Paragraph numbers below are the court’s original numbering, recovered from the source text.
10. Section 64-UM (1) of the Act speaks of licensing of. Surveyors and loss assessors. We are not very much concerned with this sub-section. Sub-section (2) mandates that no claim c in respect of a loss which has occurred in India and requiring to be paid in India equal to or exceeding twenty thousand rupees in value on any policy of insurance be admitted for payment, unless insurer obtains a report on the loss that has occurred from ao person who holds a license issued under sub-section D (1) of Section 64 UM of the Act as a Surveyor or loss assessor. The proviso to sub-section(2) however, retains the right of the insurer to settle a claim for an amount different from that assessed by the surveyor. This proviso impliedly permits an insurer to obtain a second or further report where considered E appropriate or expedient in the circumstances of a case, based upon which the claim could be settled for a different amount than as assessed earlier.
11. Sub-section (3) provides for the Authority (Insurance Regulatory and Development Authority), the power to obtain an independent report from any other surveyor in respect of a claim referred to in sub-section (2). This sub-section vests in the Authority the power to call for a second report, either suo motto or upon the application by the insured person or on a complaint by a third party. Under sub-section (3), the second report is required to be called by the Authority. himself for use, consideration and further directions.
12. Sub-section (4) envisages, that the authority may on receipt of a report referred to in sub-section (3), issue such …._ A directions as he may consider necessary with regard to the i settlement of the claim including any direction to settle a claim at a figure less 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.
13. The learned senior counsel Shri K.V. Viswanathan for the app~llant, submits that, despite the surveyors having consistently given a specific finding that the claim was bonafide and the fire was accidental had assessed the loss at Rs.1. 70 c crores, but the insurance company has repudiated the claim on frivolous ground, that too after a period of three years from the date of fire incident. It is further contended that the company had appointed several surveyors, which they could not have done in terms of Section 64-UM of the Insurance Act, ,1938. .,,,
14. In the instant case, the insurer had appointed a surveyor for preliminary inspection and survey to assess the loss caused due to the fire accident in the business premises of the appellant. In the preliminary survey report dated 09.09.1999, Sri K. Siva Prasad had given broadly an estimate E of loss caused due to the fire accident. in the business premises of the appellant. He had specifically reported that the ')Umber of bales and borahs lying- in the godown and the actual quantity of lint damaged by the fire has to be got confirmed from the accounts of the insured and also by physical verification of F the bale hoops. In his report, he had made ~ clear that he has hot finally assessed the loss. The Joint Surveyors who were · appointed to jointly assess the loss had given their report dated 15.11.1999, wherein they had assessed the loss at Rs. 1,67,80,925/- on receipt of this report, the insurance company ·G by their letter dated 7.1.2000, had sought several clarifications from their Joint Surveyors, which according to them were omitted to be noticed by the Joint Surveyors while assessing the loss caused due to the fire accident in the appellant's business premises. The letter dated 7.1.2000, is extracted for H better understanding the rival claims of the parties : ~ ·. SRI VENKATESWARA SYNDICATE v. ORIENTAL INSURANCE COMPANY LTD. [H.L. DATTU, J.] "THE ORIENTAL INSURANCE HYDERABAD REGION THEORIENTAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE : GUNTUR Dear.Sirs, . RE: FIRE LOSS TO COTTON STOCKS ON 24-8-1999 OUR CLAIM NO. 432301/136/0/F/04/2000 – Ale: M/S SRI VENKATESWARA SYNDICATE·- . GUNTUR We refer to your joint survey report bearing Nos. MR/1269 c · (MS/61640) and KPS/CL/1837 dated 15.11:99 D respectively. On perusal of the. papers, we have observed as under : (1) The cause of the accident is mentioned as electrical short circuit because of voltage fluctuations. When the stocks were kept in a locked godown and when there was no kind of activity for months together, we wonder as to why the lights in the godown were kept switched on round the clock. Had the lights been switched off the short circuit causing the fire accident could not have occurred. Please let us have your comments. (2) From the balance sheet of insured as on 31st march, 1999 nearly 50% of the purchases i.e. Rs. 1.07 crore out of Rs. 2.27 crores were from individual village ryots on .credit basis. We fell in a claim of such a magnitude some random investigation is required on th~ credit purchases to confirm their genuinity. (3) As per the preliminary survey report there were two varities of bales/borahs viz. MCU-5'@ Rs. 7, 140/- per i quintal in bales and Rs. 7,040/- per quintal in borahs and LK variety @ Rs. 5,650/- per quintal in bales and Rs. 5,550/- in borahs. But, in your assessment you have taken the entire quantity as a single variety i.e. MCU-5 @ Rs. 7,193/- per quintal in FP bales and Rs. 7,084-19 ps per quital in bor~hs and assessed the loss@ Rs. 1,74,82,080/ -. Whereas, when we have applied the different rating the assessment is claiming to Rs. 1,72,57,3Q5/-. Please clarify. c Please let us have your clarification on the above points at the earliest to enable us to proceed further. Thanki~g you, Yours faithfully, Sd/- ·SR. DIVISIONAL MANAGER cc to: Regional Office, Hyder~bad, forJnformation:"
15. The Joint Surveyors by their reply letter dated r' 12.1.2000 had stated.that they did not consider an investigation into .the purchases necessary although they stated ~hat the · insurer may cause and/or carry out any investigation as necessary. We intend to extract only that portion of the reply, which may be relevant for tpe purpose of knowing why the insurer thought it fit to appoint Chartered Accountants for verification of the accounts of the insured firm : · "(2). The doubts on procurements and need for investigations (irrespective of cas~ or credit purchase) would arise only if the stock position as claimed did not tally with the available physical evidence. Even if purchases are proved against actual payment, the physical evidence SRI VENKATESWARA SYNDICATE v. ORIENTAL INSURANCE COMPANY LTD. [H.L. DATTU, J.] t· after the incident, the single most important factor in such situations can necessitate further enquiries and investigation. That kind of a situation never arose in this particular incident as the physical evidence and the extent of damage to the building were supportive of the quantum of stocks claimed to have been held. Our local enquiries did not show any evidence otherJhan an accidental fire. In the circumstances, we do not, from our survey and assessment point of view, consider an investigation into, the purchases too essential. Nevertheless, as insurers with privy to the contract, we note that you may cause and/or c carry out any investigation as necessary." [Emphasis is supplied by us]
16. In view of certain discrepancies in the joint report of, the Joint Surveyors, the insurer was constrained to appoint a D Chartered Accountant for verification of the books of accounts of the insured, to ascertain the actual quantum of loss caused by fire accident in the business place of the appellant.
17. Mr. Srinivasan, the Chartered Accountant, after detailed verification of the books of accounts and other relevant material had assessed the loss at Rs. 1,05,00817/-. In his report, he has ' stated that the Joint Surveyors without verifying the books of account and other relevant records of the appellant firm had assessed the loss which does not reflect the loss sustained by the insured. They had also pointed out various other omissions in the joint report of the Joint Surveyors.
18. The insurer for the purpose of ascertaining the actual loss sustained by the insured had sought clarifications from the Joint Surveyors in view of the findings by the Chartered G Accountant. We were taken through their replies by learned counsel for the insurance company. To our mind, it appears, they were not prepared to accept their omissions while preparing their reports after inspection and verification of the SUPRf;ME COURT REPORTS [2009) 14 (AODL.) S.C.Ft A place of fire BCCident.
19. Parties have not l~ad in any evidence in support .of their claim. tn fact National Consumer CQmmission has proceeded to decide the lis between the parties based . on certain B documents filed by the parties along with their pleadings. . ··. .
20. We have carefully perused the joint survey report submitted by the surveyors who were appointed by the lnsu~r ·. . t. '. and the report of the. Chartered Accountant.. The perusal of the .C joint survey report reveals that the Joint Surveyors without going · into the records of the appellant firm had assessed the loss said to have been sustained by the insured inthe fire accident. The Joint Surveyors had arrived at the cost of own Ginned lint at ·. Rs. 7084/- as against the records of the insured which itself shows the post of Ginned lint at Rs. 6,229.35 and Rs. G, 181.57 ..,. D per quintal. Secondly, the Joint Surveyors had taken intg '""""""" account 88 borahs while assessing the loss, whereas '1& per the records of the insured submitted to the bank. there Wire 551 borahs as on 31.7.199~, oµt gf wfligh §4a bg~h~ w@rt sold from 1.8.1999 to 24.8.19~~. (~~e Q@t~ gf t~~ fim ln@id@n~ thua E leaving only 3 borahs in the ~~~gk. Mr~ R: iRRiV~§lU,, Chartered Accountant, who gave the report having noticed all these omissions and after detailed verification of the books of ;J accounts and records maint~ined l>Y th' IPRtllant haa ' …… assessed the loss at Rs.1,05,00817/-.. ln his report he has F specifically stated that the Joint Surveyors have failed to notice .that the accounts presented to them b~lof'ged to one of the · …. several firms operating from the SPme premises under the same or similar names and further the Joint Surveyors had over looked to ascertain the identity of the firm which Was Insured G and the firm which had in fact sustained the loss: The learned senior counsel Sri K.V. Viswanathan would contend that the Chartered Accountant who was deputed in conducting the survey had verified the books of accounts of the appellant till 31.3.1999 and not till the date of Incident and, therefore, the …. H National Commission could not have accepted the report of the SRI VENKATESWARA SYNDICATE v. ORIENTAL INSURANCE COMPANY LTD. [H.L DATTU, J.] Chartered Accountant. This submission of the learned counsel is not based on facts. A bare perusal of the report of the · Chartered Accountant would clearly demonstrate that it is only after verifying the books of accounts maintained by the appellant in the regular course of business, has calculated the number of borahs that could have been available in the business premises at the time of fire incident. These finer aspects of the . matter has been taken into consideration by the National Consumer Commission while rejecting the Joint Survey report. of Joint Assessors and for accepting the report of Chartered Accountant. The Commission has also observed .. that after. c looking into several reports of the surveyors and the los's assessed by them, it would be fair to go by what the Chartered Accountant has said in his report. May be, the discussion is brief, but the conclusion is sound, and we concur.
21. The Insurance Regulatory Authority ('IRDA' for short) has· fcmnulated Insurance Surveyors and Loss Assessors (Ucensing, Professional Requirements and Code of Conduct) Regulations, 2000, which regulate the licensing and the work of surveyors. These regulations stipulate that the surveyor shall investigate, manage, quantify, validate and deal with losses arising from any contingency and carry out the work with competence, obj3ctivity and professional integrity by strictly adhering to the Regulations.
22. The assessment of loss, claim settlement and F relevance of survey report depends on various factors. Whenever a loss is reported by the insured, a loss adjuster, popularly known as loss surveyor, is deputed who assess the loss and .issues report known as surveyor report which forms the basis for consideration or otherwise of the claim. Surveyors are appointed under the statutory provisions and they are the link between the insurer and the insured when the question of settlement of loss or damage arises. The report of the surveyor could become the basis for settlement of a claim by the insurer in respect of the loss suffered by the insured. There is no A disputing the fact that the Surveyor/Surveyors are appointed by the insurance company under the provisions of Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them. We also add, that, under this Section the insu~ance ·company cannot go on appointing Surveyors one after another so as to get a tailor made report to the satisfaction of the concerned officer of the insurance company, if for any – reason, the report of the Surveyors is not acceptable, the insurer has to give valid reason for not accepting the report. Scheme c of Section 64-UM particularly, of sub-sections (2), (3) and (4) would show that the insurer cannot appoint a second surveyor just as a matter of course. If for any valid reason the report of the Surveyor is not acceptable to the insurer may be for the reason if there are inherent defects, if it is found to be arbitrary, 0 excessive, exaggerated etc., it must specify cogent reasons, without which it is not free to appoint second Surveyor or Surveyors till it gets a report which would satisfy its interest. Alternatively, it can be stated that there must be sufficient ground to disagree with the findings 0f Surveyor/Surveyors. E There is no prohibition in the Insurance Act for appointment of second Surveyor by the Insurance Company, but while doing so, the insurance company has to give satisfactory reasons for not accepting the. report of the first Surveyor and the need to appoint second Surveyor. . 23. Section 64 UM(2) of the Insurance Act, 1938, reads that 'No claim in respect of a 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 intimates to an insurer at any time after the expiry of G a period of one year from the commencement of the Insurance (Amendment) Act, 1968 shall, unless otherwise directed by the Authority, 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 license issued under this Section SRI VENKATESWARA SYNDICATE v. ORIENTAL INSURANCE COMPANY LTD. [H.L. DATIU, J.] to act as a surveyor. In our considered view, the Insurance Act A only mandates that while settling a claim, assistance of surveyor should be taken but it does not go further and say that the insurer would be bound whatever the surveyor has assessed or quantified, if for any reason, the insurer is of the view that certain material facts ought to have been taken into B consideration while framing a report by the surveyor and if it is not done, it can certainly depute another surveyor for the purpose of conducting a fresh survey to estimate the loss suffered by the tnsured. In the present ~ase, the insurer has stated in the counter affidavit filed before the National c Commission and even before us, why the appointment of second Surveyor was necessitated and also has given valid reasons for appointing second Surveyor and also has assigned valid reason for not accepting the report of Joint Surveyor. The correspondence between the insurer and the D Surveyors would indicate the particulars differed by the insurer for differing with the assessment of loss made by the Surveyors. The option to accept or not to accept the report is with the insurer. However, if the rejection of the report is arbitrary and based on no acceptable reasons, the courts or other forums can definitely step in and correct the error committed by the lt insurer while repudiating the claim of the insured. We hasten to add, if the reports are prepared in good faith, due application of mind and in the absence of any error or ill motive, the insurance company is not expected to reject the report of the Surveyors. 24. Now with regard to the question of awarding rate of interest as compensation in cases where loss is caused due to deficiency/delay in services, this court in various judgments has held that the award of compensation must depend on facts G and circumstances of each case and has to be worked out after determining the amount of loss suffered by the consumer. In the case of Secretary, Irrigation Deptt., Govt. of Orissa v. G.C. Roy, (1992) 1 sec 508, this court has stated that "a person A deprived of the use of money to which he is legitimately entitled has a right to be compensated for the deprivation, call it by any name. It may be called interest, compensation or damages." 25. It was observed. in the case of Ghaziabad Development Authority v. Balbir Singh, (2004) 5 SCC 65, that: "it is already held that awarding interest at a flat rate of 18% is not justified. It is clear that in all these cases interest is being awarded. as and by way of compensation/ damages. Whils( so awarding it must be shown that there c is relationship between the amount awarded and .the default/unjustifiable delay/harassment. It is thus necessary that there be separate awards under each such head with reasons why such award is justified." 26. In the case of Kaushnuma Begum v. New India Assurance Co. Ltd., (2001) 2 SCC 9, this court has held that, "with a change in economy and the policy of Reserve Bank of India the interest rate has ,been lowered. The nationalized banks are now granting interest at the. rate of 9% on fixed deposits E for one year. We, therefore, direct that the· compensation amount fixed hereinbefore shall bear interest at the rate of 9% -;I per annum from the date of the claim made by the appellants." ….. f- 27. In the case before us it has been made clear that if the insurer is not satisfied with the assessment of the surveyor, he retains the right to settle claim for a differentamount. The insurer after rejecting the assessments of the surveyor and the · joint surveyor has accepted the assessment made by the Chartered Accountant. Therefore, it would not be correct to say G that insurer while settling the claim has caused an unnecessary delay of three years. But once the insurer has reached a settlement he should make the payment at the earliest. And if further delay is caused by the insurer in making the payment then he should be made liable to pay the interest on the amount H settled, as compensation at the current rate of interest till the <.,. ' z i i . SRI VENKATESWARA SYNDICATE v. ORIENTAL INSURANCE COMPANY LTD. [H.L. DATTU, J.] paytnent is made, as it has deprived the appellant from using A his money for Which he is legitimately entitled . . 28. lhus, in vie~ of the above discussion, we direct the respondent Insurance Company to ··pay Rs.1,05;00817/- with, . interest atthe raje of 9% as compensation from the date of 8 assessment done by the Chartered Accountant, within two· months from the date of this order. The appeal is partly allowed. · No order as to costs. G.N. Appeal Partly allowed .