Consumer Forum Cannot Forensically Examine Conflicting Surveyor Reports in Complex Cases, Must Defer to Civil Court: TN State Consumer Commission - 2025-01-09

Complex Insurance Dispute with Conflicting Surveyor Reports Beyond Consumer Forum's Scope, Rules TN Commission

CHENNAI – The Tamil Nadu State Consumer Disputes Redressal Commission, presided over by Justice R. Subbiah, has dismissed a complaint filed by a construction firm against National Insurance Company Ltd., ruling that the complex and disputed factual questions involved in the case are better suited for a civil court. The Commission held that while the complainant qualifies as a "consumer," the forum's summary jurisdiction is limited and cannot be used to conduct a "forensic examination" of conflicting expert reports.

The complaint was filed by M/s. Sripathy Associates, seeking over ₹73 lakhs in compensation for a repudiated insurance claim, along with damages for business loss and loss of reputation.

Background of the Case

Sripathy Associates was awarded a government contract to construct a breakwater for a fishing harbour in Thengapattinam, Kanyakumari District, at an approximate cost of ₹27.62 crores. To cover potential risks, the firm obtained a Contractor’s All Risk (CAR) Insurance Policy from National Insurance Company for the period between May 2010 and August 2012.

In August 2010, the firm claimed that a significant portion of the constructed breakwater was damaged due to an "unexpected heavy storm and sudden tidal waves." They filed a claim for approximately ₹75 lakhs. The insurance company appointed a surveyor, M/s. Mehta & Padamsey, who assessed the net liability at ₹73,34,850 and recommended the claim be paid.

However, the insurer, dissatisfied with the initial report, appointed a second surveyor, Mr. R. Venugopala Pillai, to conduct a technical investigation. This second report concluded that the damage resulted from the contractor's "deviation from the recommended design and non-conformity of relevant conditions of the agreement," which compromised the structure's stability against expected seasonal waves. Based on this second report, National Insurance repudiated the claim on September 16, 2011.

Arguments from Both Sides

Complainant's Stance: Sripathy Associates argued that the repudiation was arbitrary and illegal. They contended that the work was executed under the direct supervision of the State of Tamil Nadu (the 3rd opposite party), which had certified the quality and quantity of the work. They asserted that the first surveyor's report, prepared immediately after the incident, was accurate and should be honoured. The appointment of a second surveyor over a year later was a mala fide attempt to deny a valid claim. The complainant highlighted the first surveyor's finding: "the damage was caused by the storm... this type of damage would fall under the several perils covered under... the Contractors All Risk Policy issued."

Insurer's Defence: National Insurance Company defended its decision, stating it was not bound to accept a surveyor's report that appeared superficial and unscientific. Citing Section 64-UM of the Insurance Act, 1938, they argued an insurer can disagree with a report for valid reasons. They claimed the second investigator found that the construction failed to adhere to contractual specifications, making it vulnerable to predictable monsoon waves, not an "Act of God." The insurer also relied on weather reports indicating that the sea conditions were rough but typical for the monsoon period, not an extraordinary event.

Court's Analysis and Legal Precedent

The Commission first addressed whether Sripathy Associates, a commercial entity, could be considered a "consumer." Citing the National Commission's decision in M/s. Harsolia Motors Vs. M/s. National Insurance Co. Ltd. , the Commission affirmed that taking an insurance policy for a commercial activity is for indemnity against loss and not for "trading or carrying on commerce in insurance policies." Thus, the complainant was rightly defined as a consumer.

However, on the primary issue of jurisdiction, the Commission found the matter too complex for its summary procedure. The conflicting reports from two different surveyors—one supporting the claim and the other attributing the loss to faulty construction—created a significant disputed question of fact.

The Commission cited the Supreme Court's judgment in Khatema Fibres Ltd. Vs. New India Assurance Company Limited and another (2021) , which established a key principle:

"A Consumer Forum which is primarily concerned with an allegation of deficiency in service cannot subject the surveyor’s report to forensic examination of its anatomy, just as a civil court could do."

Justice Subbiah concluded that determining the validity of either surveyor's report, assessing the cause of damage, and verifying adherence to construction specifications would require an elaborate trial with voluminous evidence and cross-examination, which is beyond the scope of a consumer forum.

Final Decision

The Commission dismissed the complaint, stating, "Such allegations revolving around disputed facts need elaborate trial... which can be done only before the competent civil court concerned and such an exercise cannot be undertaken by this Commission in a summary nature."

The order provides liberty to Sripathy Associates to approach the appropriate civil court to seek relief for their claim. No costs were awarded.