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2019 (5) TMI 202

cts in the survey report of Surveyor- M/s Sunil J. Vora & Associates or that such report is arbitrary, excessive and exaggerated, before another Surveyor could be appointed? HELD THAT:- The Surveyor- M/s Sunil J. Vora & Associates was appointed by Head Office of the Insurance Company. The Head Office of the Insurance Company has communicated to the Regional/ Branch Office as to why another Surveyor has been appointed. In view of said fact, the appointment of another surveyor could not be justified when a conscious decision has been communicated by the Head Office of not approving the appointment of second surveyor. The letter of credit was a valid document which could not be said not to be genuine only on the basis of reason that such letter of credit was not in favour of the Complainant when the order was placed on the Complainant by the above said Singapore based firm - Mr. Ajay Verma is an accused in FIR in which there is no allegation in respect of export by the Complainant. The allegation against Ajay Verma is of duping the exporters whereas, there is no such or similar allegation against the Complainant. The Complainant has also averred that there was endorsemen .....

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4,93,865/-. Out of the said amount, ₹ 1,65,430.53 was the claim on account of damage to building; ₹ 3,93,779.78 was the claim towards the damage to the machinery and ₹ 49,44,657.67 was the claim towards the damage to the stocks. The amount was rounded off to ₹ 54,93,865/-. 5. The Insurance Company issued a communication dated 09.04.2001 to the Complainant asking for certain information after the said report was submitted to the Insurance Company on 12.02.2001. The information sought is as under:- 1. List of Machineries (copy of assets register) 2. Loss and profit accounts 3. Purchase details of raw materials 4. Verified copy of Balance Sheet for last 2 years. 5. Original copy of LC & LC with extended date of expiry 6. Details of Financial arrangements for increasing the turn over. 7. Clarify the status of insurable interest on building. 6. The Surveyor in his report has given loss to the machinery giving details of the machinery damaged in fire and the amount admissible in respect of its loss. The Insurance Company also communicated a letter to its Senior Branch Manager on 26.09.2001 that the letter of credit dated 11.05.2000 of Singapore Branch of Bank .....

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e ready as on 01.07.2000 and that the letter of credit was expiring on 09.07.2000. Therefore, the Complainant did not explain as to why the said consignment was not shipped on or before 01.07.2000. Another reason given was that the letter of credit was alleged to have been extended up to 08.08.2000 in favour of somebody else. Therefore, there was no reason for extension of letter of credit when the goods were allegedly ready on 01.07.2000 and that the garment could not be exported without endorsement of invoice by Apparel Export Promotion Council but no such endorsement was obtained by the Complainant. The Surveyor further gave another reason, that 104203 meters of fabric was purchased from M/s S.V. Traders but the address given on the invoice and the challans was not of fabric shop but that of a photocopy shop. Still further, another reason communicated was that the letter of credit was opened by M/s Sirdanwal Overseas of Ajay Verma who is facing a criminal case under Sections 420, 406, 120(B) of IPC in FIR No. 98 dated 06.04.2002. 9. The Complainant in his complaint filed on 16.5.2002, has inter-alia averred that he has taken a credit facility from Canara Bank to the tune of S .....

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ss which has occurred in India and requiring to be paid or settled in India equal to or exceeding twenty thousand rupees in value on any policy of insurance, arising or intimated to an insurer at any time after the expiry of a period of one year from the commencement of the Insurance (Amendment) Act, 1968, shall, unless otherwise directed by the Authority, be admitted for payment or settled by the insurer unless he has obtained a report, on the loss that has occurred, from a person who holds a licence issued under this section to act as a surveyor or loss assessor (hereafter referred to as "approved surveyor or loss assessors) : Provided that nothing in this sub-section shall be deemed to take away or abridge the right of the insurer to pay or settle any claim at any amount different from the amount assessed by the approved surveyor or loss assessor. (3) The Authority may, at any time, in respect of any claim of the nature referred to in sub-section (2), call for an independent report from any other approved surveyor or loss assessor specified by him and such surveyor or loss assessor shall furnish such report to the Authority within such time as may be specified by the Author .....

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e Complainant had taken the order @ 5.9 US$ i.e. ₹ 271/- and adding overhead expenses the cost comes ₹ 295/- per shirt. The Preliminary Surveyor in his report dated 20th July, 2000, also did not give the basis of the estimate of loss at ₹ 75,00,000/-. The letters dated 11th May, 2001 was written to the Preliminary Surveyor asking about the basis of the figure of ₹ 75,00,000/- which was not responded. This was followed by reminder dated 28th June, 2001 which was also not responded. The letters dated 11th May, 2001 and 28th June, 2001 is Annexure R-14 and R-15 hereto . 14. Such are the only reasons available in the written statement as to why another Surveyor was appointed. No other record has been furnished for appointment of M/s ABM Engineers & Consultants, second surveyor on 22.08.2001. The Commission in its order held as under:- 22. There is no evidence on record that the appointment of Surveyor Nos. 2, 3 & 4 was with the consent of the Head Quarters. After the second Surveyor, there is no reasoning given as to why third and fourth Surveyors were appointed. This is an admitted fact that the fire broke out in the premises of the complainant. All the .....

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documents duping exporters. It was the said newspaper report which was made basis of appointing yet another Surveyor. The relevant extract from the written statement reads as under:- 3.12 On 9th May, 2002, it was reported in the Punjab Kesari newspaper that Delhi Police has arrested a gang of three persons who had duped the exporters of crores of rupees on the basis of forged documents. It also came to the notice of Respondent No. 1 that Mr. Ajay Verma of M/s. Sirdanwal Overseas from whom, the Complainant is alleged to have dealings for LC and procurement of the export order had been arrested in a cheating case in FIR No. 98 dated 6th April, 2002, P.S. Chitranjan Park, under Sections 420/406/12B of the Indian Penal Code. The newspaper report dated 9th May, 2002 is Annexure R-25 hereto. Respondent No. 1 appointed Shri R.G. Verma, Chartered Accountant to conduct an investigation of the claim. Shri R.G. Verma conducted the detailed investigation and submitted his report dated 28th May, 2002 in which he observed that the claim was fraudulent. The report of Shri R.G. Verma is Annexure R-26 hereto. The following documents were collected by the investigator:- i. List of bail applications .....

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of subsections (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 the 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 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. xxx xxx xxx 35. In our considered view, the Insurance Act only mandates that while settling a claim, assistance of a surveyor should be taken but it does not go further and say that the insurer would be bound by whatever the surveyor has assessed or quantified; if for any reason, the insurer is of the view that certain ma .....

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ey from the exporter and once the stock of the Complainant has been verified by the Canara Bank, which had the first charge over the property, therefore, such verification of stock could not be doubted by the Insurance Company only for the reason that letter of credit could not be materialised. The verification of the stocks by the Canara Bank which had primary charge on the stocks could not be doubted in the manner, the surveyor- M/s ABM Engineers & Consultants has reported. 22. Still further, it is explained in the affidavit that the letter of credit was by M/s Sirdanwal Overseas which was endorsed to Gurcharan Singh Company Pvt. Ltd. PTE Singapore. Therefore, the letter of credit was a valid document which could not be said not to be genuine only on the basis of reason that such letter of credit was not in favour of the Complainant when the order was placed on the Complainant by the above said Singapore based firm. 23. Mr. Ajay Verma is an accused in FIR in which there is no allegation in respect of export by the Complainant. The allegation against Ajay Verma is of duping the exporters whereas, there is no such or similar allegation against the Complainant. The Complainant h .....

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