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FCS DEEPAK P. SINGH | Aug 18, 2022 | Views 1121

Surveyor Cannot Apply Deductions Arbitrarily On Amount Of Assessed Loss: Supreme Court Of India

Surveyor Cannot Apply Deductions Arbitrarily On Amount Of Assessed Loss: Supreme Court Of India

SRI BISWAJIT GUHA, PROPRIETOR OF M/S. VIDA ENGINEERING COMPANY VS.  THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO. LTD.

HELD THAT: SURVEYOR CANNOT APPLY DEDUCTIONS ARBITRARILTY ON AMOUNT OF ASSESSED LOSS.

BRIEF FACTS:

The present complaint case has been filed by one Biswajit Guha, Proprietor of M/s Vida Engineering company against the Branch Manager, M/s New India Assurance Company Ltd., thereby praying for a direction upon the Insurance Company to pay Rs.32,31,450/- (Rupees thirty lakhs thirty one thousand four hundred fifty) to the Complainant along with interest @ 18% p.a. from 16.09.2008 till disposal of the petition of compliant along with a further direction upon the Insurance Company to pay Rs.1,00,000/- (Rupees one lakh) by way of compensation.

The case of the Company, in brief, is that the Complainant got a construction contract for construction of roads at South Tripura and the Complainant took a Contractors All Risk Insurance Policy, covering entire contract work amount for construction of road on payment of requisite premium after observing all the required formalities.

According to the Complainant, during subsistence of the aforesaid insurance coverage, due to flash flood, the construction work was washed away causing heavy damage at different segments of the project site.

The Insurance Company was duly intimated about the situation where upon the Insurance Company got the construction site surveyed by deputing a Surveyor, namely, Sri S.R. Das, who visited the affected site and took detailed measurements and information in presence of both sides.

According to the Complainant, the Surveyor assessed the loss to the tune of Rs.Rs.60,15,232/- (Rupees sixty lakhs fifteen thousand two hundred thirty two). In terms of such assessment of loss, the Complainant preferred an insurance claim, but to the utter surprise of the Complainant subsequently it transpired that though initially loss was assessed at Rs.60,15,232/- (Rupees sixty lakhs fifteen thousand two hundred thirty two), but at the concluding page of the Surveyors report, the said amount was drastically reduced by the Surveyor without any rhyme or reason thereby assessing the same at Rs.27,63,787/- (Rupees twenty seven lakhs sixty three thousand seven hundred eighty seven).

The Complainant under compelling situation and circumstances had to accept such reduced rate of assessed loss on protest and had requested the Insurance Company to reconsider the claim of the Complainant, but without any avail. According to the Complainant, this act on the part of the Insurance Company tantamounted to gross negligence and deficiency in service, and, hence the petition of complainant thereby praying for the balance amount of compensation as mentioned above.

The Insurance Company is contesting the complaint case by filing a W.V. and thereby denying and disputing all the material allegations put forward in the petition of complaint contending, inter alia, that the petition of complaint is not maintainable. The Complainant has got no cause of action to institute the consumer complaint case as he has accepted the settled amount. The present complaint case has been filed without any rhyme and reason. The subject matter of the present complaint case is outside the purview of the Consumer Protection Act and the petition of complaint is liable to be dismissed.

Upon perusing the pleadings of the parties, the following points have come for proper adjudication of the present case :

1. Is the petition of complaint is maintainable?
2. Is the Insurance Company deficient in service as claimed by the Complainant?
3. Is the Complainant is entitled to the reliefs, as prayed for?

SUBMISSION BY INSURANCE COMPANY:

All the above points are taken up together for the sake of convenience. At the time of hearing, it has been submitted by the Ld. Advocate for the Insurance Company to the effect that;

the Complaint has got practically no case and on this score alone the petition of complaint is liable to be dismissed. According to the Ld. Advocate, when it is an admitted position that the amount offered by the Insurance Company towards settlement of the claim was accepted by the Complainant, there was no scope on the part of the Complaint to reopen the matter and there should not be any iota of doubt and that on this score the petition of complaint is liable to be dismissed.

Advocate for the Insurance Company has further submitted that immediate after the incident of flood, the Insurance Company appointed a Surveyor, who did inspect and survey the spot in presence of both sides and has given detailed reasons in arriving at a sum which practically fit with the facts and circumstances of the case.

According to the Ld. Advocate for the Insurance Company, by way of an afterthought, after accepting the said sum offered by the Insurance Company, the Complainant has instituted the present complaint case on false and fictitious ground by producing a Surveyors Certificate which should not relied upon by this Commission.

According to the Ld. Advocate, the Surveyors Report so produced by the Complainant is one sided and has been manufactured for some illegal gain by the Complainant and no reliance should be placed upon such false and fictitious Surveyors Report.

While concluding his submissions, Ld. Advocate for the Insurance Company has submitted that the Surveyors report so produced by the Insurance Company has been properly made following the norms and procedures meant for the purpose of present case and in the absence of any contrary materials, the same should be accepted and the petition of complaint should be dismissed with cost.

SUBMISSION BY COMPLAINANT:

We have duly considered the submissions so put forward on behalf of the Insurance Company and also have gone through the materials on record including the Surveyors Report so produced by the Insurance Company and also by the Complainant and found that there is substance in the submissions so put forward by the Ld. Advocate for the Complainant.

According to him, the said reduction of the amount which initially arrived at by the Surveyor of the Insurance Company, has not been properly explained and on this point alone the Surveyors Report so relied upon by the Insurance Company should be not accepted.

As regards the acceptance of the amount so offered by the Insurance Company, Ld. Advocate for the Complainant has submitted before us that simply because the Complainant has accepted the amount, will not so debar the Complainant from instituting the consumer complaint and this proposition has found much support in the decision reported in 2010 (3) CPR 91 (NC).

According to the Ld. Advocate for the Complaint, under compelling circumstances, the Complainant has to accept the amount so offered by the Insurance, but during course of trial, with the permission of this Commission, the Complainant has produced a Surveyors Report of his own which is a neutral one and the Surveyor was appointed by the Complainant has clearly shown the shortcomings of the Surveyors Report, so relied upon by the Insurance Company and the Surveyor was appointed by the Complainant has rightly opined that the Complaint is still entitled a further sum of Rs.26,64,964/- (Rupees twenty six lakhs sixty four thousand nine hundred ninety four) from the Insurance Company towards full and final settlement of the claim.

On scrutiny of the report, so replied upon by the Insurance Company, we find much substance in the submissions so put forward by the Ld. Advocate for the Complainant, according to whom, the sudden reduction of the settlement amount is not properly explained. However, from the Surveyors report so produced by the Complainant, we find that there is some unexplained points in the Surveyors Report so produced by the Insurance Company, so far as it relates to reduction of settlement amount, which was fixed at the initial stage of survey.

Having considered all aspects of the case and also considering the materials on record, we think that the ends of justice will be met if the Complainant is allowed a further sum of Rs.8,00,000/- (Rupees eight lakhs) in full and final settlement of the insurance claim.

Accordingly, we held that the petition of complaint is maintainable. Also, there is deficiency in the service at the instance of the Insurance Company and that the Complainant is entitled to a further sum of Rs.8,00,000/- (Rupees eight lakhs) towards full and final settlement of the insurance claim. All the points indicated above, are thus disposed of.

In the result, the complaint succeeds in part.

Hence, Ordered that the petition of complaint stands allowed in part, on contest, but without any order as to costs. The Complainant is entitled to a further sum of Rs.8,00,000/- (Rupees eight lakhs) from the Insurance Company towards full and final settlement of the insurance claim and the Insurance Company is directed to pay the amount to the Complainant within 45 days from the date hereof, failing which the amount will carry an interest of 8% p.a. till realization.

CONCLUSION: from above decision it is clear that a surveyor while assessing /estimating insurance claim cannot apply deductions arbitrarily in this report. The deductions must be explained and substantiated to the  insured. The acceptance of assessed claim by the insured does not mean that insured has lost his right to claim for balance.

DISCLAIMER: the case law presented here is only for information and knowledge of readers. In case of necessity do consult with insurance professionals.

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