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Supreme Court of India
Khatema Fibres Ltd. vs New India Assurance Company Ltd. on 28 September, 2021Author: V. Ramasubramanian
Bench: Hemant Gupta, V. Ramasubramanian
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9050 OF 2018
Khatema Fibres Ltd. … Appellant (s)
Versus
New India Assurance Company Ltd. & Anr. … Respondent(s)
JUDGMENT
V. Ramasubramanian, J.
1. Aggrieved by the Judgment of the National Consumer Disputes
Redressal Commission (for short “National Commission”) confining the
compensation payable to them only to the extent of the assessment as
made by the final Surveyor, the complainant before the National
Signature Not Verified
Commission has come up with the above appeal.
Digitally signed by
Jayant Kumar Arora
Date: 2021.09.28
16:36:45 IST
Reason:
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2. We have heard Ms. Meenakshi Arora, learned senior counsel for
the appellant and Mr. Joy Basu, learned senior counsel for the
respondentInsurance Company.
3. The appellant took a “Standard Fire and Social Perils” policy for the
period from 7.05.2007 to 6.05.2008, for a sum of Rs.42,40,00,000/.
When the policy was in force, a fire broke out in the factory premises of
the appellant on 15.11.2007.
4. The appellant submitted a claim on 19.11.2007, estimating the
quantity of waste paper destroyed by fire at 8500 MT and its value at
Rs.13,00,00,000/.
5. One M/S Adarsh Associates, appointed by the respondent
Insurance Company, conducted a survey, sought documents from the
appellant, raised queries and received clarifications from the appellant
and submitted a final report dated 9.01.2009, assessing the loss
suffered by the appellant on account of the fire accident as
Rs.2,86,17,942/.
6. Though the appellant, vide their letter dated 2.5.2009, objected to
the survey and assessment report and sought the appointment of
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another surveyor, the respondent informed the appellant by their letter
dated 21.08.2009 that the claim of the appellant has been approved
only to the extent of Rs.2,85,76,561/, in full and final settlement. The
appellant, through letter dated 14.09.2009, again raised objections to
the Survey Report, but the respondent informed the appellant by their
letter dated 7.10.2009 that the claim could be finalized only for the
amount indicated in the letter dated 21.08.2009.
7. Therefore, the appellant filed a consumer complaint before the
National Commission under Section 21(a)(i) of the Consumer Protection
Act, 1986, claiming: (i) compensation in a sum of Rs.1364.88 lakhs
towards the loss suffered in the fire accident; (ii) compensation in a sum
of Rs.2095.52 lakhs, for the financial stress caused by the respondent
by delaying the processing of the claim; (iii) interest @ 18% p.a. on the
compensation amount of Rs.1364.88 lakhs from November, 2007 till
31.12.2009; and (iv) the cost of litigation estimated at Rs.1,00,000/.
8. The National Commission, by its Judgment dated 3.07.2018
rejected the claim of the appellant under both the heads, but directed
the respondent to pay only the amount of Rs.2,85,76,561/ as admitted
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by them. This amount was directed to be paid to the appellant with
interest @ 9% p.a. from 15.11.2007, only till the date the Insurance
Company had made the offer. It is against the said Judgment of the
National Commission that the appellant has come up with the above
appeal under Section 23 of the Consumer Protection Act, 1986.
9. Admittedly, the respondentInsurance Company appointed one
Shri Kapil Vaish, a Chartered Accountant, on 16.11.2007 itself (the day
following the date of fire accident), to conduct a spot inspection and file a
status report. When he visited the factory premises, the fire fighting was
still going on and it was found that the fire had taken place only in the
waste paper yard of the factory. In the status report submitted by
Shri Kapil Vaish on 16.11.2007, he indicated that the fire had affected
waste paper bales lying in an area measuring 27 mtrs. X 55 mtrs. =
1485 sq.mtrs. in open compound. Presuming that waste paper would
have been stacked in bunches of six bales, one on top of the other and
that the quantity of affected waste paper could be around 5000 MT,
whose cost may be around Rs.2022 per kg., Shri Kapil Vaish roughly
estimated the loss to be around Rs.1011 crores. The appellant
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themselves estimated the quantity of waste paper burnt in the fire to be
8500 MT valued at Rs.13,00,00,000/.
10. M/s Adarsh Associates who conducted the actual survey with
reference to the records and other evidence available with the appellant,
had two options before them for arriving at the quantity of material
destroyed by fire. The first option was to proceed on the basis of the
stock registers and other records of the appellant company to fix the
quantum of loss. The next option was to proceed on the basis of
volumetric analysis, by taking the measurement of the open yard in
which the fire broke out, finding out the optimum capacity of the yard
with reference to the measurement of the bales of paper stored therein
and then working out the quantum of material destroyed.
11. The Surveyor adopted the second option namely that of volumetric
analysis and assessed the quantity of raw material damaged at
2264.400 MT. He valued this raw material @ Rs.15137.35/ per MT,
inclusive of CENVAT. Thus, he arrived at the value of the material
damaged to be Rs.3,42,77,015.34/. Then the Surveyor fixed the salvage
value at Rs.18,92,200/ and deducted the same from the value of the
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raw material, to arrive at the gross assessed loss at Rs.3,23,84,815.34/
From out of this amount the Surveyor deducted the CENVAT as well as
1% towards soiled goods. After so doing, the surveyors arrived at the
value of loss at Rs.2,86,17,942/.
12. For proceeding on volumetric analysis method, the Surveyor took
the measurement of the open yard as 27 mtrs. X 55 mtrs. = 1485 sq.
mtrs. This was on the basis of the Status Report of the Chartered
Accountant who made the spot inspection on 16.11.2007 when the fire
fighting was still in progress. There was a finding in the status report of
the Chartered Accountant that the material affected by the fire was lying
in the yard measuring 27 mtrs. X 55 mtrs. = 1485 sq. mtrs. Therefore,
the Surveyor took this measurement as the starting point and proceeded
as detailed above.
13. Keeping the above background in mind, let us now come to the
grievance of the appellant, against the Judgment of the National
Commission. Ms. Meenakshi Arora, learned senior counsel for the
appellant contended that the National Commission committed a serious
error first in taking the net weight of waste paper bales burnt/damaged
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during the incident as 2264.400 MT, as against the claim of the
appellant that the net weight of the material damaged was 8332 MT.
According to the learned senior counsel, there were no discrepancies in
the various records and stock registers maintained by the appellant with
respect to the quantity and weight of material stored in the open yard,
but the Surveyor chose to reject the same arbitrarily and proceeded on
volumetric analysis basis. The learned senior counsel further contended
that even while proceeding on volumetric analysis basis, the Surveyor
did not do justice. Though, the total area of the open yard was 27 mtrs.
X 100 mtrs. = 2700 sq. mtrs., the Surveyor took the measurement as 27
mtrs. X 55 mtrs = 1485 sq. mtrs., despite they themselves finding that
the area was 22.5 mtrs. X 105 mtrs. = 2362 mtrs. This, according to the
learned senior counsel for the appellant, resulted in gross injustice to
the appellant in the matter of assessment of the quantum of loss.
14. Another gross error committed by the Surveyor, according to the
learned senior counsel for the appellant, is that despite finding the net
weight per bale as 988.889 kgs. as per Annexure A3 to the Survey
Report dated 9.01.2009, the Surveyor took the net weight as 900 kgs.
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per bale, merely because the complainant had indicated the same to be
900 kg. per bale. The Surveyor had thus adopted double standards, in
taking either what is found by them or what is claimed by the appellant,
whichever was less. This according to the learned senior counsel for the
appellant resulted in the Insurance Company eventually admitting the
claim only to the extent of less than 25% of the total amount of loss
suffered by the appellant.
15. Justifying the judgment of the National Commission, it is
contended by Mr. Joy Basu, learned senior counsel for the respondent
that M/S Adarsh Associates were appointed by the respondent as
Surveyors to act as such in terms of Section 64UM(2) of the Insurance
Act, 1938 and that they have assessed the loss in a scientific manner.
As the Surveyors appointed by the respondent are experts in the field,
who have gone into every minute detail by examining the records of the
appellant scientifically, their report is unassailable. In the case on hand,
it was admitted even by the appellant, to Shri Kapil Vaish who
conducted spot inspection that there was no physical verification of the
stock of raw material in the recent past and that the consumption of
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raw material was recorded only on estimated yield basis. Therefore, the
learned senior counsel for the respondent contended, by drawing our
attention to the letter dated 5.12.2007 sent by the appellant that the
appellant themselves were adopting volumetric analysis for the
quantification of the stock. The learned senior counsel relied upon the
decisions of this Court in (i) United India Insurance Company Ltd.
And Others vs. Roshan Lal Oil Mills Ltd. And others1; (ii) Sikka
Papers Limited vs. National Insurance Company Limited And
Others2; and (iii) New India Assurance Company Limited vs. Luxra
Enterprises Private Limited And Another.3, in support of his
contention that the report of the surveyor is an important document and
that Courts may have to show deference to the report of the surveyor
appointed in terms of section 64UM(2) of the Act.
16. We have carefully considered the rival contentions.
17. As could be deciphered from the grounds of appeal and the
submissions made at the time of hearing, the grievance of the appellant
1 2000 (10) SCC 19
2 2009 (7) SCC 777
3 2019(6) SCC 36
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is primarily with respect to the quantification of the net weight of the
raw material destroyed in the fire accident. The price of the material,
fixed by the Surveyor at Rs.15137.35/ per MT, is not seriously
disputed. Though a dispute is raised with regard to the salvage value,
the contention relating to the same is very weak and feeble and hence
we would not get into the same.
18. Insofar as the quantification of the weight of raw material damaged
in the fire is concerned, the Surveyor had, in fact, worked out the
quantity, as seen from paragraph 9.7 of his Report, both on the basis of
the appellants’ stock records and also on the basis of volumetric
analysis of the area involved.
19. After extensively analyzing what is reflected in the stock records of
the appellant, the Surveyor came to the conclusion that there were
discrepancies which could not be reconciled. It is recorded by the
Surveyor in paragraph 9.8.2 of the Report that the appellant initially
submitted one set of documents, which reflected a huge quantity of
imported waste paper both for general use and for newsprint. Therefore,
the Surveyors requested the appellant to submit documents in support
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of reversal of CENVAT, on the damaged quantity of waste paper.
Immediately the appellant submitted a revised claim bill along with a
fresh set of documents. In fact imported waste paper for newsprint is
exempt from payment of customs duty subject to submission of end use
certificate. In the revised set of documents, the quantity of closing
stocks of imported waste paper meant for newsprint was substantially
increased. The Surveyor also found in paragraph 9.8.7.7 of their Report
that there was a huge difference between the overall quantity of burnt/
damaged stock of waste paper arrived at on the basis of the initial set of
records and the overall quantity of burnt/damaged stock of waste paper
arrived at on the basis of the revised set of records. Therefore, the
Surveyor decided to adopt volumetric analysis method rather than rely
upon the stock records of the insured.
20. We fail to understand how the Surveyors could be found fault with,
for rejecting the stock records of the insured, especially in the light of
the circumstances narrated above. When the insured produced 2 sets of
records and the quantum of material destroyed by fire arrived on the
basis of these records showed huge discrepancies, the Surveyor had no
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alternative except to reject these records and proceed on volumetric
analysis. In any case, as rightly pointed out by the learned counsel for
the respondent, the appellant themselves have admitted to Shri Kapil
Vaish, who went for spot inspection when the fire was still raging, that
the appellant had not conducted physical verification of its raw material
stock in the recent past and that the consumption was recorded on
estimated yield basis. In their own letter dated 5.12.2007, the appellant
had conceded that stock taking was done on the basis of receipts and
consumptions as well as physical verification on volumetric basis. The
following extract from the appellant’s letter dated 5.12.2007 would
clinch the issue in this regard; “the estimates for stocks and burnt
quantities may not be appearing close to stock inventory maintained in
the books, since the estimates prepared for burnt material was not on
weighment basis but on volumetric basis”. Therefore, we find that the
refusal of the Surveyor to go by the stock records of the appellant, but to
adopt volumetric analysis, was fully justified and no exception can be
taken to the same.
21. On the method of volumetric analysis adopted by the Surveyor, the
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first grievance of the appellant is that the physical measurement of the
stockyard was 27 mtrs. X 100 mtrs. = 2700 sq. mtrs. But the Surveyor
took the measurement as given by Shri Kapil Vaish, namely, 27 mtrs. X
55 mtrs. = 1485 sq. mtrs., despite finding in para 4.7 of the Survey
Report that the actual measurement was 22.5 mtrs. X 105 mtrs. = 2362
sq. mtrs. Such a drastic reduction in the total measurement of the area
of the open stock yard, according to the appellant, led to the quantum of
the material burnt/damaged getting substantially reduced.
22. But it is seen from paragraph 9.4 and 9.5 of the Surveyors’ Report
that there were actually three different measurements available with the
Surveyor, with a huge variation between one another. The Status Report
dated 16.11.2007 filed by Shri Kapil Vaish, about which the appellant
did not have any serious grievance, recorded clearly as follows “it was
estimated that the fire had affected waste paper bales lying in the area of
27 mtrs. X 55 mtrs. = 1485 sq. mtrs. in the open compound.” The
appellant claimed in their letter dated 13.12.2007 addressed to the
Surveyor that the total affected area was 27 mtrs. X 100 mtrs. = 2700
sq. mtrs. These two documents, namely, the Status Report of Shri Kapil
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Vaish and the measurement given by the appellant in their letter dated
13.12.2007 were in contrast to the measurement given by the Tehsildar,
Khatima, relied upon by the appellant themselves, according to which
the measurement was 90 mtrs. X 23 mtrs. = 2070 mtrs.
23. Faced with three different measurements as aforesaid, the
Surveyor reconciled the same by holding that despite the measurement
of the open stockyard being 22.5 mtrs. X 105 mtrs. = 2362 mtrs., the
area affected by fire could only be 1485 sq. mtrs. This is for the reason
that during their visit to the site, the damaged/burnt bales as well as
loose waste papers were found spread over an area of 22.5 mtrs. X 105
mtrs. and the insured was carrying out salvaging/segregation in the
said area after the extinction of the fire. In other words, what was
witnessed by Shri Kapil Vaish personally on 16.11.2007 was that the
fire was confined to an area of 1485 sq.mtrs, but what was seen by the
Tehsildar and the Surveyor was of a larger area where the salvage
operation was going on. Therefore, the Surveyor chose to go by the
measurement of the area mentioned in the Status Report of Shri Kapil
Vaish, who had the benefit of witnessing what was happening when fire
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fighting was still in progress. In such circumstances, we find nothing
wrong in the Surveyor taking the measurement of the area of the
stockyard affected by fire, as 27 mtrs. X 55 mtrs. = 1485 sq. mtrs. for
the purpose of volumetric analysis.
24. At this stage it will be useful to extract the table given by the
Surveyor in paragraph 9.9.2 of his Report, where detailed calculations
are provided as to how the net weight of waste paper burnt/damaged
during the incident was arrived at:
1. Total area considered for storage bales Sq Mtr 1485
in open
2. Less: 20% are considered for gaps/open Sq Mtrs 297
spaces while storing bales and other
open space for movement etc.
3. Total affected area, considered for Sq Mtr 1188
storage (12)
4. Average area per bale, as considered by Sq Mtr 2.007
us
5. Therefore no. of bales stored in one layer Nos. 592
of local area (1188 divided by 2.007)
6. Total nos of bales in the affected stacks, Nos 2960
considering 5 bales in height (592 x 5)
7. Av weight per bale as considered by us. Kgs 900
8. Therefore, total weight of bales stored in Kgs 2664000
affected area/volume (2960 x 900)
9. Less: 15% of above bales / weight Kgs 399600
considered as shifted / save during fire
fighting
10. New weight of waste paper bales burnt/ Kgs 2264400
damaged during the incident (89)
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25. An objection was raised by Ms. Meenakshi Arora, learned senior
counsel for the appellant about 20% reduction made by the Surveyor in
the measurement of the area. Such a reduction was made by the
Surveyor, on the ground that gaps/space was required for the
movement of men and material. It is her contention that when
admittedly the appellant was using forklifts to move and store material,
there was no question of leaving any vacant space.
26. But we do not agree. The allowance of some space within the open
stockyard, for the purpose of movement of men and material is logical. It
is not possible for us to accept that the whole space in the stockyard
was completely stacked by material without any space for movement.
Without providing adequate gaps and spaces within the open courtyard,
it would not have been possible for the appellant to remove the material
for the purpose of processing, even if forklifts were used. Therefore, the
objection to the provision for open space/gaps is unfounded.
27. The next crucial objection of the appellant is to the adoption of the
overall weight per bale at 900 kgs. According to the appellant, the
Surveyors themselves calculated the average weight per bale in
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Annexure A3 to their report as 988.889 kgs. and that, therefore, this
could not have been reduced to 900 kgs. per bale.
28. But the appellant has to blame themselves for this. In the
calculation sheet annexed to the letter dated 13.12.2007 addressed to
the Surveyor, the appellant themselves estimated the average weight per
bale to be 900 kgs. What is arrived at by the Surveyor, in Annexure A3
to their Report is based only upon the sizes of different types of bales
and the areas occupied by different types of bales. Annexure A3 to the
Surveyors’ Report arrives at the average weight per bale by multiplying
the size of the bales by the area occupied. There was no reason for the
Surveyor to be more royal than the king by adopting the average weight
per bale on the basis of paper calculations, when the party himself has
provided the average weight to be 900 kgs. per bale.
29. Thus, we find that all the objections of the appellant to the
Surveyors’ Report are wholly unsustainable and the National
Commission rightly rejected those objections. As a matter of fact we
have taken pains to go into elaborate factual details, as this is a first
appeal under Section 23 of the Consumer Protection Act, 1986.
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30. As correctly pointed out by the National Commission, the appellant
was not entitled to succeed unless they were able to establish any
deficiency in service on the part of the Insurance Company. The
expression deficiency is defined in Section 2(1)(g) of the Consumer
Protection Act, 1986, as follows:
“2(1)(g) deficiency” means any fault, imperfection, shortcoming
or inadequacy in the quality, nature and manner of
performance which is required to be maintained by or under
any law for the time being in force or has been undertaken to
be performed by a person in pursuance of a contract or
otherwise in relation to any service”
31. This is not a case where the Insurance Company has repudiated
the claim of the appellant arbitrarily or on unjustifiable grounds. This is
a case where the claim of the appellant has been admitted, to the extent
of the loss as assessed by the Surveyor. In cases of this nature the
jurisdiction of the special forum constituted under the Consumer
Protection Act, 1986 is limited. Perhaps if the appellant had gone to the
civil court, they could have even summoned the Surveyor and cross
examined him on every minute detail. But in a complaint before the
Consumer Forum, a consumer cannot succeed unless he establishes
deficiency in service on the part of the service provider.
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32. It is true that even any inadequacy in the quality, nature and
manner of performance which is required to be maintained by or
under any law or which has been undertaken to be performed
pursuant to a contract, will fall within the definition of the expression
‘deficiency’. But to come within the said parameter, the appellant
should be able to establish (i) either that the Surveyor did not comply
with the code of conduct in respect of his duties, responsibilities and
other professional requirements as specified by the regulations made
under the Act, in terms of Section 64UM(1A) of the Insurance Act, 1938,
as it stood then; or (ii) that the insurer acted arbitrarily in rejecting the
whole or a part of the Surveyor’s Report in exercise of the discretion
available under the Proviso to section 64UM(2) of the Insurance Act,
1938.
33. Section 64UM (2) of the Insurance Act, 1938, before its amendment
by Act 5 of 2015, mandated that no claim equal to or exceeding a sum of
rupees twenty thousand only shall be admitted for payment unless the
insurer had obtained a report from an approved surveyor or loss
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assessor.4 This provision read as follows:
“(2) No claim in respect of a loss which has occurred in India
and requiring to be paid or settled in India equal to or
exceeding twenty thousand rupees in value on any policy of
insurance, arising or intimated to an insurer at any time after
the expiry of a period of one year from the commencement of
the Insurance (Amendment) Act, 1968, shall, unless otherwise
directed by the [Authority], be admitted for payment or settled
by the insurer unless he has obtained a report, on the loss
that has occurred, from a person who holds a licence issued
under this section to act as a surveyor or loss assessor
(hereafter referred to as “approved surveyor or loss
assessor”):
34. But the Proviso to subsection (2) of section 64UM also recognized
the right of the insurer to pay any amount different from the amount as
assessed by the approved surveyor or loss assessor. The proviso reads
as follows:
“Provided that nothing in this sub section shall be deemed
to take away or abridge the right of the insurer to pay or settle
any claim at any amount different from the amount assessed
by the approved surveyor or loss assessor.”
35. This is why the law is settled that the surveyor’s report is not the
last and final word. It has been held by this Court in several decisions,
that the surveyor’s report is not so sacrosanct as to be incapable of
4 After amendment through Act 5 of 2015, what was subsection (2) earlier, has become subsection (4) with the
modification
that the words “twenty thousand rupees” have been substituted by the words “amount specified in the Regulations by the
Authority”.
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being departed from. A useful reference can be made in this regard to
the decision of this court in New India Assurance Company Limited
vs. Pradeep Kumar5.
36. The Insurance Act, 1938 even while assigning an important role for
the surveyor, casts an obligation on him under subsection (1A) of
section 64UM6 to comply with the code of conduct in respect of his
duties, responsibilities and other professional requirements as specified
by the regulations made under the Act. This provision reads as follows:
“(1A) Every surveyor and loss assessor shall comply with the
code of conduct in respect of their duties, responsibilities and
other professional requirements as may be specified by the
regulations made by the Authority.”
37. Two things flow out of the above discussion, They are (i) that the
surveyor is governed by a code of conduct, the breach of which may give
raise to an allegation of deficiency in service; and (ii) that the discretion
vested in the insurer to reject the report of the surveyor in whole or in
part, cannot be exercised arbitrarily or whimsically and that if so done,
there could be an allegation of deficiency in service.
5 (2009) 7 SCC 787
6 Now sub-section (2) of section 64 UM after amendment under Act 5 of 2015
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38. A Consumer Forum which is primarily concerned with an
allegation of deficiency in service cannot subject the surveyor’s report to
forensic examination of its anatomy, just as a civil court could do. Once
it is found that there was no inadequacy in the quality, nature
and manner of performance of the duties and responsibilities of
the surveyor, in a manner prescribed by the Regulations as to
their code of conduct and once it is found that the report is not
based on adhocism or vitiated by arbitrariness, then the
jurisdiction of the Consumer Forum to go further would stop.
39. In the light of the above we are of the considered view that the
Judgment of the National Commission does not call for any interference.
Hence the appeal is dismissed. No costs.
…..…………………………..J.
(Hemant Gupta)
.…..………………………….J.
(V. Ramasubramanian)
NEW DELHI
SEPTEMBER 28, 2021
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