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Judgment
Ram Surat Ram (Maurya), J, Presiding Member
Heard Mr. Kumar Shashank, Advocate for the Appellant/Review Applicant and Mr. Premtosh K. Mishra, Advocate for the Canara Bank (Respondent No.1) and Mr. Maibam N. Singh, Advocate for the Insurance Company (Respondent No.2).
M/s Sona Agencies filed the review application for review of the judgment dated 30.01.2019, whereby the above appeal has been decided along with FA/553/2013 and FA/554/2013 and Bank and Insurance Company both were held as jointly and severally liable for a cumulative amount of all the three claims i.e. Rs.89,49,999/- with interest @ 9% per annum from the date of repudiation till the date of realization together with Rs.25000/- as litigation cost with a default clause.
M/s Sona Poultry Farm was a proprietorship firm engaged in the business of running a poultry farm. It may be mentioned that M/s. Sona Agencies was another trade name in which the same partners were running the poultry farms. In the name of M/s Sona Poultry Farm the following policies were taken:-
Policy No.
Sum Insured
Compensation Claimed
051100/11/09/11/000000053
50,00,000/-
6,308,267.50/-
051100/11/08/11/00000971
50,00,000/-
6,308,267.50/-
M/s Sona Agencies have taken following Insurance Policies:-
Policy No.
Sum Insured
Compensation Claimed
05110/11/09/11/00000316
11,00,000/-
14,65,675/-
05110/11/09/11/00000318
5,00,000/-
7,26,570/-
05110/11/08/11/00001052
10,00,000/-
64,86,521/-
05110/11/08/11/00001057
21,68,000/-
12,08,190/-
On the allegation that on 02.10.2009, the flash flood hit the locations covered in the above policies, due to which the stock of eggs and poultry feeds were destroyed. On the claim being set up by the M/s Sona Poultry Farm and M/s Sona Agencies, the Insurance Company appointed surveyor. it may be mentioned that in respect of the two policies of M/s Sona Poultry Farm i.e. policies no. 051100/11/09/11/000000053 & 051100/11/08/11/00000971, the Insurance Company has appointed one surveyor, who has submitted a common report in respect of the damages of two policies dated 04.07.2011. The surveyor has assessed the damage to Rs.89,49,999/-.
In respect of claims of M/s Sona Agencies, another surveyor has been appointed, who submitted a common report dated 22.02.2010, in respect of all the four claims covered in policies no. 05110/11/09/11/00000316, 05110/11/09/11/00000318, 05110/11/08/11/00001052 & 05110/11/08/11/00001057. In this survey report, the surveyor has assessed the total loss to Rs.43,11,860/-. When the claim was considered by the Insurance Company, it has repudiated the claims on the ground that the locations on which damages are alleged to have occurred were not covered in the Insurance Policies.
M/s. Sona Poultry Farm filed CC/88/2012, in respect of its claim covered under policy no.051100/11/09/11/000000053. It has also filed CC/89/2012, in respect of its claim covered under policy no.051100/11/08/11/00000971. While M/s Sona Agencies filed CC/90/2012, covered in all its four policies i.e. policies no.05110/11/09/11/00000316, 05110/11/09/11/00000318, 05110/11/08/11/00001052 & 05110/11/08/11/00001057. All the three complaints were consolidated and decided by the judgment of State Consumer Disputes Redressal Commission, Hyderabad dated 03.07.2013 and all the three complaints were dismissed.
M/s Sona Poultry Farm filed FA/553/2013, challenging the order passed in CC/88/2012 and FA/554/2013, challenging the order passed in CC/89/2012. M/s Sona Agencies filed FA/555/2013, challenging the order passed in CC/90/2012. All the three appeals were consolidated and decided by the common judgment dated 30.01.2019. This Commission has not accepted the plea of the Insurance Company that the damages caused at the locations were not covered in the Insurance Policies and found that since the locations were covered in the Insurance Policies, therefore, the damages as assessed by the surveyor was payable. However, in paragraph 16 of the judgment, this commission has held that in the survey report dated 04.07.2011, the surveyor had assessed the damage to Rs.89,49,999/- and same were directed to be paid. Now M/s Sona Agencies has filed RA/53/2019 for reviewing of the aforesaid judgment, inasmuch as, the survey report dated 22.02.2010, which was a consolidated report in respect of the four claims covered under policies no.05110/11/09/11/00000316, 05110/11/09/11/00000318, 05110/11/08/11/00001052 & 05110/11/08/11/00001057, was a separate survey report as the proprietorship name was separate and it has been inadvertently ignored in the judgment dated 30.01.2019, therefore, the judgment is liable to be reviewed and since this Commission has already held that the locations were covered in the policies, therefore, the loss as assessed by the surveyor in the report dated 22.02.2010 is payable to M/s Sona Agencies.
We have examined the record. The fact as stated above are fully verified from the record. M/s Sona Agencies has taken four separate policies i.e. 05110/11/09/11/00000316, 05110/11/09/11/00000318, 05110/11/08/11/00001052 & 05110/11/08/11/00001057. In respect of all these policies separate claims were submitted before the Insurance Company. The Insurance Company has appointed a separate surveyor namely Mrs. D.A. Somaya Ji, who has submitted a separate report dated 22.02.2010. While in respect of the claims of M/s Sona Poultry farm, a separate surveyor namely Sh. Anur Naveen, Surveyor & Loss Assessor, Vidyanagar, Hyderabad, was appointed, who has submitted a separate report dated 04.07.2011. Inadvertently, this Commission while deciding the appeal could not notice the survey report dated 22.02.2010. On the finding recorded in the judgment dated 30.01.2019 that the locations were covered in the policies, the loss as assessed by the surveyor in the survey report dated 22.02.2010, has also to be allowed.
The Counsel for the Insurance Company relying upon the judgment of the Supreme Court in S. Murali Sundaram Vs. Jothibai Kannan & Ors. (2013) 3 S.C.R. 47, submitted that the matter requires a detail examination of the record as such it is outside the purview of the review jurisdiction of this Commission.
We do not agree with the submission by the Counsel for the Insurance Company, in this respect, since a perusal of record clearly indicate that this survey report relating to the claims of M/s Sona Agencies covered under the four policies dated 22.02.2010, escaped from notice of this Commission, while passing the final judgment dated 30.01.2019 and the error is apparent on the face of record. In the result review application is liable to be allowed. Constitution Bench in State of Gujarat Vs. Sardar Begum (1976) 3 SCC 416 held that a patent error caused by inadvertence is an “error apparent” on the face of record and can be corrected in exercise of review jurisdiction.
Order
In view of the aforesaid discussion RA/52/2019 is allowed. The Canara Bank & United India Insurance Company Ltd. both the Respondents are jointly and severally directed to pay the amount of Rs.1045000/- in policy no.05110/11/09/11/00000316, Rs.9,50,000/- in policy no. 05110/11/08/11/00001052, Rs.2,57,260/- in policy no. 05110/11/09/11/00000318 & Rs.20,59,600/- in policy no. 05110/11/08/11/00001057, with interest @ 9% per annum from the date of repudiation till the date of realization as disputed in the judgment dated 30.01.2019.