Oriental Insurance Company Limited v. Shivalik Container Pvt. Ltd.
2019-01-14
D.Y.CHANDRACHUD, HEMANT GUPTA
body2019
DigiLaw.ai
ORDER 1. Admitted. 2. Delay condoned. 3. The National Consumer Disputes Redressal Commission ("NCDRC"), by an order dated 23 August 2018 allowed the complaint filed by the respondent and directed the appellant to pay an amount of Rs. 3,91,30,216/- (Three Crores Ninety One Lakhs Thirty Thousand Two Hundred and Sixteen) together with interest at 12 per cent per annum and compensation of Rs. 1,00,000/- (One Lakh). Costs of Rs. 25,000/- (Twenty Five Thousand) were awarded. 4. A complaint of a deficiency of service was filed by the respondent. The complaint was based on a Standard Fire and Special Perils Policy. While allowing the claim, the NCDRC came to the conclusion that on 28 September 2011, the Head Office of the appellant had approved and sanctioned the claim of the complainant at Rs. 3,91,30,216/-(Three Crores Ninety One Lakhs Thirty Thousand Two Hundred and Sixteen). Hence, the view taken is that it was not open to the Regional Manager to re-assess the entitlement at Rs. 2,66,23,836/- (Two Crores Sixty Six Lakhs Twenty Three Thousand Eight Hundred and Thirty Six), once it was approved by the Head Office. The relevant findings of the NCDRC are extracted below:- " 5. ...The admitted facts are that there was a valid insurance policy at the time when the fire had broken out in the insured premises and the complainant had suffered the loss, which the final surveyor had assessed at Rs. 3,91,30,216/-. The report of the final surveyor was forwarded for approval to the Head Office and the Head Office vide its letter dated 28.09.2011 approved and sanctioned the claim of the complainant at Rs. 3,91,30,216/-. Instead of releasing the said amount to the complainant, the Regional Office went into its own calculation of loss and gave its recommendation vide letter dated 30.05.2012 which shows that this calculation was done after the approval /sanction of claim of Rs. 3,91,30,216/-. Since this report states that it was the reference to HOFC, meaning thereby Head Office Fire Claim. It seems that Regional Office of the Insurance Company had upset the approval of the Head Office in the subject matter. On enquiry as to who is the competent authority or the final approval authority in this matter, it is apparent that it is the Head Office of the insurance company who is final competent authority for approval of the claims.
On enquiry as to who is the competent authority or the final approval authority in this matter, it is apparent that it is the Head Office of the insurance company who is final competent authority for approval of the claims. This fact is also clear from the act of the Regional Manager himself, who vide its recommendation dated 30.05.2012 recommended to Head Office that the claim of the complainant should be assessed at Rs. 2,66,23,836/-. He certainly had no authority to re-assess the entitlement once it was approved by the Head Office. Even suppose he observed some discrepancy, he could have only bring it to the notice of the competent authority and could not have on his own upset the approval and order of the Head Office. The opposite party is silent on the issue whether this subsequent recommendations of Regional Office were ever sent to the Headquarters for its approval. It is not disputed by the counsel for the opposite party that Regional Office had sent the surveyor report, while seeking approval from the Head Office and on the basis of the recommendations of Regional Office supported by surveyor report that the approval of the Head Office was sought. It is, thus, obvious that Head Office had applied its mind and after going through the surveyor report, assessed the loss at Rs. 3,91,30,216/- and approved it. Since the Head Office has duly approved this amount, this amount becomes payable to the complainant and non payment of this amount is viewed very seriously by this Commission." 5. On 2 January 2019 when the appeal was initially taken up, the appellants had submitted that the NCDRC was in error in proceeding on the basis that the head office, in fact, approved the claim in the amount of Rs. 3.91 crores, as noted in the above extract. 6. In this view of the matter, the following order was passed on 2 January 2019:- " The appellants are directed to produce the original file pertaining to the claim of the respondent under the fire insurance policy and in particular, the document dated 28.9.2011 (Annexure A-2). List on 14.1.2019." 7. Mr.
3.91 crores, as noted in the above extract. 6. In this view of the matter, the following order was passed on 2 January 2019:- " The appellants are directed to produce the original file pertaining to the claim of the respondent under the fire insurance policy and in particular, the document dated 28.9.2011 (Annexure A-2). List on 14.1.2019." 7. Mr. Abhishek Kumar, learned counsel has produced during the course of the hearing the entire file pertaining to the case and has urged before this Court that, as a matter of fact, what was submitted on 28 September 2011 was a note of the Divisional Manager recommending the claim in the amount of Rs. 3.91 crores. However, it is urged that the head office had approved the claim only to the extent of Rs. 2,66,23,836/- (Two crores Sixty Six Lakhs Twenty Three Thousand Eight Hundred and Thirty Six Only). That amount, learned counsel states, has been paid to the respondent. 8. The above submission is borne out from the documentary material produced before this Court. The NCDRC has proceeded on an erroneous basis that the head office had approved the claim in the amount of Rs. 3.91 crores. As a matter of fact, the approval by the head office was for a payment of Rs. 2.66 crores. 9. Faced with this situation, Mr. V.K. Gupta, learned senior counsel appearing on behalf of the respondent submits that in that view of the matter, it would be appropriate for this Court to remand the proceedings back to the NCDRC. Learned senior counsel submitted that the remand would be necessary since in the original proceeding before the NCDRC, the respondent has not had an opportunity to establish its claim on merits, nor did the Commission adjudicate upon the merits of the claim in view of the findings which have been recorded earlier. 10. We find this submission to be justified. In that view of the matter, we allow the appeal and set aside the impugned order of the NCDRC dated 23 August 2018. Consumer Complaint No. 325 of 2012 is accordingly restored to the file of the NCDRC. Since the dispute pertains to the year 2011, we would request the NCDRC to endeavour expeditious disposal. All rights and contentions of the parties are left open. 11.
Consumer Complaint No. 325 of 2012 is accordingly restored to the file of the NCDRC. Since the dispute pertains to the year 2011, we would request the NCDRC to endeavour expeditious disposal. All rights and contentions of the parties are left open. 11. We grant permission to the appellant to place a compilation of all relevant materials before the NCDRC on affidavit within a period of four weeks from today and it would be open to the respondent to file its reply within a further period of four weeks to faciliate adjudication. 12. Parties shall appear before the NCDRC for directions on 5 February 2019. 13. The appeal is, accordingly, allowed. No costs. 14. Pending application(s), if any, shall stand disposed of.