Judgment:
J.M. Malik, Presiding Member
1. This case was filed on 29.05.2001, by the Divisional Manager, Himachal Pradesh State Forest Corporation. The Corporation in this case was established for commercial exploitation of the forest resources and produce in the State by adopting scientific methodology, keeping in view the ecological and environmental impact of such exploitation. Since the complainant Corporation deals with valuable forest produce, all steps and precautions are taken for proper care and safety of the stacks/stocks. In the process, the Divisional Manager, H.P. State Forest Corporation, obtained an insurance policy, under his control for Forest Working Division, Kullu. The National Insurance Co. Ltd, OP1, New India Assurance Co.Ltd., OP2, Oriental Insurance Co. Ltd., OP3, United India Insurance Co. Ltd., OP4, formed the consortium as Co-insurers and the National Insurance Co. Ltd., as their leader. The insurance cover/value was fixed at Rs.6,95,64,000/-. The complainant paid a premium of Rs.11,26,295/- . The Leader/Insurance Co. Ltd, viz., the National Insurance Co. Ltd, issued a Fire Insurance Policy, on 27.06.1998. The total risk was apportioned between the four subsidiaries, as per the following ratio, with National Insurance Co., as the Leader :-
| 1. | National Insurance Co. Ltd. | 35% |
| 2. | New India Assurance Co.Ltd. | 27% |
| 3. | Oriental Insurance Co.Ltd. | 23% |
| 4. | United India Insurance Co.Ltd. | 15% |
3. Opposite party Nos. 1 and 5, together, have listed the following defences in support of their case. It is contended that the complaint is not maintainable, without seeking the prior approval of high powered committee of the Cabinet Secretariat of Government of India. But this point was not contested. It is contended that the Opposite party has already made the full and final payment which was accepted by the complainant. It is explained that payment of Rs.12,60,000/- was originally paid by the Opposite parties on behalf of the consortium insurers in June, 1999. Again, as advised by the Surveyors, in their final survey and assessment report, the Opposite parties, vide their letter dated 08.08.2001, paid the balance amount of Rs.2,37,380/-, towards the full and final settlement of the complainants fire claim. It is not out of place to mention here that during arguments, it transpired that the said amount was yet to be paid, by the Opposite parties to the complainant. Consequently, a total payment of Rs.14,91,380/- already stands paid to the complainant, as such, the present complaint deserves dismissal. ?It is averred that there is no deficiency on the part of the Opposite parties. It is contended that the disputed questions of facts are involved and it will not be proper for the consumer fora to adjudicate the same. This Commission having summary jurisdiction, cannot decide all these intricate questions.
4. The loss was assessed as per the policy terms, as is discernible from the following details :-
| Loss estimated by the insured/ complainant | Rs. 38,56,940.00 |
| Loss assessed by the Surveyors | Rs. 34,09,561.00 |
| Net loss assessed by the Surveyor (after deducting pilferage/breakage during transit and salvage @ 3%) | Rs. 33,07,274.00 |
| As per policy terms and conditions, deductions have been made on account of following :i) Under-insurance to the extent ofii) Location limit under Floater policy iii) Excess clause | 47.51%?4.58%10.00% |
| After applying above deductions, the net adjusted loss worked out by the Surveyor is | Rs. 14,94,690.00 |
| On a/c payment made | Rs. 12,60,000.00 |
| Balance dueLess : Re-installment premium (as per policy terms) | Rs. 2,34,690.00Rs. 3,310.00 |
| Net amount to be paid | Rs. 2,31,380.00 |
this Commission:-
œCounsel for the insurance company states that insurance company is prepared to sort out the matter after getting proper calculations by the Chartered Accountant and the concerned officers of the complainant. In this view of the matter for sorting out the exact amount payable, the Divisional Manager of the complainant would fully co-operate and assist Shri Surinder Kumar Soni, Chartered Accountant, in arriving at the damage suffered by the complainant. It would be open to him to place the views of the complainant with regard to the damage. List on 09.12.2003, for directions. Dasti permitted?.
The order sheet dated 12.12.2003, further reads, as under :-
œAs per last order the insurance company did depute their officer and Chartered Accountant to visit the spot. After visiting the spot, they have submitted a report which is not readily available as the concerned officer of the insurance company could not be contacted. Ld. Counsel for the Insurance Co. seeks four weeks time to place that report before this Commission. This be done positively, before the next date of hearing, copy of which may also be given to other
parties.
List on 05.03.2003?.
6. Sh.S.K.Soni, Chartered Accountant estimated the loss. He came to the following conclusion:-
œSummary of Loss
Location ??Assessed Loss ?Underwriters liability
At Saran ?32,25,807.00 ?14,84,129.00
At Jola Rang ?1,84,649.00 ?97,766.00
??------------------- ?-------------------
Total ?34,10,456.00 ?15,81,879.00?
??----------------- ----------------- ?7. Counsel for the complainants submits that Sh.S.K.Soni also submitted the similar error of evaluating certain stocks and were either not covered as per location and were shown as nil stock in the monthly returns and applied the floater formula that was not, as per the agreed terms of the policy, though, it was admitted that the previous survey was wrong and also admitted the liability of an additional sum of Rs.84,499/-. According to the complainant, the evaluation of stock at locations, was not covered under the insurance policy. It is contended that the Surveyor has evaluated and considered the stocks lying at different locations which are not with the insurance cover resulting into wrongful doing under insurance. Report of Sh.S.K.Soni does not show as to what locations, he had considered, while undertaking the survey. A comparative analysis of the two survey reports of the two Surveyors, on considering only four locations, under the insurance cover would show :-
| ? | ? | Sood/Govil | Soni |
| 1. | Forestdepot | Rs. 56,60,094.00 | Rs.1,13,73,893.00 |
| 2. | Transit/roadside depot | Rs.8,32,97,356.00 | Rs.5,53,13,696.00 |
| 3. | Ropeway/spanhead | Rs.1,46,02,352.00 | Rs. 87,84,341.00 |
| 4. | Retail sale depot | Rs.1,30,65,875.00 | Rs. 3,60,014.00 |
| ? | ? | Rs.11,66,25,627.00 | Rs.7,58,31,944.00 |
9. All these allegations lack conviction. There are reports from the Surveyor and Chartered Accountant. There is wee bit difference between the two reports. However, the amount claimed by the complainant is a huge one. The complainant has not bolstered its case with evidence. There must be some cogent and valid reason for discarding the evidence of the Surveyors. The allegations made by the complainant are not supported by any evidence. This Commission, in the case of D.N.BadoniVs. Oriental Insurance Co.Ltd, 1 (2012) CPJ 272 (NC), was pleased to hold that it is well settled law that a Surveyors report has significant evidentiary value unless it is proved otherwise, which, complainant has failed to do so in the instant case.
10. The Honble Apex court inUnited India Insurance Co. Ltd., and Ors. Vs. Roshan Lal Oil Mills Ltd. and Ors., (2000) 10 SCC 19, was pleased to hold :-
œ7. The appellant had appointed joint surveyors in terms of Section 64-UM(2) of the Insurance Act, 1938. Their report has been placed on the record in which a detailed account of the factors on the basis of which the joint surveyors had come to the conclusion that there was no loss or damage caused on account of fire, was given and it was on this basis that the claim was not found entertainable. This is an important document which was placed before the Commission, but the Commission, curiously, has not considered the report. Since the claim of the respondent was repudiated by the appellant on the basis of the joint survey report, the Commission was not justified in awarding the insurance amount to the respondent without adverting itself to the contents of the joint survey report, specially the facts enumerated therein. In our opinion, non-consideration of this important document has resulted in serious miscarriage of justice and vitiates the judgment passed by the Commission. The case has, therefore, to be sent back to the Commission, for a fresh hearing?.
11. For all these reasons, the evidence of the Surveyors cannot be discarded. According to OP1, complainant has wrongly stated that the agreed terms of the policy is at 50% Floater and not at 10%. The policy in the case is a Fire Policy C, with Floater and declaration clauses extended to other Special Perils, i.e., Forest, Fire and Floater, different rates and premium for each extension is shown separately on the face of the policy. Premium for covering fire risk is charged @ 4.80 per mille and for forest fire @ 5.589 per mille. The total premium thus arrived at is loaded by 50% for covering Floater risk and in this manner, premium comes to Rs.11,26,285. The stock in each location could not be more than 10% of the total sum insured, as such, there was no under-insurance and the same is borne out by the reports of the Surveyor and the Chartered Accountant. They correctly applied the Floater clause in evaluating the value at risk in view of the condition No.(v) of Section 2 of Floater Policy and Declaration Policy of Part-I of the General Rules and Regulations, dated 01.10.1994, which reads :-
œthe pro-rata condition of average should be applied to the limit of sum insured at each location and also to the total sum, insured under the policy?.
12. Sh.S.K.Soni, Chartered Accountant, in consultation with the insured and some other officers of the Corporation examined the balance-sheet, as on 31.03.1999 to study the audited figures of the stock, copies of Flow Charts showing the possession of standing trees, felled trees, converted timber, timber scattered in the jungle, timber at the ropeway heads, timber at the launching depots, timber at the road side depots and the stocks in the retail sales depots, progress reports for the month of April, 1999 to ascertain the auditions/deletions of stocks of Himachal Pradesh State Forest Corporation, Forest Working Division, Kullu.
13. The Chartered Accountant examined the joint survey report and reassessed the loss at Rs.15,81,879/-. He supported his case by filing an affidavit. He worked out the loss and after making the adjustments for under-insurance, as per the Floater clause and Excess as per the policy condition @ 10% Under Writers liability at SARAN and Jolarang worked out to Rs.14,84,129/- and Rs.97,776/-, respectively. The Chartered Accountant also pointed out that the stocks transferred for auction to Marketing depots, were not considered, which were earlier considered by the Surveyor, while assessing the loss.
14. It is also note-worthy that the Opposite Party has not produced even a scintilla of evidence in support of its case. Without evidence, in its favour, it will be difficult to fix on the rest of the amenability. Due to lack of evidence, the Opposite party will have to depend upon the evidence, adduced by the complainant.
15. Under these circumstances, we place reliance on the report given by Sh.S.K.Soni, Chartered Accountant and allow this complaint and direct the OPs to pay a sum of Rs.15,81,879/-, and the amount which has already been paid, shall be adjusted. Rest of the amount be paid, within 60 days, from the date of order, with interest @ 9% p.a. from the date of incident, i.e., 08.05.1999. If the said amount is not paid, within 60 days, it will carry interest @ 10% p.a., till its realization. The complainant is also entitled for compensation in the sum of Rs.1,00,000/-. This be also be paid within 60 days from the date of order, otherwise, it will carry interest @ 9% p.a., till its realization.
The complaint is disposed of, in the above terms.