1.      The present Revision Petition has been filed by the Petitioner under Section 21(b) of the Consumer Protection Act, 1986 (the “Act”) against impugned order dated 25.09.2018, passed by the State Consumer Disputes Redressal Commission, West Bengal (the ‘State Commission’) in First Appeal No. FA/1314/2013. In this case, the Appeal of the Respondents/Opposite Parties (OPs) was partly allowed and modified the Order dated 08.10.2013 passed by the District Consumer Disputes Redressal Forum, South 24-Parganas (the “District Forum”) in Consumer Complaint No.308 of 2012 filed by the Petitioner/Complainant.

2.      For convenience, the parties are referred to as placed in the original Complaint filed before the District Forum.

3.      Brief facts of the case, as per the Complainant, are that the Complainant took an insurance policy from the Respondent No.1/ OP-1 for a sum insured of Rs.9,00,000/- valid from 28.08.2008 to 27.08.2009. During the validity of the policy, on 25.05.2009 the insured property got ravaged due to cyclone ‘Aaila’. Accordingly, he lodged claim with the OP Insurer. However, OP-1 delayed the consideration and disposal without assigning any valid reason. Being aggrieved, he filed a Consumer Complaint before the District Forum.

4.      In reply, OP-1 contended that it was necessary for OP-2, through whom the instant policy was taken by the Complainant, to specify the nature of the stock when the insurance coverage was proposed. The specific nature of the stock sought to be covered under the policy have not been included in the proposal form and the policy does not cover the live plants of a nursery unit. For providing coverage for live plants, trees etc. of a nursery unit or horticulture unit, OP has a specific insurance policy, namely XXXII Horticulture/ plantation (In-put) Insurance Scheme. As the policy taken by the Complainant does not cover the stock claimed, he was not entitled to any benefit under the policy. 

5.      The District Forum, vide order dated 08.10.2013, allowed the complaint and passed the following order:

“Ordered

That the case being C.C. No. 308 of 2012 be and the same is decreed on contest against the O.P.s with cost of Rs. 10,000/- payable by O.P. 1.

          The O.P. 1 is directed to release the policy amount of Rs.9,00,000/- and the cost within one month from this day.

          The O.P. 1 is also directed to pay compensation of Rs.1,00,000/- within one month from this date.

          In default of compliance of this order within stipulated period the O.P. 1 shall be liable to pay interest @ 10% p.a. over the entire amount from the date of default till realization. The OP is also directed to pay within one month from this day a penalty of Rs. 1,00,000 out of which a sum of Rs. 10,000/- to be paid to the complainant and rest amount should be deposited with Consumer Welfare Fund.

          Both the OPs are liable jointly and severally.

          Let a plain copy of judgment be supplied to parties free of cost as per rule.”

                                             (Extracted from Translated Copy)

6.      Aaggrieved by the District Forum order, the Respondents/OPs filed Appeal No. FA/1314/2013 before the State Commission and the State Commission vide order dated 25.09.2018 partly allowed the Appeal and modified the Order of the District Forum dated 08.10.2013, with the following reasons: -

        “However, the award of Rs.9,00,000/- cannot be upheld in view of the fact that the Respondent No.1 has not placed on record report from any other expert to negate the findings of the Surveyor. Accordingly, in our considered opinion, the Respondent No.1 cannot get a single penny in excess than what has been assessed by the Surveyor. The Appellant also need not pay any penalty, as ordered by the Ld. District Forum.

  The Appeal, accordingly, succeeds in part.

Hence,

                               ORDERED

  the Appeal stands allowed on contest in part against the Respondent No.1. The impugned order is modified to the extent that the Appellant shall indemnify the loss by paying a sum of Rs.1,19,394/- to the Respondent No.1 and it need not pay any penalty amount as ordered in the impugned order. Rest of the order shall remain unaltered.”    

7.      Dissatisfied by the Impugned Order dated 25.09.2018, the Petitioner/Complainant filed the instant Revision Petition.

8.      In his arguments, the learned Counsel for Petitioner reiterated the grounds in the Revision Petition and asserted that the Survey Report dated 31.07.2009 was not filed before the District Forum and it was filed by the Respondents/OPs along with the Appeal before the State Commission on which the State Commission modified the order of the District Forum. He argued that the State Commission has erred in not granting any compensation in the form of interest or any other relief for delaying the claim under the policy.  Thus, there is a deficiency in service on the part of the Respondents/OPs.  He sought to set aside the order of the State Commission and upheld the order of the District Forum. On the other hand, the learned Counsel for Respondents/OPs reiterated the facts of the case and argued in favour of the impugned order passed by the State Commission and sought dismissal of the Revision Petition with cost.

9Top of Form.      I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned Counsels for both the parties.

10.    The main issue to be determined in the case is the quantum of compensation tenable under the policy for the loss claimed by the Petitioner/Complainant.

11.    It is undisputed that, during the course of the policy in question, the Petitioner had preferred a claim for loss occurred to the tune of Rs.9,00,000/-. However, no cogent evidence to substantiate the loss was submitted. On receipt of the claim, the Respondents/OPs appointed a Surveyor and reliance has been placed on the Surveyor’s Report dated 31.07.2009 wherein the Surveyor Assessed the loss to the tune of Rs.1,19,394/-. 

12.    In the case of Sri Venkateshwara Syndicate Vs. Oriental Insurance Company Limited (2009) 8 SCC 507, the Hon’ble Supreme Court has further observed as under:

1. The assessment of loss, claim settlement and relevance of survey report depends on various factors. Whenever a loss is reported by the insured, a loss adjuster, popularly known as loss surveyor, is deputed who assess the loss and issues report known as surveyor report which forms the basis for consideration or otherwise of the claim. Surveyors are appointed under the statutory provisions and they are the link between the insurer and the insured when the question of settlement of loss or 17 damage arises. The report of the surveyor could become the basis for settlement of a claim by the insurer in respect of the loss suffered by the insured. There is no disputing the fact that the Surveyor/Surveyors are appointed by the insurance company under the provisions of Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them. We also add, that, under this Section the insurance company cannot go on appointing Surveyors one after another so as to get a tailor made report to the satisfaction of the concerned officer of the insurance company, if for any reason, the report of the Surveyors is not acceptable, the insurer has to give valid reason for not accepting the report. Scheme of Section 64-UM particularly, of sub-sections (2), (3) and (4) would show that the insurer cannot appoint a second surveyor just as a matter of course. If for any valid reason the report of the Surveyor is not acceptable to the insurer may be for the reason if there are inherent defects, if it is found to be arbitrary, excessive, exaggerated etc., it must specify cogent reasons, without which it is not free to appoint second Surveyor or Surveyors till it gets a report which would satisfy its interest. Alternatively, it can be stated that there must be sufficient ground to disagree with the findings of Surveyor/Surveyors. There is no prohibition in the Insurance Act for 18 appointment of second Surveyor by the Insurance Company, but while doing so, the insurance company has to give satisfactory reasons for not accepting the report of the first Surveyor and the need to appoint second Surveyor.”

13.    The Hon’ble Supreme Court in Khatema Fibres Ltd. v. New India Assurance Company Ltd., 2021 SCC OnLine SC 818, decided on 28.09.2021 has held that:

“32. It is true that even any inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law or which has been undertaken to be performed pursuant to a contract, will fall within the definition of the expression ‘deficiency’. But   to come within the said parameter, the appellant should be able to establish (i) either that the Surveyor did not comply with the code of conduct in respect of his duties, responsibilities and other professional requirements as specified by the regulations made under the Act, in terms of Section 64UM(1A) of the Insurance Act, 1938, as it stood then; or (ii) that the insurer acted arbitrarily in rejecting the whole or a part of the Surveyor’s Report in exercise of the discretion available under the Proviso to section 64UM(2) of the Insurance Act, 1938.

37. Two things flow out of the above discussion, They are (i) that the surveyor is governed by a code of conduct, the breach of which may give raise to an allegation of deficiency in service; and (ii) that the discretion vested in the insurer to reject the report of the surveyor in whole or in part, cannot be exercised arbitrarily or whimsically and that if so done, there could be an allegation of deficiency in service.

38. A Consumer Forum which is primarily concerned with   an allegation of deficiency in service cannot subject the surveyor’s report to forensic examination of its anatomy, just as a civil court could do. Once it is found that there was no inadequacy in the quality, nature and manner of performance of the duties and responsibilities of the   surveyor, in a manner prescribed by the Regulations   as to their code of conduct and once it is found that the report is not based on adhocism or vitiated by   arbitrariness, then the jurisdiction of the Consumer Forum to go further would stop.”

14.    In the recent case of National Insurance Co.Ltd. Vs. M/s Hareshwar Enterprises Pvt. Ltd. & Ors., Civil Appeal No.7033 of 2009 decided on 18.8.2021, 2021 SCC Online SC 628, the Hon’ble Supreme Court has been held as under :

“17.......Therefore, in the facts and circumstances herein the surveyors report was submitted as the natural process, the conclusion reached therein is more plausible and reliable rather than the investigation report keeping in view the manner in which the insurer had proceeded in the matter. Hence, the reliance placed on the surveyor’s report by the NCDRC without giving credence to the investigation report in the facts and circumstances of the instant case cannot be faulted. In that view, the conclusion reached on this aspect by the NCDRC does not call for interference.”

“18. … Having considered this aspect, the rate of interest to be awarded in normal circumstance should be commensurate so as to enable the claimant for such benefit for the delayed payment. There is no specific reason for which the NCDRC has thought it fit to award interest at 12% per annum. Therefore, the normal bank rate or thereabout would justify the grant the grant of interest at 9% per annum. Accordingly, the amount as ordered by the NCDRC shall be payable with interest at 9% per annum instead of 12% per annum. To that extent, the order shall stand modified…”

15.    Based on careful perusal of material on record, deliberations above and the established precedents of the Hon’ble Supreme Court, in my considered opinion, the Complainant is entitled an amount of Rs.1,19,394/- along with 9% simple interest per annum from the date of filing of the Complaint before the District Forum i.e. 11.10.2012 till its realization, within a period of one month from the date of this order. In the event of default, the amount payable shall carry interest @ 12% per annum from the date of expiry of one month till the realization of the entire amount.

16.    The Revision Petition No.3324 of 2018 is disposed of accordingly.

17.    There shall be no order as to costs.  All pending Applications, if any, stand disposed of accordingly.