New India Assurance Co Ltd vs Sudhakar Suresh Kadam

MR. Justice B.N.P. Singh, Presiding Member-Though petitioner has sought condonation of delay of 293 days in filing revision petition, it is worked out to be 325 days. Be that as it may, the reasonings assigned for condonation of delay are the procedural delays that usually occurs with governmental organizations for no one seriously pursuing the matter. The reasonings assigned can hardly be said to be reasonable, satisfactory or even proper excuse for delay. Law of limitation has to be applied with all its vigour provided by the Statute and no Court/adjudicating authority can extend the period of limitation, on equitable grounds. That apart, the expression "sufficient cause" cannot be construed liberally. The revision petition in this backdrop, for inordinate belated filing of revision petition, merits dismissal on this score alone.

WE have heard learned Counsel for parties and we are of the view that on merits also the petitioner has failed to make out a case to reverse the finding of State Commission which is impugned in this revision.

FACTUAL matrix are that respondent No. 1 had taken three insurance policies, one from Oriental Insurance Company Ltd. and two from New India Assurance Company Ltd. against loss by fire. As ill-luck would have it, fire broke out in premises on 17.2.2003 following a short circuit. Allegedly, entire stock and furniture was gutted in fire. For insured value of Rs. 9,20,000 respondent No. 1 claimed compensation of Rs. 7,92,000, moving petitioner Insurance Company for indemnification of loss suffered in the incident of fire. Eventually, two Surveyors came to be appointed by petitioner Company who submitted their reports. Petitioner Company, however, relying on survey report submitted by Mr. Bhupendra Bhandari, Chartered Accountant, suspecting genuineness of claim on various counts, repudiated claim disowning its liability to indemnify the loss allegedly suffered by respondent No. 1. Consumer Fora was approached, a complaint having been filed by respondent No. 1. Complaint was resisted by Insurance Company taking refuge behind second Surveyor''s report who suspected genuineness of the claim. District Forum too, having accepted the defence of the Insurance Company unsuited respondent No. 1 dismissing complaint. In appeal, however, the finding so recorded by District Forum was reversed by State Commission which, while accepting complaint, directed petitioner company to pay to the insured a sum of Rs. 4,79,666 along with interest @ 6% p.a. from the date of repudiation of claim. Cost of litigation of Rs. 3,000 was also awarded. Getting aggrieved of the aforesaid finding of State Commission, petitioner Company is in revision. Rival contentions are raised at Bar on behalf of both the parties. Foremost grievance of respondent No. 1 was that though some documents placed on record by petitioner were not part of the record of Fora below, were placed before this Commission and hence these documents would not require consideration. Petitioner along with revision petition has put on the record, a copy of the General Conditions of Shop Keepers'' Insurance Policy. Some documents are in respect of assessment made by Mr. Gargate, Surveyor, while some documents are part of Mr. Bhupendra Bhandari''s survey report. These documents do not, however, materially change feature of petitioner''s case. Petitioner''s case is that even without these documents, a reasonable conclusion can be drawn as far as merit of the claim of respondent No. 1 is concerned. State Commission, in view of assignment of survey to Second Surveyor by petitioner company, had questioned its authority to appoint Surveyors more than one, except in case of intrinsic defect or fraud. Since survey conducted by Mr. Gargate, 1st Surveyor was a preliminary report, which does not even make assessment of losses, appointment of Second Surveyor by Insurance Company cannot possibly be questioned. Second Surveyor, though assessed loss for Rs. 1,66,280, while concluding report, suspected genuineness of the claim. State Commission, however, obsessed with belated visit of Second Surveyor, preferred to put reliance on survey report of 1st Surveyor, Mr. Gargate who, in his opinion had first-hand personal knowledge and the report was a balanced one and depicts true state of affairs. Even though no assessment of loss was made by first Surveyor, Mr. Gargate, State Commission without there being any rationale to assess the loss, simply referring to the report of the first Surveyor, while accepting claim of respondent No. 1, made petitioner Company answerable to pay Rs. 4,79,666 based on allocation of ratio of three different insurers to the extent of 35%. Least said is better, as while there was assessment of loss made by second Surveyor, that was not given due credence while rejecting the second Surveyor''s report, simply for belated inspection of site by him.

MR. Gargate, the 1st Surveyor, in his preliminary report has not even commented on loss or damage to furniture and fittings, insured having not supplied document evidencing existence, and value of furniture and fittings though survey report of Mr. Gargate was based on physical inspection carried out by him only for stock-in-trade. As noticed earlier, the assessment of loss made by second Surveyor was for Rs. 1,66,280. Since three different insurance policies covered the same risk, rightly there will be allocation of ratio of three different insurers, and if this be so as we find from the report of second Surveyor, the contribution of Oriental Insurance Company which is not a party to this proceeding, was for Rs. 44,712, that being 34.78% of the total losses assessed. In conclusion, we modify the award of State Commission, reducing it to Rs. 1,66,280 out of which, allocation for Oriental Insurance Company Ltd., prima facie on face value, would be Rs. 44,712 and rest would be liability of petitioner Company to pay to the insured. This sum shall, however, carry interest @ 9% p.a. from the date of repudiation of claim and with this modification in award, revision petition is dismissed.