Adv. For the Complainant: - Sri Bikash Chandra Pradhan and Gour Chandra Naik
Adv. For O.Ps :- Sri Asit Kumar Sarangi
Date of filing of the Case :- 02.02.2023
Date of Order :- 25.08.2023
JUDGMENT
Fact of the case in nutshell-
1. This C.C. No.10 of 2023 arising out of C.C. No.84 of 2014 bearing a new cause of action in disobedience of the order of the Hon’ble SCDRC . Cuttack . The brief history of the case is as follows.
The above named complainant filed C.C. No. 84 of 2014 before this forum and this forum pleased to directed the OP No.1 and 2 to pay a sum of Rs.4,00,000/- only as shift loss in its order
which sustained by the complainant @6% interest per annum from the date of order basing on the order of JMFC Kantabanji, till realization without any demur.
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Aggrieved with the said order the Ops filed F.A No. 375/2016 before the SCDRC. Cuttack , After perusal of the LCR in Para No.11. of the said Judgment . it is stated that “ It is well settled in law that complainant is required to prove the deficiency of service on the part of OP No. 1 & 2 In Para No. 14 it is stated that “ Be that as it may the impugned order which has no leg to stand either on the order of the JMFC or any other criteria to compute the loss as Rs.4,00,000/- has thus no validity from passing order on computation of loss , the matter is clear to show that there should be further assessment of the claim by Op No.1 and 2 as facts of the theft has been proved by the complainant . therefore this commission while affirming the impugned order partly that there is theft but issue as to the computation of lost has to be decided the operative portion is therefore modified by directing Op No. 1 and 2 to compute the loss by engaging another surveyor and the complainant is directed to produce all materials before OP No.1 and 2 , it is further directed that within 30 days from today the complainant produce all the materials before OP No.1 and 2 who shall asses the loss within 30 days from the date of production of the document whatever as already called for earlier should be only produce at a time. After the settlement the amount would be paid to the concerned complainant within 15 days from the date of settlement.
The appeal is partly allowed.
From this Judgment it is crystal clear that the Hon’ble SCDRC give an opportunity to the OP 1 and 2 for settlement of dispute as the surveyor assessed the loss to a tune of Rs.3,548/- and Rs.5,00,000/- by JMFC, Kantabanji.
But the OP No. 1 and 2 did not comply the same nor appoint the 2nd surveyor for assessment of loss rather after the F.A. Order the complainant vide his letter dt.13.01.2022 submitted enclosing all the required documents along with the final order passed in the aforesaid F.A. as per the annexure. Attach there to before the Op No.1 and 2 which was received by them on 17/01/2022 and requested for assessment of loss through 2nd surveyor by taking in to consideration the document attach there to. The Ops vide letter dated 15/02/2022 intimated the complainant relating to re-assessment of loss computed by the 2nd surveyor which comes to the same amount i.e Rs.3,458/-
The complainant being aggrieved to the assessment of loss done by the 2nd surveyor the complainant again constrained to file this case.
2. To substantiate his case the complainant relies on the following documents.
- Xerox copy of the entire case record of GR case No.306/10
- The Judgment Xerox copy of FA/375/2016 of SCDRC, Cuttack.
3. Having gone through the complainant it’s accompanied documents and on hearing the complainant prima facie it seemed to be a genuine case hence admitted and notice to the Ops were served and in response , the Ops No. 1,2 and 3 unable to filed their written version. Sufficient opportunity has been given to the Ops for filing the written version but failed and ultimately the OPS are set ex-parte against the complainant on dt.17/05/2023 after the statutory period was over.
As because the OPS are set ex-parte it is presume that all the allegation made by the complainant against the Ops becomes admitted by the OPS and liable. For any quantum of compensation allowed in favour of the complainant.
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But due to the crucial nature of the case this commission feels and observe that the case should be decided on merit. Therefore here in this case emerged three vital issues which to be answered.
Issue No.1 – whether the Judgment of the learned JMFC Kantabanji is relevant and conclusive ?
Issue No 2 - whether the OPS commit foul play against the complainant amounts to unfair trade practice leads to deficiency in service ?
Issue No.3- Whether the complainant is entitled to any compensation , if so quantum of such compensation ?
Regarding issue No.1 :- The complainant inform the police after occurrence of theft as well as to the insurance company on dt.12/09/2010
The Bangomunda P.S. register the F.I.R vide P.S. case No.95 which turned to GR case No.3060 of 2010 and tried by the learned J.M.F.C Kantabanji after lodging the F.I.R police came to the spot for investigation and found symbol of theft and asses the loss of stolen property value up to Rs.50,000/- in his final form of investigation.
The learned JMFC Kantabanji after taking the statement of the witnesses and the learned. Defence councel submitted Xerox certified copy of the stock statement of Utkal Gramya Bank , who is the financer and OP No.3 in this case came to conclusion the stolen properties approximate value of Rs.5,00,000/- ( Five Lakh) in his order dated 18.03.2016 mention as follows.
“ All the documents show the value of stolen properties Rs.5,00,000/-(Five Lakh) but in col.18 of final form the value of stolen properties mention as Rs.50,000/- (fifty thousand) which is not corresponding to material available on record . so the same value of the stolen properties cannot be accepted . Hence after going through all the material available in the case record it can be arrived that the value of the stolen properties is Rs.5,00,000/- (Five Lakh). Hence accepted the F.F. is true but no clue. Treating the value of the stolen properties as Rs.5,00,000/-(Five Lakh) I.O has warned in future not to do this type of mistake.
From the above fact and circumstances this commission presume that there is a theft which is admitted by the OP No. 1 and 2 also and the value of the property lost is Rs.5,00,000/- as because the order of the learned JMFC Kantabanji is Relevant and conclusive as such the issue No. i answer accordingly.
The issue No. 2:- Is the crux of the case in hand . The complainant after appointment of the 1st surveyor by OP No. 1 and 2 produce many documents as needed by the insurance surveyor such as sale and purchase documents cash memo documents regarding keeping gold ornaments purchased from the local people the monthly statement more over in order of the JMFC stated about the Xerox copy of the
Stock statement of the Financing Bank (Utkal Gramya Bank) after above document needed for stock verification how the first surveyor assessed the loss to a tune of Rs.3,458/- is a question mark to his independentness , where as the I.O of police assessed the loss up to a tune of Rs.50,000/- however
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after the F.A. order passed by the Hon’ble SCDRC directed the Ops to appoint 2nd surveyor for assessment and the 2nd surveyor also given the same report up to loss a tune of Rs.3,458/- biast by the Ops gave such a fractious , baseless report .It is pertinent to mention here that the loss always asses from the actual loss sustained by the complainant.
Insurance contract is a contract of indemnity , where the happening of the event is uncertain . It is the principle of law that “Insurance contract is to be construed harmoniously by reading the contract in its entirely If after that no clarity emerges then the term must be interpreted in favor of the insured CPR 2022 S.C. page 188”.
In this case the complainant inform the insurance without any delay to collect the information about the incident and it is mandatory for the part of the Ops to appoint a surveyor to ascertain the loss.
Whether the surveyor report U/S 64 of UM of insurance act 1938 is an essential requirement in finalizing the quantum of compensation ?
The Hon’ble S.C in New India Assurance co ltd. V.S Pradeep Kumar 2009 7 SCC 787 has held that “The assessment of loss by the approved surveyor is a pre requisite for payment of settlement of claim . But surveyor report is not last and final ward it is not that sacrosanct that it cannot be departed from”.
Hon’ble NCDRC ,Delhi Royal Sundaram Alliance Insurance co Ltd. v .S.K Samantha & co.ltd. Rev. petition n0. 3770 of 2013 against the order dated 05/09/2013 in appeal no. 220/2012 of the state commission W. Bengel decided on 27.02.20-3 held that,
1 surveyor - surveyor are appointed by the insurance company and they work strictly as per the direction given and mandate assigned to them by the insurance companies.
2- Independent mind – surveyor is required to apply its own independent mind for assessing the loss suffered by an insured but in all probabilities it cannot be accepted that the surveyor would take the said action without obtaining instructions in this behalf from the insurance company concerned surveyor is an independent body as per guideline of IRDA. He should not biast by the insurance company. In this case the assessment of the loss by the first surveyor copied by the 2nd surveyor without utilizing his independent mind which is not only unreasonable but also a deceptive trade practice. Which amount to deficiency of service . as such the issue no.2 answer accordingly.
More over The S.C in Charan Singh Vs. Hill touch Hospital & ors(2000) 7 Scc 668 held “while quantifying damage consumer forum are required to make an attempt to serve the ends of Justice so that compensation is awarded in an established case , which not only serves the purpose of compensating the individual but which also act the same time aims to bring about a qualitative change in the attitude of the service provider indeed calculate of damages depend on the facts and circumstances of each case, No hard and first rule can be laid down for universal application while awarding compensation . The consumer forum has to take in to account all relevant factor and asses the compensation on the basis of accepted legal principle on moderation. It is for the consumer forum to
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grant compensation to the extent it find it reasonable fair and proper in the fact and circumstances of a given case according to the establish Judicial standards , when the claimants is able to establish his charge”.
The issue No. 3:- In view of the above fact and finding in issue No.1 and 2 we are of the considered view that the policy was in coverage period, the insured amount was Rs.4,00,000/- the OPs failed to establish his credential within the time bound and set ex-parte against the complainant the complainant deserves the remedies in the shape of quantum of compensation awarded also on merit of the case , with the following directions.
ORDER
The OP No.1 and 2 are directed to pay a sum of Rs.4,00,000/- @ 9% interest per annum from the date of order of F.A.375/2016, and Rs.1,00,000/- towards mental agony and Rs.10,000/- towards litigation expenses, within one month from the date of order failing which the entire amount should be paid by the OP No.1 and 2 @12% per annum from the date of order of F.A. 375/2016 till realization.
No award as to cost.
PRONOUNCED IN THE OPEN COMMISSION TODAY I.E DATED 25th DAY OF August’2023.
Sd/- Sd/
(J.MISHRA) (R.K.TRIPATHY)
MEMBER. PRESIDENT(I/C)
