1. M/s. Nav Bharat Exports, a partnership firm (now a Limited Company) renamed as M/s. Nav Bharat International Company Limited, engaged in the business activities of export of rice and other commodities, has filed this complaint seeking award of a total compensation of Rs. 64,16,405 with pendente lite and future interest @ 18% per annum against opposite party No. 1-National Insurance Company Ltd. and award of Rs. 16,96,534 against opposite party No. 2-Oriental Insurance Company Limited alleging deficiency in service on their part in not settling the entire insurance claim of the complainant arising out of the respective insurance policies issued by the opposite parties.
2. BRIEFLY stated, the case of the complainant is that during the relevant year 1998, the complainant had obtained four insurance policies, three insurance policies from opposite party No. 1-National Insurance Company Limited and one from Oriental Insurance Company Limited in order to cover the complainant''s stock at Kandla Port as per the following particulars:
Policies issued by National Insurance Co. Ltd.-Respondent No. 1 Policy No. Period Sum Insured 360800/11/3301050/97 7.11.97 to Rs. 1 Crore 6.11.98 360800/11/330/1086 25.11.97 to Rs. 1 Crore 24.11.98 360800/11/3301087 25.11.97 to Rs. 1 Crore 24.11.98 Policies issued by Oriental Insurance Co. Ltd.-Respondent No. 2 Policy No. Period Sum Insured 212200/1000/105 10.2.98 to Rs. 1 Crore 9.2.99
3. THE above referred policies provided the coverage of all stocks of every kind of grain and allied items like packing material and stocks either held on trust or on commission at various locations. As on the date of peril i.e. 9.6.1998, the complainant had stock of 1577.665 MTS of rice valuing at Rs. 5,55,05,665 in its godowns at Kandla Port. On that day, the Kandla Port was struck by tropical cyclone causing massive destruction and severe damage to the stocks of rice, etc. at Kandla Port, which was widely reported in the print media. Stocks of rice lying in the godown as referred to above was also severely damaged, intimation of which was given to the opposite parties-insurance companies. On 12.6.1998, the National Insurance Company appointed M/s. Adarsh Associates and M/s. Govinder Kapoor as joint Surveyor while the Oriental Insurance Company appointed M/s. Adarsh Associates and M/s. S.P. Goel and Company to assess the loss and damage to the stocks of the complainant. The above named Surveyor carried on the spot survey from 13.6.1998 to 17.6.1998 and whatever documents and the material was required by the Surveyors was also supplied to them. Based on the reports of the respective joint Surveyors, the National Insurance Company released a sum of Rs. 80 lakh to the complainant while the Oriental Insurance Company released a sum of Rs. 28,72,119 as a purely interim measure. It is alleged that while making this payment, M/s. Oriental Insurance Company wrongly deducted a sum of Rs. 1,27,881 towards the so called alleged reinstatement charges of the policy. Finally, the above named joint Surveyors confirmed the affected stock due to cyclone at Rs. 5,32,33,353 with salvage value of Rs. 79,57,663 and assessed the net adjusted loss. The break up of policy wise assessed loss of respondent No. 1-National Insurance Company Ltd. was as under:
Policy No. Net Under Excess Total Net Assessed Insurance Adjusted Loss 360800/11/330/ 1050/97 87,24,144 Nil 81,741 81,741 86,42,403 360800/11/330/ 1086/97 1,21,83,849 37,29,476 39,419 37,68,895 84,14,954 360800/11/3310/87/97 1,21,83,849 37,29,476 39,419 37,68,895 84,14,954 Total: 3,30,91,842 74,58,952 160579 76,19,531 2,54,72,311 Likewise the break-up of assessed loss of policy of respondent No. 2-Oriental Insurance Company Ltd. was as under: Policy No. Net Under Excess Total Net Assessed Insurance Adjusted Loss 212200/10 00/105 1,21,83,848 37,29,473 39,421 37,68,894 84,14,954 Grand Total: 4,52,75,690 1,11,88,425 2,00,000 1,13,88,425 3,38,87,265
4. IT is further alleged that despite the said assessment of loss, the opposite party No. 2-Oriental Insurance Company with mala fide intention belatedly appointed M/s. R. L. Aggarwal and Sons and M/s. Garga and Company as Surveyors with a view to obtain the desired reports and the said Surveyor vide their report dated 25.06.2009 assessed the net adjusted loss at Rs. 3,26,45,837. The opposite party No. 2-Oriental Insurance Company therefore, released further a sum of Rs. 52,96,796 purportedly towards full and final settlement of the complainant''s insurance claim, which was however, accepted by the complainant under protest. The National Insurance Company likewise released further a sum of Rs. 1,63,49,041 which too was received by the complainant under protest. According to the opposite parties, the claim of the complainant ought to have been settled in accordance with the report of the joint Surveyor earlier appointed by the opposite parties. According to the complainant, even after receipt of the above said amount, the complainant is still entitled to a sum of Rs. 11,23,270 from the National Insurance Company Limited and a sum of Rs. 16,96,534 from the Oriental Insurance Company, the break up of which is as under:
"The Plaintiff is entitled to a sum of Rs. 64,16,405 from respondent No. 1 as per details given hereunder: (i) Short payment of the claim amount Rs. 11,23,270.00 (ii) Interest for the period 9.9.98 to 15.12.99 on Rs. 1,63,49041 @18% per annum (compound interest)=Rs. 43,70,719 plus interest from 15.12.99 to 24.7.2000 on the interest of Rs. 43,70,719 plus interest from 9.9.1998 to 24.7.2000 on the balance outstanding claim amount of Rs. 11,23,270 @18% per annum (compound interest) Rs. 49,93,135.00 (iii) Compensation on account of harassment mental agony, travel, telephone fax inconvenience etc. Rs. 2,50,000.00 (iv) Costs of this complaint Rs. 50,000.00 Total: Rs. 64,16,405.00 The plaintiff is entitled to a sum of Rs. 16,96,534 from respondent No. 2 as per details given hereunder: (i) Short payment of the claim amount Rs. 2,46,039.00 (ii) Interest on Rs. 52,96,796.00 for the period 9.9.98 to 12.7.99 @18% per annum (compound interest)=Rs. 9,17,512.00 plus interest from 13.7.99 to 24.7.2000 on the interest of Rs. 9,17,512.00 plus interest on balance payment of Rs. 2,46,039.00 for the period from 9.9.98 to 25.7.2000 @ 18% per annum Rs. 11,50,495.00 (iii) Compensation on account of harassment mental agony, travel, telephone fax inconvenience etc. Rs. 2,50,000.00 (iv) Costs of this complaint Rs. 50,000.00 Total Rs. 16,96,534.00
5. BEING noticed on the complaint, the opposite parties have resisted the complaint by filing their respective written versions. In the written version filed on behalf of opposite party No. 1-National Insurance Company Limited, several preliminary objections have been taken in regard to the maintainability of the complaint in the present Forum. It is stated that the present complaint is bad on account of mis-joinder of causes of action by adjoining two claims, one relating to the three policies issued by M/s. National Insurance Company and another relating to one policy issued by M/s. Oriental Insurance Company in the same complaint with the sole intention to bring the complaint within the pecuniary jurisdiction of this Commission; the insurance claim of the complainant has already been fully and finally settled on receipt of a total payment of Rs. 2,54,72,300, the sum having been acknowledged by the complainant by means of receipt in full and final discharge of the claim. In any case, it is pleaded that the complainant is not entitled to any further amount. It is sought to be explained that the joint Surveyors have made the costing of the damaged stock by deducting the gross profit margin from the sale price. The costing of the stocks made by the joint Surveyors of both the Insurance Companies is stated to be correct by giving out various reasons. It is denied that there was any difficulty or infirmity in the assessed net loss by the Surveyors and it is maintained that the complainant is not entitled to any further amount or interest thereon as claimed in the complaint. The opposite party No. 2-Oriental Insurance Company Ltd. in its written version has also raised similar objections about the mis-joinder of causes of action and that the answering opposite party-Insurance Company has already settled the claim of the complainant in full and final by making total payment of Rs. 82,97,796 which was acknowledged by the complainant by signing the discharge voucher. The said amount was paid after deducting a sum of Rs. 1,23,270 towards short premium. It is also stated that the complainant was not entitled to any amount exceeding Rs. 82,96,798 which was strictly in terms of the report of the second Surveyor M/s. R. L. Aggarwal and others, M/s. P. S. Garg, Cost Accountant. It is denied that the complainant is entitled to any further amount or interest thereon as claimed in the complaint.
6. THE complainant has filed separate rejoinders to the written versions of the opposite parties. In the rejoinders, the complainant has controverted the objections and pleas raised in the written versions and has mostly reiterated the averments and allegations made in the complaint. It is reiterated that the appointments of M/s. R. L. Aggarwal and Sons and M/s. Garga and Co. by M/s. Oriental Insurance Company Ltd., after the submission of the report by Joint Surveyors, M/s. Adarsh Associates and M/s. Govinder Kapoor and that of M/s. Adarsh Associates and M/s. S. P. Goel and Co., are contrary to the well settled principles of law. In any case, the subsequent report of M/s. R. L. Aggarwal and Sons and M/s. Garga and Company is sought to be assailed as not based on consideration of the correct principles i.e. it is pleaded that the assessment made by the said Surveyor by deducting the gross profit from the cost of the stock, is contrary to the principles laid down in the case of M/s. Khushi Ram Behari Lal wherein in identical situation, another Surveyor M/s. Mehta and Padamsay Pvt. Ltd. had assessed the net loss without deducting any gross profit. It is sought to be explained that the amount received by the complainant purportedly towards full and final settlement of the claim was, in fact, not towards full and final settlement of the claim and they received the said amount under coercion and signed the discharge voucher. In any case, it is pleaded that immediately on receipt of the amount, protest was made showing that the amount received by the claimant was not full and final settlement of its claim.
7. PARTIES have filed supporting affidavits in support of their respective pleas and contentions besides relying upon the documentary evidence, which are largely the reports of the above referred Surveyors and the correspondence exchanged between the parties. We have carefully perused the entire evidence and material brought on record and have heard Mr. Kuljeet Rawal, learned Counsel for the complainant and Mr. Kishore Rawat, learned Counsel for the opposite party No. 1-National Insurance Company Ltd. and Mr. O. P. Aggarwal, learned Counsel for opposite party No. 2-M/s. Oriental Insurance Company Ltd. and have given our thoughtful consideration to their respective submissions.
8. IN this case, it is not in dispute that the complainant had obtained four policies, three from opposite party No. 1-National Insurance Company Ltd. covering a risk of Rs. 31,00,000,00 (Rupees thirty one crore) and one policy from M/s. Oriental Insurance Co. Ltd. covering a risk of Rs. 10,00,000,00 (Rupees ten crore) from opposite party No. 2-the Oriental Insurance Company to cover any risk/loss of their stocks of various commodities including shelld rice stacked at various godowns including their godowns at Kandla Port awaiting its export and that the stocks of rice of complainant had perished to a great extent on account of the super tropical cyclone which struck Kandla Port on 9.6.1998. It is also not in dispute that immediately on receipt of the information, the Insurance Company first appointed joint Surveyors, M/s. Adarsh Associates and M/s. Govinder Kapoor, who assessed the loss according to their wisdom at Rs. 2,54,72,311 and Rs. 3,38,87,265. It is also not in dispute that certain interim payments were made by the insurance companies and after the receipt of the reports of the joint Surveyors, the balance amount of Rs. 1,63,49,041 was also paid which according to the opposite parties was in full and final settlement of the insurance claim of the complainant towards loss suffered by it on account of tropical cyclone. According to the complainant, the amount so received was not in full and final discharge of the liability of the Insurance Companies because the subsequent Surveyor M/s. R. L. Aggarwal and M/s. Garga and Co. had made reassessment of the loss and while doing so, it had wrongly deducted certain amounts towards gross profit. According to the complainant, after M/s. Adarsh Associates and M/s. Govinder Kapoor had submitted their joint report and had made assessment of the loss on a consideration of all relevant factors, there was hardly any scope for the opposite parties to have not relied and acted upon the said assessment and to appoint another Surveyor M/s. R. L. Aggarwal and others, M/s. P.S. Garg, Cost Accountant to reassess the loss. In fact, the submission of the complainant''s Counsel is that the very appointment of the above named subsequent Surveyors was illegal and unauthorized and so it is vitiated. On the other hand, the submission of the Counsel for the Insurance Company is that the Insurance Company has every right to consider the report of the first Surveyor and if on examination of the same, it found that the second Surveyor/investigator/cost accountant need to be appointed, it was well within its right to appoint a second Surveyor. In support of this contention, the learned Counsel representing the Insurance Company have placed reliance on the Supreme Court decision in the case of Sri Venkateswara Syndicate v. Oriental Insurance Company Limited and Another, II (2010) CPJ 1 (SC)=II (2010) SLT 664=2009 (8) SCC 507. The question as to whether the Surveyors'' report is binding on the insurer or can it be rejected and the insurer can appoint a second Surveyor has been considered by the Apex Court in this decision by holding as under:
"There is no prohibition in the Insurance Act, 1938 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, Scheme of Section 64-UM particularly, of Sub-section (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, excessive, exaggerated, etc., it must specify cogent reasons, without which it is not free to appoint the second Surveyor or Surveyors till it gets a report which would satisfy its interest. There must be sufficient ground to disagree with the findings of Surveyor/Surveyors. The Insurance Act only mandates that while settling a claim, assistance of a Surveyor should be taken but it does not go further and say that the insurer would be bound by 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 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 insured. The proviso to Sub-section (2) of Section 64-UM 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 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. Surveyor/Surveyors are appointed by the Insurance Company under the provisions of the 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. The Insurance Company cannot go on appointing Surveyors one after another so as to get a tailor-made report to the satisfaction of the officer concerned 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. 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 insurer while repudiating the claim of the insured. We hasten to add, if the reports are prepared in good faith, with 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.
9. BEARING in mind the above proposition of law, we must consider the question as to whether in the given facts and circumstances of the present case, the insurance companies were justified in appointing a second/subsequent Surveyor, namely, M/s. R.L. Aggarwal and Co. and M/s. P. S. Garg, Cost Accountant for the purpose of reassessing the loss occasioned to the complainant due to the tropical cyclone. Learned Counsel for the opposite parties submitted that on a consideration of the report submitted by M/s. Adarsh Associates and M/s. Govinder Kapoor and M/s. Adarsh Associates and M/s. S.P. Goel and Co., it was found that the loss assessed by them was not correct and, therefore, certain clarifications were sought from the Surveyors on the following points vide communication letter dated 21.5.1999:
"In regard to the costing of rice arrived at by you for the purpose of assessment of loss, we would like you to reply to the following: 1. Other overheads @ 431.90 per M.T. and interest @ 134.27 per M.T. totalling to Rs. 566.17 per M.T. in our opinion should not have been considered at all. 2. Cost of production of rice is Rs. 34462.09 per M.T. and cost of purchase price Rs. 28841.50 per M.T. which have been average out at Rs. 31080.76 per M.T. the difference of Rs. 2239.26 per M.T. has been considered by you in excess. 3. Please explain the input/output ratio for the rice manufacturer as taken by you as 100:49.41 4. Please confirm whether for the purpose of rejection and shortage at finishing stage, any verification has been done to arrive at the figures on 4.92% and 05.66% respectively. 5. Please let us have the actual sale proceeds of the salvage stock including stock of 198.81 MT. which have been taken as Nil stating that the material has been thrown backside boundaries of Alipur unit. Whether the local municipal authorities were informed of the same or any permission to throw the rice in such a manner was obtained. 6. The abnormalities of expenses allowed as the direct expenses and manufacturing overheads have not been ironed out. 7. Out of three costs and values available as of production cost on Karnal, Rudrapur and purchase price, list of three should have been considered instead of averaging out all the three values. 8. In your report, everywhere the figures have been based at available figures of 97-98 financial year whereas for valuation of ''C type of peddy market value has been taken without assigning any reason. Please note that ''C type of raw material as 70% has consumption mixed. 9. The overheads are required to be considered on the basis of production and purchased quantities and not on the basis of total export quantity. 10. Whether you have made any efforts to compute the stock valuation on the basis of method of accounting such as FIFO and if so the lower of the Two should have been considered for valuation? 11. Whether any quotation form market were obtained to corroborate the manufacturing cost? 12. Please confirm authenticity and correctness of the figures extracted from the insured''s books of accounts. Please ensure that your pointwise reply should reach us by 24.5.1999 positively."
10. THE said communication was replied by M/s. Adarsh Associates and M/s. S. P. Goel, and Co. vide communication dated 22.5.1999 thereby giving clarification on the above points. A perusal of this reply would show that in computing the loss occasioned to the complainants, the above named Surveyor had taken into account various overheads expenses in order to arrive at the direct cost of goods involved stored at KPT Kandla. According to them since the involved goods were produced against confirmed orders for export and LC was opened before despatching the goods from Insured''s manufacturing units and were awaiting shipment at the time of loss and therefore, all expenses considered as part of overheads have already been incurred and thus required to be considered for determining the cost of the goods. It was also explained that a sum of Rs. 4,10,31,326 had been incurred by the Insured towards the interest and other bank charges, which was one of the major expenses involved in case of Insured''s trade, being a seasonal commodity meant for exports.
11. IT would appear that the clarification afforded did not satisfy the insurance companies as it did not meet the complete requirement of ascertaining the loss on the basis of scientific costing and, therefore, they had appointed another Surveyor, namely M/s. R. L. Aggarwal and Co. and M/s. P.S. Garg, Cost Accountant The subsequent Surveyor M/s. R. L. Aggarwal and Company and M/s. P.S. Garg, Cost Accountant vide their communication dated 25.6.1999, had submitted their report taking into account quantity of the affected goods, basis of costing, valuation of salvage disposal based on the statement showing para-wise details of arrivals and shipment to export cargo as on 9.6.1998 prepared by the insured''s clearing and handling agents M/s. A.C.T. Shipping Ltd. at Kandla. As per their report, the quantity of stocks belonging to the complainant lying in the affected godown as on 9 6.1998 was as under:
Description NG 7 NG 11 Total Bags Bags Wt Bags Wt 1. White seta Basmati rice - - 12494 499.760 12494 "CUP"Brand (20X2 kg) (20 x 2 kg) 2. White Sela Basmati 4525 181.00 5749 299.960 10274 "CUP" Brand (8X5 kg) (8X5 kg.) 3. White Sela Easmati rice 3798 170.910 - - 3798 CUP" Brand 45 kg 4. White si Sela Basmati rice 711 31.995 - - 711 "Bundi" Brand 45 kg 5. Golden Sale Basmati rice 222 9.990 10090 454.050 10312 "Sultany" Brand (45 kg.) (45 kg) (45kg) 9256 393.895 28333 1183.770 37509 Total wt. 1577.665 MT No. of bags 37589 Bags
12. IT would thus be noted that there was some difference in the total quantity of the stocks as found by the two Surveyors because the subsequent Surveyor found the quantity of stocks at 910.720 MT as against the claimed quantity of 1081.630 MT. Yet another factor which had a bearing in making the assessment at the lesser amount than made by the earlier Surveyor was that while the earlier Surveyor had valued the stocks going by the sales price less unincurred expenses meaning thereby that they had calculated the cost of Basmati rice more than the sales price. However, the subsequent Surveyor had assessed the loss by calculating it at the sales price. That apart, certain other factors under the insurance policy were also taken into consideration. On a due consideration of all the relevant factors and based on the above referred criteria, M/s. R. L. Aggarwal and Co. has calculated the loss in respect of three policies issued by the opposite party No. 1 and one policy issued by opposite party No. 2 as under: Calculation of independent liability which is the maximum liability, under each of the 3 policies (on floater basis and subject to declaration polilcy conditions) and also keeping in view the last provision of condition no. 3 of declaration i.e. "but not exceeding the sum insured hereby bears to the total value of the stocks."
(S.I. X loss V.A.R. Policy No. Sum Godown Value at Assessed Adjusted Excess Net Insured No. Risk Loss Loss adjusted (S.I.) (V.A.R.) before loss excess. Oriental Policy Floater Declaration Basis 1,00,00,000 NG-7& 4,77,77,108 3,98,19,445 83.34,419 37623 82,96,796 NG-11 National Specific for NG 7 Non declaration basis 1,00,00,000 NG-7 1,18,59,824 93,01,162 78,42,580 87132 77,55,448 Foater On Declaration basis 1,00,00,000 NG-7 and 4,77,77,108 3,98,19,445 83,34,419 37623 82,96,796 NG-11 Floater On Declaration basis 1,00.00,000 NG-7 and 4,77,77,108 3,98,19,445 83.34.419 37622 82,96,797 Oriental NG-11 3,28,45,837 2,00,000 3,26,45,83
Note :adjusted loss of 83,34,419 before excess as calculated in para 7 being the independent maximum liability and being less than : NG -7 3,86 087: NG-11 80,78,190 As calculated under para No. 6.13, the former being lower is the maximum liability before excess. Share of excess for non declaration policy will remain the same i.e. Rs. 87,132 a balance (2,00,000 - 87132, floater declaration policies i.e. each policy Rs. 37,623. Final Assessed loss under each policy ( Lesser of the (A) and (B) after deducting excess) As per (A) As per (B) Lesser National Insurance Co. Ltd. Policy No. (Non declaration) 360800/11/331050/97 77,55,448 77,55,448 77,55,448 Declaration Basis 360800/3301086/97 84,26,655 82,96,796 82,96,796 360800/11/3301087/97 84,26,655 82,96,796 82,96,796 Oriental Insurance Co. Ltd. 212200/1000/105 84,26,655 82,96,797 82,96,796 3,30,35,413 3,26,45,837 3,26,45,837 Share of N.I.C. O.I.C. Total Rs. Rs. Rs. 92,96,796 3,26,45,837 2,43,49,041 In our opinion these calculations are based on all possible verification at this stage and keeping in view two provisions of the declarations policy condition No. 3. Issued without prejudice only for the use of insurers."
13. LEARNED Counsel for the complainant has vehemently argued that the criteria adopted by the second Surveyor is against the settled principle of computation of the loss in as much as the subsequent Surveyors had misdirected itself taking into account certain irrelevant factors like selling price of the stocked rice being less than the cost price. The basis of this submission is that once the stocks were lying at Kandla Port and were to be exported against firm export orders then it was the selling export price which should have been taken into account rather than the cost price of the goods which had lost its sanctity. It is also argued that the concept of deducting of gross profit margin in the manner adopted by the second Surveyor is not only uncalled for but was inappropriate method to be adopted for the reasons adopted. In this regard, the complainant seeks support from the report of M/s. Mehta and Padamsay Pvt. Ltd. rendered by them in the case of M/s. Khushi Ram Behari Lal where the said Surveyor had adopted the indemnity norms based on the cost of finished goods. It is pointed out that in the said case also, the sale price was stated to be less than the cost price and according to the complainant, the insured has to be indemnified on the said lines as suggested by the above named Surveyor and opposite parties cannot discriminate when it comes to the case of the complainant.
14. WE have noted the above submissions only to be rejected because what happened to the report of M/s. Mehta and Padamsay Pvt. Ltd. has not been made clear to us. In the circumstances, we have, therefore, to consider as to whether the assessment made by the first Surveyor or the second Surveyor should be the proper and reasonable basis for indemnification of the loss suffered by the complainant. In our view, the report submitted by M/s. R. L. Aggarwal and M/s. Garga and Co. is based on scientific costing of the stocks which were damaged while the report rendered by the previous Surveyor cannot be said to be so scientific. In any case, the complainant can claim indemnification only to the extent of actual loss suffered by it and cannot be allowed to make capital out of a tragedy. That will amount to undue enrichment. We have, therefore, no manner of doubt that the opposite parties-insurance companies have committed no deficiency in service in settling the claim of the complainant strictly, in terms of the report of the second Surveyors, M/s. R. L. Aggarwal and M/s. Garga and Co. In our view, the complainant is not entitled to any further amount at least towards the settlement of their claim under the four policies issued by the opposite parties.
15. LEARNED Counsel for the complainant next argued that the deduction of reinstatement charges by opposite party No. 2 is totally uncalled for. It is not in dispute that the opposite party No. 2 had deducted a sum of Rs. 1,27,881 on account of reinstatement of charges of the policies, which was protested by the complainant. The basis of this submission is that there was no question of further continuance of the policy because the loss had already occurred and therefore, there was no question of reinstatement of the policy subsequently. It is also pointed out that the charges for the said policies at the inception by way of premium for the whole year was Rs. 28,429 while opposite party has deducted a sum of Rs. 1,27,181 for the remaining 8 months. The opposite party No. 2 has not been able to explain as to how and under what circumstances, it could have made a deduction of the sum of Rs. 1,27,181 purportedly towards reinstatement charges once the loss had already occurred and process for assessing the loss had been almost complete within a reasonable time. In our view, the deduction of this amount towards the reinstatement charges cannot be justified and the opposite party No. 2 should pay back this amount to the complainant.
16. THE last submission made by the complainant is in regard to the interest part. According to the complainant, even if the assessment made by M/s. R. L Aggarwal and Co. and M/s. Garga and Co. is to be considered just, proper and final assessment, the payable amount as per the said assessment, was not made promptly and undue delay was caused in making the payment even pending the assessment by the first Surveyor, M/s. Adarsh Associates and M/s. Govinder Kapoor and Co. The opposite party No. 1 had released a sum of Rs. 80 lakh to the complainant on 11.8.1998 and the opposite party No. 2 had released a sum of Rs. 28,72,1191 on 1.9.1998 i.e. within about two months period. Thereafter, on 13.7.1999, the opposite party No. 2 had released further a sum of Rs. 52,96,796. On 16.12.1999, the opposite party No. 1 released a sum of Rs. 1,63,49,041which the complainant claim to have accepted under protest. Once we have found that the said amounts paid by the opposite parties were according to the report submitted by M/s. R. L. Aggarwal and Co. and M/s. Garga and Co and so even if any protest was made, the said protest was wholly untenable. However, the question is as to whether the complainant''s claim ought to have been settled by the opposite parties within a period of six months from the date of peril. In this case, the delay of about one year was caused in settling the claim. In our view, the opposite party No. 1 should pay reasonable interest say @ 9% per annum on a sum of Rs. 1,63,49,041 to the complainant w.e.f. 1.1.1999 to 15.12.1999, the complainant having received the said amount on 16.12.1999. Likewise, the opposite party should pay interest @ 9% per annum on the sum of Rs. 52,96,796 w.e.f. 1.1.1999 to 12.7.1999, the payment of which having been made to the complainant on 13.7.1999 besides paying a sum of Rs. 1,63,28,000 to the complainant on which amount also, they should pay interest @ 9% per annum w.e.f. 1.1.1999 till the date of payment.
17. FOR the above stated reasons, we partly allow the present complaint in the following manner. 1. The opposite party No. 1 is directed to pay interest @ 9% per annum on a sum of Rs. 1,63,49,041 to the complainant w.e.f. 1.1.1999 to 15.12.1999. 2. (j) The opposite party No. 2 is directed to pay a sum of Rs. 1,27,181with interest @ 9% per annum w.e.f. 1.1.1999 till the date of payment (ii) The opposite party No. 2 is also directed to pay interest @ 9% per annum on a sum of Rs. 52,96,796 w.e.f. 1.1.1999 to 12.7.1999. 3. The parties shall bear their own cost. Appeal partly allowed.
