint has been filed within the period of limitation as the claim was repudiated on 20.11.2000 and the complaint was received in this Commission as per the stamp of the Registry on 04.10.2002.
18. Vide letter dated 28.11.1997 the complainant had informed the opposite party about the fire. This has been admitted by the opposite party that the said intimation was received on 02.12.1997. Along with the said intimation was the statement of loss of raw materials, finished goods and packing material for Rs.22.11 lakh, Statement of repair charges for the damaged machinery and accessories at Rs.4.78 lakh and statement of loss of furniture, fitting and laboratory equipment at Rs.2.28 lakh. However, the learned counsel for the opposite party while admitted the receipt of the letter has denied the receipt of the statement of loss dated 28.11.1997. However, learned counsel for the opposite party has admitted the receipt of the letter dated 29.11.197 indicating that the loss was between Rs.25 lakh to Rs.28 lakh. Thereafter, on receipt of intimation and also the estimate, Mr Tamhane was appointed as surveyor. The opposite party contends that Mr Tamhane had been appointed only for preliminary survey. However, the word 'preliminary' has been added in hand perhaps later as also asking him to give the survey report within 'seven days'.
19. Mr M S Tamhane, vide letter dated 03.12.1997 had asked for the following documents:
Statement of occurrence Fire brigade report Police report Claim bill giving details of quantity, rate, etc., supported with proper bills Report of machinery damaged with quotations of repairs Original bills of machinery purchase Note of your company giving details of inception, business, type of company, number of employee Sales turn over Rent receipts of premises Plan lay out Electricity Bills Balance sheet and profit and loss account of the last financial year Two sets of photographs
20. Thereafter vide letter dated 01.01.1998 the complainant was informed that Mr Tamhane had been appointed to conduct the preliminary survey and M/s Bhatawadekar and Co., had been appointed to conduct the final survey.
21. I find that as per record, even after the appointment of M/s Bhatawadekar and Company, Mr Tamhane was not asked to stop his survey and he gave his final report on 15.08.1998. As per the same his instruction from the opposite party was to conduct a detailed survey and assessment of the reported fire damages in the factory premises. He has also recorded that the representative of the insured gave every assistance throughout the survey. He further recorded that the insured maintained all the records systematically and the records asked for had been submitted for his perusal. Mr Tamhane has further recorded as under:
"The total stocks in the premises were checked and the detailed loss was prepared.
The stocks were calculated for Rs.25,00,000/- as per the detailed loss submitted by the insured.
The insured is a regular assesse under Income Tax. All the records were checked and the copy of the profit and loss account has been obtained from the office of the Tax Consultant which has been checked by us. We attach herewith the requisite balance sheet.
The stock tallies fairly with the physical stocks as checked by us after the loss.
The following papers have been submitted by the insured which have been checked by us:
State of loss of stocks;
Statement of repairs of damaged machinery;
Statement of repairing of furniture and fixture and electronic items;
Purchase bills;
Sales bills;
Bank statements;
< > Quotation of machinery repair Quotation of furniture < >The machinery damages have been checked at the site and as advised by us the insured has submitted the estimate for the machinery repairs and the replacement of damaged parts."
22. After a detailed analysis of the loss based on physical verification and based on the records Mr Tamhane then assessed the loss at Rs.24,15,150/-. He further recorded as under:
"We have verified the stock statement, purchase bills and all the records and statement submitted by the insured. To the best of our knowledge, no breach of policy conditions/ warranties were observed.
The loss as assessed has been specifically caused by the insured peril, i.e., fire and does not fall under any exclusion.
We have given the samples for damaged goods for testing purpose to the UDCT Mumbai. The results clearly show that the material cannot be reused in the process."
23. The opposite party sent a letter dated 01.01.1998 stating as under:
"Kind attention - Mr Kalwani, Managing Director Dear Sirs, Re: Fire at Taloja Factory on 28.11.1997 Our claim no. 260100/97/31/0008 We write in reference to your fax letter reference: RMC/BSBK/SP/NICL/97 dated 31.12.1997 in connection with the above and would like to inform you that initially when the loss was reported, M/s M S Tamhane was appointed to conduct the preliminary survey.
As already informed to you, M/s Bhatawadekar and Co. was appointed by us to conduct the final survey and, therefore, you are requested to extend all the necessary cooperation to the surveyor t enable him to assess the loss. Your cooperation will also help us in settling the claim at the earliest".
24. It would appear that in parallel the second surveyor was also conducting a survey. Even before the receipt of the report of Mr Tamhane, the opposite party gave the following communication vide letter dated 29.05.1998 to the complainant which reads as under:
"Kind attention - Mr Kalvani - Managing Director Dear Sirs Re. Fire at Taloja Factory on 28.11.1997 Claim no. 260100/97/31/31/0008 Policy no. 260100/11/97/3100241 We refer to the above claim and observe that you have not been co-operating with the final surveyor M/s Bhatawadekar and Co. Immediately when they came to carry out the survey, thereby the survey has been delayed considerably.
Because of your non-cooperation with the surveyor a period of six months has lapsed without carrying out any survey and surveyor has expressed his inability to carry out the survey at this late stage.
Under the circumstances, please not that we are treating the claim as closed as per the terms and conditions of the policy".
25. Thereafter, the claim was repudiated by the opposite party vide their letter dated 28th November 2000. The reasons given are as under:
< > Meanwhile, Mr Tamhane had given his survey report assessing the loss at Rs.24,15,150/-. However, Mr Tamhane's report is not acceptable to us as he had refused to hand over the relevant papers to M/s Bhatawadekar and Co. and went ahead and issued the report on his own. The last paragraph of Mr Tamhane's report mentions that he has issued the report without prejudice to the rights of the insurers and subject to the terms, conditions and warranties of the policy issued. Therefore, you cannot force the insurance company to go by Mr Tamhane's report, as he has only given his assessment and it is not legally binding on us to settle the loss as per his assessment.
For first claim exceeding Rs.10 lakh, Regional Manager, is the competent authority for appointing surveyors. M/s Bhatawadekar and Co was duly appointed by him since you revised your original estimate of loss from Rs.10 lakh to rs.14 lakh and subsequently to Rs.29 lakh. None of the documents required by the surveyor. M/s Bhatawadekar and Co. was made available to him and he was also presented from physically assessing the loss.The damaged stock, machinery, etc., were not even shown to him. At no point of time did not we authorize you to destroy the damaged stock, machinery, etc., Therefore, he was forced to issue his final survey report dated 25.09.2000 expressing his helplessness in assessing the loss in the absence of your cooperation.
You are aware that as per condition no. 6 of the Fire Policy 'C' bearing number 260100/11/96/31/00241 issued to you, cooperation of the insured with the insurance company and complying with the requirements is a condition precedent to acceptance of liability. This condition very clearly states that 'no claim under the policy shall be payable unless the terms of these conditions have been complied with".
Therefore, we have no other alternative but to repudiate your claim and close the claim-file as "no claim".
26. This appears to be based on the letter of the second surveyor who informed vide letter dated 01.05.1998 as under:
"Kind attention : Mr S G Puthran, Senior Division Manager Dear Sirs, Re; Remo Synth Resins and Chemicals Pvt Ltd., -
Claim no. 260100/97/31/0008.
As you are aware we were entrusted survey job of the aforementioned insured. Till today the insured has not allowed us to inspect the damages caused by fire at their factory on 28.11.1997;
We would like to invite your attention to our previous correspondence with the insured wherein we have tried our level best to gather details but have failed;
In response to our letter dated 15.04.1998, we have received letter dated 27.04.1998 from the insured, a copy of which is enclosed for your perusal;
We have come to a conclusion that any inspection at this stage will not enable determine the exact nature and extent of damages suffered by the insured and hence would like to withdraw.
The inconvenience caused to you, if any, is regretted."
27. It is indeed surprising to note that while the second surveyor complained about non-cooperation from the complainants but they were not specific in recording that cooperation that was not forthcoming. Admittedly both the surveyors had been appointed by the opposite party and I fail to understand as to why the opposite party had failed to issue directions to both the surveyors appointed by them to cooperate with each other in the assessment of loss of the complainant. The opposite party had unleashed two surveyors on the complainant at the same time, both of them were asking for records and inspection. The first surveyor was not informed to cease his survey on appointment of the second surveyor. Further, there was no direction to either surveyor to share records and documents given by the complainant both to the first and the second surveyor. It is also apparent from the record that Mr Tamhane had inspected the factory premises in time and also got the samples for the damaged goods tested. Hence, closing the claim in May 1998 and repudiating the claim in November 2000 on the recommendations of the second surveyor based on this conclusion of M/s Bhatawadekar and Co. that inspection at this stage could not determine the extent of damage suffered by the insured does not appear to be just and fair.
28. The second surveyor after threatening that the complainant that his claim would be dismissed as 'no claim', then informed the opposite party that he would like to withdraw from the assignment given to him. He had at no stage given any survey report based on the records and documents made available.
29. In the repudiation letter dated 28.11.2000 the opposite party has admitted that Mr Tamhane gave the survey report assessing the loss at Rs.24,15,150/-. However, further stated the said report was not acceptable as he refused to hand over the relevant papers but went on and issued the report on his own. The opposite party has failed to give the detailed reasons for non-acceptability of the report from Mr Tamhane as also not specify the basis for alleging that Mr Tamhane refused to cooperate and hand over the records to the second surveyor. The opposite party has not placed on record any directions given to Mr Tamhane for cooperation with the second surveyor M/s Bhatawadekar and Co., and has also not mentioned any instance of non-cooperation from Mr M V Tamhane but kept on blaming the complainant for non-cooperation. The insurance company is hence, guilty of deficiency of service and unfair trade practice as they knew that the loss was likely to be above Rs.20 lakh and yet they first appointed Mr Tamhane and M/s Bhatawadekar and Company the second surveyor. No documents have been placed on record to show that either the complainant or Mr Tamhane had assessed the loss between Rs.10 lakh and Rs.14 lakh and conveyed the same to the opposite party.
30. This Commission vide order dated 12.12.2006 had noted as under:
"The surveyors observed that insured was maintaining all records systematically and the same were submitted before them for inspection. They calculated value of the stock at Rs.25 lakh. After considering all the relevant aspects, the surveyors assessed the loss at Rs.24,15,150/- which includes loss of machinery and accessories. Finally, they had observed as under:
We have verified the stock statement, purchase bills and all the records and statements submitted by the insured. To the best of our knowledge, no breach of policy conditions/ warrantees were observed.
The loss as assessed has been specifically caused by the insured peril, i.e., fire and does not fall under any exclusion.
We have given the samples for damaged goods for testing purpose to the UDCT Mumbai. The results clearly show that the material cannot be reused in the process.
Issued without prejudice to the rights of the insurer subject to the terms, conditions and warranties of the policy issued.
Despite this, the insurance company repudiated the claim by observing that the insured had not cooperated with the second surveyor - M/s Bhatawadekar and Company. It was also stated that the report submitted by M/s M S Tamhane was not acceptable to the insurance company as the complainant had refused to hand over the relevant papers to M/s Bhatawadekar and Company. It was stated that as per condition no. 6 of the fire policy 'C' cooperation of the insured with the insurance company complying with the requirement is a condition precedent to acceptance of liability and since that condition was not followed, no claim was payable. Hence, claim was repudiated.
The complainant had produced on record several correspondence between him and M/s Bhatawadekar which indicate that most of the statements sought by surveyor - M/s Bhatawadekar were given by the complainant. At present, it is not necessary to reproduce the said correspondence.
Further, because of the dispute between the insurance company and its surveyor - M/s Tamhane Consulting Engineers Complainant is not excepted to suffer for years to come. First surveyor has already assessed the loss and there is no allegation against M/s Tamhane Consulting Engineers that they had not acted bonafide. Further, the insurance company has not taken any action against them as provided under sub-Section 64 UM (7).
Considering the fact that accidental fire is not disputed and the loss suffered by the complainant is also no disputed, there is no alternative but to direct the insurance company, by way of interim relief to deposit a sum of Rs.20 lakh with this Commission within a period of six weeks from today. At present the complainant's claim for grant of interest as well as remaining claim is not required to be dealt with.
It would be open to the complainant to withdraw the said amount by furnishing security to the satisfaction of the Joint Registrar of this Commission".
31. To support her contention learned counsel for the opposite party had cited the following citation:
Kandimalla Raghavaiah and Co. vs National Insurance Co. Ltd., and Anr - III (2009) CPJ 75 (SC), wherein it has been correctly mentioned in the said order that the term cause of action is neither defined in the Act nor in the Code of Civil Procedure 1908 but is of wide import. Generally, it is described as bundle of facts which if proved or admitted entitle the plaintiff to the relief prayed for. The cause of action would depend on the facts of each case. The facts of the case cited by the learned counsel for the opposite party are different and not applicable to the facts of the case.
She has also given two citations on limitation and the facts that the second surveyor could be appointed:
Venkateswara Syndicate vs Oriental Insurance Company Ltd., and Anr. - III (2009) CPJ 81 (SC) and M/s Paras Industries vs National Insurance Company Ltd and Anr. (RP no. 1756 of 2012).
The facts of the case are also not applicable to this case.
32. In view of the above, it is obvious that the fire incident is not disputed, loss suffered by the complainant is also not disputed, the claim has been repudiated merely on the fallacious grounds that the complainant and the first surveyor did not cooperate with the second surveyor forcing him to withdraw from the assignment given to him. The opposite party has failed to establish that the complainant did not cooperate with the surveyors appointed by them. They have also not been able to establish that they had directed the first surveyor to cooperate with the second surveyor and hand over the documents and records given to him and that he did not do so. They have stated in a very vague manner that the first surveyor Mr M S Tamhane's report was not acceptable to them without giving any valid reasons for the same.
33. In view of the above, I agree with the earlier order of the National Commission that because of the dispute between the Insurance Company and its surveyor - M/s Tamhane Consulting Engineers, the complainant is not expected to suffer for the same. Hence, the complaint is allowed and the opposite party is directed to pay the complainant an amount of Rs.24,15,150/- as assessed by the first surveyor - Mr M S Tamhane in his report dated 15.08.1998 with interest @ 9% per annum from 01.09.1998 to the date on which the payments are made. As Rs.20,00,000/- has already been paid as interim relief consequent to this Commission's order dated 12.12.2006, the balance amount of Rs.4,15,150/- as also interest of 9% per annum on the entire amount of Rs.24,15,150/- may be also paid to the complainant from 01.09.1998 to the date on which the payments were/ are made to the complainant. Same to be paid within four weeks from the date of this order.
...................... REKHA GUPTA PRESIDING MEMBER