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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Deepa Sharma, Presiding Member
Through Video Conferencing
National Insurance Company Ltd. and Anr. – Petitioners
versus
M/s. Saree Point and Anr. – Respondents
Revision Petition No.2475 of 2013
(Against the Order dated 07/03/2013 in Appeal No.358/2011 of the State Commission West Bengal)
Decided on 10.12.2020
Counsel for the Parties:
For the Petitioners:Mrs. Nanita Sharma, Advocate
For the Respondents:Mr. Pawan Kumar Ray, Advocate
IMPORTANT POINT
Report of surveyor can be rejected only by recording reasons in writing.
Headnote:
Consumer Protection Act, 1986 – Section 21(b) : [Consumer Protection Act, 2019 – Section 58] – Fire insurance – Claim for damages – Scope – Complainant had insured his shop and godown – A fire had broken out and his shop at godown were gutted – Admittedly, surveyor had submitted his report on 22.12.2008 – Surveyor report if doubted to be collusive, nothing had stopped the insurance company from rejecting the said report and appointing another report – Conduct of insurance company shown that they had neither accepted nor rejected the surveyor but simply sat over if for such a long period – No infirmity found in order of State Commission.
Held: This Commission has a limited revisional jurisdiction. The Hon’ble Supreme Court in number of cases has held that this Commission in its revisional jurisdiction cannot re-appreciate or reassess the evidences on record and substitute its own finding, specially when there are concurrent findings on facts by Foras below. The Hon’ble Supreme Court has also held that even if the conclusion arrived at is incorrect and there could be other conclusions, but if the conclusion arrived at by the Foras below on the evidences on record, is a possible conclusion, even then in exercise of its revisional jurisdiction this Commission cannot substitute the said concurrent findings. The Hon’ble Supreme Court while interpreting power of revision of this Commission has in numerous cases including “Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. – (2011) 11 SCC 269.
Again in “Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286.
In T. Ramalingeswara Rao (Dead) Through L.Rs. and Ors. Vs. N.Madhava Rao and Ors. decided on 05.04.2019 passed in Civil Appeal No. 3408 of 2019.
In the present case as is clear from the admitted facts that the surveyor had submitted his final report on 22.12.2008. The insurance company had neither accepted nor rejected the said surveyor report. It just remained sitting on the surveyor report and started writing letters to the complainant. If the insurance company, as argued, was suspicious that the report of the surveyor is a collusive report, nothing had stopped them from rejecting the said report and appointing another surveyor. It is apparent that for the first time, the insurance company had sought the explanation of the surveyor vide its letter dated 16.3.2010 i.e. more than one and a half year from the fire. Although learned counsel has submitted that earlier to this, a letter dated 3.6.2009 was written to the surveyor but still there is no rejection of the surveyor report by the insurance company. It is also apparent that during the pendency of the complaint before the District Forum, a joint meeting had been held for settlement between the parties on 19.2.2010 which was attended by the advocate of the insurance company and Mr.Arum Kumar Dey, DGM, Sh.P.K. Saha, Divisional Manager, Asansol Divisional office of the insurance company, surveyor and the complainant. This clearly shows that till date surveyor report had not been rejected. Even at no stage, the insurance company had taken the plea that they (at any stage till the disposal of the complaint by the District Forum) had rejected the surveyor report. The report of the surveyor whose appointment is statutory, has merit and weight. The report can be rejected only by recording reasons in writing. The conduct of the insurance company shows that they had neither accepted nor rejected the report of the surveyor but simply sat over it for such long period. Even its officials acknowledged the participation of the surveyor in the meeting held by its senior officials on 19.2.2010.
I find no illegality or infirmity in the order of the State Commission nor do I find any wrong exercise of the jurisdiction. The present revision petition has no merit. However, from the above it is apparent that the conduct of the insurance company had been malicious and unworthy. They had dragged the complainant into litigation without any valid reason i.e. by simply sitting on the surveyor report and neither accepting nor rejecting the claim of the complainant for such long period. While dismissing the present revision petition, I impose a cost of Rs.25,000/- which shall be deposited in the Consumer Legal Aid Account and litigation cost of Rs.10,000/- which shall be paid to the complainant. The deposit and the payment shall be made within six weeks from today.
Held: The Hon’ble Supreme Court in number of cases has held that this Commission in its revisional jurisdiction cannot re-appreciate or reassess the evidences on record and substitute its own finding, specially when there are concurrent findings on facts by Foras below. The Hon’ble Supreme Court has also held that even if the conclusion arrived at is incorrect and there could be other conclusions, but if the conclusion arrived at by the Foras below on the evidences on record, is a possible conclusion, even then in exercise of its revisional jurisdiction this Commission cannot substitute the said concurrent findings. The Hon’ble Supreme Court while interpreting power of revision of this Commission has in numerous cases including “Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. – (2011) 11 SCC 269.
Again in “Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286.
In T. Ramalingeswara Rao (Dead) Through L.Rs. and Ors. Vs. N.Madhava Rao and Ors. decided on 05.04.2019 passed in Civil Appeal No. 3408 of 2019
In the present case as is clear from the admitted facts that the surveyor had submitted his final report on 22.12.2008. The insurance company had neither accepted nor rejected the said surveyor report. It just remained sitting on the surveyor report and started writing letters to the complainant. If the insurance company, as argued, was suspicious that the report of the surveyor is a collusive report, nothing had stopped them from rejecting the said report and appointing another surveyor. It is apparent that for the first time, the insurance company had sought the explanation of the surveyor vide its letter dated 16.3.2010 i.e. more than one and a half year from the fire. Although learned counsel has submitted that earlier to this, a letter dated 3.6.2009 was written to the surveyor but still there is no rejection of the surveyor report by the insurance company. It is also apparent that during the pendency of the complaint before the District Forum, a joint meeting had been held for settlement between the parties on 19.2.2010 which was attended by the advocate of the insurance company and Mr.Arum Kumar Dey, DGM, Sh.P.K. Saha, Divisional Manager, Asansol Divisional office of the insurance company, surveyor and the complainant. This clearly shows that till date surveyor report had not been rejected. Even at no stage, the insurance company had taken the plea that they (at any stage till the disposal of the complaint by the District Forum) had rejected the surveyor report.
The present revision petition has no merit. However, from the above it is apparent that the conduct of the insurance company had been malicious and unworthy. They had dragged the complainant into litigation without any valid reason i.e. by simply sitting on the surveyor report and neither accepting nor rejecting the claim of the complainant for such long period. While dismissing the present revision petition, I impose a cost of Rs.25,000/- which shall be deposited in the Consumer Legal Aid Account and litigation cost of Rs.10,000/- which shall be paid to the complainant. The deposit and the payment shall be made within six weeks from today. (Paras 9 to 13)
Result: Petition dismissed.
ORDER (ORAL)
Deepa Sharma, Presiding Member.—The present revision petition has been filed against the order dated 7.3.2013 in appeal No.358 of 2011 of the petitioner (hereinafter called the insurance company) whereby the appeal was dismissed.
2. The appeal had been filed by the petitioner against the order of the District Forum dated 13.7.2011 in consumer complaint no.15 of 2011 of the respondent whereby the claim of the respondent (hereinafter called the complainant), was allowed and following directions were issued :
Para 3 :-
“That the Consumer Complaint No.04 of 2009 (old)/15 of 2011 (new) be and the same is allowed in part on contesting against the OP Nos.1 &2 (Branch Manager, National Insurance Co. Ltd., Purulia Branch & Regional Manager, National Insurance Co. Ltd., Kolkata Regional Office II)
That the Complainant do get Rs.5,22,233.00 (Rs. Five Lacs twenty two thousand two hundred and thirty three) only from the O.P. No.1 & 2 on account of loss of damaged materials by fire.
That the Complainant do get Rs.5,000.00 (Rs. Five thousand) only towards compensation for harassment and mental agony.
That the Complainant do get Rs.5,000.00 (Rs. Five thousand) only towards litigation cost.
That the complainant is not entitled to get interest over the said amount.
That the O.P. Nos.1 & 2 are directed to pay the aforesaid awarded amount to the Complainant within 30 (thirty) days from this date; failing which, the Complainant shall be at liberty to proceed in accordance with law.”
3. The brief facts of the case are that the complainant had insured his shop cum godown situated on the 3rd Floor at Doctor Danga, Chaibasa Road, Holding No.312, Purulia with the insurance company. He had purchased two insurance policies, one for the shop and other for the godown. During the validity of these policies, a fire had broken out at about 11.25pm on 28.12.2006 wherein his shop and godown were gutted. The local police and the fire brigade were duly informed and it took about two and a half hour for fire tenders to extinguish the fire. The incident was reported under G.D. No.1210 dated 29.12.2006, the complainant also informed the insurance company about the incident. Insurance company appointed Sh.Pravakar Kumar Roy for the preliminary survey. He had submitted his report on 3.1.2007. The preliminary surveyor confirmed the incident of fire in the shop as well as in the godown of the complainant. The insurance company thereafter appointed the surveyor namely Mr.J.M. Dugar of Apex Surveyors Pvt. Ltd. who had assessed the losses. The surveyor has submitted his report on 22.12.2008. Thereafter, the insurance company wrote a letter dated 12.1.2009 to the complainant asking for certain documents from him. Complainant being dissatisfied from the attitude of the insurance company filed his complaint on 5.2.2009.
4. In the complaint, the complainant had alleged deficiency on the part of the insurance company and claimed damages for the loss occurred to him in the shop and in the godown under two insurance policies.
5. In the written statement, the claim was contested by the insurance company on several grounds. Parties led their evidences before the District Forum. Initially, the District Forum dismissed the complaint alleging that the complainant was not a ‘consumer’. The order of the District Forum was challenged by the complainant before the State Commission and the State Commission had remanded the matter by giving its findings on merit. The District Forum thereafter passed the order dated 13.7.2011 which was subsequently challenged by the insurance company before the State Commission in which the impugned order has been passed.
6. It is argued before me by the learned counsel for the insurance company/petitioner, that the impugned order is illegal and without jurisdiction because the insurance company had never accepted the settlement and that the Foras below had failed to take into account that the surveyor had connived with the complaina
