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Judgment
This revision petition has been filed under section 21(b) of the Act 1986 in challenge to the State Commission's Order dated 22.01.2013 in appeal no. 1299 of 2012 arising out of the District Commission's Order dated 21.09.2012 in complaint no. 869(RBT) of 2011.
Heard the learned counsel for the two sides. Perused the material on record, including inter alia the District Commission's Order dated 21.09.2012, the State Commission's impugned Order dated 22.01.2013 and the petition.
Brief facts, relevant for the purpose of disposing the petition, are that the petitioner (the 'complainant co.') had taken a loan from the Punjab National Bank (the 'bank') and had hypothecated its stock with the bank. The bank had taken the subject insurance policy on behalf of the complainant co. from the respondents (the 'insurance co.'). An incident of fire took place in the intervening night of 25/26.06.1999. The complainant co. made a claim of Rs.12,27,217/-. The surveyor appointed by the insurance co. assessed the loss at Rs.2,48,155/-. Accepting its surveyor's report, the insurance co. settled the claim at Rs.2,17,240/-, and, in accordance with the agreed tripartite arrangement between the complainant co., the bank and the insurance co., it paid the said amount to the bank, which, in turn, credited it to the loan account of the complainant co. The complainant co. filed a complaint with the District Commission against the insurance co. apropos the balance amount of its claim.
The District Commission made its appraisal, and, overruling the surveyor's report, ordered the insurance co. to pay an additional amount of Rs.7,88,965/-, over and above the amount of Rs.2,17,240/- already paid, along with interest at the rate of 9% per annum from 01.01.2001 till realization.
In appeal, the State Commission set aside the Order of the District Commission and dismissed the complaint.
Learned counsel for the complainant co. argues two issues, first, that the bank while accepting the amount of Rs.2,17,240/- (only) from the insurance co. could not have issued a discharge voucher extinguishing any further liability of the insurance co., second, that the surveyor had under-assessed the loss at Rs. 2,48,155/- (only).
We see that the State Commissions has aptly dealt with both these issues in its impugned Order.
In respect of the first issue, it has quoted the terms and conditions of the subject policy, viz. "That upon any monies becoming payable under this policy the same shall be paid by the Company to the Bank and such part of any monies so paid as may relate to the interests of other parties insured hereunder shall be received by the Bank as Agents for such other parties; "That the receipts of the Bank shall be complete discharge of the Company therefor and shall be binding on all the parties insured hereunder" and "That if and whenever any notice shall be required to be given or other communication shall be required to be made by the Company to the insured or any of them in any manner arising under or in connection with this policy such notice or other communication shall be deemed to have been sufficiently given or made if given or made to the Bank.", and taking reference therein has held that "The perusal of the agreed bank clause in the terms of the insurance policy makes it explicitly clear that the bank was competent to give complete discharge of the liability to the insurance policy and pursuance thereto the bank had given full and final settlement discharge voucher. It is not a case where discharge voucher was signed under some duress or coercion."
A reading of the terms and conditions of the subject policy shows that the State Commission has rightly held that the bank was competent to give complete discharge of the liability.
The complainant co. had been financed by the bank, its stock was hypothecated with the bank, the bank had taken the subject insurance policy in its own name (by paying the premium, which was debited to the loan account of the complainant co. as per the normal practice and in accordance with the agreed terms and conditions). The terms and conditions of the insurance policy were unequivocal, that the bank was competent to give complete discharge of the liability, the complainant co. had agreed to the said terms and conditions with eyes open. Further, if this question was to be agitated the bank should also have been made a necessary party to the complaint, which onus was on the complainant co. and which onus it did not discharge at the relevant time of filing its complaint before the District Commission.
In respect of the second issue, the State Commission has observed that "the report of surveyor was certainly justified in calculating the loss by calculating the burnt portion of the goods. Otherwise, the surveyor has even taken assistance of Chartered Accountant, who has also certified that the books of accounts of complainant clearly show that the unit was lying closed 4 months prior to the occurrence, as it was running into losses and further that the stock statement furnished by the complainant to their bank was incorrect. There is no alternative except to place reliance upon the report of surveyor, which is an important piece of evidence. It is well settled principle of law that report of surveyor is an important document and the same cannot be brushed aside without any cogent and convincing evidence contrary to it." and has held that the District Commission, without appreciating the facts of the case, had wrongly made its award which is not sustainable in the eyes of law. And observing that "since amount of actual loss of Rs.2,17,240/- has already been paid" it has set aside the Order of the District Commission.
A perusal of its report dated 31.12.1999 shows that the surveyor has made a reasoned assessment of the loss at Rs.2,48,155/-. Under the heading "VERIFICATION OF BOOKS OF ACCOUNTS" it has dealt with the stock statements furnished by the complainant co., and, for reasons recorded, has found them to be incorrect. And the insurance company, placing reliance on its surveyor's report, has settled the claim at Rs.2,17,240/-. The bank, on its part, has accepted the amount as such, without raising any questions on the surveyor's report or the insurance co.'s decision, and has given an unconditional discharge.
Survey and investigation are one of the fundamentals in settling a claim, and can not and should not be disregarded or dismissed without cogent reasons, though it also goes concomitantly that the survey or investigation should be convincing and pass credence in scrutiny.
In the present case, we agree with the State Commission that the surveyor, in its report ( inter alia prepared with the assistance of a chartered accountant), has made an analytic assessment of the loss, the District Commission could not and should not have overruled it by substituting its own appraisal in the way and manner it has done in passing its Order of 21.09.2012.
Here too we may observe that the bank should also have been made a necessary party to the complaint, which onus the complainant co. failed to discharge at the relevant time of filing its complaint before the District Commission.
As such the State Commission has aptly dealt with the issues germane in the matter. We note no jurisdictional error, or law point ignored or erroneously ruled, or miscarriage of justice, we find no good ground to interfere with the Order of the State Commission in the exercise of the revisional jurisdiction of this Commission.
The petition being sans merit is dismissed.
The Registry is requested to send a copy each of this Order to all parties in the petition and to their learned counsel within three days. The stenographer is requested to upload this Order on the website of this Commission immediately.