AI Structured Summary
Not yet generated for this judgment
Judgment
Subhash Chandra, Presiding Member
This revision petition is filed under section 21(b) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order of the State Consumer Dispute Redressal Commission, Haryana, Panchkula (in short, ‘State Commission’) in First Appeal No. 537 of 2006 dated 27.07.2012 dismissing the appeal against the order of the District Forum, Faridabad (in short, ‘District Forum’) in Consumer Complaint No.300 dated 12.07.2005.
The brief facts of the case are that the petitioner is a private limited company engaged in the business of providing excavator and allied services. A Tata Hitachi excavator 2572 (model 2000) hypothecated to M/s Ashok Leyland was insured by the petitioner for Rs.30,00,000/- vide policy no.2000/6311253 dated 11.01.2001 after paying premium of Rs.24,640/- with the respondent for the period 13.01.2001 to 12.01.2002. While working in a canal at Naseeti, District Mathura, UP on 05.01.2002 the excavator accidentally sank in the canal. The respondent was informed of the incident by the petitioner on 05.01.2022 and it deputed a surveyor/loss assessor, Shri M.K. Aggarwal, on 07.01.2002 who submitted a spot survey report on 10.01.2002. As it was not possible to lift the heavy equipment from the canal, the petitioner, based upon advice of engineers in the field, undertook dismantling of the excavator and removed the same over the next 10 days utilizing labour and machinery on rent. The said surveyor was aware of this. However, due to the extended time that the machine lay submerged in water it suffered further damage. The petitioner submitted a claim on 15.01.2002. A surveyor and loss assessor appointed by the respondent, M/s S. Lal & Co. Petitioner was asked on 18.03.2002 to submit original bills and cash memos. Surveyor submitted a report dated 19.02.2002 assessing theloss to be for Rs.21,924/- which, according to the petitioner, is a paltry sum compared to the loss and expenditure of Rs 4,71,436/- incurred by him due to the accident and on the efforts to retrieve the equipment. It is averred by the petitioner that as this assessment was not realistic and without basis, he requested the respondent on 18.03.2002 to appoint a new surveyor, However, this was not done and the original bills of expenditure on the retrieval of the machine were disregarded by the petitioner. He therefore served a legal notice on 06.04.2002 to process his claim. On 23.09.2002 the respondent asked the petitioner to submit a signed voucher for Rs 21,924/- to settle the claim. The petitioner then filed a Consumer Complaint no.300 before the District Forum alleging deficiency in service. The complaint was resisted by the respondent and after considering the evidences on record, the District Forum allowed the complaint of the respondent on 12.07.2005 and ordered as under:
“The respondent is ordered to pay Rs.4,71,436/- to the complainant along with interest @ 12% per annum with effect from the filing of the claim form till its realization;
The respondent is further ordered to pay Rs.20,000/- on account of harassment and financial loss to the complainant; and
The respondent is also ordered to comply with the order of the Forum within 30 days after the receipt of the copy of the present order.”
Aggrieved by this order, the petitioner herein approached the State Commission in appeal. The State Commission on 27.07.2012 set aside the order of the District Forum as under:
“On behalf of the appellant it is contended that on receipt of the information from the complainant about the sink of excavator in the canal, M/s S Lal and Company, Surveyors and Loss Assessor was appointed, who inspected the excavator and submitted his report dated 19.02.2002 according to which the loss was assessed at Rs.21,924/-. It was categorically stated that during the inspection carried out by the surveyors and loss assessors, the engine was safe, cabin glasses were old and broken, the battery was safe, the hydraulic pump was also safe and even the radiator was found safe.
It is well settled law that if the insurance company settles the claim of the claimant in accordance with the report of the surveyor, there cannot be any deficiency in service unless and until the cogent and convincing evidence is produced by the claimant is rebut the report of the surveyor. Mere estimate with respect to the damage of the excavator be taken into account unless and until any supporting evidence is produced by the complainant. The facts and circumstances of the case established that the complainant has failed to prove its claim with respect to the amount incurred on the repairs of excavator. Hence, the impugned order cannot be allowed to sustain.
For the reasons recorded above, this appeal is accepted, the impugned order is set aside with the directions to the opposite party to pay Rs.21,924/- to the complainant as per the report of the surveyor. Disposed of accordingly.
The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case”.
The petitioner is now before this Commission by way of a revision petitioner with a prayer to set aside this order of the State Commission alleging that the impugned order was barred by limitation and is without application of mind and does not address the grounds on which the District Forum adjudicated the matter. It is contended that the State Commission has taken the view that the expenditure claimed by the petitioner was based only on estimates whereas the district Forum recognized that the bills of expenses on the retrieval and repair of the excavator were filed. As the respondent has never disputed the non-submission of bills, the State Commission has adjudicated the appeal on the basis of facts that were not pleaded and its findings are therefore perverse. The order fails to appreciate that the loss surveyor’s report was based on a visual estimate as the machine was submerged in mud and water, did not do a technical assessment of the damage to the machinery and does not factor in the costs incurred in its retrieval from the canal. The request of the petitioner for another surveyor was therefore valid and should have been considered by the State Commission. The impugned order also fails to appreciate that extraction of the machine was possible only after dismantling. It is prayed that the order of the State Commission be set aside with costs.
On behalf of the respondent, reliance has been placed on the report of the surveyors. It is also submitted that the petitioner cannot ask for a change in a surveyor without cogent reasons as per Insurance Act, 1938. As the impugned order is based upon the report of M/s S Lal & Co., it is not open to he petitioner to seek another surveyor to be appointed.
Heard the learned counsels for the petitioner and respondent and perused the records carefully. The petitioner submitted as per his petition and relied upon orders of this Commission in OP Nos. 30 & 68 of 1998 dated 16.11.2007 Pankaj Variety Hall Vs. Oriental Insurance Co. Ltd. & Anr. I (2008) CPJ 4 (NC) and argued that the surveyor’s report dated 19.02.2002 was based upon an arbitrary, visual estimation of the loss to the excavator whereas he had submitted, against bills on record, that over Rs 4,71,000 was spent by him for the retrieval and restoration of the equipment. He also relied upon Oriental Insurance Co. Ltd. Vs. Mehar Chand IV (2009) CPJ 230 (NC) in RP 3499 of 2009 dated 09.10.2009 which held that the surveyor was required to give sound and cogent reasons for disallowing an estimated claim. He also placed reliance on orders of this Commission in Hadimba International Ltd. Vs. United India Insurance Company Ltd & Ors. I (2010) CPJ 68 (NC) in CC No. 58 of 2001 dated 15.12.2009 that disallowed assessment of loss by a surveyor without justifiable basis and on New India Assurance Co. Ltd. Vs. Somesh Readymade Garments IV (2011) CPJ 273 (NC) in RP No. 853 of 2007 decided on 14.07.2011 that held the insurance claim by the respondent to be more realistic than the unacceptably low figure arrived at by the surveyor which, while confirming damage to be extensive, assessed the loss unrealistically. According to the petitioner, the report of the assessor M/s S Lal & Co., was flawed as it did not take into account the fact that there was extensive damage to the excavator due to submergence in mud and water for nearly 10 days and there was no effort made to check the machinery through operation. As the excavator had been admittedly dismantled, there was no opportunity to do so. Only a visual estimation and perfunctory check of the crank shaft was done on his pointing out that the engine had seized. Costs of extricating the excavator were also not considered. Supporting bills and payments through book were not appreciated by the State Commission even though it was done by the District Forum.
The facts of the incident of submergence of the excavator in the canal, the policy, appointment and reports of the surveyors as submitted by the petitioner are not denied by the respondent. He, however, argues that the petitioner’s request for a change of surveyor to obtain a report/assessment of convenience is not valid unless it is supported by cogent reasons which the petitioner has failed to provide. The respondent’s case is that the assessment of loss by the surveyor M/s S Lal & Co. was correct and there were no cogent reasons advanced by the petitioner to justify the appointment of another surveyor. It is evident from the record that while the District Forum did not accept this averment, the State Commission has been persuaded by it.
This Commission in exercise of its revisional jurisdiction under section 26(b) of the Act is not required to re-assess and re-appreciate the evidence on record. However, the findings of the lower fora are not concurrent on facts. The Commission can interfere with findings of the foras below only when findings are either perverse or if fora below act without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review is therefore, limited to cases where some prima facie error appears in the impugned order. The Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors (2016) 8 SCC 286 held that:
“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity.”
In the instant case it is apparent that the respondent has finalised his assessment of loss based upon the report of the two surveyors. The first report by Mr M K Aggarwal on 07.01.2002 states that the excavator was in deep mud and damages were not visible. The engine was looking safe and its oil gauge was taken out and it was noticed that there was no water mixed in the oil. Cabin glasses were old, damaged/ broken. The bettering, hydraulic pump and radiator were looking safe. It is manifest that the Surveyor did not undertake any technical evaluation of the damage suffered by the excavator machine by examining its functioning as it lay submerged in the mud and water of the canal.
The report of the second surveyor and loss assessor viz. M/s S Lal & Co appointed subsequently quantified the damage on 19.02.2002. This report is based upon an inspection of the excavator and includes physical checking of the mechanical parts like crank shaft. The report notes that the excavator had been dismantled in order to retrieve it from the accident site in the canal. It also provides technical opinion regarding whether the engine would have seized. However, neither the surveyor nor the respondent has considered the costs involved in this effort despite noting the fact of the same. Even the loss assessed of Rs 21,924/- is based upon the estimation of the damage to the body and some parts of the machinery which, for equipment insured for a sum of Rs 30 lakhs appears disproportionate.
The State Commission did not consider the fact that the petitioner had filed the bills on the lifting of the excavator from the canal utilising hired cranes and repairs to the various mechanical parts. It has instead relied upon the petitioner’s claim which was based on estimates and concluded that no supporting evidence has been provided. This is a material irregularity and makes the impugned order perverse as it ignores important evidence such as bills and bank statements that was produced on record before the District Forum and was considered while arriving at a conclusion by it. On the contrary, the reliance on the assessment of the surveyor M/s S Lal and Co. who concluded that damage to the excavator after remaining submerged in mud and water for nearly ten days suffers from the infirmity that it ignores several aspects such as cost of extraction including dismantling, a technical assessment of the extent of repairs required, costs of spare parts, labour charges including oil and lubricants.
For the foregoing reasons, I am of the considered opinion that the State Commission’s order is perverse as it did not consider all the evidence on record. The reliance of the respondent no.1 in basing his settlement of the claim on the basis of the report of the second surveyor M/s S Lal and Co., was also premature and erroneous. The petitioner’s demand for another surveyor was justified as damage to specialised machinery over an extended submergence in mud and water over nearly 10 days required consideration. His action to retrieve the excavator after dismantling it from the canal cannot be faulted in view of the need to save the machinery from further damage in the canal’s waters.
I therefore, find merit in the arguments of the revision petitioner which is accordingly allowed. Orders of the State Commission in FA no. 537 of 2006 dated 27.07.2012 are set aside and the orders of the District Forum in Consumer Complaint no.300 dated 12.07.2005 are affirmed.
Revision petition is disposed of with these directions.