Bajaj Allianz General Insurance Co. Ltd. v. Harpreet Kaur Through Her Lrs And Others
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< / "6. It was submitted by the learned counsel for the complainant that from the evidence produced by the complainant, the allegations as contained in the complaint stands proved. It can easily be made out from the balance sheet Ex.C 3 that at the time the blast took place in the factory the stock worth Rs. 18,15,630/ was lying therein and the value of the machinery fitted therein was Rs.7,48,807/ From the affidavit of the complainant and the photographs, it stands proved that whole of the stock and the machinery were damaged in the fire, the value of which was more than Rs.25,00,000/ Therefore, opposite party No. 1 was liable to pay the assured sum of Rs 22,00,000/ under the Policy. He further Submitted that the Surveyor gave a biased report Ex.
OP 1/2 by ignoring the records, which were submitted to him by the complainant and he has not given any reasons in that report as to how he came to the conclusion that the loss suffered by the complainant was only to the tune of Rs.3,88, 789/ The act of opposite party No.
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on its part. He prayed that direction be issued to opposite party No.1 to pay the total assured amount of Rs.22,00,000/ .
7. On the other hand, it was submitted by the learned counsel for opposite party No.1 that the evidence produced by the complainant in support of the allegations made in the complaint was duly rebutted by the evidence produced by this opposite party. From that evidence, it stands proved that the factory of the complainant was lying idle from the last three months of the alleged incident and she was not having the stock and machinery of the worth mentioned in the complaint and the documents submitted by her to the Surveyor. It was found by the Surveyor that in fact no such fire ever took place in the factory and the blast occurred on account of the act of the miscreants, who had entered the factory. The report of the Surveyor is most important document for determining the loss caused to the complainant and by virtue of that report, she is not entitled to the amount in excess of Rs.3,88,789/ .
8. In support of the allegations made in the complaint, the complainant proved on record her affidavit EXCA. For further corroborating the deposition made by her she proved on record the photographs Ex.C 2 and the balance sheet on 28.9.2009 Ex.C 3. As per her deposition, the stock and the machinery/plant lying inside the factory was totally damaged on account of the fire and the value thereof was Rs.30,00,000/ . However, as per the balance sheet Ex.C 3, the closing stock as on 28.9.2009 was of the value of Rs 18,15,630/ and the machinery/plant was of the value of Rs.7,48,807/ ,
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9. Opposite party No.1 is relying upon the report of the Surveyor Ex. OP 1/2, for rebutting the evidence so produced by the complainant regarding the damage/loss caused to her in the alleged incident. It has also proved on the record the affidavit of Sachin Ohri, Manager, Ex.OP 1/A but that is of not much relevance for deciding the controversy between the parties. The report of the Surveyor was duly proved by that Surveyor by proving on record his affidavit Ex.OP1/B. A very detailed report was made by the Surveyor and as per the settled law the report of the Surveyor is very important document for deciding the damage/loss caused to the insured but at the same time, it cannot be the last word on that subject. The Surveyor detailed each and every fact in his report and also mentioned therein the circumstances of the loss.
He stated that on the day of alleged incident the factory was not operational and only the compressor attached to Deep Freezer was in working condition. Under the heading" 'Cause of Fire, he stated that exact cause of fire was not known and that the insured was unable to provide any details on the cause of loss. On the basis of his observations at the site he reported that it appeared that some miscreants by taking the advantage of the situation that nobody was available in the factory might have entered inside the same and tried to steal the material and later on, they tried to change/cover up the situation by burning the material and they gave some ignition near the Deep Freezer and the vapours, which were present in the vicinity, caused the explosion and later on spread into fire.
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evaporated was not possible as there were no marks of the fire in the entire factory.
These observations of the Surveyor finds corroboration from the photographs, which were proved by the complainant herself as Ex.C2 and which are 8 in number. The sign of fire is not visible in any of these photographs nor any burnt material can be seen therein. As observed by the Surveyor, marks of the fire can be seen only on some parts of the Deep Freezer appearing in one of the photographs. This can be made out from the photographs that all the containers were totally empty. Those photographs belie the allegations of the complainant that stock worth Rs. 18,15,630/ was burnt in the fire.
Similar is the position with respect to the machinery/plant, as no signs of fire appear, on any of those parts of the plant except the Deep Freezer 10 While calculating the loss caused in this incident, for which the complainant has submitted her claim under the Policy, the Surveyor took into consideration the balance sheet, which was proved on the record by the complainant as Ex.C 3. He took into consideration her allegation that there was stock worth Rs. 18,15,630/ In the factory on the day of incident, which had been duly certified by the Chartered Accountant. He mentioned in his report that the insured showed her inability to provide any base documents for the trading account except for the purchase and sale bills. He prepared the trading and manufacturing account for the period 1.4.
2009 till the date of loss and tabulated the same in para 8.12 of his report. He analysed the manufacturing and trading account for the preceding three years and then mentioned the ratio thereof.
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also mentioned in his report that as the factory was not operational for the last two three months, so it was not correct to take the basis of gross profit percentage for the last financial year and that it was on that account that he prepared the trading and manufacturing account. After taking into view each and every aspect of the case and the documents made available to him by the complainant, he correctly assessed the net loss caused to the complainant in the alleged incident of fire at Rs.3,88,000/ The complainant has failed to make out any case, which may tend us to conclude that this report of the Surveyor, which is self speaking and contains the detailed reasons for the findings arrived at by him, is not admissible and is to be ignored. To our mind, this report is the best piece of evidence on the record for concluding as to how much loss was caused to the complainant in the alleged incident of fire On the basis thereof, we conclude that the total loss caused to the complainant was Rs.3,88,000/ and not Rs.30,00,000/ , as alleged by the complainant.
11. In the result, the complaint is partly allowed and opposite party No.1 is directed to pay the sum of Rs.3,88,000/ to the complainant, along with interest at the rate of 9% per annum from the date when the claim was reported by the complainant to opposite party No.1 till the payment of that amount." $
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/ "8. The issue for consideration is whether the State Commission erred in accepting the assessment of loss by the Surveyor which was the basis for the settlement of claim by the respondent no.1 (Insurance Company).
9. In Sri Venkateswara Syndicate Vs. Oriental Insurance Company Ltd. & Anr. in CA No. 4487 of 2004 dated 24.08.2009, (2009) 8 SCC 507, it has been held by the Hon'ble Supreme Court that:
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a surveyor's report in cases of claims under a valid policy is an essential requirement under Section 64UM and that the Surveyor's report constitutes an important document that must be considered.
10. However, it has also been held in New India Assurance Co. Ltd. Vs. Pradeep Kumar, (2009) 7 SCC 787, as under:
15. The object of the aforesaid provision is that where the claim in respect of loss required to be paid by the insurer is Rs.20,000/ оr more, the loss must first be assessed by an approved surveyor (or loss assessor) before it is admitted for payment or settlement by the insurer Proviso appended thereto, however, makes it clear that insurer may settle the claim for the loss suffered by insured at any amount or pay to the insured any amount different from the amount assessed by the approved surveyor (or loss assessor). In other words although the assessment of loss by the approved surveyor is a pre requisite for payment or settlement of claim of twenty thousand rupees or more by insurer, but surveyor's report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved Surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured. [Emphasis added]
11. In the instant case, the appellant has challenged that the Surveyor's report on the grounds that it did not consider the value of stock held which were supported by audited books of account by the Chartered Account, the stock position as authenticated by the Punjab National Bank from whom the loan had been obtained. It was contended that the Surveyor had based the report erroneously on the ground that the factory had not been in operation for 2 3 months and that there had been a concealment of fact with regard to the stock held as on the date of the incident. The Surveyor's report was also challenged on the grounds that it did not consider the nature of the stock and held that the loss was also on account of theft. From the material on record and the submissions made before us it is evident that the claim has been allowed for Rs.
3,88,000/ against the claim of Rs.22,51,030/ on the basis of the Surveyor's report, which under normal circumstances should be considered as the basis for settlement of the claim. However, on examination of this report indicates that the surveyor's report is based upon conjectures and surmises and is qualified by terms such as might', and 'some material. Its conclusion is not based on any investigation report of the police or any expert opinion such as a forensic report. While admitting that the stock insured at low evaporation points admittedly and on account of fire product might have been burnt or evaporated. It was held, on the basis of assumption that the loss was only to the extent of 50% on account of fire and 50% due to theft of stock.
12. From the above, it is manifest that while the claim of the appellant is based on the audited statements of stock certified by the Chartered Accountant as furnished to the financing
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Bank, the Surveyor has chosen to assess the quantity of stocks on the basis of a theft which has not been established through a Police report and the ratio of production. In the absence of cogent evident regarding the theft and given the nature of product, it is difficult to accept the quantification of loss of stock as arrived at by the Surveyor. Since this quantification is not based on evidence and the construction of events leading to the fire was not supported by any report of the police or any other agency, the basis of the surveyor's report appears to be conjectural and speculative.
For these reasons, in view of the judgment of Pradeep Kumar (supra), the report of the surveyor cannot be accepted to be the final word notwithstanding the provisions of Section 64 UM of the Insurance Act 1938 and must therefore, necessarily be disregarded. Respondent no.1 was obliged to consider the report the Surveyor keeping in view the fact that when neither the cause of fire itself nor the theft been established, and also the quantum of loss determined on a rational basis, it would have been fair to provide the benefit of doubt to the insured. In view of the above, the order of the State Commission upholding the quantum of claim as assessed by the surveyor cannot be sustained.
The claim preferred by the appellant for Rs 3,88,000/ for Plant and Machinery needs to be considered afresh by the respondent insurance company after applying the standard provisions for salvage, etc.
13. For the aforesaid reasons, the appeal is allowed and the impugned order is set aside with directions to the respondent to allow the claim of Rs 22.00 lakh after considering the claim for Plant and Machinery, as above, subject to the necessary deduction as per the policy within a period of 45 days and to
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pay the same along with litigation cost of Rs 50,000/ to the appellant along with claim amount. Failure to comply with the order would attract interest @ of Rs.7.5% per annum on the claim amount payable from the date of submission of the claim till realization."
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39. In the light of the above we are of the considered view that the Judgment of the National Commission does not call for any interference. Hence the appeal is dismissed. No costs." & !( *
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Whether speaking/reasoned : Yes/No Whether reportable : Yes/No