New Gulmarg Restaurant vs NEW INDIA ASSURANCE CO LTD

THIS Revision Petition is directed against the Order dated 3rd June, 1994, of the State Commission, Haryana, reversing the Order of the District Forum, Gurgaon and dismissing the complaint.

THE petitioner herein, complainant, is the proprietor of M/s. Gulmarg Restaurant, Near Police Line, Mehrauli Road, Gurgaon. She had insured certain items of her restaurant with the opposite party under Miscellaneous Accident Insurance Policy No. 48322801 /00710, period of insurance w.e.f. 29.11.1991 to 28.11.1992, in the sum of Rs. 1 lakh. The schedule contains the details of the insurance coverage of shop -keepers items with value. The complainant reported a theft of the insured items in the night intervening 31st January, 1992 and 1st February, 1992 and lodged an F.I.R. and made a claim of Rs. 70,000/ - on account of loss suffered by her as a result of theft duly covered by the said insurance policy. The opposite party appointed a Sport Surveyor on whose recommendations the Insurance Company passed the claim for Rs. 5,575/ - and communicated the same to the complainant vide its letter dated 21st May, 1993. The complainant, not being satisfied, filed the complaint. On the appreciation of the material, the District Forum held that the opposite party was liable to pay to the complainant in addition to Rs. 5,575/ -, a sum of Rs. 49,425/ - alongwith interest at the rate of 12% per annum.

BOTH the parties filed appeals before the State Commission. The State Commission accepted the survey report of M/s. J.D. Gulshan & Co. wherein the assessment of the loss of Rs. 5,575/ - had been arrived at. It opined that where the insurance have on the basis of the assessment of a Designated Surveyor and Loss Assessor come to a bona fide settlement of the insurance claim, then no deficiency in the insurance services can be laid at their door. The State Commission set aside the assessment of each item of the allegedly lost articles by the District Forum. It observed that the decision would in no way preclude the complainant from either disputing the quantum of the claim by way of arbitration under the terms of the policy or to resort to the Civil Court for establishing in detail the loss of each item and equally the precise value to be attached thereto. Consequently, the appeal of the opposite party was allowed and that of the complainant was dismissed.

MR . S.P. Singh, the husband of the complainant argued her case. He wanted to go at a tangent, but we directed him to confine his submissions to the facts of this case. His only submission, then, was that the report of the Surveyor was procured by the Insurance Company just to defeat the claim of the complainant and should have been discarded by the State Commission. Reliance is placed on the decision of this Commission "M/s. New India Assurance Co. Ltd. v. Indra Kumar Nainmal Parmar" I (1992) CPJ 341 (NC), in which case the report of the Surveyor was not relied upon. Reliance is placed on the case decided by this Commission, M/s. Raj Kamal and Co. v. M/s. United India Insurance Company Ltd., I (1992) CPJ 121 (NC). The intimation regarding the theft was given by the complainant to the opposite party on 3rd February, 1992. The opposite party appointed a Surveyor and an Investigator to investigate into the allegations of the theft and, if established, then assessing the loss. The Surveyor investigated and assessed the only loss caused to the complainant as Rs. 5,575/ -. The opposite party informed the complainant that her claim had been approved for Rs. 5,575 / - and asked to sign and return the despatch voucher vide letter dated 12th May, 1973. This amount was found by the opposite party to be the actual loss caused to the complainant in the reported theft.

THE State Commission examined the case in the parameters of the law laid down in M/s. Rajkamal''s case (supra): "The Redressal Forum, therefore, are bound to see whether or not the repudiation was made in good faith on valid and justifiable grounds. If the Surveyor or Surveyors choose to submit wrong report and the Insurance Company repudiates the claims without applying their minds then the repudiation cannot be said to be justified. The report of the Surveyor should show that the investigations have been proper, fair and thorough. It has be remembered that the Surveyor''s bread comes from their employees."

THE question, therefore, before the State Commission was whether the survey by M/s. J.D. Gulshan & Co; has been proper, fair and thorough. The State Commission noticed that the detailed survey report ran into six typed pages. It referred in detail to the assured risk, the manner of the occurrence, the cause thereof, the claim made by the insured, the action of the police and the verification and liability of the parties. Thereafter, the loss on each item had been assessed including or excluding the salvage of the items and then the figure of Rs. 5,575/ - was arrived at. The authenticity of this document was not challenged on behalf of the complainant and indeed the District Forum itself accepted and referred to the same. We do not find any illegality or irregularity in this approach of the State Commission. The Surveyor''s report was not accepted in New India Assurance Company v. Indra kumar Nainmal Parmar''s case (supra), because the report in that case was obtained during the pendency of the complaint filed by the complainant before the State Commission. Secondly, as noticed in the said judgment, two policies had been issued to the complainant. In respect of one policy, the claim had been paid to the complainant and if the other policy in respect of which the claim had been settled was in respect of Shop No. 380 and which did not suffer any loss due to the floods. This Commission opined that they failed to understand why the policy in respect of that shop was settled. It is for these two reasons that an opinion was expressed that the report was procured by the Insurance Company just to defeat the claim of the complainant.

WE find no error of jurisdiction or any illegality or irregularity in the exercise of jurisdiction by the State Commission. The Revision Petition fails and is dismissed without any order as to costs. Revision Petition dismissed. __