SHAMBHUNATH BALMUKUND Vs. NEW INDIA ASSURANCE CO LTD

JUDGEMENT

(1.) This appeal was earlier decided by this Commission vide an order dated 9.7.2009 thereby directing the respondent-Insurance Company to make the payment of the balance amount, (i) after deducting 1/3rd of the amount from the net liability of Rs. 15,40,814 as assessed by the Surveyor and (ii) after adjusting the amount already paid to the complainant, with interest @ 9% p.a., within six weeks from the date of the said order. Aggrieved by the said order, the appellant/original complainant filed Civil Appeal No. 8526 of 2010 arising from SLP (C) No. 27947 of 2009 in the Supreme Court. The Supreme Court, vide order dated 4.10.2010 allowed the appeal, set aside the order passed by this Commission and remanded back the appeal to this Commission to decide the same afresh in accordance with law taking into account the terms of the insurance policy and other material on record. Parties were left to urge all contentions available to them before this Commission. It is under these circumstances that the appeal is again before this Commission. The facts and circumstances which gave rise to the filing of the complaint have been amply noted in the order of the State Commission and also in our order dated 9.7.2009 and need no repetition in this order.

(2.) In this case, there is no dispute in regard to the complainants having taken the insurance covering any loss to the stock of molasses and "rab" stored in the cemented underground pits and the loss having been actually caused on account of the water seeping in the pits due to heavy rains between 30.8.2000 to 2.9.2000.

(3.) On being intimated about the said loss, the Insurance Company appointed Premier Consultancy Services, Surveyors and Loss Assessors for assessing the loss caused to the complainant due to damage to its stock of mollases/rab. Though the said Surveyor assessed the net loss suffered by the complainant at Rs. 15,40,814 as against the loss of Rs. 25,47,450 claimed by the complainant, by taking into account certain aspects termed as 'cause factors', the Surveyor in its wisdom recommended the payment of only 1/3rd of the said assessed loss of Rs. 15,40,814, i.e., a sum of Rs. 5,13,605 only as the valid and payable portion of the loss covered under the fire and special perils policy taken by the complainant. The Insurance Company settled the claim of the complainant in the said sum and paid a sum of Rs. 4,67,434 to the complainant. According to the insurance company, this was in full and final settlement of the claim of the complainant. However, according to the complainant, the said amount was received under protest and was not in full and final settlement. Therefore, it filed the complaint, without prejudice to its right to claim the balance amount. Accordingly, the complaint was filed claiming the following reliefs: "(a) Being balance amount of claim being amount claimed less salvage and amount paid. Rs. 25,47,450 minus Rs. 4,99,500 salvage minus Rs. 4,67,634 (paid) Rs. 15,80,316 (b) For testing fee paid Rs. 10,000 (c) Plus interest at the rate of 18% per annum on Rs. 80,47,950 from 6.12.2000 (3 months from the date of loss) till 27.4.2001 Rs. 1,43,412 (d) Plus interest at the rate of 18% per annum from 27.4.2011 till 9th Nov. 2001 the date of complaint. Rs. 15,80,316 Rs. 1,60,441 (e) Plus cost of complaint Rs. 10,000,00 Total: Rs. 19,04,169"