REGIONAL MANAGER, NATIONAL INSURANCE CO. LTD., DISTRICT PATNA vs SUNIL PHARMACY

O.P. is the appellant (National Insurance Company Ltd.) which has preferred the appeal against the order dated 29.2.1996 passed by District Forum, Vaishali (Hazipur) in Complaint Case No. 28/94 whereby and whereunder the claim of the complainant has been allowed.

THE brief fact of the case is that complainant-respondent was having a medicine shop Sunil Pharmacy at Bhagwanpur, District Vaishali. THE shop was duly insured with the appellant-Insurance Company for the period 6.1.1993 to 5.1.1994 for a total amount of Rs. 2,23,000/-. As alleged, a burglary took place in the shop in the night of 11/12.2.1993. THE complainant lodged a F.I.R. with the local Vaishali P.S. vide P.S. Case No. 21/93 dated 12.2.1993. A claim petition was also filed before the Insurance Company vide Annexures 2 and 3 with a request to pay the insured amount of the shop. THE Insurance Company on receipt of the claim on 15.2.1993 appointed a Surveyor Mr. Mangal Mishra to investigate and report. THE Surveyor investigated the insured shop on 28.6.1993 and submitted a report. He found the occurrence of burglary correct and assessed value to be paid to the tune of Rs. 1,05,000/-. THE Insurance Company did not accept the Surveyor''s report on the ground that it was collusive and appointed a Chartered Accountant for fresh investigation and submission of the report. THE Chartered Accountant A.K. Rungta submitted the report. He also found the occurrence of theft true. He assessed the loss to the tune of Rs. 44,337/- only. THE Insurance Company offered the complainant to receive this amount which the complainant refused and in spite of several correspondences the Insurance Company did not pay the amount as assessed by the Surveyor. THEreafter the complaint was filed before the District Forum. On notice the O.P.-Insurance Company appeared and contested the claim. The occurrence of theft in the shop and its insurance on the date of theft was not in dispute. The main contention of the Insurance Company was that it was discretion not to accept the report of the first Surveyor because prima facie it was collusive with the complainant but was ready to pay the amount as assessed by the Chartered Accountant. It was the complainant who has refused to accept this amount. Hence there is no deficiency on the part of the Company. The District Forum heard both the parties and perused the documents both report of the Surveyor and Chartered Accountant in detail and held that Surveyor''s report appears to be a valid and genuine report and there was no occasion for the Insurance Company not to accept the Surveyor''s report and to appoint another Chartered Accountant and accordingly allowed the complainant''s claim with interest and compensation as detailed in the order.

The learned appellant''s Lawyer submitted before us that prima facie the report of the Surveyor appears to be collusive with the complainant. The report prima facie appears to be imaginary and palpably false, therefore, the Insurance Company was within its competency to reject the report of the first Surveyor and accordingly appointed a Chartered Accountant who submitted the report and the amount assessed by him was offered by the Insurance Company. The finding of the District Forum that report of the first Surveyor is correct is without any merit. The District Forum has accepted the entire claim of the complainant. The award of interest on the compensation amount of Rs. one lac @ 18% with effect from 15.2.1993 is on higher side besides direction to pay Rs. 15,000/- as compensation on account of deficiency in service and another Rs. 15,000/- for mental agony for harassment and loss in business and Rs. 1,000/- as cost are arbitrary and beyond the settled law.

WE have heard both the parties. There is no satisfactory explanation on behalf of the Insurance Company-appellant that why the report of the first Surveyor appointed by the Insurance Company was not accepted. There is only allegation that this report is collusive does not stand to reasoning. WE have perused the report. The learned appellant''s Lawyer did not point out any prima facie defect in this report to show that it is collusive and arbitrary. It is settled law that unless prima facie there is defect in the report of the first Surveyor there is no reason for the Insurance Company to appoint second Surveyor or Chartered Accountant in order to get favourable report in its favour. In several decisions the National Commission has held that appointment of second Surveyor by the Insurance Company is not in consonance with the spirit of the Insurance Company rather it leads to the conclusion that such appointments are made by the Insurance Company to have favourable report in its favour. The insurance does not provide appointment of consecutive Surveyor so that a favourable report may be obtained. As stated above all the facts in the case are admitted. The medicine shop of the complainant was insured with the Insurance Company-appellant on the date of theft. There is no dispute that theft/burglary did not take place. The local police was informed in the morning of the date of occurrence about the theft as per F.I.R. The Insurance Company has appointed first Surveyor which submitted the report. The District Forum has accepted the amount assessed by the first Surveyor in its report. We do not find any illegality or ambiguity in this report and there was no reason for the District Forum not to accept this report. On the other hand there appears to be no valid ground for the Insurance Company to appoint second Surveyor/Chartered Accountant and there is no valid ground for us to accept the report of the Chartered Accountant. Therefore, the amount of compensation, i.e., Rs. one lac allowed by the District Forum in favour of the complainant appears to be correct and not excessive. However, we are in agreement with the contention of the appellant''s Lawyer that interest @ 18% is excessive and on higher side. We have not accepted the contention of the Insurance Company for delayed payment in the claim of the complainant. Therefore, Insurance Company is liable to pay the interest. We accordingly allow interest @ 9% on the above amount from 15.2.1993 till the date of payment. Since the interest has been allowed on the amount of claim from 15.2.1993 we are of the view that complainant is not entitled for any amount on account of deficiency in service and for mental agony, therefore, award of Rs. 15,000/- for deficiency in service and another Rs. 15,000/- for mental agony in favour of the complainant is set aside. However, the cost of litigation of Rs. 1,000/- is confirmed.

IN the result, the appeal is allowed with modification in the impugned order of the District Forum as indicated above. The INsurance Company is directed to pay Rs. one lac to the complainant towards the claim with interest within three months from the date of this order. However, no further cost is allowed. Appeal allowed.