Calcutta High Court (Appellete Side)
In Re.: Md. Hasibur Rahaman vs National Insurance Company on 20 September, 2010
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
. 20.09.10.
n. W. P. No.17495 (W) of 2008.
With
CAN No.7393 of 2010.
In Re.: Md. Hasibur Rahaman. ... Petitioner.
-vs-
National Insurance Company
Limited and Others. ... Respondents.
Mr. L. C. Behani, Mr. N. C. Behani, Ms. Debjani Ghosh Ray.
... for the Applicant/petitioner.
Mr. Rajesh Singh.
... for Insurance Company.
Let affidavit in opposition filed by the respondent no.1 and the reply thereto filed by the petitioner be kept on record.
This writ application is taken up for final disposal with the consent of the parties.
This writ application is directed against a decision of the respondent no.1 to settle the claim of Fire Loss under Policy Nos.15040111063100000578 and 15040148069800000556 by a communication dated February 19, 2008.
The fact of the case in nutshell is this. The petitioner insure his machinery, furniture and fixture, stock of readymade garments and finished goods for an amount of Rs.22,50,000/- with the respondent no.1. During the validity of the insurance policies under reference, a fire took place at the business place of the petitioner on March 14, 2007. According to the petitioner the machinery, furniture and fixture, stock of readymade garments and finished goods were destroyed. The petitioner lodged claim with the respondent no.1. The 2 respondent no.1 engaged a Surveyor for assessment of the loss. On the basis of the recommendation of the Surveyor a pre-receipt voucher of Rs.1,84,750/- dated February 19, 2008 was sent to the petitioner with a forwarding letter for settlement of the claim of the petitioner in full and final settlement of the claim of the petitioner. In spite of repeated requests, the calculation for settlement of the amount was not sent to the petitioner. The petitioner accepted money tendered to him with objection. Hence this writ application. It is submitted on behalf of the petitioner that Insurance Company is not under obligation to act on the dictation of the Surveyor. The Insurance Company has to apply its independent mind on the recommendation of the Surveyor. In view of the above, the decision of the respondent no.1 is liable to be set aside.
It is submitted on behalf of the respondents that according to the petitioner all his documents were destroyed. Therefore, in absence of the documents in support of the claim of the petitioner, the Insurance Company had no other alternative but to depend on the recommendation of the Surveyor.
Having heard the learned Counsel appearing for the respective parties as also considering the facts and circumstances of the case I find that admittedly the insured amount in respect of the two insurance policies in question was Rs.22,50,000/-. Value with regard to the valuation of the machinery, furniture and fixture, stock of readymade garments as also finished goods were disclosed to the respondent no.1.
It is true that the Insurance Company had to take the assistance of a Surveyor for assessment of the loss sustained by the petitioner. But no reason is 3 available on record with regard to the silence of the Insurance company from disclosing the findings of the Surveyor. Unless the findings are made available to the petitioner or before this Court, the Court, in course of judicial review, cannot examine the decision making process of the respondent authority for settling the claim of the petitioner. The decision of the Insurance Company to act on the dictation of the Surveyor cannot be sustained in law because the Insurance Company may take the assistance from a Surveyor but the Insurance Company is under obligation to apply its independent mind after giving reasonable opportunity to the petitioner with regard to the loss sustained by the petitioner.
In view of the above discussions, the impugned decision of the respondent no.1 to settle the claim of the petitioner of fire loss under the policies in question stands quashed and set aside. The respondent authority is directed to take a decision in the matter in the light of the discussions made hereinabove by passing a reasoned order after giving an opportunity to the petitioner to substantiate his claim by producing relevant documents before the authority as also taking into consideration the report of the Surveyor within a period of two months from the date of communication of this order. The respondent authority is further directed to give a copy of the report of the Surveyor to the petitioner before giving such an opportunity of hearing.
I make it clear that I have not entered into the merits of the claim of the petitioner and all points are kept open.
The writ application is, therefore, disposed of.
4The application bearing CAN No.7393 of 2010 stands dismissed.
There will be, however, no order as to costs.
Urgent photostat copy of this order be given to the parties on usual undertaking.
( Debasish Kar Gupta, J. )