Sri Shyamal Gupta, Member

This Appeal is directed against the Order dated 10-08-2016, passed by the Ld. District Forum, Kolkata-I (North) in CC/137/2011.

Complainant’s case, in short, is that, she is the Proprietress of M/s S.S. Enterprise.  For the purpose of running her business, she took financial assistance from the OP No. 1 Bank.  Initially the business stock was insured with National Insurance Co. Ltd. However, the OP No. 1 subsequently insured the business stock of the Complainant with the OP No. 2 behind her back.  A devastating fire broke out at the business place of the Complainant on 10-10-2009.  Due intimation in this regard was given to all concerned authorities.  After getting intimation from the Complainant, the OP No. 2 deputed a Surveyor to assess the loss.   As the OP No. 2 proposed to settle Complainant’s claim by paying a lesser sum vis-à-vis Complainant’s claim, the Complainant refused to accept the same and filed the complaint case.

OP No. 1, by filing WV, submitted that in terms of the agreement executed between the parties, there was no impediment to change the Insurer.  Moreover, Complainant was duly apprised of such change through the Statement of Account and also through the debit advice being supplied to her.  However, the Complainant did not raise any objection at that time.  It also submitted that it had got nothing to do with the report of the Surveyor or the alleged errors being crept in the survey reports.  Though the OP No. 2 agreed to enhance the compensation sum, that too was not acceptable to the Complainant. The Complainant is a defaulter and she is duty bound to repay the entire loan and difficulties of the Complainant cannot be the cause and reason for non-payment of the due amount to it. 

OP No. 2, on the other hand, submitted that after getting intimation of alleged peril, it immediately deputed a Surveyor.  It is alleged by this OP that the Complainant did not render proper assistance to the concerned Surveyor and failed to satisfy its need.  The Surveyor noticed various loopholes in respect of the claim of the Complainant.  Anyway, it initially figured out the loss at Rs. 3,93,300/-.  Afterwards, following a tripartite meeting held between the parties, the Surveyor having considered the consistent items of the last 10 days purchased by the Complainant, had arrived at a settlement amount of Rs. 6,00,000/- which was again offered to the Complainant.  However, this too was not acceptable to the Complainant though the OP No. 1 accepted the said sum and hence, the claim was settled in favour of the OP No. 1 as per agreed Bank clause under the policy and hence, the contention of the Complainant that this OP did not settle her claim, according to this OP, does not hold good.

Decision with reasons

Be it mentioned here that save and except the Respondent No. 3, who duly received the notice of this Appeal, all other Respondents appeared before us through their respective Ld. Advocates.  At the time of hearing, parties concerned were duly heard.  We have also gone through the documents on record.

On going through the documents on record, a very strange aspect has been noticed by us in respect of the Survey Report(s) being prepared by the Respondent No. 3.  It transpires that the Respondent No. 3 prepared three Survey Reports in respect of the same cause of action.  Initially vide its report dated 19-04-2010, the Respondent No. 3 quantified the loss at Rs. 3,93,300/-.  Subsequently, it prepared two reports on 17-09-2010, whereby two different loss figures were derived at being Rs. 6,00,000/- and Rs. 4,90,000/-.

Such flip flop on the part of the Surveyor is not at all appreciable.  As a licenced Surveyor firm, the Respondent No. 3 should have undertaken the job with utmost sincerity.  The least that is expected of an independent Surveyor is that it would investigate the matter thoroughly - in an effective, purposeful and prudent manner.  Once the value is figured out by the Surveyor, it should stick to that come what may.  There is no room for showing any sympathy or empathy towards anyone. The self-contradictory figures being figured out by the Respondent No. 3 only undermines its credibility.  

Be that as it may, on a reference to the 3 Survey Reports, we have noticed the following anomalies:

First, the Surveyor reported that in respect of some of the items, the Appellant showed major purchases during the last 10 days prior to the date of fire incident.  However, on due consideration of the purchase trend, we did not notice much abnormality in the same.  Reasons follow:

The Appellant purchased 2,000 Kgs. of Benzene in the months of May and July, 2010 and 3,600 kgs. of the same in September that year. Therefore, if in the month of October, 2010, the Appellant claimed to have purchased 4,800 kgs. of Benzene, it was anything but abnormal.

Similarly, in case of NBA, the Appellant purchased 200 kgs. of said item during the months of May, June, July and September, 2010. Against such backdrop, purchase of 165 kgs. of said material in the month of October, 2010 too seem quite normal.

In case of Talcum Powder, the Appellant purchased 2,000 kgs. of the same in the month of September, 2010.  Therefore, if the Appellant indeed procured similar quantity in the month of October too, that can hardly be termed as abnormal.

It is worth noting that the Appellant did not show any purchase in respect of various items in the month of October, 2010, e.g.,   according to the statement prepared by the Surveyor, the Appellant purchased huge quantity of weather Cem during the months of April, June and August, 2010.  However, she did not show any purchase in respect of this item in the month of October, 2010; ditto in respect of Organic Solvent, Toluene, Industrial Solvent.  For some obscure reason, the Surveyor did not flag this fact in its report.

It is a fact that the Appellant did not purchase any Oxide during the period between April and September, 2010 though she showed some purchases in respect of different variants of this item in the month of October, 2010.  However, the value of these items being not so significant, calling in question the bona fide of Appellant’s claim in this regard without any concrete proof cannot be supported.

Second, while considering the rates of different items for the purpose of assessing the value of loss it appears that the Surveyor considered the least of (1) purchase price (2) sale price and (3) claim rate without assigning any valid reason thereof.  In our considered opinion, the Respondent No. 3 should have considered the purchase value of all items unless of course it stumbled upon any inflated purchase bill being furnished by the Appellant which is not the case here.

Third, it is alleged in the Survey report dated 17-09-2010 that none of the vendors approached by the Surveyor showed relevant documents pertaining to the purchase bills purported to have been issued by them.  It is highly unlikely that all the bills submitted by the Appellant were manufactured.  It is not understood, if the Surveyor indeed found any difficulty in carrying out survey work properly, why he did not take up the matter with either the Appellant or the Respondent Insurance Company. It is also noteworthy that although the Surveyor was made a party to the case, it did not turn up either before the Ld. District Forum or before this Commission to dispel all confusion/apprehension in the matter and most importantly, to prove the bona fide of its action. 

Fourth, in its Final Survey Report dated 17-09-2010, the Surveyor recommended 15% deduction from the gross value of loss assessed by it on account of so-called discrepancies pertaining to the claim of the Appellant.  While the gross value of loss was figured out as Rs. 7,29,074/- by the Surveyor taking into consideration alleged inconsistencies in respect of the claim of the Appellant, it is quite baffling on similar ground, how could he recommend 15% further cut on the gross assessed loss.  Wasn’t it double whammy of sorts to penalize the Insuree twice on similar ground.  It is also not understood, why the Surveyor recommended 15% deduction - why not 10% or 20%. Survey Report cannot be prepared whimsically. 

The survey report being not proved following due process of law, and given that the same is beset with so many loopholes and finally, in view of figuring out of different loss amounts in respect of the same incident, the same cannot be considered as reliable. In fact, unwittingly or otherwise, the Respondent No. 1 too admitted in its WV that the Surveyor having noted the consistent items of the last 10 days purchase, revised its assessment of loss to Rs. 6,00,000/- implying that the survey report dated 19-04-2010 was incorrect.

In this regard, the conduct of Respondent No. 1 too was not at all praiseworthy.  It is not understood, why it was in such a tearing hurry to change the Insurer that such switchover had to be made behind the back of the Appellant. Although the Respondent No. 1 sought to take solace contending inter alia that the Appellant was duly intimated of such change through debit advice and bank statement, it was useless to inform the Appellant after silently deducting money from the concerned loan account and effecting such switchover.  Merely because it was a financer that was not enough to do what it pleases at its own volition.  The Appellant too had reasonable stake in the said venture.  Therefore, it was incumbent on the part of the Respondent No. 1 to keep the Appellant in the loop before taking such crucial decision; more so, when it was the primary responsibility of the Appellant to insure her business material.

We have also noted with deep concern that the Respondent No. 1 threw a spanner to the Appellant’s fervent request to release the excess security to enable her sail through the deep crisis that she was subjected to owing to arbitrary act of the Respondent Nos. 2 and 3. There was no impediment before the Respondent No. 1 to liquidate the pledged securities to realize its due from the Appellant and then refund the balance consideration to the latter. 

It is indeed unfortunate that thanks to gross deficiency in service on the part of the Respondents, the Appellant was compelled to put up the shutters.  We, therefore, hold the Respondents squarely responsible for the misfortune and sufferings of the Appellant.

Considering all these aspects, we feel that that Appellant definitely deserves due relief in the matter.

The Appeal, accordingly, succeeds in part.

Hence,

O R D E R E D

The Appeal stands allowed on contest in part against the Respondent Nos. 1 and 2 with a litigation cost of Rs. 25,000/- being jointly/severally payable by the above Respondents to the Appellant.  The Respondent No. 1 shall pay a compensation of Rs. 1,00,000/- to the Appellant and Respondent No. 2 shall settle the Appellant’s claim on non-standard basis by paying 75% of the claim amount (after deducting Rs. 6,00,000/-, if already paid) and also pay a compensation of Rs. 1,00,000/- for causing unnecessary harassment to the Appellant.  Non-compliance of this order within 40 days henceforth shall make the defaulter(s) liable to pay simple interest @ 9% p.a. over the decreetal amount being payable by them from the date of filing of complaint case before the Ld. District Forum till full and final payment is made. The impugned order stands modified accordingly.