For Punjab National Bank Ms Arti Singh, Mr Aakashdeep Singh Roda And Ms Kavita Singh, Advocates For New India Assurance Co. Mr R B Shami, Advocate
For LRs of Complainant Mr Ajay Gupta, Advocate
For Umang S Mehta Deleted vide order dated 20.10.2016 Surveyor ORDER 1. This appeal under Section 19 of the Consumer Protection Act, 1986 (in short, the ‘Act’) challenges the order dated 10.03.2014 of the State Disputes Redressal Commission, Maharashtra, Circuit Bench, Aurangabad (in short, the ‘State Commission’) in Complaint Case No. 10 of 2007 awarding compensation towards loss of sugarcane bagasse by partly allowing the complaint and directing the Respondent Insurance Company to pay Rs 11,00,000/- with interest @ 6% from the date of filing of complaint (18.08.2007) till receipt of order within 45 days, failing which with interest @ 7%; Respondent Bank to pay Rs 4,66,285/- with interest @ 9% p.a. from the date of receipt (29.03.2006) to the Appellant within 45 days or with interest @ 10% p.a. till realization and both Respondents to pay the Appellant jointly and severally Rs 5,000/- towards mental agony and Rs 3,000/- towards litigation costs. Appellant has prayed to allow his appeal and to direct the Respondent Insurance Company to settle his claim for Rs 44,32,150/- with interest @ 12% p.a. from filing till realization with costs and to pass such order(s) as deemed fit and proper. 2. This order will also dispose FA No. 278 of 2014 filed by the Respondent No.6 Punjab National Bank against the Appellants which also emanates from the same order. As the facts of the case are similar, FA 560 of 2014 is taken as the lead case. 3. The relevant facts of the case, in brief, are that Appellant is in the business of sale/supply of bagasse as fuel under the name M/s Sheetal Suppliers. Bagasse is stored at Ambala Shivar, near Mawadi Phata, Hatgaon, District Nanded. Cash credit loan had been obtained from Respondent No. 6 Bank from its branch at Aurangabad against security of bagasse stock. A Standard Fire & Special Perils Policy (in short, the ‘Policy’) was obtained from Respondent 1 for the period 27.12.2004 to 26.03.2005 to cover risk to the stock for Rs 52,55,800/- against premium of Rs 55,186/- paid. A fire broke out in the stock yard on the night of 14/15.02.2005. An FIR was lodged with the Police Station, Hadgaon and Respondent Nos.1 and 6 intimated. Mr D.L. Sisodia, Surveyor was deputed by Respondent No. 1 who surveyed the loss and sought documents that were supplied. Against a claim of Rs 35,21,548/- on the basis of loss of 2,500 MTs in 1,25,000 bales of 20 kg each valued at Rs 55,00,000/- as per market rates, Respondent No. 1 settled the claim after receiving a report by a second Surveyor, Robert Rodrigues, and issued a cheque of Rs 19,78,452/- in the name of Respondent No. 6 (Punjab National Bank) without intimation or consent of the Appellant towards settlement on satisfaction. Appellant claims that against the loss of Rs 55,00,000/- incurred, Rs 19,78,452/- was settled leaving a balance of Rs 35,21,548/- which, with interest @ 12% p.a. from 15.02.2005 to 15.04.2007 (Rs 9,15,602/-), worked out to Rs 44,37,150/-. As no details were made available by Respondent No.1 regarding the basis of settlement in such a manner, legal notices were issued on 09.04.2006 seeking copy of the Survey Report which elicited no reply, a complaint was filed before the State Commission which came to be partly allowed. This order is impugned before us praying to modify it by enhancing the compensation and to revise the rate of interest from 6% to 12% p.a. and to pass such further order(s) as deemed fit in the interest of justice. 4. In FA 278 of 2014, Respondent No. 6 herein (Bank) has sought the setting aside of the order of the State Commission with respect to the refund with interest of the excess amount accepted by it from Respondent No. 1 Insurance Company as ordered by the State Commission. 5. We have heard the learned counsel for both the parties and given careful consideration to their submissions and the material on record. 6. From the facts on record and the submissions of the parties, it is manifest that Respondent No. 1 Insurance Company had appointed D.L. Sisodia as a Surveyor in the immediate aftermath of the fire incident who assessed the loss of 1875 MTs of dry baled bagasse @ Rs 2200/- per MT at Rs 41,25,000/-. However, the conclusion of Robert Rodrigues, Surveyor and Loss Assessor who was subsequently appointed as Surveyor by the Insurance Company, as per a more detailed report dated 07.03.2006 was that the quantum of bagasse was 1826 MT valued at Rs 30,12,900/- @ Rs 1650/- per MT based upon the market conditions and the nature of bagasse considering that it was purchased in 2004-05. The assessment by the second surveyor also factors in exclusions on account of spontaneous combustion affecting 1/3rd of the stock and Policy Excess of Rs 10,000/-. 7. The Appellant’s case is that the loss assessed by the initial surveyor, D.L. Sisodia be accepted. It is also his case that the Respondent No.1 Insurance Company failed to obtain a discharge voucher and that the purported signature of a person stated to be his employee could not be considered as it was not established by way of evidence. On the other hand, Respondent Insurance Company contends that the assessment by Robert Rodrigues, Surveyor was detailed and based on available evidence which should be accepted. 8. From the foregoing, it is evident that Respondent No. 1 has settled the Appellant’s claim on the basis of a Surveyor’s Report as required under Section 64UM of the Insurance Act, 1938. The Appellant has not established that the Surveyor’s Report was either arbitrary or perverse that needed to be disregarded. It has been held by the Hon’ble Supreme Court in Sri Venkateswara Syndicate Vs. Oriental Insurance Co. Ltd. & Anr., (2009) 8 SCC 507 decided on24.08.2009 that the insurer is at liberty to appoint a second surveyor to obtain an assessment of loss where the claim exceeds Rs 20,000/-. The decision of the Insurance Company to appoint a second Surveyor cannot be faulted. No evidence having been led by the Appellant to establish arbitrariness of this Report, we cannot consider the contention of the Appellant that this report be disregarded. Even though a Surveyor’s report has been held not to be so sacrosanct that it cannot be departed from by the Hon’ble Supreme Court in New India Assurance Co. Ltd. Vs. Pradeep Kumar, (2009) 7 SCC 787, no case is made out by the Appellant for the same. We therefore do not find any reason to disturb the finding of the State Commission in upholding the assessment of loss as done by Respondent No. 1 based upon the second Surveyor’s Report. 9. The finding of the State Commission with regard to Respondent No. 6 (Bank) is that despite the first surveyor having reported that the insured had a cash credit facility against hypothecation of stocks of Rs 14 lakhs and, the outstanding as on 09.02.2005 was Rs 15,12,167.68, the Insurance Company settled the claim for Rs 19,78,452/-. The State Commission has held that Rs 4,66,285/- should have been credited to the account of the insured/Appellant and accordingly directed the same with interest @ 9% p.a. within 45 days, failing which @ 10% p.a. from the date of receipt by Respondent No. 6 Bank (29.03.2006). As this amount was rightfully due to the Appellant in the first place, there can be no reason to disagree with the finding of the State Commission. Its finding is therefore upheld. 10. The Appellant’s contention that the Respondent Insurance Company ‘settled’ the claim without its consent on a fair and full satisfaction basis. It has disputed the signature of an employee obtained by the Respondent in this regard. No evidence has been brought on record by Respondent in this regard. A Discharge Voucher signed by the Appellant or a person authorized by him is a necessary requirement which the Respondent No. 1 has failed to comply with. However, the State Commission has awarded compensation by way of interest on the amount of Rs 4,66,285/- awarded which is considered reasonable. The imposition of compensation for mental agony and litigation jointly and severally is also considered just and reasonable. 11. In the light of the above, the appeal is partly allowed. The order of the State Commission is upheld. 12. FA 278 of 2014 filed by Respondent No. 6 Bank is also disposed of in the above terms. As a consequence of the upholding of the order of the State Commission, the Appeal is dismissed. Pending IAs, if any, stand disposed of with this order. |
