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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
K.S. Chaudhari, Presiding Member and Suresh Chandra, Member
M/s. R.R. International —Complainant
versus
M/s. New India Assurance Co. —Opp. Party
Original Petition No. 35 of 2003
Decided on: 08.01.2013
Counsel for the Parties:
For the Complainant:Ms. Sandhya Goswami, Advocate .
For the Opp. Party.:Mr. K.L. Nandwani, Advocate.
IMPORTANT POINT
Merely by participation in second survey, complainant is not estopped from challenging second survey report which is apparently not based on sound reasoning.
Headnote:(i) Consumer Protection Act, 1986—Sections 2(1)(d) and 21—Insurance—Loss cause due to rain—A person who takes insurance policy to cover envisaged risk does not take policy for commercial purpose—Policy is only for indemnification for actual loss—It is not intended to generate profit—Availing service of insurance company does not amount to taking services for commercial purposes—Complainant is a consumer—It is not clear from record when and under what circumstances second surveyor was appointed— f opposite party was not satisfied with first surveyor’s report, it should have given valid reasons for not accepting first surveyor’s report and only after that second surveyor should have been appointed which has not been done and report of second surveyor cannot be considered to defeat claim of complainant—First survey report has been supported by bills and vouchers of expenditure incurred on repairs whereas second survey report is based on estimates—Merely by cooperating to second surveyor in assessing loss complainant cannot be deprived of loss estimated by first surveyor—Complainant is entitled to get a sum of Rs. 12,72,040/- from the opposite party alongwith cost of Rs.10,000. (Paras 9 to 13, 19 to 23)
(ii) Insurance Act, 1938—Section 64-UM—Appointment of Surveyor—Insurance company has right to appoint second surveyor but second surveyor can be appointed only for valid and cogent reasons with allegation of non-application of mind, error or ill motive in preparation of report by first surveyor—Opposite party has not placed any document containing cogent and valid reasons and imputing error, ill motive, non-application of mind by first surveyor in preparing report—There was no occasion for opposite party to appoint second surveyor in disregard of first surveyor’s report. (Para 16)
K. S. Chaudhari, Presiding Member—Complainant filed complaint on 28.1.2003 and alleged that complainant purchased two fire polices and other polices in regard to the various properties situated and located at various places from opposite party. It was further alleged that the dispute between the complainant and the opposite party pertains to two Fire policies, namely; (i) Fire Policy No. 1142180103474; and (ii) No. 1142180103476. First policy pertains to the building situated at Lakdi Fazalpur, Moradabad covering fire for a total sum of Rs.202.15 lakhs and second policy pertains to the building, etc. adjacent to old Maida Mill, Lakdi Fazalpur, Moradabad, also being a fire policy ‘C’ extended to cover FSTI for a sum of Rs.182.70 lakhs. During the subsistence of the policy period, complainant suffered huge loss on 30.8.2000 on account of inundation occurred due to rains and caused a total loss in terms of building, stocks, FFF electrical fittings, etc. Complainant immediately intimated opposite party regarding this loss and opposite party appointed and deputed a Surveyor, Shri V.P. Maheshwari to assess loss suffered by the complainant. The Surveyor carried out detailed survey and submitted his report to the opposite party in respect of both the policies. Under the first policy, the complainant claimed a loss of Rs.31,77,584.16 and under second policy, the complainant claimed loss of Rs.10,09,071.09, as per details mentioned in para 7 of the complainant. The Surveyor took 1½ year to carry out detailed survey and survey was carried out at the time when the building was ravaged and devastated and the report was an accurate and factual assessment of the losses suffered. Opposite party did not make good the loss suffered by the complainant and all of a sudden and in a most arbitrary manner with a view to completely defeat the lawful claim of the complainant appointed another surveyor M/s. Adarsh Associates on 16.3.2002. The second surveyor had no factual basis to proceed in evaluating the losses after two years. It was further alleged that complainant obtained polices on 25.4.2000 and opposite party sold fire policy under the old fire tariff which were not valid on the date of the policy as by a notification dated 29.3.2000 by the Regional Office which was effective from 31.3.2000 and the tariff rate of this policy was lowered to 1.25% inclusive of FSTI in place of the former rate of 2.25% and in this way, opposite party charged a sum of Rs.52,853/- extra which amounts to criminal misappropriation and gross deficiency of service. It was further alleged that on the basis of second illegal and arbitrary survey report, opposite party evaluated the losses suffered by the complainant to the tune of Rs.7,40,825.31 and opposite party disposed of complainant’s claim for Rs.4,44,000/-. Complainant submitted grievances before the Hon’ble Ombudman (Insurance) for the State of U.P. and Uttaranchal Regional but claim of the complainant was returned by Ombudman on the ground that the amount claimed was beyond their pecuniary jurisdiction, hence, complainant filed this complaint within limitation and prayed that claim of Rs.41,86,655.25 under both the polices may be allowed with interest @ 18% p.a. and excess premium charged by the opposite party may also be refunded.
2. Opposite party submitted written statement and alleged that claim filed by the complainant is not maintainable as services of the opposite party have been hired for the commercial purposes and complainant is not a consumer. Complainant is estopped by his act and conduct to file the present complaint as the complainant had participated in the investigation and assessment of loss by the second surveyor along with the first surveyor without any protest and now complainant cannot agitate and say that the report is not acceptable to him. It was further alleged that necessity for the appointment of the second surveyor arose as the first surveyor had permitted extensive improvemen
