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2019 (5) TMI 202

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..... gapore 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 endorsement by the Apparel Export Promotion Council, therefore factually such assertion of the Insurance Company is incorrect. There was no valid reason for the Insurance Company not to accept the report of the surveyor- M/s Sunil J. Vora & Associates nor there is any proof that such report is arbitrary & excessive. There are no cogent reasons to appoint Surveyors time and again till such time one Surveyor gives a report which could satisfy the interest of the Insurance Company. Appeal allowed. - CIVIL APPEAL NO. 9668 OF 2014, CIVIL APPEAL NOS. 4371-4372 OF 2015 - Dated:- 1-5-2019 - Dr. Dhananjaya Y. Chandrachud And Hemant Gupta, JJ. JUDGMENT Hemant Gupta, J. 1. This order shall dispose of Civil Appeals filed under Section 23 of the Consumer Protection Act, 1985 (1985 Act) preferred by both the parties against an order passed by the National Consumer Disputes Redressal .....

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..... 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 of India was established for Gurcharan Singh & Co. Pvt. Ltd., but the said letter of credit expired without receipt of any document. It was also mentioned that the Complainant is neither a beneficiary nor a notified party of said letter of credit. 7. Subsequently, M/s ABM Engineers & Consultants was appointed as the second Surveyor by the Insurance Company. The said Surveyor accepted the loss of ₹ 24,76,585/- in its report dated 28.02.2002. The second surveyor has taken into consideration stocks statement submitted by the Complainant to Canara Bank on 30.4.2000, 31.05.2000 and 01.07.2000 respectively. Though, the Manager of Canara Bank is said to have pointed out that these statements are like statutory requirements but the surveyor brushed them aside for the reason that these documents cannot be treated as documents for finalising the stock value. It was f .....

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..... ter 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 ₹ 50,00,000/- and that the loan amount was disbursed in the months of March and May, 2000. Such advance was secured by primary security of stocks and goods lying in the factory of the Complainant apart from the personal guarantee of the Directors of the Complainant and equitable mortgage/residential house of one of the Directors and plant & machinery installed at the above said factory as collateral security. The Bank also got insured the factory building as well as the stocks from the Insurance Company for which premium was paid by debiting the account of Complainant by the Bank. 10. The grievance of the Complainant is that the Insurance Company has appointed one surveyor after another. The first surveyor- M/s Sunil J. Vora & Associates has accepted the damage preferred by the Complainant to the extent of ₹ 54,93,865/- whereas, the second surveyor- M/s A .....

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..... ty 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 Authority or if no time limit has been specified by him within reasonable time and the cost of, or incidental to, such report shall be borne by the insurer. (4) The Authority may, on receipt of a report referred to in sub-section (3), issue such directions as he may consider necessary with regard to the settlement of the claim including any direction to settle a claim at a figure less than, or more than, that at which it is proposed to settle it or it was settled and the insurer shall be bound to comply with such directions: Provided that where the Authority issues a direction for settling a claim at a figure lower than that at which it has already been settled, the insurer shall be deemed to comply with such direction if he satisfies the Authority that all reasonable steps with due regard to the question whether the expenditure involved is not disproportionate to the amount r .....

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..... 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 first three Surveyors spoke about this fact in one voice. Even the Investigator/Fourth Surveyor, did not deny the happening of incident and admitted in no uncertain terms that shirts worth rupees few lakhs must have been burnt. There can be no conflictions on the point that some loss was occurred to the complainant. Whether the Order or LCs were fake or manipulated or the Order for import of shirts could not be proved or Mr. Ajay Verma was involved in a criminal case has got no bearing on this case. There is no inkling on evidence of record that Mr. Ajay Verma was involved in this particular case. 23. It cannot be laid down as a rule of thumb that the Surveyor cannot ask for other documents after he has informed the complainant that the documents are complete. There lies no rub. 24. Under these circumstances, we have no hesitation to accept the second Surveyor, M/s Suni .....

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..... gation 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 dated 24th May, 2002. ii. FIR NO. 98 dated 6th April, 2002. iii. Application for request for judicial custody by the Accused. iv. Respondent No. 1 took the photographs of the office of S.V. Traders which are Annexure R-27 hereto . 17. On the other hand, learned counsel for the Complainant rebutted the arguments raised and referred to communication dated 07.12.2001 addressed by the Head Office of the Insurance Company to its Delhi Regional Office, inter-alia, to the facts that Head Office has appointed M/s Sunil J. Vohra & Associates as the final Surveyor and that the Head Office is unable to understand as to why and who has appointed M/s ABM Engineers & Consultants as Surveyor. The extracts from the said letter read as under: - 07.12.2001 DELHI RO II Kind Attn. : MR. S. MAMMAN, ASSTT. GEN. MANAGER, Re: Fire Claim under Policy No. 11/310830/99/9010 A/c M/s. Luxra .....

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..... x 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 material facts ought to have been taken into consideration while framing a report by the surveyor and if it is not done, it can certainly depute another surveyor for the purpose of conducting a fresh survey to estimate the loss suffered by the insured. xxx xxx xxx 37. The option to accept or not to accept the report is with the insurer. However, if the rejection of the report is arbitrary and based on no acceptable reasons, the courts or other forums can definitely step in and correct the error committed by the insurer while repudiating the claim of the insured. We hasten to add, if the reports are prepared in good faith, with due application of mind and in the absence of any error or ill motive, the insurance company is not expected to reject the report of the surveyors . 19. In view of above, the question to be examined is whether the Insurance Company has reasons or the .....

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..... 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 has also averred that there was endorsement by the Apparel Export Promotion Council, therefore factually such assertion of the Insurance Company is incorrect. 24. Thus, we find that there was no valid reason for the Insurance Company not to accept the report of the surveyor- M/s Sunil J. Vora & Associates nor there is any proof that such report is arbitrary & excessive. There are no cogent reasons to appoint Surveyors time and again till such time one Surveyor gives a report which could satisfy the interest of the Insurance Company. 25. In fact, in the present case it is evident that the claim of ₹ 54,93,865/- was accepted by the surveyor- M/s Sunil J. Vora & Associates. The second surveyor- M/s ABM Engineers & Consultants accepted the claim in the sum of ₹ 24,76,585/-. The third surveyor - R.G. Verma recommended total repudiation of claim. It .....

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