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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dinesh Singh, Presiding Member
M/s. Shree Ram Industries —Appellant
versus
Oriental Insurance Co. Ltd. and Ors. —Respondents
First Appeal No.395 of 2015
(Against the Order dated 16/04/2015 in Complaint No. 24/2013 of the State Commission Chhattisgarh)
Decided on 1.12.2020
Counsel for the Parties:
For the Appellant:Mr. B. S. Sharma, Advocate
For the Respondents Nos.1 to 3:Mr. Kishore Rawat, Advocate
IMPORTANT POINT
Investigation and Survey by insurance company are fundamental in determining amount payable to insured. A Survey cannot be disregarded or dismissed without cogent reasons.
Headnote:
Insurance Act, 1938 – Section 64 UM – Consumer Protection Act, 1986 – Section 19[Consumer Protection Act, 2019 – Section 51] – Insurance – Marine Cargo Open Cover Insurance Policy – Damage to consignment due to rain – State Commission allowed Complaint in part and ordered Insurance Co. to pay loss assessed in Survey Report i.e. Rs. 13,63,117/- with 9% interest and Rs.1,00,000/- as compensation and Rs. 7,000/- as cost of litigation – No other cogent evidence has been furnished by Complainant Firm to substantiate its claimed loss of Rs. 43,32,988/- – Investigation and Survey by insurance company are fundamental in determining amount payable to insured. A Survey cannot be disregarded or dismissed without cogent reasons – Onus of showing that Survey Report of Insurance Co. was flawed and of showing that in fact loss was Rs.43,32,988/-, was on Complainant Firm, which onus it failed to discharge – State Commission has passed a reasoned order, after weighing evidence – No reason is visible to occasion interfering with Award made by State Commission, specifically no cogent material is available to accept loss of Rs.43,32,988/- claimed by Complainant Firm – Appeal dismissed.
Held: Admitted facts are that a Marine Cargo Open Cover Insurance Policy was taken by the Complainant Firm. The premium was paid. The policy was valid. The insured consignment (mainly super temp. inserts, and some other parts) was shipped by sea, then, during surface transportation by truck to the factory site, it was damaged due to heavy rain. The Complainant Firm claimed loss of Rs. 43,32,988/-. The Survey Report furnished by the Surveyors appointed by the Insurance Co. assessed the loss at Rs. 13,63,117/-. The Insurance Co. offered Rs. 9,82,134/- i.e. 75% of the assessed loss on ‘non standard’ basis, on ground that the consignment was not properly protected. The Complainant Firm filed a Complaint before the State Commission. The State Commission vide its impugned Order dated 16.04.2015 allowed the Complaint in part and ordered the Insurance Co. to pay the loss assessed in the Survey Report i.e. Rs. 13,63,117/- with interest @ 9% per annum from the date of the filing of the Complaint i.e. 21.10.2013 till realisation and Rs.1,00,000/- as compensation and Rs. 7,000/- as cost of litigation. The Complainant Firm appealed before this Commission.
Investigation and Survey by an insurance company are fundamental in determining the amount payable to the insured. A Survey cannot be disregarded or dismissed without cogent reasons (it, but, also goes concomitantly that the rationale and computation recorded in the Survey should be convincing and pass credence in scrutiny).
Except for the said ‘opinion report’, without any independent laboratory test report(s) or additional relevant material (as may have been erroneously overlooked by the Surveyors appointed by the Insurance Co.), furnished by a surveyor & loss assessor engaged by the Complainant Firm, on payment of fee by the Complainant Firm, no other cogent evidence has been furnished by the Complainant Firm to substantiate its claimed loss of Rs. 43,32,988.
The State Commission has rightly treated this evidence as insufficient to affect or override the rationale and computation in the Survey Report of the Surveyors appointed by the Insurance Co.
The onus, [a] of showing that the Survey Report of the Insurance Co. was flawed and [b] of showing that actually in fact the loss was Rs.43,32,988/-, was on the Complainant Firm, which onus it failed to discharge.
The State Commission has passed a reasoned order, after weighing the evidence. No reason is visible to occasion interfering with the Award made by the State Commission, specifically no cogent material is available to accept the loss of Rs.43,32,988/- claimed by the Complainant Firm.
The Appeal fails. The State Commission’s impugned Order is upheld and confirmed.
(Paras 4, 8, 10 and 11)
Result: Appeal dismissed.
ORDER
Taken up through video conferencing.
Dinesh Singh, Presiding Member.—This Appeal has been filed under Section 19 of The Consumer Protection Act, 1986, hereinafter referred to as the ‘Act’, challenging the Order dated 16.04.2015 in C. C. No. 24 of 2013 passed by The State Consumer Disputes Redressal Commission, Chhattisgarh, hereinafter referred to as the ‘State Commission’.
The Appellant herein, M/s Shree Ram Industries, was the Complainant before the State Commission, and is hereinafter being referred to as the ‘Complainant Firm’.
The Respondent No. 1 herein, The Oriental Insurance Co. Ltd., was the Opposite Party No. 1 before the State Commission, and is hereinafter being referred to as the ‘Insurance Co.’.
The Respondents No. 2 and No. 3 herein, Shri Pawan Bhagwani and Shri Shayam Chhabra, were the Opposite Parties No. 2 and No. 3 before the State Commission, and are hereinafter being referred to as the ‘Surveyors’.
The Respondent No. 4 herein, Proprietor, Diamond Roadlines, was the Opposite Party No. 4 before the State Commission, and is hereinafter being referred to as the ‘Transport Firm’.
2. Vide Order dated 09.10.2020 the Transport Firm was ordered to be proceeded against ex parte.
3. Heard arguments from Mr. B. S. Sharma, Advocate, learned Counsel for the Complainant Firm and Mr. Kishore Rawat, Advocate, learned Counsel for the Insurance Co. and its Surveyors.
Perused the material on record including inter alia the impugned Order dated 16.04.2015 of the State Commission and the Memorandum of Appeal.
4. Admitted facts are that a Marine Cargo Open Cover Insurance Policy was taken by the Complainant Firm. The premium was paid. The policy was valid. The insured consignment (mainly super temp. inserts, and some other parts) was shipped by sea, then, during surface transportation by truck to the factory site, it was damaged due to heavy rain. The Complainant Firm claimed loss of Rs. 43,32,988/-. The Survey Report furnished by the Surveyors appointed by the Insurance Co. assessed the loss at Rs. 13,63,117/-. The Insurance Co. offered Rs. 9,82,134/- i.e. 75% of the assessed loss on ‘non standard’ basis, on ground that the consignment was not properly protected. The Complainant Firm filed a Complaint before the State Commission. The State Commission vide its impugned Order dated 16.04.2015 allowed the Complaint in part and ordered the Insurance Co. to pay the loss assessed in the Survey Report i.e. Rs. 13,63,117/- with interest @ 9% per annum from the date of the filing of the Complaint i.e. 21.10.2013 till realisation and Rs.1,00,000/- as compensation and Rs. 7,000/- as cost of litigation. The Complainant Firm appealed before this Commission.
5. The State Commission has principally relied on the (joint) Survey Report of the (two) Surveyors appointed by the Insurance Co., and has based its Award on the assessment of loss of Rs. 13,63,117/- made in the said Survey Report.
It has disagreed with the Complainant Firm in its (unsubstantiated) assessment of loss of Rs. 43,32,988/-.
It has also disagreed with the Insurance Co. in settling the claim on ‘non standard’ basis at 75% of the loss assessed by its Surveyors.
6. The Insurance Co. has not appealed the Order of the State Commission.
The Complainant Firm has filed the instant First Appeal for enhancement in compensation.
7. The principal evidence furnished by the Complainant Firm in support of its claimed loss of Rs. 43,32,988/- is a report by one Mr. K.V. Siva Krishna Murty, a surveyor, appointed by it (the Complainant Firm) at a fee of Rs. 17,000/-, who assessed the loss at Rs. 43,32,989/-.
This report (titled ‘Opinion Report’) is but (only) in the nature of an annotation, without any independent laboratory test report(s) or additional facts / documents etc. (as were relevant and material, but not considered by the Surveyors appointed by the Insurance Co.).
8. Investigation and Survey by an insurance company are fundamental in determining the amount payable to the insured. A Survey cann
