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Reliance General Insurance Co. Ltd. v/s Sumit Kumar Saha & Another


Company & Directors' Information:- RELIANCE GENERAL INSURANCE COMPANY LIMITED [Active] CIN = U66603MH2000PLC128300

Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

Company & Directors' Information:- SUMIT AND COMPANY PVT LTD [Strike Off] CIN = U63040DL1979PTC010075

Company & Directors' Information:- KUMAR INSURANCE COMPANY LIMITED [Dissolved] CIN = U99999MH1943PTC004030

    First Appeal No. 182 of 2014 in Complaint No. 18 of 2011

    Decided On, 16 February 2018

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE PREM NARAIN
    By, PRESIDING MEMBER

    For the Appellant: Suman Bagga, Advocate. For the Respondents: R1, Sanjoy Kr. Ghosh, Barun Prasad, Rupali S. Ghosh, Advocates.



Judgment Text


Prem Narain, Presiding Member

1. This appeal has been filed by the appellant, Reliance General Insurance Co. Ltd. against the order dated 4.12.2013 of the State Consumer Disputes Redressal Commission, West Bengal (in short ‘the State Commission’) passed in SC Case No. CC/18/11.

2. Brief facts of the case are that on 22.7.2009 the complainant/respondent got the Volvo Hydraulic Excavator of 2007 make insured with the appellant/Insurance Company vide Contractors Plant & Machinery Policy bearing No. 1507192215001168 valid for a period of one year from 22.7.2009 to 21.7.2010 for a sum assured of Rs. 46,56,600. On 1.2.2010, the insured machine was hired by Sh. Nitai Chandra Saha vide an agreement dated 12.12.2009 with the complainant/respondent and its location was changed to MPCC, Ambasa, Agartala, Tripura. It was the case of the complainant/respondent that on 30.6.2010 the said Excavator caught fire while under the custody of Sh. Nitali Chandra Saha at working site at M.K.Para, Indo-Bangladesh Border Road under District Dhalai, Tripura and the said Excavator was badly damaged. On 7.7.2010, the appellant/Insurance Company immediately appointed an independent IRDA licensed surveyor namely, Cunningham Lindsay International Pvt. Ltd. to survey and assess the loss & damage to the machine. On 22.2.2011, the said surveyor carried out thorough investigation and collected the documentary evidence etc. and assessed the net loss to the tune of Rs. 25,24,273 after deducting 32.50% depreciation as the equipment was used since March 2007 to June 2010 i.e. 3.25 years considering average life for such equipments as ten years. The salvage value of the insured machine was estimated at Rs. 6,50,000. On 22.2.2011, the complainant/respondent also got the loss assessed through his surveyor namely, Mr. J.Subbiah who assessed the loss at Rs. 41,90,940 on total loss basis. On 17.3.2011, the complainant/respondent had in the meantime filed a complaint under Section 17 of the Consumer Protection Act, 1986 before the State Commission claiming damages against the appellant/Insurance Company to the tune of Rs. 46,56,600 along with interest @ 12% p.a. from the date of claim till realization, compensation of Rs. 10,00,000 towards harassment, mental agony and financial loss and Rs. 20,000 towards litigation cost. The said complaint was contested by the appellant/Insurance Company and it was stated that the claim of the complainant/respondent was not repudiated and it was premature to file a case. The contractual liability of the Insurance Company is as per the surveyors report, and terms and conditions of the policy. The machine was under insured as per the report of the surveyor. The appellant/Insurance Company had offered to settle the claim for a sum of Rs. 25,24,234 only on total loss basis as recommended by the surveyor appointed by the appellant/Insurance Company, but the complainant/respondent had refused to accept the same and hence the complaint filed by the complainant/respondent deserves to be dismissed.

3. State Commission after considering the submissions of both the parties allowed the complaint as under on 4.12.2013:

“Hence,

Ordered

that the complaint be and the same is allowed on contest against O.P. Nos.1 & 2 who are hereby directed to pay a sum of Rs. 41,90,940 (forty one lakh ninety thousand nine hundred and forty) only with interest @ 8%p.a. from the date of filing of the claim. The said OPs.are also directed to pay a sum of Rs. 1,00,000 (One lakh) only as compensation for harassment, mental agony and financial loss, apart from another sum of Rs. 5,000 (Five thousand) only as costs. The entire amount shall be paid by OP Nos.1 & 2 within 45 days from the date of this order in default whereof, interest @ 9% p.a. shall be payable till full realization.

There is nothing for the Proforma OP.No. 3 to comply with.”

4. Heard the learned Counsel for the parties and perused the record.

5. Learned Counsel for the appellant has stated that the Volvo Hydraulic Excavator was insured for Rs. 46,56,000 and the insurance was valid from 22.7.2009 to 21.7.2010. While working, the excavator caught fire and was totally damaged. The surveyor was appointed and the surveyor has assessed net loss of Rs. 25,24,273 on total loss basis. The complainant had disputed the depreciation for 3.25 years at the rate of 10% p.a. applied by the surveyor on the ground that the IDV of Rs. 46,56,000 had already taken into account the depreciation for the previous years. Thus, only depreciation of the year 2009-2010 from the start date of the insurance till the incident should have been taken into account. The surveyor has also found under insurance in the matter. The surveyor has clearly stated in its report that the cost of the new Volvo Hydraulic Excavator machine of the same make and same description was approximately Rs. 51,00,000 . The surveyor has calculated the value of the present machine by applying the depreciation of 10% p.a. on the present cost of new machine, which comes to Rs. 34,42,500 . If the machine is insured for Rs. 46,56,000 , clearly there is under insurance. The Insurance Company was duty bound only to replace the machine as it was on the day of accident. Obviously, if the replacement can be provided for Rs. 34,42,500 , why should the total IDV of Rs. 46,56,000 be given to the respondent. The State Commission has erred in not appreciating this point of view of the Insurance Company. Insurance Company was always ready to settle the claim for an amount of Rs. 25,24,273 as recommended by the surveyor on accepted principles of insurance. Even though the IDV was agreed at the time of taking the insurance, at the time of settlement of the claim, Insurance Company has to see the value of the replacement and not the IDV.

6. It was further argued by the learned Counsel for the appellant that Insurance Company was always ready to settle the claim of Insurance on the basis of the report of the surveyor. However, the complainant had taken the matter to the Consumer Forum. As there is no deficiency on the part of the Insurance Company, State Commission has wrongly awarded a compensation of Rs. 1,00,000 for mental agony, etc.

7. Learned Counsel for the appellant further stated that the State Commission grossly erred in accepting the report of the surveyor appointed by the complainant. The Insurance Company has the power to appoint the surveyor under the provisions of the Insurance Act, 1938. However, there is no provision that the complainant or the insured can appoint surveyor on his behalf. Report of such surveyor is a nullity and against the law. State Commission should have examined the report of the surveyor appointed by the Insurance Company only. The complainant was also authorised to raise objections against the report of the surveyor appointed by the Insurance Company. The State Commission was then duty bound to consider those objections and then to decide the claim.

8. On the other hand, the learned Counsel for the respondent/complainant stated that it was a case of total loss and the same has been agreed by the surveyor also. The accepted norms for settling the claim on the basis of total loss is to award the value of IDV. Hence, there can be no other assessment of loss when IDV of the machine is already agreed between two parties. This IDV has already taken into account the depreciation for the earlier years from the purchase till taking the current insurance. In a way, the surveyor has deducted depreciation twice in his assessment, which cannot be allowed. There is no question of under insurance as the claim is to be settled on the basis of the IDV. The surveyor has wrongly applied under insurance and the same has been confirmed in the report of the other surveyor Mr. Subbiah Jeyakarthigesan, who was appointed by the complainant. The State Commission has examined both the surveyors’ reports and has reached to the conclusion that the report of the surveyor appointed by the complainant was authentic and on the basis of that report, the State Commission has allowed the complaint. Learned Counsel for the respondent has cited the following judgments in support of his arguments:

I. Dharmendra Goel v. Oriental Insurance Ltd., III (2008) CPJ 63 (SC)=IV (2008) ACC 750 (SC)=2008 CTJ 917 (Supreme Court) (CP). It has been held that:

“6. ………….We are, therefore, unable to accept the company’s contention that within a span of seven months from 13th February, 2002 to the date of the accident, the value of the vehicle had depreciated from Rs. 3,54,000 to Rs. 1,80,000. It must be borne in mind that Section 146 of 7the Motors Vehicles Act, 1988 casts an obligation on the owner of a vehicle to take out an insurance policy as provided under Chapter 11 of the Act and any vehicle driven without taking such a policy invites a punishment under Section 196 thereof. It is therefore, obvious that in the light of this stringent provision and being in a dominant position the insurance companies often act in an unreasonable manner and after having accepted the value of a particular insured goods disown that very figure on one pretext or the other when they are called upon to pay compensation. This ‘take it or leave it’ attitude is clearly unwarranted not only as being bad in law but ethically indefensible.”

II. National Insurance Company Ltd. v. Mohd. Ishaq, I (2012) CPJ 538 (NC)=2012 (1) CPR 386 (NC). It has been held that:

“6……….. Therefore, in our view, the District Forum as well as the State Commission have very rightly rejected the report of the surveyor on the ground that it is not supported by the affidavit of its author.”

9. I have considered the arguments advanced by learned Counsel for both the sides and have examined the material on record. The Insurance Company is responsible to indemnify the loss on the basis of the replacement of the damaged machine in the same condition at which it was at the day of the accident. In the present case, though IDV of Rs. 46,56,000 was mentioned in the policy and was agreed between the parties, however, if the new machine is available for Rs. 51,00,000 then on that basis the same machine of 3.25 years age could be available on the approximate price being arrived at by deducting the depreciation for 3.25 years from the current price of the new machine. Obviously, the Insurance Company shall go for this price for replacement as this is less than the IDV. On this basis, the surveyor has calculated depreciated price of the new machine fit for replacement as Rs. 34,42,500 after applying depreciation of 10% p.a since the purchase of the machine on the current price of new machine till the date of accident.

10. As there is no provision in the Insurance Act for a surveyor to be appointed by the complainant/policy holder and only provision is that the Insurance Company can appoint the surveyor for assessing the loss. Thus, prima facie State Commission has erred in considering and accepting the report of the surveyor appointed by the complainant/policy holder. Obviously, it was open to the State Commission to examine the report of the surveyor appointed by the Insurance Company and then to arrive at the finding for the settlement of the claim. There are various decisions of the Hon’ble Supreme Court wherein it has been held that the report of the surveyor is an important document for deciding the claim and the same cannot be brushed aside without any cogent reason. In the present case, the State Commission has found that the surveyor was not authorised to apply depreciation twice and hence the report of the surveyor of the Insurance Company has not been accepted. Even if this was so, the order of the State Commission accepting the report of the surveyor of the complainant/policy holder cannot be sustained because there are no such provision in the Insurance Act, 1938. The surveyor appointed by Insurance Company in his report has clearly assessed the loss in the following manner:

“MARKET VALUE OF LOSS

Since procurement, i.e. 27th March, 2007 and the date of loss i.e. 30th June, 2010 the subject excavator was in operation for 3 years and 3 months. As such, considering the life of such excavator as 10 years, the depreciation for 3 years and 3 months works out to 32.5%. Hence, the depreciated value or Market Value of the excavator is Rs. 3,442,500.00."

11. About the salvage value, the surveyor has recorded the following:

“SALVAGE REALISATION

The matter of salvage was first discussed with the Insured, who refused to retain the same. Immediately, we informed all the details of the affected machine to the Insurer for appropriate action on the salvage disposal through their concerned department. As a result of the same, the Insurer vide their mail dated 21st February, 2011, confirmed that they had recovered Rs. 6,50,000 from the subject excavator, which we opine to be extremely fair and reasonable considering the extent of damage to the excavator and remoteness of the location of loss.”

12. From the above, it seems that the salvage value of Rs. 6,50,000 has been realized by the Insurance Company. It is not clear as to why this amount has been deducted from the loss assessed at Rs. 34,42,500 . If the salvage value has already been realised by the Insurance Company, then the Insurance Company should pay to the complainant the value of loss assessed by the surveyor at Rs. 34,42,500 subject to policy excess which is Rs. 25,000 .

13. From the above discussion, I do not find any error in the assessment of the loss by the surveyor appointed by the Insurance Company. Thus, Insurance Company is bound to give Rs. 34,17,500 only.

14. Coming to under insurance, I feel that surveyor of the Insurance Company has compared the two figures, which are not comparable as one is

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cost of the new machine and Other is depreciated value of the machine. Thus, I am not inclined to allow any under insurance. 15. As the Insurance Company was ready to settle the claim and the State Commission has also awarded interest on the insurance amount, I do not find any justification for awarding a compensation of Rs. 1,00,000 in the present case. 16. Based on the above discussion, the appeal is partly allowed and the Insurance Company is directed to pay Rs. 34,17,500 (Rupees thirty four lakh seventeen thousand five hundred only) for settlement of the insurance claim to the complainant/respondent. As the Insurance Company was ready to settle the matter for Rs. 25,24,273, however, the complainant/respondent was not ready to receive that amount, therefore, the Insurance Company is not liable to pay interest on the amount of Rs. 25,24,273. The Insurance Company is liable to pay interest on Rs. 8,93,227 @ 8% p.a. from the date of filing of the complaint till payment of the total amount. The order of the State Commission relating to award of compensation of Rs. 1,00,000 is also set aside. The cost of litigation of Rs. 5,000 as ordered by the State Commission is maintained. This order be complied by the appellant Insurance Company within a period of 45 days from the date of this order, failing which, interest @12% shall become payable by the Insurance Company on the total amount of Rs. 34,17,500 from the date of this order till actual payment. No order as to costs for this appeal. Appeal partly allowed.
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