Surveyor’s Report on the assessment of loss is not the final and deduction on account of Excess Clause is not valid if the policy holder has not been supplied policy terms and conditions.
Surveyor’s
Report on the assessment of loss is not the final and deduction on account of
Excess Clause is not valid if the policy holder has not been supplied policy
terms and conditions.
National Consumer Disputes Redressal
Commission in the judgement passed in a case of Uni Ply Industries vs. New
India Assurance Co. Ltd. on 16th
July 2013 upheld the findings of State Commission.The Insurance Company had filed the revision petition No. 342 of 2013 (against
the concurrent finding of both the District Consumer Forum and State
Commission holding the insurance company liable for deficiency in service in
terms of the impugned order passed on 10.10.2012 by the State Consumer
Disputes Redressal Commission, Haryana, Panchkula in FA
No.441/2008. By its order, the State Commission dismissed the appeal
of the petitioner Co. and upheld the order dated 3.1.2008 passed by the
District Forum, Yamuna Nagar in consumer complaint No.1115 of 2007. The District
Forum had allowed the complaint of the respondent / complainant by granting the
following reliefs:-
“Resultantly we allow the complaint of the complainant and direct the
respondent to pay the balance amount of Rs.10,86,592/- along with interest at
the rate of 12% per annum after three months of the causing of fire till
realization and to pay Rs.11,000/- as litigation expense.
Order be complied within one month.”
The insured complainant had insured stock of its factory for a sum of
Rs.30 lakhs vide cover note valid from 10.4.2005 to 9.4.2006 issued by the
insurer Co. The insurance cover was renewed for next year also by the
respondents and was valid upto 9.4.2007. According to the
complainant, the Insurance Co. issued one page cover note only of the said policy
and never issued the terms and conditions with this policy to the complainant.
During the period of insurance policy, a fire broke out in factory premises
resulting into huge loss of stock. The Insurer Company appointed surveyor for
assessing the loss. While the complainant lodged a claim with the petitioner
Co. for Rs.19,46,800/- along with necessary documents for settling the claim,
theInsurer Company informed the complainant about the settlement of the claim
at Rs.8,60,208/- for which a cheque dated 1.12.2006 was issued by the Insurer
to the complainant after making certain deductions from the sum of
Rs.10,86,592/- which had been assessed
as loss by the surveyor. The complainant while acknowledging receipt of the
cheque signed the discharge voucher indicating it to be only a partial
settlement and thereafter the respondent continued to represent against the
deduction made from the sum of Rs.10,86,592/-. Since the differential amount
which had been deducted from the figure of loss assessed by the surveyor was
not allowed by the Insurer, the complainant filed a consumer complaint alleging
it a case of deficiency in service on the part of the Insurer Company. The
Insurer Company stated payment of
Rs.8,60,208/- as full and final settlement and nothing remained due to
the complainant by the Insurer and further submitted that the claim was settled
as per the report of an IRDA approved independent surveyor and loss assessor
who had arrived at a net loss figure of Rs.8,60,208/ subject to terms and
conditions as well as limitations and exceptions provided in the insurance
policy. Since certain amount was deducted as per excess clause and the net
amount had been disbursed as per full and final settlement, the Insurer Company
denied any kind of deficiency in service on its part.
The Insurer Company contended that the surveyor is the best person to
assess and ascertaining the loss and its recommendations should have been
accepted as provided in the Insurance Act.
Another contention raised in the Revision Petition was that the payment
made by the insurance co. was by way of full and final settlement of the claim
lodged by the complainant and since he accepted the amount sent by cheque and
signed the discharge voucher, the complainant is not entitled for any further
relief. The Insurance Company prayed for setting aside of the impugned order
and acceptance of the revision petition.
National Commission perused the reports of the surveyors as well as the
orders of the District Consumer Forum and State Commission. The National
Commission found that the submission of the Insurer regarding settlement of
claim by way of full and final settlement is not correct since the complainant
had accepted the cheque of Rs.8,60,208/- as partial relief and that too under
protest. Besides this, it is settled law that surveyor’s report cannot be
treated as last word and a gospel truth. The District Forum after considering
the report has given its cogent reasons to disagree with the final figure of
loss while giving the desired relief to the complainant. The State Commission
has agreed with the finding. The State Commission while dismissing the appeal
of the petitioner has made the following observations in its impugned order:-
“After
gone through the file as well as arguments of counsel for both the parties, we
are of the considered view that it is admitted fact the factory of the
complainant namely Unit Ply Factor was insured with the OP for amounting to
Rs.30,00,000/- and the said factory was enjoying CC limit against the stock
statement with Oriental Bank of Commerce, Yamuna Nagar. It is also admitted
that on intervening night of 5/6.4.2006 the fire broke out in the said factory
and intimation in this regard was given to the OP and the complainant also
lodged DDR with the police. It is also admitted that on intimation the OP
appointed two surveyors, one for spot survey and second for conduct the final
survey. It reveals from the final survey report that maximum quantity of
insured stock of material was burnt and mixed up beyond recognition and it was
not possible to prepare inventory of the damage stock. The surveyor after
inspect the stock statement which are issued by the bank, the surveyor observed
that on an average the insured is having stock worth
Rs.29 lacs comprising of finishing raw material and made clear that
the statement of account dated 31.3.2006 is shown the stock of Rs.29,29,067/-
vide which this is clear that after deducting the said stock which was not
damaged the insured suffered a loss to the tune of Rs.19,46,800/- lying in the
factory premises due to fire. The surveyor after using the excess clause
deduct the 20% as is clear from the surveyor report. But in our view if
the ambiguity in terms and surveyor apply the excess clause of the policy which
were not supplied the OP cannot claim benefit of the said clause. Moreover, the
full and final settlement was not matured because the complainant accepted the
amount under protest and endorsement to this effect was made on the voucher
that it is part payment. Thus, deficiency in service on the part of
appellant/opposite party stands proved. District Consumer Forum after
considering each and every aspect of the case, rightly allowed the complaint of
complainant.”
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