Bharmaputra Biochem Pvt. Ltd vs New India Assurance Company & Anr

Taken up through video conferencing.

The opposite party no. 1, New India Assurance Company (the 'insurance co.') has filed its written version. The complainant, Bharamaputra Biochem Pvt. Ltd. (the 'complainant co.') has not filed its rejoinder thereto, despite direction of 31.10.2019 to file it within four weeks.

The opposite party no. 2, Flourish Insurance Surveyors & Loss Assessors Pvt. Ltd. (the 'surveyor & loss assessor') has not been served till date, despite the complaint having been admitted on 12.11.2018.

Learned counsel for the complainant co. requests for further opportunity to serve the surveyor & loss assessor.

Learned counsel for the insurance co. submits that its surveyor & loss assessor was appointed by the insurance co. in accordance with the provisions of Section 64UM of The Insurance Act, 1938. Strangely enough the insurance co. together with its surveyor & loss assessor have been made opposite parties to the complaint. Not only this, even the relief sought in the prayer clause of the complainant is joint and several against both the insurance co. as well as its surveyor & loss assessor. No consideration having been even paid or promised by the complainant co. to the surveyor & loss assessor, the complainant co. was not a 'consumer' of the surveyor & loss assessor. Contention is that the complaint thus suffers from manifest misjoinder of parties, and as such the same is liable to be dismissed as not maintainable.

Learned counsel for the complainant co. submits that from paragraph 41 onwards of its complaint the acts of "deficiency in service" committed by the surveyor & loss assessor have been enumerated. The surveyor & loss assessor is an "agent" of the insurance co. The relief has been "rightly" asked for joint and several against both the insurance co. as well as its surveyor & loss assessor. The surveyor & loss assessor is a necessary party in the complaint.

We note that this complaint was admitted on 12.11.2018. The opposite party no. 1 insurance co. has filed its written version. Rejoinder thereto has not been filed by the complainant co. Service of notice on the opposite party no. 2 surveyor & loss assessor has as yet not been effected. As such the complaint is still at the nascent stage of its adjudication.

Section 64UM of The Insurance Act 1938 deals with Surveyors or loss assessors . For the duty performed, a surveyor & loss assessor is paid its fee by the insurance co. It is too obvious to require any elaboration that there is no 'principal - agent' relationship between the insurance co. and its surveyor & loss assessor as may cause the surveyor & loss assessor to be liable for acts of 'deficiency in service' / 'unfair trade practice' on the part of the insurance co.

Admittedly, the complainant co. has paid consideration in the form of premium to the insurance co., and as such it is a 'consumer' of the insurance co.

The complainant co. has undisputedly not paid or promised consideration of any nature to the surveyor & loss assessor, as such it is not a 'consumer' of the surveyor & loss assessor.

A surveyor & loss assessor's report is significant for examining and deciding an insurance claim. Accordingly the complainant co. is well within its rights if it assails the surveyors & loss assessor or its report, as it may want to, that is to say, it is well within its rights if it alleges shortcomings, infirmities, incongruities, inconsistencies, acts of omission or commission, errors on fact or law, malafide or malfeasance, etc. against the surveyor & loss assessor or its report. But it cannot ask for findings of 'deficiency in service' and / or 'unfair trade practice' and relief in the form of compensation etc. against the surveyor & loss assessor jointly and severally along with the insurance co. when the cause of action itself emanates from repudiation of its claim by the insurance co.

There is a distinction between a person who might be wanting in performance of service and be liable for committing 'deficiency in service' and / or 'unfair trade practice' and a person whose report is in the nature of evidence to be considered in the adjudication of the merits of the case.

As such we find the arguments advanced on behalf of complainant that the surveyor & loss assessor has indulged in "deficiency in service", or that it is an "agent" of the insurance co. as may or would make it liable for the acts of the insurance co., or that the relief has been "rightly" asked for jointly and severally against the surveyor & loss assessor also, and that the surveyor & loss assessor is a necessary party in the complaint, to be erroneous and untenable.

At this stage learned counsel for the complainant co. draws our attention to the provisions contained in Order I Rule 3 and Order I Rule 9 of the CPC and submits that no complaint can be disallowed for misjoinder of parties.

We agree that a complaint ought not be defeated by reason of misjoinder of parties alone.

In the present case however we find that the contents and articulation of the complaint is such that the insurance co. and its surveyor & loss assessor have been inextricably conjoined together, the material distinction that the complainant co. is a 'consumer' of the insurance co. alone, and not of its surveyor & loss assessor also, has been completely lost, the difference between the performance of service by the insurance co. and the role and responsibility of its surveyor & loss assessor has not been maintained. In the wake of such confounding overlappings, a mechanical deletion of the opposite party no. 2 surveyor & loss assessor from the array of the parties would make the complaint disjointed and askew, as may occasion to cause embarrassment to its adjudication on merit.

Here we may note explicitly that the cause of action subsists till allegations of deficiency in service and / or unfair trade practice against the insurance co. are duly entertained and adjudicated.

In the facts and situation summarized above, we deem it appropriate and albeit necessary to return the present complaint, un-adjudicated, to the complainant co., with unfettered liberty to prefer a fresh complaint within 30 days, wherein it may assail the surveyor & loss assessor or its report, as it may want to, but may make the insurance co. alone the sole opposite party and seek for findings of 'deficiency in service' and / or 'unfair trade practice' and relief in the form of compensation etc. against it.

So disposed.

The Registrar is requested to send a copy each of this Order to all parties in the complaint and to their learned counsel within three days. The stenographer is requested to upload this Order on the website of this Commission immediately.