BIKRAMADITYA PAUL vs Oriental Insurance Company Ltd

THIS appeal has been directed by the complainant of C. D. Case No. 97 of 2002 being aggrieved against the orders dated 30. 10. 2003 of the District Forum, Puri in that case ordering the sole opposite party to pay a sum of Rs. 1,11,277 towards loss of property covered under the policy of insurance, with interest @ 12% per annum till payment from the month of August, 2000 (8/2000) delay being caused in settlement of claim and to pay litigation cost of Rs. 500 to the complainant/appellant.

FACTS in nutshell are that undisputedly complainant insured his shop viz. M/s. Vimala Handloom and Applique with opposite party vide policy No. 104 for the period from 7. 6. 1999 to 6. 6. 2000 for a sum of Rs. 6,05,000 annual premium being fixed at Rs. 1500. After daily transaction and after said shop was closed at 10. 40 p. m. on 30. 1. 2000, in absence of the complainant, the shop was caught with accidental fire and the handloom and Applique goods, furniture, fixtures and electrical fittings to the tune of Rs. 3,09,277 were burnt and damaged. Some articles were also partly burnt but became completely useless. Fire Brigade had arrived to extinguish the fire. Complainant had intimated the Insurance Company-the opposite party. Complainant lodged claim of Rs. 3,09,277 with the opposite party. Matter was intimated to police. The opposite party first of all deputed surveyor - Sri Banerjee who made preliminary survey and assessed loss only in respect to partly damaged articles by water and fire leaving rest part of survey to be performed by final surveyor. The preliminary surveyor''s report in respect to closing stock as on 30. 1. 2000 was worth Rs. 2,35,679. 39 and less stock partially affected items as Rs. 43,920. The opposite party subsequently deputed second surveyor Sri K. C. Mohapatra. He submitted his report dated 27. 12. 2000 referring also to the aforesaid preliminary report of the first surveyor that the stock of fully burnt items is Rs. 1,91,759. 39 plus loss in partially burnt items. The total loss according to him is thus Rs. 2,35,679. 39. The total gross loss calculated by him and submitted vide said report is Rs. 2,35,679. 39 minus 10% of this amount = Rs. 2,12,111. 45. After deducting less salvage amount Rs. 28,548 from the aforesaid gross loss in stock viz. Rs. 2,12,111. 45 second surveyor vide his said report dated 27. 12. 2000 assessed loss at Rs. 1,83,563. 45 which is the net liability of the opposite party-Insurance Company. But, being asked to clarify further by the opposite party, his aforesaid assessment about loss, Surveyor-Sri K. C. Mohapatra vide his later report dated 25. 9. 2001 indicated less sales at cost from 1. 1. 2000 to 30. 1. 2001 as Rs. 33,534. 23 and less profit 17. 31% as per I. T. return Rs. 7,019. 92 in total, Rs. 33,534. 23, as against the amount figured in his earlier report in these respects Rs. 30,415. 61 and Rs. 10,138. 54 in total Rs. 30,415. 61 respectively. According to his report of clarification dated 25. 9. 2001, therefore, the value at risk on the date of loss is Rs. 2,32,560. 77 as against the value of risk on the date of loss Rs. 2,35,679. 39 as per his report dated 27. 12. 2000. Accordingly, vide his report dated 25. 9. 2001, Sri K. C. Mohapatra assessed net loss at Rs. 1,11,277. But as per letter dated 19. 2. 2002, the opposite party settled complainant''s claim at Rs. 1,08,000. Opposite party enclosed with said letter, a set of discharge vouchers asking to be jointly signed by the complainant and his banker for making payment. But the complainant did not sign the discharge vouchers and claimed Rs. 3,09,277 towards loss and damage as the entire shop with articles have been burnt away and the opposite party did not take into account the partly burnt articles which are totally useless and valueless in spite of his repeated requests. According to the complainant, opposite party did not supply him copies of surveyor''s report for his examination and arbitrarily has settled the loss at Rs. 1,08,000. He claims that as no appropriate claim amount has been released in his favour, he is not in a position to revive his business. Besides this, his financing agency, the State Bank of India, in short the S. B. I. , is threatening to recover loan amount taking recourse to litigation. Thus, complainant filed the C. D. case claiming aforesaid loss of Rs. 3,09,277 and for further damage of business Rs. 50,000 and interest @ 20% per annum in total Rs. 3,59,277. We have heard the learned Counsel from both sides and perused the materials on record.

Vide impugned orders dated 30. 10. 2003, the District Forum observed that in the presence of the complainant, the first surveyor assessed loss in respect to partly damaged articles. Second Surveyor assessed first of all loss at Rs. 1,83,563 vide report dated 27. 12. 2000 taking also into account first surveyor''s report. But, nine months thereafter i. e. vide report dated 25. 9. 2001 referring to the inventory statement reduced Rs. 69,480 on the ground that the items found fresh intact, Rs. 23,256 towards dead stock and Rs. 28,548 towards salvage of partially damaged articles reducing liability of opposite party to Rs. 1,11,277 from Rs. 1,83,563. According to District Forum thus when second surveyor who has visited the spot and surveyed, had revised the net loss to Rs. 1,11,277 by deducting salvages on partially affected items vide his report of clarification, yet without assigning any reason, arbitrarily, opposite party has reduced the same to Rs. 1,08,000. Therefore, in view of the decision reported in I (2001) CPJ 19 (SC)=ii (2001) SLT 407, the opposite party cannot interfere with the correctness of estimate of loss made by this second surveyor - Sri K. C. Mohapatra. District Forum did not agree with the complainant that the modified report of the surveyor has been subsequently manufactured. Therefore, District Forum vide its impugned orders directed opposite party to pay a sum of Rs. 1,11,277 towards loss of property to the complainant with interest @ 12% per annum for the delay in settlement of claim from August 2000 and to pay him cost of Rs. 500.

IT has been urged in the appeal memo and contended on behalf of the appellant that the District Forum has committed mistake in believing the second assessment of loss vide aforesaid report dated 25. 9. 2001 is free from manipulation. The reason being assigned in this respect is that complainant has been deprived to say anything as the copy of the second assessment of loss report has not been supplied to him. Moreover, when second surveyor assessed the loss at the beginning at Rs. 2,35,679 vide his aforesaid first report, deduction of Rs. 69,480 towards stock of intact articles which are not available at all, in his report dated 25. 9. 2001 has no basis and the District Forum has committed mistake in accepting the report of the second surveyor deducting Rs. 23,567. 94 holding the life term of the shop as ten years, whose life term is actually five years. Further, the District Forum should not have accepted the report / action of the second surveyor deducting Rs. 28,548 in respect to partly damaged articles and the reduction of net liability of opposite party from Rs. 1,83,563. 45 to Rs. 1,11,277. There cannot be any doubt that the surveyor is an independent one and reliance should be placed upon his report of investigation unless and until foul play in such investigation is established. As a matter of fact, second surveyor-Sri K. C. Mohapatra after spot verification, examination of the report of the earlier surveyor in respect to partly damaged articles and contact with the complainant had assessed the loss at Rs. 1,83,563. It has not been explained as to why and under what circumstances, said surveyor was asked by the opposite party to clarify in respect to the estimate of loss. Besides this, when the first surveyor has not at all stated that any articles survived from damage due to fire and salvage of partially damaged articles has been mentioned by the first surveyor, the aforesaid second surveyor has not explained how he found items worth Rs. 69,480 were intact. Question arises why had the second surveyor lost sight towards dead stock worth Rs. 23,256 when he prepared the report dated 27. 12. 2000. All these do not justify reduction of total loss to Rs. 1,11,277 from rupees 1. 83. 563 by the second surveyor-Sri K. C. Mohapatra. Besides this, the opposite party has not assigned any reason in reducing the said total loss of Rs. 1,11,277 to Rs. 1,08,000, even though in view of the decision reported in I (2001) CPJ 19 (SC)=ii (2001) SLT 407 , "it is open to the Insurance Company to dispute the correctness of the estimate of loss made by the surveyor. . . . ". As the opposite party has not assigned any reason of reduction of the loss assessed by the second surveyor, the claim at the reduced rate of Rs. 1,80,000 settled by the opposite party is unfair, unreasonable and against the principles of natural justice. In these end of the view as well as in view of the fact that the second surveyor has not assigned sufficient reason of ultimately reducing the total loss to Rs. 1,11,277 from Rs. 1,83,563, such reduction is whimsical and arbitrary affecting the genuine interest of the policy holder - the complainant. We find no ambiguity in the assessment of loss of Rs. 1,83,563 by the second surveyor. Therefore, the complainant/appellant is entitled to get this amount as claim from the opposite party.

IN the result, the appeal is allowed in part on contest against the opposite party with cost of Rs. 500. In modification of the impugned orders dated 30. 10. 2003 of the District Forum in C. D. Case No. 97 of 2002, we direct the opposite party/respondent to pay an amount of Rs. 1,83,563 towards fire claim to the complainant/appellant with interest @ 9% per annum from the date of claim i. e. from 1. 8. 2000, as inordinate delay has been caused in settling the claim, within sixty days from the date of receipt of copy of this order, failing which 12% interest per annum would be charged on the said amount. As interest has been awarded, we do not want to saddle the opposite party/respondent with any amount of compensation. Records received from the District Forum may be sent back forthwith. Appeal partly allowed.