Jitendra Chauhan, J. - (1.) The Insurer has filed the present appeal, assailing the impugned award dated 7.4.2011, passed by the learned Motor Accident Claims Tribunal, Ambala, vide which the claim petition was allowed and the appellant was held liable to pay the compensation amount.
(2.) Learned counsel for the appellant refers to the statement of PW3, HC Subhash Chander, who in his cross-examination has admitted that he has no personal knowledge of the case nor he did visit the spot and the actual loss to the vehicle can only be disclosed by the private workshop keeper or the police workshop keeper. He has further stated that surveyor was not appointed and the reports were procured from the employees of the Department, who are the interested parties. He further refers to Section 64 UM of the Insurance Act, 1938 and states that the award passed by the learned Tribunal is not maintainable in view of the same. Section 64 of the Insurance Act reads as under: "64. UM. Licensing of surveyors and loss assessors. - (1), (A) Save as otherwise provided in this section, no person shall act as a surveyor or loss assess or in respect of general insurance business after the expiry of a period of one year from the commencement of the Insurance (Amendment) Act, 1968, unless he holds a valid licence issued to him by the Controller. (B) Every person who intends to act as a surveyor or loss assessor after the expiry of a period of one year from the commencement of the Insurance (Amendment) Act, 1968, shall make an application to the Controller within such time, in such form, in such manner and on payment of such fee, not exceeding rupees two hundred and fifty, as may be prescribed. (C) Every license issued under this section shall remain in force, unless cancelled earlier, for a period of five years form the date of issue thereof, and any be renewed for a period of five years at a time, on payment of such fee, not exceeding rupees two hundred, as may be prescribed. (D) No licence to act as a surveyour or loss assessor shall be issued unless- (i) the applicant, where he is an individual, satisfies the Controller that he- (a) has been in practice as a surveyor or loss assessor on the 26th day of October, 1968, or (b) holds a degree of a recognised University in any branch a engineering, or (c) is a fellow or associate member of the Institute of Chartered Accountants of India or the Institute of Cost and Works Accountants of India, or (d) possesses actuarial qualifications or holds a degree or diploma of any recognised University or institute in relation of insurance, or (e) holds a diploma in insurance granted or recognised by the Government, or (f) possesses such other technical qualification as any be prescribed, and (g) does not suffer from any of the disqualification mentioned in sub-section (4) of section 42; (ii) the applicant, where he is a company or firm, satisfies the Controller that all his directors or partners, as the case may be, possess one or more of the qualifications specified in clause (i) and none of such directors or partners suffer from any of the disqualification's mentioned in sub-section (4) of section 42. (E) Every application for the renewal of the licence shall be made at least thirty days before the expiry of the period of validity thereof. (F) The Controller may, if he is satisfied that any licence issued or renewed under this section has been lost or destroyed, issue a duplicate licence on payment of a fee of rupees five and the duplicate licence so issued shall remain in force for the remainder of the period of validity of the licence in lieu of which it is issued. (G) Without prejudice to the powers conferred by subsection (7), the Controller, if satisfied that the holder of any licence has made a statement which is false in material particulars with regard to his eligibility for obtaining such licence or has, after the issue or renewal of such licence, acquired any of the disqualifications mentioned in sub-section (4) of section 42, may, after giving a reasonable opportunity to the holder of such licence of being heard, by order cancel such licence and notify such cancellation in the Official Gazette. (2) No claim in respect of loss which has occurred in India and requiring to be paid or settled in India equal to or exceeding twenty thousand rupees in value on any policy of insurance, arising or intimated to an insurer at any time after the expiry of a period of one year from the commencement of the Insurance (Amendment) Act, 1968 (62 of 1968), shall, unless otherwise directed by the Controller, be admitted for payment or settled by the insurer unless he has obtained a report, on the loss that has occurred from a person who holds a licence issued under this section to act as a surveyor or loss assessor (hereafter referred to as "approved surveyor or loss assessor"): Provided that nothing in this sub-section shall be deemed to take away or abridge the right of the insurer to pay or settle any claim at any amount different from the amount assessed by the approved surveyor or loss assessor. (3) The Controller may, at any time, in respect of any claim of the nature referred to in sub-section (2), call for an independent report from any other approved surveyor or loss assessor specified by him and such surveyor or loss assessor shall furnish such report to the Controller within such time as may be specified by the Controller or if no time limit has been specified by him within a reasonable time and the cost of, or incidental to, such report shall be borne by the insurer. (4) The Controller may, no receipt of a report referred to in sub-section (3), issue such directions as he may consider necessary with regard to the settlement of the claim including any direction to settle a claim at a figure less than or more than that at which it is proposed to settle it or it was settled and the insurer shall be bound to comply with such directions : Provided that where the Controller issues a direction for settling a claim at a figure lower the that at which it has already been settled, the insurer shall be deemed to comply with such direction if he satisfies the Controller that all reasonable steps, with due regard to the question whether the expenditure involved is not disproportionate to the amount required to be recovered, have been taken with due dispatch by him. Provided further that no direction fro the payment of a lesser sum shall be made where the amount of the claim has already been paid and the Controller is of opinion that the recovery of the amount paid in excess would cause undue hardship to the insured : Provided also that nothing in this section shall relieve the insurer from any liability, civil or criminal, to which he would have been subject but or the provisions of this sub-section. (5) No insurer shall, after the expiry of a period of one year from the commencement of the Insurance (Amendment) Act, 1968, pay to any person any fee or remuneration for surveying, verifying or reporting on a claim of a loss under a policy of insurance unless the person making such survey, verification or report is an approved surveyor or loss assessor. (6) Where, in the case of a claim of less than twenty thousand rupees in value on any policy of insurance it is not practicable for an insurer to employ an approved surveyor or loss assessor without incurring expenses disproportionate to the amount of the claim, the insurer any employ any other person (not being a person disqualified for the time being for being employed as a surveyor or loss assessor) for surveying such loss and may pay such reasonable fee or remuneration to the person so employed as he may think fit. (7) If the Controller is satisfied that an approved surveyor or loss assessor has been guilty of willfully making a false statement knowing it to be false or of being knowingly a party to the settlement of a claim in a fraudulent manner, he, may, after giving such surveyor or loss assessor an opportunity of being heard, cancel the licence issued to him with effect from such date as may be specified by him and shall notify such cancellation in the Official Gazette. (8) Any surveyor or loss assessor whose licence has been cancelled shall not be legible for having a licence to act as a surveyor or loss asessor for a period of three years from the date on which the cancellation is notified in the Official Gazette. (9) The Controller may, in respect of any claim of value of less than twenty thousand rupees on an insurance policy, if the claim has not been or is not proposed to be reported upon by a surveyor or loss assessor, direct that such claim shall be reported upon by a approved surveyor or loss assessor and where the Controller makes such direction the provisions of sub-sections (3) and (4) shall apply in respect of such claim. (10) Where, in relation to any class of claims the Central Government is satisfied that it is customary to entrust the work of survey or loss assessment to any person other than a licensed surveyor or loss assessor, or it is not practicable to make any survey or loss assessment, if any, by an order published in the Official Gazette, exempt such class of claims for the operation of this section.
(3.) On the other hand, learned counsel for the respondents-State contends that there are two unambiguous mechanical reports of the damage, caused in the accident, occurred due to the negligence of the Bus driver, insured by the appellant. These two reports i.e. Exs.P4 and P5 are admissible.;