1. This Revision Petitions No. 425 and 426 of 2022 challenge the impugned order of State Consumer Disputes Redressal Commission, Rajasthan (‘the State Commission’) dated 13.01.2022, vide which, the State Commission partly allowed the Appeal No.129/2021 filed by the Insurance Company and dismissed the Appeal No.81/2021 filed by the Petitioner/Complainant. In turn, the District Consumer Disputes Redressal Forum (I), Jodhpur, Rajasthan (‘the District Forum’) dated 02.03.2021 allowed the complaint. 2. Brief facts of the case, as per the Complainant, are that he was the owner of TATA Trailer No.RJ-13-GA-5879 Model of 2010 which was insured with the Respondent/OP vide policy No. 90432614 valid from 24.12.2014 to 23.12.2015. On 30.04.2015, while the vehicle was going from village Jhunjhala District Nagaur to Morbi in Gujarat, it was hit by one Tanker Registration No.GJ-12-AU-6502 coming from wrong side. As a result, both the vehicles got burnt and sustained total damaged. The intimation was given to the Police vide FIR No.30/2015 as well as the Insurance Company. The Complainant filed a claim of the IDV value of the vehicle i.e. Rs.17 Lakh with the Respondent/OP. However, the surveyor of the Insurance Company assessed the loss as Rs.14,07,947/- on salvage basis. Being aggrieved, he filed a Consumer Complaint before the District Forum. 3. The Respondent/OP was proceeded ex-parte before the District Forum. The Application for setting aside the ex-parte was also rejected vide order dated 14.03.2016 by the District Forum. The said order was set aside by the State Commission subject to payment of cost of Rs.3,000/-. However, in event of default of payment of cost, the Respondent/OP could not avail the benefit of Written Statement or the evidence filed by way of affidavit before the District Forum. 4. The learned District Forum, vide order dated 13.01.2022, allowed the complaint and directed the Respondent/OP as under: “ORDER Therefore, the applicant’s complaint against the non-applicant is hereby granted and it is ordered that the non-applicant Insurance Company shall pay the entire Value of the insured vehicle being Rs.17,00,000/- (Rupees Seventeen Lakh only) to the applicant alongwith interest @ 9% per annum from the date of order till the date of its payment within a period of two months and also to pay Rs.20,000/- (Rupees twenty thousand only) as compensation and Rs.3,000/- as litigation cost of the case within two months of this order.” (Extracted from translated copy) 5. Being aggrieved by the impugned order, the Respondent/OP filed the Appeal being No.129/2021 and the Petitioner also filed the Appeal No.81/2021before the State Commission and the learned State Commission, vide order dated 13.01.2022 partly allowed the Appeal No.129/2021 filed by the Respondent/OP and dismissed the Appeal No.81/2021 filed by the Petitioner/Complainant and reproduced the relevant portion of the order as under: “We have considered arguments of both the parties and also perused the case file and the order passed by learned District Forum. The learned District Forum has assumed that the respondent had failed to pay the sum of Rs.3000/- granted by the State Commission as costs of the proceedings and had thus accepted the complaint while granting the IDV value amount of Rs.17,00,000/- to the complainant alongwith 9% interest and Rs.20,000/- as the compensation and Rs.3000/- as legal costs. But from perusal of the reply filed by Insurance Company and the supporting affidavit of Shri Rajeev Ranjan and affidavit of Sunil Kumar Soni Surveyor it is clear that the respondent had sent registered letter to the complainant Hari Ram demanding the original RC, driver's D/L, Discharge Voucher, Road Tax receipt, Permit Fitness, etc. but despite that the complainant had not submitted the same and his claim was rejected on this ground. In this connection, copies of the letters dated 7.3.2016, 16.3.2016 and 21.3.2016 and 6.6.2016 have been filed from which the contention of appellant/Insurance Company that the complainant had not provided those documents in time appears to be correct and that for this reason, his claim could not be settled in time. Therefore, the contention of respondent/ complainant that the appellant Insurance Company had intentionally delayed the settlement of insurance claim is not acceptable. As far as the argument of the respondent/ complainant is concerned that he had already intimated the appellant Insurance Company that he did not possess either of those documents in original and that only photocopies of those documents were available but on that basis, the Insurance Company was unable to settle his claim. Therefore, it had demanded the original documents. Although the original documents were gutted in the vehicle itself owing to the accidental fire, he should have provided the duplicates thereof from the concerned Transport Authority in time but having failed to do so, the Insurance company could not settle the claim. So far as the grant of claim at the IDV value of Rs.17.0 lakhs by the learned District Forum is concerned, that order also suffers from infirmity because the Surveyor Report had been filed in the case wherein the Surveyor had assessed the net loss of Rs.14,07,047/- as damage to the vehicle in the said fire in accidence. In the said report, the Surveyor had also reduced the salvage amount of Rs.75000/- of the vehicle, therefore, the complainant Hari Ram is entitled to the grant of Rs. 14,07,947/- only as assessed by the Surveyor. So far as the payment of interest on the aforesaid amount is concerned, the learned District Forum has granted this amount @ 9% per annum which does not appear to be any error in the aforesaid order keeping in view the case circumstances. Therefore, appeal of the respondent plaintiff is liable to be dismissed and while partly allowing the appeal filed by the Insurance Company, order of the learned District Forum to this extent is liable to be modified/changed that the Respondent Insurance Company is directed to pay to the complainant the sum of Rs.14,07,947/- instead of the Insured value of the vehicle at Rs.17,00,000/-. On other issues, order of the learned District Forum is upheld. ORDER According to the above discussions, the appeal filed by the respondent/complainant is liable to be rejected and appeal filed by the appellant Insurance Company is partly allowed while modifying the order passed by the learned District Forum to the effect that the non- applicant Insurance Company is directed to pay the Complainant value of the vehicle Rs.14,07,497/-. On other issues, order of the learned District Forum is upheld.” (Extracted from translated copy) 6. In his arguments, the Counsel for the Petitioner/ Complainant reiterated the grounds in the Revision Petition and asserted that the vehicle in question was got completely destroyed in the fire and he is entitled for IDV of the vehicle to the tune of Rs.17 Lakh. Whereas the State Commission reduced it to Rs.14,07,947/-, as assessed by the surveyor of the insurance company. He argued in favour of the order of the District Forum and sought to set aside the order of the State Commission. He relied upon the following judgments: i. Dharmendra Goel vs. Oriental Insurance Co. Ltd., (2008) 8 SCC 279; ii. Sumit Kumar Saha v. Reliance General Ins. Co. Ltd., (2019) 16 SCC 370. 7. Learned Counsel for the Respondent/OP argued in favour of the impugned order passed by the State Commission except the compensation awarded to the tune of Rs.20,000/- as it is not justified for singular deficiency. He further argued that the Petitioner failed to provide relevant documents to the Respondent which meant that there was no deficiency of service on the part of the Respondent. He sought to dismiss both the Revision Petitions with costs. She has relied upon the following judgment: i. Oriental Insurance Co. Ltd. Vs. Hajari Lal Jat, R.P. No.3225 of 2014, decided on 23.03.2015 by the NCDRC. 8. I have examined the pleadings and associated documents placed on record, including the reasoned orders of the District Forum and State Commission and rendered thoughtful consideration to the arguments advanced by the learned Counsels for the Petitioner. 9. The main issue to be determined in the case is the quantum of compensation tenable under the policy for the loss claimed by the Petitioner/Complainant. 10. It is undisputed that, during the course of the policy in question, the Petitioner had preferred a claim for loss occurred in an accident and total loss to the tune of Rs.17 Lakh as IDV value of the vehicle. On receipt of the claim, the OP appointed a Surveyor and reliance has been placed on the Surveyor’s Report dated 18.02.2016 wherein the Surveyor Assessed the loss to the tune of Rs.14,07,947/-. 11. In the case of Sri Venkateshwara Syndicate Vs. Oriental Insurance Company Limited (2009) 8 SCC 507, the Hon’ble Supreme Court has further observed as under: - The assessment of loss, claim settlement and relevance of survey report depends on various factors. Whenever a loss is reported by the insured, a loss adjuster, popularly known as loss surveyor, is deputed who assess the loss and issues report known as surveyor report which forms the basis for consideration or otherwise of the claim. Surveyors are appointed under the statutory provisions and they are the link between the insurer and the insured when the question of settlement of loss or 17 damage arises. The report of the surveyor could become the basis for settlement of a claim by the insurer in respect of the loss suffered by the insured. There is no disputing the fact that the Surveyor/Surveyors are appointed by the insurance company under the provisions of Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them. We also add, that, under this Section the insurance company cannot go on appointing Surveyors one after another so as to get a tailor made report to the satisfaction of the concerned officer of the insurance company, if for any reason, the report of the Surveyors is not acceptable, the insurer has to give valid reason for not accepting the report. Scheme of Section 64-UM particularly, of sub-sections (2), (3) and (4) would show that the insurer cannot appoint a second surveyor just as a matter of course. If for any valid reason the report of the Surveyor is not acceptable to the insurer may be for the reason if there are inherent defects, if it is found to be arbitrary, excessive, exaggerated etc., it must specify cogent reasons, without which it is not free to appoint second Surveyor or Surveyors till it gets a report which would satisfy its interest. Alternatively, it can be stated that there must be sufficient ground to disagree with the findings of Surveyor/Surveyors. There is no prohibition in the Insurance Act for 18 appointment of second Surveyor by the Insurance Company, but while doing so, the insurance company has to give satisfactory reasons for not accepting the report of the first Surveyor and the need to appoint second Surveyor.”
12. The Hon’ble Supreme Court in Khatema Fibres Ltd. v. New India Assurance Company Ltd., 2021 SCC OnLine SC 818, decided on 28.09.2021 has held that: “32. It is true that even any inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law or which has been undertaken to be performed pursuant to a contract, will fall within the definition of the expression ‘deficiency’. But to come within the said parameter, the appellant should be able to establish (i) either that the Surveyor did not comply with the code of conduct in respect of his duties, responsibilities and other professional requirements as specified by the regulations made under the Act, in terms of Section 64UM(1A) of the Insurance Act, 1938, as it stood then; or (ii) that the insurer acted arbitrarily in rejecting the whole or a part of the Surveyor’s Report in exercise of the discretion available under the Proviso to section 64UM(2) of the Insurance Act, 1938. 37. Two things flow out of the above discussion, They are (i) that the surveyor is governed by a code of conduct, the breach of which may give raise to an allegation of deficiency in service; and (ii) that the discretion vested in the insurer to reject the report of the surveyor in whole or in part, cannot be exercised arbitrarily or whimsically and that if so done, there could be an allegation of deficiency in service. 38. A Consumer Forum which is primarily concerned with an allegation of deficiency in service cannot subject the surveyor’s report to forensic examination of its anatomy, just as a civil court could do. Once it is found that there was no inadequacy in the quality, nature and manner of performance of the duties and responsibilities of the surveyor, in a manner prescribed by the Regulations as to their code of conduct and once it is found that the report is not based on adhocism or vitiated by arbitrariness, then the jurisdiction of the Consumer Forum to go further would stop.” 13. In the recent case of National Insurance Co.Ltd. Vs. M/s Hareshwar Enterprises Pvt. Ltd. & Ors., Civil Appeal No.7033 of 2009 decided on 18.8.2021, 2021 SCC Online SC 628, the Hon’ble Supreme Court has been held as under : “17.......Therefore, in the facts and circumstances herein the surveyors report was submitted as the natural process, the conclusion reached therein is more plausible and reliable rather than the investigation report keeping in view the manner in which the insurer had proceeded in the matter. Hence, the reliance placed on the surveyor’s report by the NCDRC without giving credence to the investigation report in the facts and circumstances of the instant case cannot be faulted. In that view, the conclusion reached on this aspect by the NCDRC does not call for interference.” “18. … Having considered this aspect, the rate of interest to be awarded in normal circumstance should be commensurate so as to enable the claimant for such benefit for the delayed payment. There is no specific reason for which the NCDRC has thought it fit to award interest at 12% per annum. Therefore, the normal bank rate or thereabout would justify the grant the grant of interest at 9% per annum. Accordingly, the amount as ordered by the NCDRC shall be payable with interest at 9% per annum instead of 12% per annum. To that extent, the order shall stand modified…” 14. Based on careful perusal of material on record, deliberations above and the established precedents of the Hon’ble Supreme Court, in my considered view, the Complainant is entitled an amount of Rs.14,07,947/- along with 9% simple interest per annum from the date of the Order of the District Forum i.e. 02.03.2021 till its realization, within a period of one month from the date of this order. In the event of default, the amount payable shall carry interest @ 12% per annum from the date of expiry of one month till the realization of the entire amount. The Complainant is also entitled a sum of Rs.3,000/- as litigation cost. 15. Also the Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, in CA Nos. 4910-4941 of 2019 decided on 10.05.2019 has held that multiple compensations for singular deficiency is not justifiable. Therefore, the award of Rs.20,000/- to the Complainant towards compensation for harassment and mental agony, over and above the component of interest already awarded is untenable and, therefore, is set aside. 16. The Revision Petitions No.425 and 426 of 2022 are disposed of accordingly. 17. All pending Applications, if any, stand disposed of accordingly. |
