ORDER : 1. RULE. Ms. Dharmishta Raval, learned advocate waives service of rule for the respondent no.1 and Maulik Shelat, learned advocate waives service of rule for the respondent no.2. 2. By this petition under Articles 226 of the Constitution of India, the petitioners have prayed for the following relief’s: “7(A) This petition may please be admitted and allowed. (B) Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to the respondent no.1 to appoint independent surveyor for the rightful assessment and observation of loss and cause of loss suffered by the petitioners. (C) Your Lordships be pleased to grant adinterim relief by quashing the repudiation letter dated 14.03.2019, Ref No.ARO/DO8/ Meghmani/201819/ 01 by respondent no.2 i.e. Insurance Company pending the final hearing. (D) Your Lordships be pleased to grant any further relief with consequential benefits that may be deemed just, proper and necessary.” 3. Brief facts of the case are that on 18.04.2015, at about 23.15 hours, there was a massive explosion and fire at Agrochemical Plant comprising of Pendimethalin, formulation & other Agrochemical section of the Dahej SEZ unit of the petitioner company causing huge damages to that plant, other civil structures, related facilities and loss of materials. 3.1 The petitioner was having Industrial All Risk policy bearing policy number 500800/11/14/06/00000647 for the period from 30.10.2014 to 29.12.2015 from the office of the respondent no.2 at Ahmedabad. 3.2 It is the case of the petitioner that loss was reported to the respondent no.2 on 19.04.2015 which had in turn immediately appointed Surveyor M/s. Ashok Chopra & Company, Mumbai for conducting survey and loss assessment caused by the fire. It appears that after a month, the respondent nos.2 & 3 had appointed second surveyor Mr. R.J. Jaipura proprietor of M/S Kirj Consultant as Joint Surveyor for reasons not specified and without any intimation to the petitioners. 3.3 It is the case of the petitioners that the Surveyors were repeatedly informed about the cause of loss and the fact that policy was industrial all risk which automatically covers explosion, as the policy being exclusion based. 3.4 It is the case of the petitioners that from April2015 to March2017, the petitioner requested the Surveyor to submit the report. Thereafter, the matter was reported to the respondent no.2 and 3Insurance Company in 2nd week of April, 2017 for joint meeting with Surveyor. 3.4 It is the case of the petitioners that from April2015 to March2017, the petitioner requested the Surveyor to submit the report. Thereafter, the matter was reported to the respondent no.2 and 3Insurance Company in 2nd week of April, 2017 for joint meeting with Surveyor. The petitioner had also meeting with the Chairman of the respondent no.2 & 3 and after that petitioners appointed an independent technical expert Mr.(Dr.) R. Venu, Assistant Professor of IIT Madras to find out and assist the Surveyor for understanding the root cause of loss. Report dated 19.06.2017 was submitted by such expert. The petitioner also appointed Mr. M.N. Eswaran, who is an ExDGM of Erstwhile TAC having more than 37 years of experience in fire/explosion loss matters and who has also been associated with insurance company as a technical expert. Both experts had submitted their reports stating the cause of loss in fire. 3.5 However, Surveyor appointed by the respondent no.2 did not submit any report to the petitioner though it is stipulated under the regulations of Surveyor i.e. Insurance Regulatory and Development Authority of India (Insurance Surveyors and Loss Assessors) Regulations, 2015 (for short “Regulations”) and more particularly, Regulation 13 onwards as provided in Chapter IV of the Regulations i.e. Duties and Responsibility of a Surveyor and Loss Assessor. According to subrule 2 of Regulation 13 of the Regulations, it is stipulated that a surveyor or loss assessor whether appointed by insurer or insured, shall submit his report to the insurer as expeditiously as possible, but not later than 30 days of his appointment, with copy of the report to the insured giving his comments on the insured's consent or otherwise on the assessment of loss. Where, in special circumstances of the case, either due to its special and complicated nature, the surveyor shall under intimation to the insured, seek an extension, in any case not exceeding six months from the insurer for submission of his report. Subrule 3 of Regulation 13 of the Regulations provides that in case where Survey report is pending due to non completion of documents, the surveyor may issue the final survey report independently based on the available documents on record, giving minimum three reminders in writing to the insured. However, the surveyor submitted his report after about three and half years in March 2019. However, the surveyor submitted his report after about three and half years in March 2019. The petitioner has, therefore, approached this Court by filing this petition for breach of Section 64UM (G) (1A) of the Insurance Act, 1938 (for short 'the Act”), breach of Regulation 13 of the Regulations as well as breach of Regulation 15 of IRDAI (Protection of Policyholder's Interests) Regulation, 2017 with a prayer to direct the respondent no.1 to appoint independent surveyor for the rightful assessment and observation of loss and cause of loss suffered by the petitioner. 4. Heard Mr. S.N. Soparkar, learned Senior Advocate assisted by Mr.Ratilal Sakaria, learned advocate for the petitioners, Ms.Dharmishta Raval, learned advocate for the respondent no.1 and Maulik Shelat, learned advocate for the respondent no.2 & 3. 5. Learned Senior Advocate for the petitioner submitted that as per provisions of Section 64UM (G) (1A) of the Act and Regulation 13 of the Regulations, the Surveyor was supposed to submit report latest within six months from the date of intimation. It is submitted that admittedly, final survey report was submitted on 08.12.2018, and therefore, such report cannot be said to be as per provisions of the Act and the rules and regulations. He invited the attention of this Court to the various communications made between the petitioner and respondent nos.1 & 2 in this regard to point out that there is a breach of Section 64UM (G) (1A) of the Act as well as breach of Regulation 13 of the Regulations. It was also pointed that Section 64UM (G) (1A) of the Act provides that suitable direction is required to be issued by the respondent no.1 to Insurance Company to process the claim, as the same was not submitted within stipulated time. It was further submitted that repudiation of claim by the respondent no.2 on the basis of report which was submitted after more than three and half years is required to be quashed and set aside and the respondent no.1 is required to be directed to the respondent no.2 to review and reconsider the decision of repudiation and also appoint 'Competent' independent surveyor under Section 64UM (G) (3) of the Act. 6. On the other hand, Ms. 6. On the other hand, Ms. Dharmishta Raval, learned advocate for the respondent no.1 by referring to the affidavit-in-reply filed on behalf of respondent no.1 submitted that the petition is grossly time barred and it suffers from delay and latches and on that ground only, it is required to be dismissed. 7. Learned advocate for the respondent no.1 further submitted that the insurance policy between the petitioner and the respondent no.2 is purely contractual arrangement, and therefore, no interference is called for while exercising powers under Article 226 of the Constitution of India. 8. Learned advocate for the respondent no.1 submitted that the respondent no.1, by letter dated 04.09.2019 to the concerned surveyor has called for the remarks and submissions on the representation of the petitioner and in response the surveyor has given submissions as under: “A. That the assignment of surveying was of very complex nature, initially the petitioner himself estimated Rs.125 crores which later on was reduced to Rs.86 crores and has finally been assed at Rs.37.54.15.456/with only Rs.32,36,17,542/payable. B. Shri R.J. Jaipura, the Joint Surveyor passed away on 10.01.2018. C. It is submitted that the delay has also been caused on lack of clarity on multiple issues by the petitioner himself and hence, the petitioner himself had to visit the surveyor's office on various occasions, for example on 22.06.208, 06.07.2018, 21.09.2018. D. The last tranche of documents were submitted by the petitioner on 24.09.2018. E. Further, the first submission of document appeared to have been given only on 30.05.2015 and their internal accident investigation report dated 30.05.2015 was handed over by the petitioner on 05.06.2015. F. It was also informed that the petitioner did not produce a coherent standing operating procedure until 17.02.2016 which was their 3rd standing operating procedure and the petitioner themselves by their letter dated 02.04.2018 have rendered the SOP to be incorrect. G. On account of the discrepancies of the submissions of the petitioner which were in contradiction with their earlier submissions, the surveyors had to cross verify each clarification. For example, when the contradictions were brought to the notice of the petitioner, it is submitted that the contradictions should be disregarded as inadvertent errors. It was submitted by the petitioner that the joint surveyor was unable to understand the account of the petitioner as a result of which a Chartered Accountant M/s. Anand & Ponnapan was appointed. For example, when the contradictions were brought to the notice of the petitioner, it is submitted that the contradictions should be disregarded as inadvertent errors. It was submitted by the petitioner that the joint surveyor was unable to understand the account of the petitioner as a result of which a Chartered Accountant M/s. Anand & Ponnapan was appointed. H. The said Chartered Accountant also gave his findings which was not dissimilar to the findings of the surveyor. I. KPMG who was appointed to further examine the matter on account of the insistence of the petitioner has also submitted their report stating that the petitioner's accounts are not acceptable and that the petitioner kept shifting the milestone every time and adverse finding was pointed out. J. In spite of repeated requests, the petitioner has not submitted their business interruption claim. K. That the surveyor has issued 71 letters and Emails to the petitioner, with a copy to the insurer i.e. respondent no.2 and the surveyor has received 59 letters.” 9. In view of the aforesaid submissions given by the surveyor before the respondent no.1, the respondent no.1 was of the opinion that it would not serve any purpose, as it would be difficult to appoint surveyor and also cause of loss after lapse of three and half years. 10. Learned advocate Mr.Maulik Shelat for the respondent nos.2 and 3 adopted the arguments made on behalf of respondent no.1 and submitted that respondent nos.2 & 3 are bound by the decision of the respondent no.1. 11. Having considered the submissions made on behalf of the respective parties, it emerges on record that admittedly surveyor appointed by the respondent no.2 has not given his report within stipulated time as per Section 64UM (G) (1A) of the Act as well as Regulation 13 of the Regulations. 11. Having considered the submissions made on behalf of the respective parties, it emerges on record that admittedly surveyor appointed by the respondent no.2 has not given his report within stipulated time as per Section 64UM (G) (1A) of the Act as well as Regulation 13 of the Regulations. It was, therefore, germane to refer provisions of the Act and rules and regulations which are applicable in the facts of the case as under: “Licensing of surveyors and loss assessors 64UM (G) (1A) of the Insurance Act, 1938: (G) Without prejudice to the powers conferred by subsection (7), the Authority, if satisfied that the holder of any licence has made a statement which is false in material particulars with regard to his eligibility for obtaining such licence or has, after the issue or renewal of such licence, acquired any of the disqualifications mentioned in subsection (4) of Section 42, may, after giving a reasonable opportunity to the holder of such licence of being heard, by order cancel such licence and notify such cancellation in the official Gazette. (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.” “Duties and Responsibilities of a Surveyor and Loss Assessor:- Section 13 of the Insurance Regulatory and Development Authority of India (Insurance Surveyors and Loss Assessors) Regulations, 2015: It shall be the duty of every Licensed Surveyor and Loss Assessor to investigate, manage, quantify, validate and deal with losses (whether insured or not) arising from any contingency, and report thereon to the insurer or insured, as the case may be. All Licensed Surveyors and Loss Assessors shall carry out the said work with competence, objectivity and professional integrity and strictly adhere to the code of conduct as stipulated in these Regulations. All Licensed Surveyors and Loss Assessors shall carry out the said work with competence, objectivity and professional integrity and strictly adhere to the code of conduct as stipulated in these Regulations. (1) The following, shall, inter alia, be the duties and responsibilities of a Surveyor and Loss Assessor: (a) declaring whether he has any interest in the subject-matter in question or whether it pertains to any of his relatives, business partners or through material shareholding; Explanation: For the purpose of this clause ‘relatives’ shall mean any of the relatives as defined in Subsection (77) of Section 2 of the Companies Act, 2013; (b) Bringing to the notice of the Authority, any change in the information or particulars furnished at the time of issuance of license, within a period not exceeding fifteen days from the date of occurrence of such change, that has a bearing on the license granted by the Authority; (c) maintaining confidentiality and neutrality without jeopardising the liability of the insurer and claim of the insured; (d) conducting inspection and reinspection of the property in question suffering a loss; (e) examining, inquiring, investigating, verifying and checking upon the causes and the circumstances of the loss in question including extent of loss, nature of ownership and insurable interest; (f) conducting spot and final surveys, as and when necessary and comment upon franchise, excess/under insurance and any other related matter; (g) estimating, measuring and determining the quantum and description of the subject under loss; (h) advising the insurer and the insured about loss minimization, loss control, security and safety measures, wherever appropriate, to avoid further losses; (i) commenting on the admissibility of the loss as also observance of warranty conditions under the policy contract; (j) surveying and assessing the loss on behalf of insurer or insured; (k) assessing liability under the contract of insurance; (l) pointing out discrepancy, if any, in the policy wordings; (m) satisfying queries of the insured/insurer and of persons connected thereto in respect of the claim/loss; (n) recommending applicability of depreciation, percentage and quantum of depreciation; (o) giving reasons for repudiation of claim, in case the claim is not covered by policy terms and conditions; (p) taking expert opinion, wherever required; (q) commenting on salvage and its disposal wherever necessary. (2) A surveyor or loss assessor whether appointed by insurer or insured, shall submit his report to the insurer as expeditiously as possible, but not later than 30 days of his appointment, with a copy of the report to the insured giving his comments on the insured’s consent or otherwise on the assessment of loss. Where, in special circumstances of the case, either due to its special and complicated nature, the surveyor shall under intimation to the insured, seek an extension, in any case not exceeding six months from the insurer for submission of his report. (3) In cases where the Survey report is pending due to non completion of documents, the surveyor may issue the final survey report independently based on the available documents on record, giving minimum three reminders in writing to the insured. (4) If an insurer, on the receipt of a survey report, finds that it is incomplete in any respect, he shall require the surveyor under intimation to the insured, to furnish an additional report on such incomplete issues. Such a request may be made by the insurer within 15 days of the receipt of the original survey report. Provided that the facility of calling for an additional report by the insurer shall not be resorted to more than once in the case of a claim. (5) The surveyor on receipt of this communication shall furnish an additional report within three weeks of the date of receipt of communication from the insurer.” 12. On perusal of the aforesaid provisions of the Act as well as Regulations, it is clear that the surveyor was supposed to submit final report irrespective of any document submitted or not maximum within a period of six months after getting intimation from the insurer and seeking extension as per subrule 2 of Regulation 13 of the Regulations. It emerges from the record that the surveyor has taken time to submit his report for more than three and half years as against that three experts reports' obtained by the petitioner, and therefore, it would be in the interest of justice to direct the respondent no.1 to appoint independent surveyor so as to assess cause of loss suffered by the petitioner in fire which took place on 18.04.2015. The petitioners are hereby directed to cooperate to such independent surveyor in all possible manner so as to enable surveyor to submit the report as expeditiously as possible and not later than three months from the date of appointment of such surveyor. The report shall substitute the earlier reports given by all other surveyors. The independent surveyor shall carry out the survey on the basis of facts and documents reported to such surveyor without being influenced by previous reports given by the earlier surveyors or any report obtained by the petitioner. The respondent nos.2 & 3, thereafter, shall take a denovo afresh decision on the basis of independent surveyor's report in accordance with law. With the aforesaid observations and directions, the petition is allowed. Rule is made absolute to the aforesaid extent. No order as to cost.