ORIENTAL INSURANCE CO. vs DEEPAK KUMAR MAKHIJA

THIS appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 4th July, 2003 in Complaint No. 524/2002 by District Consumer Disputes Redressal Forum, Raipur (hereinafter called ''District Forum'' for short) directing the appellant/insurer to pay the amount of Rs. 18,608/- as compensation with interest @ 9% per annum to the complainant/respondent.

UNDISPUTED facts briefly stated are: that the complainant runs a shop under the name and style ''New Varsha Stores''. The complainant/respondent obtained a Shop Keepers'' Insurance Policy No. 2001/1127 for a total sum of Rs. 6 lacs. It is not in dispute that the policy covered the risk of damage of shop and articles kept therein due to fire. As per the averments in the complaint there was fire in the shop of the complainant on the night intervening 26th and 27th September, 2001. It was averred that at the time of fire, stock of articles worth Rs. 1,70,000/-, kept in the shop was damaged due to the fire. The complainant/respondent intimated about the incident to the appellant/insurer. The appellant/insurer initially appointed Surveyor Jitender Singh Sawhney. The said Surveyor submitted his report on 17.3.2002, as per the said survey report net loss was assessed at Rs. 40,608/-, after deducting the salvage value of the damaged articles. Appellant/insurer, however, appointed a second Surveyor S.K. Kesharwani who submitted his report dated 26.3.2002. The second Surveyor Kesharwani assessed the loss to the extent of Rs. 25,000/-. The appellant/insurer accordingly paid to the complainant/respondent the amount of Rs. 25,000/- as per the second Surveyor''s report. The complainant/respondent in his complaint further averred that he had protested against the assessment of the loss by the second Surveyor and entered into correspondence with the appellant/insurer. The complainant''s grievance was that the loss assessed by the second Surveyor and payment of Rs. 25,000/- to him was most inadequate. It was thus averred by the complainant/respondent that the appellant/insurer committed deficiency in service. It was prayed in the complaint that the appellant/insurer be directed to pay compensation of Rs. 1,70,000/- with interest to the complainant/respondent.

The opposite party appellant/insurer resisted the complaint. It was averred by the appellant/insurer that the second Surveyor was appointed with the consent of the complainant/respondent and he, therefore, was estopped from raising any dispute regarding the assessment of loss by the said second Surveyor. It was denied that the complainant/respondent is entitled to get compensation of Rs. 1,70,000/- as prayed by him.

THE learned Distt. Forum held that the complainant/respondent was entitled to get compensation as per the report of the first Surveyor who had assessed the loss at Rs. 43,608/-. THE learned Distt. Forum held that since Rs. 25,000/- admittedly were already received by the complainant/respondent, the balance amount of Rs. 18,608/- with interest @ 9% per annum was directed to be paid by the appellant/insurer to the complainant/respondent. The learned Counsel for the appellant/insurer assailed the impugned order. It was submitted that the complainant himself consented to the appointment of second Surveyor. It was further contended that the complainant/respondent had accepted the amount of compensation as assessed by the second Surveyor Kesharwani in full and final settlement of his claim. However, he belatedly started raising objection about the assessment of loss by the second Surveyor and filed the complaint after the lapse of about 6 months after the second Surveyor''s report was submitted.

THE learned Counsel for the complainant/respondent, however, submitted that there was no consent of the complainant/respondent in the appointment of or assessment of loss by the second Surveyor. It was contended that alleged consent of the complainant/respondent to the loss assessed by the second Surveyor, was obtained by the appellant by suppression of real facts and misrepresentation. It was submitted that the report of the first Surveyor was rightly relied upon by the Distt. Forum. The main question that arises for consideration in the instant case is: as to whether the amount of compensation is payable as per the first Surveyor''s report as directed by the Distt. Forum or it deserves to be paid as per the second Surveyor''s report as contended on behalf of the appellant? As noticed earlier there is no dispute that the shop and articles of the complainant/respondent were duly insured against the risk of fire for the period from 23.2.2001 to 22.2.2002. It is also not in dispute that on the night intervening 26th and 27th September, 2001 the shop and the articles kept therein caught fire and were damaged. Initially Surveyor Jitender Singh Sawhney appointed by the appellant/insurer inspected the spot and assessed the net loss at Rs. 43,608/- after deduction of salvage value. It appears that the second Surveyor was appointed by the appellant/insurer. As per the version of the appellant/insurer, the second Surveyor was appointed after obtaining consent of the complainant. A consent letter dated 26.3.2002 is on record. It is stated in the said consent letter that the complainant would be agreeable to payment of loss as assessed by the Surveyor. The complainant/respondent has averred that the said consent was obtained from him by misrepresentation by the second Surveyor. It appears that such unequivocal consent obtained even prior to the survey being conducted by the second Surveyor, would not deprive the complainant/respondent from raising objections regarding the survey conducted by the second Surveyor in case he had reasons to do so. It was rather strange that such unequivocal consent was obtained from the complainant/respondent by the second Surveyor. The second Surveyor had assessed the loss on 26.3.2002 i.e., after about 6 months after the incident. No reason has been assigned by the appellant/insurer as to why the earlier survey report should not be held to be reliable. The second Surveyor S.K. Kesharwani has also been examined by the appellant/insurer. The said Surveyor in his statement has pleaded ignorance whether all the documents such as FIR, stock verification, etc. were furnished by the complainant/respondent to the appellant/insurer or not? He also stated that the documents relied upon by him have been filed on record. However, no relevant documents appear to have been filed in record of Distt. Forum, with the second survey report.

IT may also be noted that the complainant/respondent wrote a letter dated 24.4.2002 to the appellant/insurer expressing dissatisfaction with the payment received as per the second Surveyor. In the legal notice dated 29.6.2002 the complainant again reiterated his dissatisfaction as above. In the circumstances it cannot be said that the amount of Rs. 25,000/- paid to the complainant/respondent in pursuance of the second survey report was accepted by him in full and final satisfaction of his claim. The delay in sending letter dated 24.4.2002 is not such as to signify consent or acceptance of the amount by the complainant in full and final satisfaction of his claim.

LEARNED Counsel for the appellant relied upon the decision of the National Commission in M/s. Arora Knitting Industries v. United India Assurance Co. Ltd., III (2002) CPJ 205 (NC)=2003 (1) CPR 72 (NC), to support his contention that as there was no protest by the complainant immediately regarding the acceptance of the amount it should be treated to have been received by him in full and final satisfaction of the claim. However, the facts of the said case appear to be different. It appears that the claim amount was paid to the complainant of that case on 15.2.2001 and that there was only a legal notice on 3.7.2002 by the complainant to the insurer. It was, therefore, observed by the National Commission that as the complainant did not raise any protest regarding the amount of claim paid to him earlier and as the complaint was filed after 6 months after the notice as above, the protest of the complainant regarding the inadequacy of the amount of compensation was an afterthought, and amounted to the quantum dispute and not a consumer dispute. However, the facts in the present case are different. As noticed earlier, the complainant started protesting about the inadequacy of the amount of compensation and dissatisfaction with the assessment of loss by the second Surveyor was expressed by him in his letter dated 24.4.2002 as well as in his notice dated 29.6.2002. It was also mentioned in the notice dated 29.6.2002 that an earlier letter dated 5.4.2002 was also sent by the complainant to the appellant/insurer protesting against the assessment of loss by the second Surveyor. It is, therefore, clear that in the instant case the complainant has been protesting against the inadequacy of amount of loss as assessed by the second Surveyor. Moreover, there appears to be no justification for appointment of second Surveyor who allegedly obtained consent of the respondent to accept his assessment, even before he proceeded to do so. In the circumstances the Distt. Forum rightly held that the assessment of loss by the first Surveyor should be accepted, and by not doing so the appellant/insurer has committed deficiency in service. The Distt. Forum has referred to the decision of the National Commission in the New India Assurance Co. Ltd. v. Chitramali T.V. Centre, III (2002) CPJ 194 (NC). Wherein it was observed that as no reason was given as to why the report of the first Surveyor was not found acceptable, hence there was no justification for appointment of second Surveyor.

Consequently, we affirm the finding of the Distt. Forum. There appears to be no substance in this appeal. It is accordingly dismissed. The appellant to bear its own cost and pay the cost of this appeal to the complainant, which is quantified at Rs. 1,000/-. Appeal dismissed.