Is a surveyor an investigator or only an assessor?

Well this case is one that should be posed to may a surveyor and it might just rub them the wrong way. The question that I can take away from this case is "Is a surveyor an investigator or only an assessor?" Looks like the answer is a surveyor is only an assessor and not an investigator. Well do you like it. Let me know.

The claim details are as under

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Claim Details
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M/s. Sood Chemical Industries (P) Ltd., New Abadi, Hoshiarpur, through Sh. Sheel Sood, Director.


.......... Complainant

versus


1.

United India Insurance Co.Ltd., Jalandhar Road, Hoshiarpur, through its Branch Manager.
2.

United India Insurance Co.Ltd., Regd. Office: 24, Whites Road, Chennai.
3.

Jasjit Vij, Surveyor, M/s. Vij Engineers Enterprise, Surveyor & Loss Assessor, BMC Chowk, Jalandhar City.

........... Opposite Parties





1.

The complainant namely M/s. Sood Chemical Industries (P) Ltd., has filed the present complaint thought its Director, Sh. Sheel Sood, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Put briefly, the facts of the case are that the complainant-company is having its godown situated at Bharwain Road in the revenue estate of village Sukhiawad. The complainant company on 13.8.2008 was having in its stock huge quantity of chemicals and other material alongwith barrels. The detail has been given vide para No. 3 of the complaint.
2.

It is further the case of the complainant that the goods lying in the godown were duly insured with opposite parties No. 1 and 2. It is further the case of the complainant that the company purchased standard fire and special perils policy from opposite parties No. 1 and 2 on 30.4.2008 valid upto 29.4.2009. The complainant paid Rs. 5393.00 as premium on 1.5.2008 to opposite parties No. 1 and 2.
3.

It is further the case of the complainant that on 13.8.2008, there were unprecedented rains in the area and because of that the water entered in the premises/godown of the complainant and caused heavy loss. The detail of the loss had been given vide para No. 5 of the complaint. That the complainant suffered loss to the tune of Rs. 2,36,342.40 on account of flushing away of the material and empty barrels due to unprecedented rains. The complainant reported the matter to PS Sadar and DDR No. 22 was recorded and the complainant also lodged the claim with opposite parties No. 1 and 2, who in turn appointed the surveyor to assess the loss.
4.

It is the allegation of the complainant that it was to his surprise that the surveyor – OP No. 3 on 1.11.2008, wrote a letter that he met the representative of the complainant. The broken locks of main gate and drums were lying there in tilted position and there was no loss of any stock/material. That the representative of the complainant told that the locks of main gate got broken due to impact of water and chemical drums washed away, which is unbelievable. That the fire policy does not cover theft of stocks. It is further averred that the surveyor – OP No. 3 for certain reasons prepared the survey report to the detriment of the complainant. It is further averred that the surveyor did not contact the representative of the complainant-company nor he visited the site in order to assess the loss on the spot. The surveyor prepared the report while sitting in his office. The complainant made a request to the opposite parties No. 1 and 2 to admit the claim, but of no consequences, hence this complaint.
5.

The opposite parties No. 1 and 2 filed the joint reply. The preliminary objections vis-a-vis maintainability, jurisdiction, estoppel and non-joinder of necessary parties were raised. On merits, the claim put forth by the complainant has been denied. It is denied that the Godown of the complainant situated at Bharwain Road, Hoshiarpur is insured with the replying opposite parties. As per insurance policy, the property of the complainant situated at Nai Abadi, Hoshiarpur was insured. However, it is admitted that the complainant obtained the fire policy from the replying opposite parties, which was valid from 30.4.2008 to 29.4.2009. It is admitted that the intimation regarding the alleged loss dated 13.8.2008 was given to the replying opposite parties, and thereafter, OP No. 3 was deputed to assess the loss.
6.

It is further replied that OP No. 3 visited the spot and clicked the photographs of the building alleged to be a godown of the insured. The lock was lying broken. That no loss can be caused as alleged by the complainant and fraud is being played with the insurance company to get a false claim. It is admitted that the loss due to flood is covered by the insurance policy. The claim was rightly repudiated by the insurance company, as per survey report dated 18.9.2008. The repudiation of the claim vide letter dated 24.9.2008 is legal.
7.

The opposite party No. 3 was proceeded against ex-parte on 11.5.2009.
8.

In order to prove the case, the complainant tendered in evidence affidavit of Sheel Sood – Ex. C-1, copy of DDR – Mark C-1, copy of claim form – Mark C-2, copy of Policy – Mark C-3, copy of Cover Note – Mark C-4, copy of Resolution – Mark C-5, copy of letter of Insurance Company – Mark C-6, copy of letter by complainant – Mark C-7, copy of bills – Mark C-8, Mark C-9 and Mark C-10 and closed the evidence on behalf of the complainant.
9.

In rebuttal, the opposite parties No. 1 and 2 tendered in evidence Insurance Policy – Ex. OP-1, letter dated 24.9.2008 – Ex.OP-2, letter dated 18.9.2008 of M/s. Vij Engineers – Ex. OP-3, photographs – Ex. OP-4 and Ex. OP-5, affidavit of Sh. S.K. Aggarwal, Divisional Manager, United India Insurance Company Ltd., Hoshiarpur – Ex.OP-6, and affidavit of Sh. Jasjit Singh, Prop., M/s. Vij Engineers Enterprises – Ex. OP-7.
10.

That vide order dated 19.8.2009, the opposite parties No. 1 and 2 – insurance company were allowed to place on record the copy of the Survey Report dated 18.9.2008.
11.

The learned counsel for the complainant and opposite parties No. 1 and 2 have filed written arguments. We have gone through the written submissions and record of the file minutely.
12.

The learned counsel for the opposite parties No. 1 and 2, Sh. Brij Thakur argued that the property of the complainant situated at Nai Abadi, Hoshiarpur was insured with the insurance company. It was further argued that as the Godown of the complainant situated at Bharwain Road, Hoshiarpur is not insured with the insurance company, therefore, the complaint deserves to be dismissed. The learned counsel for opposite parties No. 1 and 2 made a reference to the insurance policy – Ex. OP-1 and on its title page, it has been recorded that the property of the complainant situated at Nai Abadi, Hoshiarpur was insured, whereas the alleged loss pertains to the property, situated at Bharwain Road, which is not covered under the policy – Ex. OP-1.
13.

The learned counsel for opposite parties No. 1 and 2 further argued that the claim was repudiated by the insurance company as per the recommendation of the Surveyor qua Ex. OP-2 and Ex. OP-3. It was argued that Ex. OP-2 is a repudiation letter dated 24.9.2008. The claim has been repudiated by the insurance company on the following ground :

“As per Survey Report the loss is outside the scope of policy.”

13.

Ex. OP-3 is a letter written by M/s. Vij Engineer's Enterprise, Surveyors and Loss Assessors, Jalandhar City dated 18.9.2008, wherein it has been stated by the Surveyor that “chemical barrels washed away due to flood water after breaking lock of main gate which is beyond believable and unknown person took away chemical barrels. There was no loss to chemical barrels under the fire policy, so, claimed loss is outside the scope of policy.
14.

Now, the points which call determination from this Court are :

i) Whether the godown of the complainant was insured with opposite parties No. 1 and 2.

ii) Whether the loss suffered by the complainant is covered by the insurance policy.

iii) What is the loss caused to the complainant?

15.

The complainant has produced the Cover Note – Mark C-4 issued by opposite parties No. 1 and 2 on the record. The close scrutiny of the said Cover Note clearly depicts that the godown situated at Sukhiabad, Bharwain Road, Hoshiarpur belonging to M/s. Sood Chemical Industries Pvt. Ltd., Nai Abadi, Hoshiarpur was insured by the opposite parties No. 1 and 2 – insurance company. The relevant portion of the Cover Note under the Head “Property Insured & Terms” - Mark C-4 is reproduced as under :-

“On stock of Rosin & other like chemicals including other items pertaining to insured trade wholst stored/lying in A-Class godown at Sukhiabad, Bharwain Road, Hoshiarpur of M/s. Sood Chemical Industries Pvt. Ltd., Nai Abadi, Hoshiarpur.”


16.

The learned counsel for the opposite parties No. 1&2 submitted that the Cover Note is valid only for 30 days, and thereafter, the insurance policy is issued, therefore, the complainant cannot draw any advantage from the Cover Note issued by the insurance company, referred to above.
17.

This limb of the argument raised by the learned counsel for the insurance company did not hold any water, as the Cover Note – Mark C-4 had been issued by insurance company-opposite parties No. 1 and 2, and none else, and insurance company cannot take departure from its recitals. Since qua Mark C-4, it is specifically recorded/depicted that the godown situated at Sukhiabad, Bharwain Road, Hoshiarpur belonging to M/s. Sood Chemical Industries Pvt. Ltd., was insured, therefore, it is held that the godown of the complainant situated at Sukhiabad, Bharwain Road, Hoshiarpur, was insured with the opposite parties No. 1 and 2 – insurance company. It will not be out of place to state that the insurance policy is to be issued on the basis of the Cover Note issued by the insurance company and in this case, on the basis of the Cover Note – Mark C-4. Therefore, it can be held without any hesitation that the Cover Note – Mark C-4 is the basis to prepare the Insurance Policy – Ex. OP-1 and Mark C-3.
18.

The opposite parties have repudiated the claim of the complainant qua – Ex. OP-2 on the ground that as per survey report the loss is outside the scope of policy. Ex. OP-2 is repudiation letter and Ex. OP-3 is a letter dated 18.9.2008 written by M/s. Vij Engineer's Enterprises, Surveyors and Loss Assessors to the insurance company, wherein it has been stated that “chemical barrels washed away due to flood water after breaking the lock of main gate,which is beyond believable and unknown person took away chemical barrels. We do not find any loss to chemical barrels under fire policy. So, claimed loss is outside the scope of policy.”
19.

The learned counsel for the complainant argued that the surveyor is not an investigator. That the duty of the surveyor is to assess the loss to the property. The complainant has produced on record the copy of the DDR – Mark CA dated 13.8.2008 recorded with PS Sadar, Hoshiarpur, wherein it has been recorded that at Sukhiabad there is a godown of Sood Chemical Industry. The water has entered in the godown, causing loss to chemicals. The complainant has alleged in the complaint that on 13.8.2008, there were unprecedented rains in the area and because of that the water entered into the premises/godown and caused heavy loss. The said averment contained in the complaint is supported by the DDR – Mark CA. In view of this, the letter of Surveyor and Loss Assessor – Ex. OP-3, wherein it has been recorded that unknown person took away chemical barrels is not sufficient to conclude that the loss is caused by theft and not by flood water. That vide para No. 12 of the reply, the opposite parties No. 1 and 2 had specifically admitted that the loss due to flood is covered by the policy – Ex. OP-1.
20.

The D.D.R. - Mark CA has been recorded by the policy – government officials in the discharge of their official functions, consequently it is held that the loss has been caused due to flood/unprecedented rains. The letter written by the Surveyor – Ex. OP-3 is not sufficient to rebut the DDR dated 13.8.2008 – Mark CA. Moreso, the DDR has been recorded on the day,the occurrence took place.
21.

The complainant has produced on record the bills – Mark C-8 to Mark C-10 to prove the loss. Mark C-8 is an invoice dated 6.6.2008 of Rs. 95,001/- issued by New Tech Polymers (India), Mark C-9 is a bill dated 18.7.2008 of Rs. 56,160/- issued by Bassi Mroof Gram Udyog and Mark C-10 is an invoice of Cardinal Resins dated 8.8.2008 of Rs. 1,21,150/-. The documents – Mark C-8 to Mark C-10, referred to above, go unrebutted, as the opposite parties No. 1 and 2 – insurance company had not got assessed the loss. However, it has been clarified vide para No. 5 of the complaint that the complainant has actually suffered the loss to the tune of Rs. 2,36,342.40, therefore, in the circumstances, it is held that the complainant is entitled for compensation of Rs.2,36,342.40/-.
22.

The learned counsel for the opposite parties No. 1 and 2 - insurance company submitted that since the loss caused to the complainant is not proved, therefore, the matter should be referred to the Civil Court. The reliance was placed on 2008(3) CPR 292 (NC), United India Insurance Co. Ltd. Versus M/s. Sri Dwarika Dhees Industries. Since the complainant to prove the loss has produced on record the bills/invoices – Mark C-8 to Mark C-10 and the said bills/invoices go unrebutted, therefore, it does not lie in the mouth of the ld. Counsel for opposite parties No. 1 and 2 that the loss caused to the complainant has not been proved. Since the opposite parties No. 1 and 2 have failed to make the payment of Rs. 2,36,342.40, it amounts to deficiency in service on their part.
23.

As a result of the above discussion, the complaint of the complainant is accepted and the opposite parties No. 1 and 2 are directed to pay Rs. 2,36,342.40 with interest @ 9% per annum from the date of filing of complaint i.e. 27.3.2009 till realization. Litigation expenses are assessed at Rs. 2,000/- to be paid by the opposite parties No. 1 and 2 to the complainant within one month from the date of receipt of copy of the order. Copy of the order be sent to the parties free of cost. File be consigned to the record room.