- (1.) S .A. Makhija, Member: 1. The appellant Shri Giriraj Proteins are original complainant and the respondent National Insurance Co. Ltd., are the original opponent and they are referred to as such in their original nomenclature for the sake of convenience.
(2.) THE short facts of the case are that the complainant was running a flour mill in Shriram Builders Compound at Chakalia Road in village Dahod. District Dahod. It was using plastic and gunny bags for packing its product. All the packed and ready material was kept in storage place in the premises of the complainant. The complainant had insured the machinery, goods, stocks, packing material, etc., and the said policy was issued by the opponent company for insuring the risk of Rs. 62 lacs. On 6.5.2003 in the mid -night fire had taken place at the insured premises. The complainant informed the opponent Insurance Company, completed all formalities and submitted the insurance claim. Surveyor was appointed by the opponent who assessed the loss as stated in the report. The Insurance Company instead of paying the loss claimed by insuered settled the claim by paying Rs. 11,17,597, The complainant thereafter filed the complaint. Consumer Disputes Redressal Forum dismissed the complaint on the ground that the complainant had accepted the sum of Rs. 11,17,597 from the Insurance Company as full and final settlement of the claim. The complainant being aggrieved by the order of Consumer Disputes Redressal Forum, filed this appeal. This Commission by its order dated 10.5.2004 dismissed the entire complaint on the ground that the complainant was not a consumer under Section 2(1) (d) (ii) of the Act after the amendment affected in the C.P. Act on 15.3.2005. The complainant filed a Revision Petition being No. 3391 of 2004 before the Hon 'ble National Commission which came to be allowed on 22.4.2009 holding that the insurance policy is only for the indemnification of the actual loss and it is not intended to generate any profit and therefore the insurance policy to cover the risk cannot be said to have been taken for commercial purpose. Hon 'ble National Commission set aside the order and returned back the matter to this Commission for deciding afresh in view of the order of the National Commission passed in the case of M/s. Harsolia Motors v. National Insurance Co. Ltd., I (2005) CPJ 27 (NC)=decided on 3.12.2004 in First Appeal No. 159 of 2004. Thereafter this Commission by its order dated 28.1.2011 remanded the matter to decide the case on merits. Then thereafter the opponent National insurance Co. Ltd., filed another Revision Petition being No. 1784 of 2011 which came to be decided on 3.11.201 1. By this order Hon 'ble National Commission has directed this Commission to decide or reconsider the case on merits in view of this Commission 's finding that the full and final settlement was not arrived at. Thus this appeal being First Appeal on the facts, this Commission is required to formulate necessary points for determination and decide the same as per direction of Hon 'ble National Commission. After hearing the parties, following points arise for our determination. (i) Whether this Commission can ignore the report of Surveyor? If yes under what circumstances? (ii) Whether the complainant is entitled for the insurance loss as prayed for ? (iii) Whether the insurer can raise the issue of pecuniary jurisdiction at very belated stage in the appeal? (iv) Whether the payment to the insured was as full and final settlement? (v) What order? Our finding to the aforesaid points are as under: (i) In the affirmative. The circumstances indicated. (ii) As per finding, (iii) In the negative (iv) In the negative (v) As per final order. Reasons: Point Nos. (i) and (ii) : As far as legal position in regard to surveyor report is concerned say of Hon 'ble Supreme Court can be found in this regard in the case of New India Assurance Company Ltd. v. Pradipkumar, reported in IV (2009) CPJ 46 (SC)=IX (2009) SLT 17=IV (2009) ACC 356 (SC), wherein it has been held that although assessment of approved surveyor is pre -requisite for settlement of claim of twenty thousand or more but the survey report is not the last and final word. It is not sacrosanct that it cannot be departed from. It is not conclusive. The approved Surveyors report may be basis or foundation for settlement of claim by insurer in respect of loss suffered by the insured but surely such a report is neither binding upon the insurer nor the insured. Thus the report of approved Surveyor cannot be treated as gospel truth. It can be ignored if it is perverse or arbitrary based on mere inferences or surmises and/or suspicion. It can also be ignored if it is not based on material which is proximate and relevant to the conclusion drawn and findings given or there is no material at all or the findings are illogical and/or without any basis. In the case of New India Assurance Co. Ltd. v. Protection Manufacturers Pvt. Ltd., III (2010) CPJ 40 (SC)=VI (2010) SLT 152, Hon 'ble Supreme Court had rejected the report of Surveyor and Investigator appointed by Insurance Company as there was no material to support the theory of arson projected by them and the same was motivated and intended to benefit the Insurance Company.
(3.) AS far as the facts of this case are concerned it is an admitted position that the complainants were holding a valid policy and during the subsistence of that policy the fire broke out in the insured premises. The liability of Insurance Company under the terms and conditions of the policy is also admitted. Now the only question before us is to consider as to whether the settlement of claim by the insurers at Rs. 11,17,557 is legal and proper. If not to what amount the complainants are entitled. There are two survey reports in this case. One is first report dated 24.8.2003 and second is revised survey report dated 19.4.2003. The first report dated 24.8.2003 is by Minesh H Shah and Associates. It is inter alia admitted in this survey report that the report is based on observations made and the details collected from the insuered from time -to -time. Shri Minesh Shah visited the insured 's place during 8/5 to 20.8.2003 i.e. the first visit was after two days of the occurrence. The insured had taken loan from The Dahod Urban Co. -Op. Bank Ltd., on plant machinery and stock. The unit is registered with the local authority IT and ST Department. The books of account of insured are audited, bank account maintained and copies of audited balance sheets and accounts were supplied to the surveyor. Plant is engaged in processing of wheat and manufacturing of twenty five tons of wheat flour per day. The police complaint is filed and FIR is lodged in regard to the incident. Police Panchnama is made on 7.5.2003. Short Circuit is the cause of fire. Part of machinery installed on the ground floor and wheat stock lying in the block were effected. Wheat bags stored in centre towards north wall at front or north and south wall and wheat bags stocked in north side godown and near to it was effected. Structure was damaged and wooden plans were burnt. Machinery installed on ground and mezzanine floor were effected. Bhusi bags stored near machines were damaged. The damage was due to short circuit fire and water. Empty Bardan (bags) stored in godown adjoining to process room were affected. Bardan was damaged by fire and water used for extinguishing the fire. Wheat flour and Bhusi stored in godown at front of process room were also affected. Insured had submitted audited balance sheets machinery valuation repon, list given to bank, stock status, sales - purchase summary, FIR, Panchnama, inspection test report, estimation of repairs claim bills, etc. Marginal variation was noticed in some of the submitted figures. Physical verification of the stock and machinery was carried out. A minor variation between available and registered quantity was noted. The say of the surveyor that there is no statutory requirement of submission of sale purchase stock details to Government authority is not correct. On the contrary under law of Essential Supplies and the rules made there under there was such statutory liability on the insured. ;