Sri Shyamal Gupta, Member

Present Appeal is directed against the Order dated 16-10-2015 passed by the Ld. District Forum, Kolkata – I (North) in C.C. No. 336/2014  whereof the complaint has been allowed.

Case of the Complainant, in short, is that he got his vehicle insured with the OP Insurance Company.  On 26-08-2013, the said vehicle was placed before the OP No. 2 for routine maintenance and check-up service and after doing necessary mechanical repair, the OP No. 2 delivered the vehicle to the Complainant.  The said vehicle met with a road accident on 26-10-2013.  Consequently, the said vehicle was sent to the servicing centre of the OP No. 2.  The matter was also informed to the OP Insurance Company.  On the basis of said information, the Insurance Company deputed a Surveyor, who carried out due inspection, albeit belatedly.  On 12-12-2013, the concerned Surveyor sent an e-mail to the Complainant stating that during inspection, he did not find any trace of water inside the engine assembly.  He further opined that due to internal mechanical breakdown/failure, the engine block got broken which was not covered under the policy.  However, front bumper, condenser, intercooler etc. sustained damages being accidental external means was covered under the policy concerned.  On receipt of said mail, the Complainant immediately sent a decent reply/clarification to the OP Insurance Company.  Since even after the lapse of considerable period of time, the OP Insurance Company did not settle his claim, the Complainant was compelled to file the instant complaint.

OP No. 1,  by submitting a WV, stated that the Surveyor, while conducting survey, did not notice any trace of water inside the engine assembly and further noticed that due to internal mechanical breakdown/failure, engine block got broken.  This was not covered under the policy in question.  However, damage to the front bumper, condenser, intercooler etc., according to the Surveyor, was covered under the policy in question and as such, the Surveyor assessed the loss at Rs. 30,800/-.  The report of the Surveyor being a statutory report in terms of the Insurance Act, 1938, the Insurance Company cannot go beyond that report and in compliance of the said report; the Insurance Company was ready to pay the assessed sum.

Decision with reasons

It appears from the material on record that the Surveyor did not allow a single penny in respect of the damage caused to engine block on the ground that the same broke down due to internal mechanical failure.  It is further alleged that during inspection, no trace of water found inside the engine assembly. 

It is noteworthy here that the accident took place on 26-10-2013 and inspection was carried out on 13-11-2013, i.e., after 18 days from the date of accident.  One wonders, after so many days, how the Surveyor expected traces of water inside the engine assembly.  In any case, while the Surveyor himself admitted the fact that the damage caused to front bumper, condenser, intercooler etc. was covered under the policy, it dispels all sorts of misgiving about the genuineness of the peril in question.

Significantly, the Survey Report does not reflect anything about Surveyor’s reservation to allow expenditures for repairing the damage caused to the engine block.  It appears that although inspection was carried out on 13-11-2013, the Surveyor apprised the Respondent No. 1 about his reluctance to allow reimbursement of expenditure in respect of certain parts only vide his email dated 12-12-2013.  There is nothing to show that any joint inspection report was prepared by the Surveyor while inspecting the damaged vehicle. Therefore, veracity of the allegation of the Surveyor, especially in view of the strong opposition to such findings of the Surveyor from the side of the Respondent No. 1, cannot be ascertained independently. Further, it appears that the Surveyor concerned did not depose before the Ld. District Forum to prove his survey report following due procedure of law. Deposition of the Surveyor in this case was of paramount importance in view of the fact that while he classified the damage to the engine block as internal mechanical damage, according to him, damage caused to the front bumper, condenser, intercooler etc. was external in nature. It is noted in the survey report that prior to the occurrence of peril, condition of the vehicle in question was average.  It is also not in dispute that two months prior to the date of said peril, due servicing was done to the said vehicle.  Thus, on what basis he segregated the damage caused to different parts of the vehicle concerned, notwithstanding the same seemingly caused simultaneously, was incumbent on him to prove beyond all reasonable doubt.  For the reasons best known to the Appellant, it did not ask the Surveyor concerned to depose before the Ld. District Forum.   

It is important to keep in mind that according to Statutory Regulation, viz., Insurance Regulatory and Development Authority (Protection of Policyholders’ Interests) Regulations, 2002, the Surveyor is subjected to the code of conduct laid down by the Authority while assessing the loss, and he is required to communicate his findings to the insurer within 30 days of his appointment with a copy of the report being furnished to the insured, if he so desires. Where, in special circumstances of the case, either due to its special and complicated nature, the surveyor shall under intimation to the insured, seek an extension from the insurer for submission of his report. In no case shall a surveyor take more than six months from the date of his appointment to furnish his report.  The Appellant has not furnished any documentary proof to show that the Surveyor concerned adhered to any of the aforesaid stipulations.

Ideally, the Survey Report should be prepared in such a transparent and scientific manner that the uprightness of the Surveyor remains indisputable. I afraid, this cannot be said in respect of the Surveyor in question.  He did not take the Respondent No. 1 on board about his findings while making spot survey, thereby left the Respondent No. 1 with no such opportunity to clarify his position about the so called adverse findings of the Surveyor concerned.  It further appears from the documents on record that after receiving emails from the concerned Surveyor, the Respondent No. 1 sent replies directly to the Appellant, but neither the Appellant nor the Surveyor concerned bothered to respond to the same or nullify his explanation by showing appropriate cogent reasons.  

In this regard, I have also noted that the Appellant took inordinate time to depute the Surveyor concerned for carrying out due inspection.  According to the Regulations above-mentioned, Surveyor has to be appointed wherever required, within 72 hours of receipt of due intimation.  It transpires from the Survey Report that although the Respondent No. 1 gave due intimation on 31-10-2013, the Appellant appointed the Surveyor on 13-11-2013.  It is true that another Surveyor was initially deputed.  However, there is no whisper as to when the first Surveyor was deputed or what was his findings or why his services was not requisitioned to carry out detail inspection instead of engaging a second Surveyor to carry out detail inspection.

         Also, it is stipulated in the aforesaid Regulations that 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. It is most unfortunate that although the Respondent No. 1 was on tenterhooks for months together, the Appellant chose to sat tight over the claim of the Respondent No. 1 showing scant regard to Regulatory stipulations.

         The notion of the Appellant that the report of the Surveyor being a statutory report, it cannot go beyond the same, fact remains that the Hon’ble Supreme Court in New India Insurance Co. v. Pradeep Kumar, reported in (2009) 7 SCC 787 held that the Survey Report is not the last and final word; it is not that sacrosanct that it cannot be departed from.  Again, in Venkateswara Syndicate v. Oriental Insurance Co., reported in (2009) 8 SCC 507, the Hon’ble Apex Court held that if the survey report is arbitrary and not based on acceptable reasons, a Court of Law is always at liberty to step in and correct the anomaly.  As noted above, the Surveyor concerned did not utter a single word regarding justifying rejection of the claim of the Respondent No. 1 in respect of several parts of the damaged vehicle notwithstanding the cost involved was quite substantial. 

         The Appellant disputed the claim of the Respondent No. 1 on the ground that initially the service centre merely estimated the repairing cost at approx. Rs. 50,000/-, but the actual repairing cost surpassed the said sum by several notches.  I, however, do not find any abnormality with the same given that the service centre preliminary estimated the repairing cost without dismantling the damaged vehicle.  Further, no such adverse remark is made by the Surveyor concerned in his regard to the effect that the repairing cost was disproportionate to the nature of damage in any manner.  Objection of the Appellant in this regard is, thus, not tenable.

         Overall, I do not notice any incongruity with the findings of the Ld. District Forum.  However, it seems, that Ld. District Forum has been too generous in awarding the compensation amount in favour of the Respondent.  Therefore, the same is modified to some extent.

         The Appeal, accordingly, stands allowed in part.

Hence,

O R D E R E D

         That A/1349/2015 be and the same is allowed on contest in part against the Respondent No. 1.  The impugned order is modified as under:

         The Appellant shall pay within 45 days hence a sum of Rs. 2,79,000/- as insurance benefit to the Respondent No. 1 together with compensation and litigation cost of Rs. 15,000/- and Rs. 5,000/-, respectively, i.d., simple interest @ 9% p.a. over the sum of Rs. 2,79,000/- shall accrue  w.e.f. 16-10-2015 till full and final payment is made to the Respondent No. 1 by the Appellant.