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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Deepa Sharma, Presiding Member and Subhash Chandra, Member
M/s. Shivalik Container Pvt. Ltd. – Complainant
versus
Oriental Insurance Company
Limited and Ors. – Opp. Parties
Consumer Case No.325 of 2012
Decided on 17.11.2021

Advocates:
Counsel for the Parties:
For the Complainant:Mr. Sakal Bhushan, Advocate
For the Opp. Parties:Mr. Abhishek Gola, Advocate

Headnote:

Consumer Protection Act, 1986 – S.21[Consumer Protection Act, 2019 – S.58] – Insurance Act, 1938 – S.64UM – INSURANCE/FIRE INSURANCE – Compliant is filed being dis-satisfied with the amount of compensation approved by the opposite party – Whether an insurer can adopt the role of loss assessor – Since the insurer cannot act as a loss assessor, it cannot substitute its own assessment of loss to that of the surveyor. The only option under section 64 UM of the Act is to appoint another surveyor.

Held, On reading of sub-section (1) (A) of Section 64 UM in conjunction with sub-section (2) of Section 64 UM of the Act, it is apparent that insurer cannot act as a loss assessor and the loss assessor can only be the surveyor which are appointed by the authority established under IRDA Act.In this case, recommendation for appointment of another surveyor has been made and no reasons have been given by the insurer as to why this recommendation was not acted upon. In view of this, calculation of the loss to the tune of Rs.2,66,43,836/- is liable to set aside.Accordingly, the report of the surveyor whereby it assessed the loss to the tune of Rs.3,90,69,066/- is upheld and the complainant is entitled to this amount, direct the opposite party to pay a sum of Rs.3,90,69,066/- to the complainant towards its claim for loss.Sum of Rs.2,66,43,836/- has already been released to the complainant in December, 2013. Therefore, amount of Rs.1,24,25,230/- (Rs. 3,90,69,066/- minus Rs.2,66,43,836/-) shall be paid to the complainant alongwith interest @ 9% p.a. from the date of filing of complaint till the date of payment.Interest @ 9% p.a. is also awarded on amount of Rs.2,66,43,836/- from the date of filing of complaint till the date of payment.Litigation cost to the tune of Rs.1,00,000/- is also awarded to the complainant. [Paras 15,16]

ORDER

Deepa Sharma, Presiding Member.—In the present complaint, the complainant has alleged that it is a registered company since 1997 who is engaged in the manufacture, supply and sale of corrugated boxes / boards to various industrial houses and was having its factory in five sheds. Out of five sheds, four were installed with machinery for manufacture of the card boxes and fifth shed was used for storage of raw material with semi finished goods / excess stocks. The complainant had been taking regular insurance covers for buildings, machinery and stock of raw material and semi finished and finished goods from the very inception and for the relevant period, it were having two valid insurance policies. It is submitted that insurance policy No. 261700/11/2011/194 was covering the following items:

i

Stock

Rs.1,50,00,000.00

ii

Plant & Machinery

Rs.30,00,000.00

Iii

Building

Rs.25,00,000.00

 

Total

Rs.2,05,00,000.00

Policy No.261700/11/2011/211 was covering the following items:

 

i

Stock

Rs.1,42,00,000.00

Ii

Plant & Machinery

Rs.2,50,00,000.00

iii

Other contents

Rs.58,00,000.00

 

Building

Rs.1,00,00,000.00

 

Total

Rs.5,50,00,000.00

2. The admitted facts of case are that during the existence of above mentioned policies, a major fire had broken out on 09.12.2010 and caused huge losses to the insured property. The complainant while informing the other local authorities also informed the insurance company about the incident. The complainant, thereafter, submitted its claim forms dated 22.03.2011. The opposite parties appointed Sh.Pankaj Goyal as preliminary surveyor and Sh.V.K.Kharbanda as final surveyor. The surveyor report was submitted on 15.04.2011 assessing the loss of Rs.1,48,00,000/- for unit No.1 and Rs. 3,00,00,000/- for unit no. II, thus totaling to Rs. 4,48,00,000/- The surveyor had also recommended release of Rs.1,00,00,000/- as ‘On Account Payment’ as claim was technically payable. The contention of the complainant is that not only the insurance company had failed to make the ‘On Account Payment’ as suggested by the surveyor, they had also exercised undue influence on the surveyor and the surveyor, thereafter, reduced the loss amount to Rs.3,91,30,215/-. That the insurance company obtained the consent from the complainant for this amount and the complainant though in order to settle matter signed the consent letter dated 13.09.2011. The amount was not released to the complainant. After a lapse of about one year i.e. total two years from the filing of the claim by the complainant, the opposite parties vide letter dated 19.09.2012, however, offered a sum of Rs.2,66,43,836/- in full and final settlement of the claim. The complainant asked for the details of the assessment of this amount vide its letter dated 25.09.2012 and the insurance company replied it vide mail dated 01.10.2012. The complainant refused to accept the said sum in full and final settlement but offered to accept it as ‘On Account Payment’ subject to the consideration of the balance claim. The complainant also withdrew its consent for the reduced amount of Rs.3,91,30,215/-. After having received no response from the insurance company, the complainant sent a legal notice dated 22.11.2012. This notice was replied by the insurance company vide email dated 27.11.2012 without disclosing any reason for reduction in claim amount. The complainant has further stated that due to non settlement of its genuine claim, he had suffered a huge loss in the business and the conservative estimate comes to Rs.1,70,00,000/-. He has also suffered harassment and mental agony. On these contentions, the complainant has claimed total sum of Rs.5,64,19,927/- alongwith interest @ 18% p.a. The complainant has also claimed compensation of Rs.1,70,85,188/- towards loss in business, Rs.5,00,000/- towards harassment and mental agony and

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