Appeal No.265/04

Radha Mohan Saini V. Oriental Insurance Co.Ltd.


Before:


Mr.Justice Sunil Kumar Garg-President

Mr.G.S.Hora-Member


Shri D.M.Mathur,counsel for the appellant

Shri Dig Vijay Mantri,counsel for the respondent


Date of judgement : 08.05.2009


BY THE STATE COMMISSION.


This appeal has been filed by the complainant appellant against the order dated 5.1.04 passed by the District Forum-I,Jaipur in complaint no.716/2000,by which the complaint of the complainant appellant was allowed against the respondent insurance company in the manner that the respondent insurance company was directed to make payment of Rs.18100/- with interest @ 10% p.a wef 1.5.96 and further to pay Rs.1000/- as amount of cost of litigation etc.etc.


2. It arises in the following circumstances:


That the complainant appellant had filed a complaint against the respondent insurance company before the District Forum-I,Jaipur on 24.5.96 interalia stating that he has got his shop insured with the respondent insurance company for the period 2.2.95 to 1.2.96 for a sum of Rs.1,50,000/-. It was further stated in the complaint that on the intervening night of 27-28.8.95 there was a heavy rain and the shop of the complainant appellant was situated at Ajmer Road,Jaipur and rainy water

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had entered in the shop and goods worth Rs.60,000/- were damaged and information of that incident was given by the complainant appellant to the office of the respondent insurance company on 28.8.95 and it was further stated in the complaint that on the basis of that information Shri Arun Patni was appointed as surveyor by the respondent insurance company who had submitted his report on 15.10.95 assessing the loss to the tune of Rs.34,226.63,but even then,the claim was not settled and a registered notice was given by the complainant appellant on 15.4.96 to the office of the respondent insurance company and thereafter on 22.4.96 the respondent insurance company had informed the complainant appellant that another surveyor Shri Pramod Choudhary was appoinated, who had assessed the loss to the tune of Rs.18100/- and that amount was offered, but that amount was not found acceptable. Thereafter the present complaint was filed.


A reply was filed by the respondent insurance company before the District Forum-I,Jaipur on 6.9.96 and as per the case of the respondent insurance company that since the second surveyor, Shri Pramod Choudhary had assessed the loss to the tune of Rs.18100/- and therefore, the same was offered rightly to the complainant appellant through letter dated 22.4.96 and it was further denied that no second surveyor was appointed and it was prayed that the complaint be dismissed.


The District Forum after hearing both the parties,through the impugned order dated 5.1.04 had allowed the complaint interalia holding that there was no justification for the appointment of the second surveyor and taking into consideration that the report of Shri Pramod Choudhary dated 27.1.96 could not be treated as a report of the second surveyor,but he was appointed for verification of the stock and since he had assessed the loss to the tune of Rs.18100/-,therefore,it was found justiceable and thus the impugned order was passed.

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Aggrieved from that order,this appeal has been filed by the complainant appellant.


In this appeal,the main contention of the learned counsel for the complainant respondent is that it was wrong to say that the report of Shri Pramod Choudhary dated 27.1.96 could not be treated as a report of the second surveyor while on file,there is another report prior to that dated 15.10.95 in which the loss assessed by Shri Arun Patini,surveyor was to the tune of Rs.34,226.63,therefore,from every point of view report of Shri Pramod Choudhary should be treated as report of second surveyor for which there was no justification,hence the findings recorded by the District Forum by which only Rs.18100/- were ordered to be paid and rather the amount as assessed by the surveyor,Shri Arun Patni to the tune of Rs.34,226.63 should have been ordered to be paid and now for the difference amount the appeal be allowed.


On the other hand,the learned counsel for the respondent insurance company has supported the impugned order.


We have heard the learned counsel for the parties and perused the record.


In this case,there is no dispute on the point that the shop in question was got insured by the complainant appellant for the period 2.2.95 to 1.2.96 and the goods lying in the shop were damaged due to rainy water.


On file,there is a detailed report dated 15.10.95 prepared by Shri Arun Patni,surveyor in which he had assessed the loss to the tune of Rs.34,226.63. On file there is another report of Shri Pramod Choudhary,surveyor which was submitted on 27.1.96 by which the loss

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assssed was to the tune of Rs.18,097.45.


The question for consideration is whether in the facts and circumstances just narrated above,whether the report of Shri Pramod Choudhary,surveyor dated 27.1.96 could be treated as a second surveyor report or not;


In our considered opinion,taking into consideration both the reports of Shri Arun Patni as well as Shri Pramod Choudhary,it is clear that the report prepaired by Shri Pramod Choudhary subsequent to the report of Shri Arun Patini,it could easily be said that a second survey report as the report of Shri Arun Patni is a detailed document of assessment of the loss and similarly the report of Shri Pramod Choudhary is also a detailed report though having the heading of verification of the records,but in the eye of law it would be treated as a second survey report.


The position of law in this case is very much clear as laid down by the Hon'ble National Commission in the case of National Insurance Co.Ltd. V. New Patiala Trading Company reported in I(2003) CPJ 33 (NC) where it was held as under:


“(ii) Insurance Act,1938- Section 64 UM-Surveyor's Report – Reasons for non-acceptance of report of first Surveyor must be specified- Insurer not free to appoint second Surveyor to counter or contradict report of first Surveyor-Report of first Surveyor faulty,not proved-Upheld.”


Taking into consideration that while getting the report of Shri Pramod Choudhary the respondent insurance company had not assigned any reason as to why second surveyor was appointed,therefore,the District Forum had committed a mistake in placing reliance on the report of the second surveyor Shri Pramod Choudhary after ignoring the report of Shri

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Arun Patni dated 15.10.95.


It may further be stated here that the insurance company is not free to appoint second surveyor to counter or contradict the report of the first surveyor and further the reasons for non- acceptance of the report of first surveyor must be specified and this aspect is missing in this case.


For reasons as stated above,the District Forum should have placed reliance on the report of Shri Arun Patini,surveyor dated 15.10.95 in which the loss assessed was to the tune of Rs.34,226.63 and thus the complainant appellant is entitled to the difference of the amount between the two reports. Shri Arun Patni had assessed the loss to the tune of Rs.34,226.63 while Shri Pramod Choudhary had assessed the loss to the tune of Rs.18,097.45,therefore, the difference comes to Rs.16,129.18 and for that the appeal deserves to be allowed.


The result is that this appeal filed by the complainant appellant is allowed partly in the manner that the complainant appellant would get Rs.16,129.18 from the respondent insurance company with interest @ 9% p.a from the date of filing of the complaint with Rs.2000/- as amount of cost of litigation. To that extent,the impugned order dated 5.1.04 passed by the District Forum-I,Jaipur be treated as modified.




Member President