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Judgment
This First Appeal, by the New India Assurance Co. Ltd. (for short "the Insurance Company"), the sole Opposite Party in the Complaint, is directed against the order dated 8.1.2007, passed by the State Consumer Disputes Redressal Commission, Orissa at Cuttack (for short "the State Commission") in C.D. Case No.30/1998. By the impugned order, while allowing the Complaint filed by the Respondent, the State Commission has directed the Insurance Company to pay to the Complainant a sum of 4,10,000/- towards indemnification of the loss suffered by them on account of spilling of the groundnut oil when the tanker, in which it was being transported overturned. As a default stipulation, the Insurance Company has been made liable to pay interest on the said amount at the rate of 9% p.a. from the date of repudiation till realization, if the amount is not paid by 31.8.2007.
Briefly stated, the material facts, giving rise to the present Appeal, are : that the Complainant, a Firm, engaged in the manufacture of oil and oil cakes at its factory in District Jajpur, Orissa. It had obtained from the Insurance Company, a Marine Policy in respect of its consignments on declaration basis covering the period from 18.10.1994 to 17.10.1995 or till the sum insured exhausted, whichever was earlier. The assured sums were 15,00,000/- and 5,00,000/- against the single transit limit. 2.1. Pursuant to an order received by the Complainant from M/s Brooke Bond Lipton India Ltd., on 30.6.1999, it despatched a tanker load of groundnut oil weighing 126.25 quintals. The value of the consignment was 5,17,625/-. While in transit, the tanker met with an accident on 11.6.1995, resulting in spillage of substantial quantity of oil. The incident was reported to the local Police Station as also to the Insurance Company. On receipt of the intimation, the Insurance Company deputed a surveyor to inspect the spot and assess the loss. Vide his report dated 23.6.1995, the surveyor assessed the loss on account of spilling of groundnut oil at 3,84,420/- and recommended settlement of the claim on that amount.
2.2 It appears that the Insurance Company was not satisfied with the said report and therefore, they appointed a Retired Deputy Superintendent of Police as an Investigator to examine the genuineness of the accident, weighment certificate, shortage certificate, etc. Vide his report dated 18.6.1997, i.e., after almost two years of the accident, the Investigator doubted the genuineness of the accident as also the quantity of the oil, which had leaked, as also the shortage certificate, etc. Although there is nothing on record as to what further information/document was sought from the Complainant by the Insurance Company, vide letter dated 4.3.1998, referred to in the letter of repudiation dated 7.4.1998, i.e after three years of its filing, the claim case file was closed as "No Claim".
Aggrieved by the said decision, the Respondent filed the Complaint before the State Commission. The Complaint was contested by the Insurance Company on diverse grounds. In the written version filed on its behalf, it was pleaded that the driver of the tanker did not possess a valid and effective driving licence on the date of accident; the claim was fictitious, as revealed by the report of the Investigator and therefore, there was no deficiency in service on its part in closing the case as "No Claim".
On appraisal of the documentary evidence filed by the parties, while adversely commenting on the report of the Investigator as being based on guess work, having visited the accident site after two years, the State Commission has come to the conclusion that nothing has been brought on record to suspect the report submitted by the surveyor appointed by the Insurance Company, observing thus :
" There is nothing on record to suspect the report submitted by the first surveyor (B.C.Mital). He visited the spot just one day after the accident. He found the tanker at the spot which was resting on the side of the driver 2ft. below the road level. He noticed that ground was soaked in oil in full. Soaking of the ground was definitely on account of drainage of the oil from the tanker. At the time of dispatch the consignment weighed 12695 quintals vide the certificate of Sriram Weigh Bridge. The consignee received 22.85 quintals of oil. There was thus drainage of 103.20 quintals of oil rounded to 100 quintals. The price of the oil at the relevant time was rupees 4,100/- per quintal. The price of 100 quintals of oil which was split comes to rupees 4,10,000/. We accordingly assess the loss at rupees 4,10,000/-. The opposite party repidiated the claim on untenable grounds."
Hence, the present Appeal.
Despite service of notice, the Complainant/Respondent remains unrepresented. Accordingly, we have heard Learned counsel for the Insurance Company.
Having glanced through the report dated 23.6.1995, submitted by Insurance Company''s own surveyor and other related documents, we are of the opinion that the Appeal is devoid of any substance.
Apart from the fact that except for the letter dated 7.4.1998, addressed by the Insurance Company to the Complainant, informing them about the closure of the file as "No Claim", no other document, worth the name, has been placed on record to show the reason for rejection of the report of the surveyor, which was based on the spot inspection immediately after the incident, and giving preference to the report of the Investigator, appointed after two years of the accident. Assuming for the sake of argument that the Insurance Company had some doubts on the surveyor''s report, it could have asked for clarification/documents from the Complainant. There is not an iota of evidence on record as to whether any documents/information/clarifications had been sought from the Complainant either by the Insurance Company or the Investigator.
It is trite law that although there is no prohibition under the Insurance Act, 1938 for appointment of a second surveyor by the Insurance Company but while doing so, the Insurance Company has to give cogent and sufficient reasons for disagreeing with the findings of the first surveyor. The second surveyor cannot be appointed as a matter of course. (See : Sri Venkateswara Syndicate vs. Oriental Insurance Company Ltd. and Anr. (2009) 8 SCC 507. As afore-stated, in the instant case, no document has been placed on record, indicating the reason for appointment of an Investigator after the receipt of the report of the surveyor. In that view of the matter, in so far as the finding of deficiency in service on the part of the Insurance Company returned by the State Commission is concerned, we do not find any illegality, legal or factual, in the impugned order warranting our interference therewith. Nevertheless, we find that although the surveyor had assessed the total loss at 3,84,420/- but the State Commission has quantified the loss at 4,10,000/-, for which no reason is indicated in the impugned order. Accordingly, we direct that the quantum of compensation shall stand modified to 3,84,420/-. Further, having regard to the fact that out of the total amount of 4,10,000/-, awarded by the State Commission, a sum of 4,00,000/- was deposited by the Insurance Company in this Commission in terms of our order dated 27.4.2007 and the same having been permitted to be withdrawn by the Complainant on furnishing of a bank guarantee, which was to be kept alive till disposal of the case, we are of the view that the Insurance Company should not be made liable to pay interest, awarded as a default stipulation.
Resultantly, the Appeal is partly allowed to the extent indicated above. In other words, while modifying the quantum of the compensation awarded by the State Commission, we set aside the direction with regard to payment of interest on the aforesaid amount.
The balance amount due in terms of the impugned order, as modified hereinabove, shall be remitted to the Complainant by the Insurance Company within 4 weeks from the date of receipt of the copy of this order. The bank guarantee furnished by the Complainant at the time of withdrawal of the afore-noted amount shall stand discharged. The statutory amount deposited by the Insurance Company at the time of filing of the Appeal shall stand transferred to the Consumer Legal Aid Account.
The Appeal stands disposed of in the above terms with no order as to costs.