Present         (1)     Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                                         President

                    (2)     Smt. Karishma Mandal,

                              Member

Date of Order :  14.08.2015

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. To direct the opposite parties to pay Rs. 90,000/- with Rs. 9,000/- cost of the suit and interest @ 18% per annum from filling of the claim application i.e. 05.10.2007 to till its final payment.

2. Brief facts of the case which led to the filing of complaint are as follows:-

1. The complainant after payment of premium taken a Insurance Policy for his shop M/s Marks Stationers with opposite parties. The risk cover period of said insurance policy bearing no. 331400 which was for one year i.e. 25.07.2007 to 24.07.2008. ( Vide Annexure 1 )
2. In the said risk cover period the complainant was entitled to get upto Rs. 2,50,000/- in the loss/damage of other goods due to flood returning seems etc. which was kept in his shop.
3. On 28.07.2007, in the evening night and 29.09.2007 morning due to heavy rain water entered into the shop of the complainant and almost woods/ papers which was kept in a box of almirah on the ground floor of above building were damaged. It is not out of place to mention that total surrounding area where the above shop was situated is most flood effected area. These fact has also been admitted by surveyor of opposite party no. 2.
4. On 05.10.2007 the complainant went in the office of opposite party no. 2 and filed a claim application for damage of goods which was damaged due to rainy water like flood. The total claim for loss damage of goods was Rs. 90,000/-.
5. The opposite parties appointed a Surveyor namely Sri K.K. Singh who has also submitted his report on 28.12.2007 before opposite party no. 2 and in his report he admitted entire reason for damage/ loss of goods and Mr. Singh, also in his report has assessed total loss/damage of goods etc. was Rs. 64,412/-. (Vide Annexure – 2 ) 
6. No any instruction was given by opposite parties about damaged goods/ salvage till 06.01.2008. So complainant on 06.01.2008 wrote a letter to opposite party no. 2 to make guideline about salvage, but no any instruction was given by opposite party no. 2 to make guideline about salvage ( damaged goods ) but no any instruction / guideline was given by the opposite party till today i.e. date of filing. ( Vide Annexure – 3, 3/1 )
7. On 04.02.2008 opposite party no. 2 gave instruction to complainant to submit some documents i.e. copy of registration copy of rent receipt, P/L A/c. of shop Balance sheet of shop, copy of Income Tax certificate copy of stock statement, flood certificate and the same was also submitted by complainant before opposite party no. 2 on 20.02.2008 and 31.03.2008. ( Vide Annexure – 4, 4/1, 4/2 )
8. The complainant as per demand of opposite party no. 2 has already submitted agreement paper of shop, weather report of occurrence date, balance sheet of shop and Income Tax return of year 2008. ( Vide annexure – 5 )
9. The petitioner/ complainant has also submitted purchase of goods receipt before opposite party no. 2 but opposite party did not consider the claim to the petitioner.
10. Opposite party no. 2 is the Branch office/ Divisional Office to opposite party no. 1 and they are fully aware of the fact, but this opposite parties with fraudulent and dishonest intention neither taken any response in this matter nor paid the amount of claim to the petitioner i.e. Rs. 90,000/-.
11. It is duty / liability to the opposite party to pay the amount of claim to the petitioner but they have not pay till today.
12. The details of goods which were purchased by complainant and kept in his shop during the course of damage period is mentioned in a separate paper with its purchased price. ( Vide Annexure – 6 )

3. The Opposite Party no. 1 and 2 in their written statement has submitted as follows :-

1. The present complaint case filed by the complainant is not sustainable against this answering opposite parties for the reason that the amount assessed by the investigator Sri Om Prakash Singh was offered to the complainant but the same was not received by the complainant therefore there is no latches on the part of this answering opposite parties and the complaint petition is fit to be rejected on this ground itself.
2. It is further important to inform that in the present case the complainant from the very beginning is trying to make good his loss firstly on the ground that he intimated the Insurance Company after lapse of eight days and secondly the Surveyor’s report which is the internal document of the Insurance Company is supplied to the complainant prior to submitting the same before the Insurance Company which shows the malafide nexus between the Surveyor and the complainant therefore the assessment done by the Surveyor Sri Kamla Kant Singh cannot be relied upon.
3. The Insurance Company after examining the Surveyor’s report of Sri K.K. Singh came to the conclusion that there are certain discrepancy as the Insurance Company has the right to scrutinize the Surveyor’s report under Section 64UM of the Insurance Act. thereafter, being dissatisfied by the report submitted by Mr. Singh, the Insurance Company appointed investigator namely Sri Om Prakash Singh who submitted his report on 25.05.2008 assessing the loss on the basis of salvage item wise Rs. 29,931/- and after deducting Policy Excess to the tube of Rs. 10,000/- the loss comes to Rs. 19,931/- which was offered to the complainant who refused to accept the same. ( Vide Annexure – A )
4. It is important to point out that the allegation made in Para No. – 7 & 8 regarding no instruction to keep the salvage intact till assessment absolutely wrong because as per the own statement of the insured in writing on 09.05.2008 about the damaged goods ( salvage ) and the assurance was given that when it will be required will be surrendered but thereafter several reminders were given to surrender the salvage but with no result. ( Vide Annexure – B Series )
5. The allegations made in Para no. 10 & 11 regarding non settlement of due to malafide intention is wrong because  of the fact the he is the insured who in collusion with Surveyor Sri K.K. Singh try to make advantage in the background of Surveyor’s report who assess the loss on the higher side and that amounts to fraud committed by the insured in collision with the Surveyor. The Insurance Company with due diligence re – assess the damages on the basis of salvage by appointing another investigator which was communicated to the complainant.
6. There is no latches on the part of this answering opposite parties rather it is the Insured who did not provide the relevant documents in time to get the damages assessed even after several reminders regarding surrender of salvage the Insured did not provide the same.
7. Whatsoever are not specifically admitted in the present written statement are deemed to have been denied by the present answering opposite parties.
8. Under the facts and the circumstances as stated above the present petition as filed by the complainant is not maintainable either in law or on facts and as such it is fit to be dismissed in limine.
9. Under the facts and the circumstances as stated above the complainant has got no valid cause of action in the present case against the present answering opposite parties.

We have minutely gone through the complaint petition with Annexures, Written statement of the opposite parties and its rejoinder filed by the complainant.

We have also heard the parties in detail.

It appears from the judicial record that the 1^st surveyor Shi K.K. Singh in his report has come to the conclusion that the complainant is liable to be paid Rs. 44,750.50/- ( Rs. Fourty Four Thousand Seven Hundred Fifty and Fifty Paise only ) after deducting salvage & policy Excess etc. this report has been annexed as annexure – 2 of the complaint petition.

Having gone through the record and taking into consideration the oral submission of the parties. We are of the considered opinion that the first survey report submitted by Mr. K.K. Singh has been rejected by the opposite parties without assigning any reasons after taking shelter of provision of Section 64 UM of the Insurance Act. It is needless to say that prior to resorting the provision of Section 64 UM of the Act referred above, there must be cogent material. It goes without saying that the allegation that earlier surveyor Shree K.K. Singh had given his report in collusion with complainant is without any cogent material or basis. Hence we find and hold that the Insurance Company ( opposite party no. 1 ) has wrongly and illegally rejected the first survey report and in his way the opposite parties have committed deficiency in service.

Accordingly we direct the opposite party no. 1 and 2 jointly and severally to settle the claim of the complainant on the basis of 1^st surveyor’s report i.e. Annexure – 2 submitted by Mr. K.K. Singh along with interest @ 6% ( Six ) per annum from the date of submission of second report by the second surveyor. The aforesaid amount must be paid within two months from date of receipt of this order failing which the interest will be @ 9% ( Nine ) per annum till its final payment.

Aforesaid the opposite parties are further directed to pay Rs. 10,000/- ( Rs. Ten Thousand only ) to the complainant as litigation costs within the aforesaid period of two months.

Accordingly, this case stands allowed to the extent indicated above.

                                        Member                                                                   President