Ashok Bhan J., President:— Appellant herein, who was the Opposite Party befe the Bihar State Consumer Disputes Redressal Commission, Patna (hereinafter referred to as ‘the State Commission’ for short), has filed this First Appeal against the Order dated 31.08.2005 passed by the State Commission in Complaint No. 5 of 2005 whereby the Complaint of the Appellant has been allowed.

Briefly stated, the facts of the case are:—

Respondent-complainant herein is one of the partners of On-Line Computers situated at Patna. Complainants were sanctioned a loan of Rs. 12,00,000/- on 22.06.2001 by Opposite Party nos. 4 to 6-Bank of Maharastra (hereinafter referred to as ‘the Bank’ for the business of Computer Institute with the terms and conditions that the plant and machineries under stock would be under hypothecation worth Rs. 22,00,000/- and the same has to be comprehensively insured. Complainants purchased computer and its accessories worth Rs. 14,74,250/- and insured the said articles under Miscellaneous Accidents Policy and Coverage for Burglary and House Breaking for a sum of Rs. 15,00,000/- with the appellant-Opposite Parties Nos. 1 to 3 for which premium of Rs. 3,938/- was paid. The said policy was taken for the period from 31.07.2001 to 30.07.2002 Accordingly, policy dated 01.08.2001 was issued in the name of On-Line Computers and the premium amount was debited in the loan account of the complainants.

Respondent lodged an F.I.R with Shashtrinagar Police Station on 29.12.2001 vide P.S Case No. 761/2001 alleging that theft/burglary was committed in the premises where the computers and its accessories were fitted. Complainant informed about the theft to the Branch Manager, Bank of Maharashtra, Patna Branch. The Bank lodged a claim under the above-said Insurance Policy with the appellant on 29.12.2001 Spot Surveyor was appointed by the appellant who visited the spot and found the occurrence of theft to be true and recommended payment of the insurance amount to the appellant. In spite of repeated demands and legal notice claiming Rs. 14,74,250/- with interest @17% which the Bank was charging from the complainant, by the complainant, the appellant did not settle the insurance claim of the complainant. Thus, being aggrieved, respondent filed a Complaint before the State Commission alleging deficiency in service and slackness on the part of all the Opposite Parties.

Respondent, after being served, filed its Written Statements taking the preliminary objection that the Complaint is not maintainable as the claim amount is less than Rs. 20,00,000/-. That the alleged stolen articles were worth Rs. 12,38,550/- only. That the Insurance Company got the information of the alleged theft from the Bank and Shri R.P Singh was appointed for preliminary survey who submitted a detailed Report on 16.01.2002 That the Surveyor assessed the value of the means on the basis of market price at Rs. 7,70,000/-, only against the claim of the respondent. That Shri Chandra Shekhar Prasad was appointed as Surveyor for final survey report, who submitted his Report on 28.07.2003 In his report, Shri Chandra Shekhar Prasad had raised some objection regarding the cash memo issued by one Retech Computer Centre and the final assessment of loss made by him was to the tune of Rs. 4,23,900/-. Thereafter, the Insurance Company appointed Shri Ajay Kumar Ojha to verify the cash memo issued by Retech Computer Centre as per objection raised by Shri Chandra Shekhar Prasad, who, in his Report dated 24.05.2005, stated as under:—

“bill issued by a non-existing firm would be fabricated”

Further objection raised by the Insurance Company was that as per General Condition No. 9 of the Insurance Policy, all the benefits and rights occurring under the Policy are liable to be forfeited, in case the insured uses fraudulent means or device for obtaining benefit under the policy. That the Insurance Company did not take any decision in the matter in view of Condition No. 9 of the Insurance Policy. That whether the cash memos were genuine or fraudulent require detailed investigation and evidence which is possible only in a Civil Court and not before the State Commission. Thus, denying all allegations of deficiency in service and negligence, appellant prayed for dismissal of the Complaint.

Opposite Parties Nos. 4 to 6 filed their separate Written Statement but as no relief has been granted against them by the State Commission and no relief is claimed against them by the appellant, we are not referring to the contents of the Written Statement filed by Opposite Parties Nos. 4 to 6.

The State Commission, after taking into account the pleadings as well as the evidence led by the parties, held that the appellant-Insurance Company was not justified in appointing second and third Surveyor as the first Surveyor, by a comprehensive report running in 27 pages, has dealt with every aspect of the matter and, after considering all the cash memos and details submitted on behalf of the parties, had assessed the loss at Rs. 7,70,000/-. That the appellant had failed to give any valid reason to discard the report of the first Surveyor and the same was binding on the appellant. Appointments of subsequent Surveyors was bad both in law as well as on facts. Based on these findings, Complaint was allowed and the appellant was directed to pay Rs. 7,70,000/- to the respondent as assessed by the first Surveyor with interest @ 12% thereupon from the date of claim may be the insured till the date of payment by the Opposite Party within 3 months from the date of Order. Rs. 1000/- were awarded as costs.

Appellant, being aggrieved by the Order passed by the State Commission, has filed the present Appeal.

Facts of the case are not in dispute. Respondent was sanctioned term loan of Rs. 12,00,000/- by Opposite Parties Nos. 4 to 6 for doing business in Computer Institute with the condition that plant and machineries will be under hypothecation of worth Rs. 22,00,000/- and stocks to be comprehensively insured. Respondent purchased the computers and its accessories. The machinery and accessories were insured with Opposite Parties Nos. 1 to 3 covering burglary and house breaking to the extent of Rs. 15,00,000/- for the period 31.07.2001 to 30.07.2002 The premium was paid by Opposite Parties Nos. 4 to 6. After theft/burglary in the premises of the respondent, respondent on 29.12.2001 lodged an F.I.R with the local Police Station on the same day and informed the appellant of the theft. Police, after investigation, found that the theft had taken place and filed its final report as untraceable. Respondents thereafter filed a claim with the appellant but in spite of several reminders and legal notice, appellant did not either settle the amount of payment nor repudiated the claim which lead to the filing of the Complaint.

Learned Counsel appearing for the appellant contends that the first Surveyor, Shri. R.P Singh was a Spot Surveyor to conduct the preliminary survey. After submission of the report by the Spot Surveyor, Shri Chandra Shekhar Prasad was appointed as the Surveyor who submitted his Report on 28.07.2003 and assessed the loss at Rs. 4,23,900/-. Because of some doubt as to the authenticity of the theft, the appellant appointed Shri Ajay Kumar Ojha to investigate the matter. Shri Ajay Kumar Ojha submitted his report on 24.05.2005 to the effect that no theft had taken place and the purchase memos issued by Retech Computer Centre, Patna were fabricated bills. According to the learned Counsel for the appellant, the State Commission has erred in holding that there was no need to appoint either second or the third Surveyor. As against this, Counsel for the respondent submitted that the first Surveyor had, after a detailed investigation, assessed the loss at Rs. 7,70,000/- and that the Report of the first Surveyor was detailed and comprehensive running into 27 pages in which every aspect of the matter had been dealt with. That the appellant had failed to give any valid reason to discard the Report of the first Surveyor.

Counsel for the parties have been heard at length.

The Report submitted by the first Surveyor itself shows that it was a preliminary survey report for the theft committed at the premises of the respondent. Findings recorded by the State Commission that the appointment of the second Surveyor was bad in law is not correct. Since, the Report submitted by the first Surveyor was a preliminary report, the appellant was justified in appointing the second Surveyor. The second Surveyor had assessed the loss at Rs. 4,23,900/- but in our considered view, the appointment of the third Surveyor was neither justified nor warranted in the given facts and circumstances of the case. Learned Counsel appearing for the appellant could not spell out the reasons as to the requirement of appointing the third Surveyor/Investigator. Nothing has been placed on the record justifying the appointment of Shri Ajay Kumar Ojha, Investigator in the face of the categorical findings recorded by the second surveyor assessing the loss at Rs. 4,23,900/-. This apart, Shri Ajay Kumar Ojha, in his Report has relied upon certain letters which he allegedly received from Commercial Taxes Department, Financer Bank and State Bank of India, Hanuman Nagar and the Bank of Maharashtra, Patna, saying that the firm by the name Retech Computer Centre is not existence. This apart, the Report of the Investigator remains unproved. Investigator has not stepped into the witness box to prove the Report. No one has appeared on behalf of the appellant to prove the Report of Shri Ajay Kumar Ojha, Investigator. As the Report of the Investigator remains unproved, no reliance can be placed upon the same.

Shri Chandra Shekhar Prasad, second Surveyor had assessed the loss at Rs. 4,23,900/-. The first Surveyor, Shri R.P Singh was only a Spot Surveyor who had assessed the loss at Rs. 7,70,000/-. The State Commission has erred in holding that the Report of the second Surveyor could not be taken into consideration. The Report submitted by the Surveyor is an important piece of evidence and has to be given due weight and relied upon until and unless it is proved by some cogent and reliable evidence that the Report submitted could not be relied upon. In the present case, there is no such evidence.

For the reasons stated above, we partly allow the Appeal and reduce the amount of compensation to Rs. 4,23,900/- as assessed by the second Surveyor instead of Rs. 7,70,000/- awarded by the State Commission. Rest of the Order of the State Commission is upheld. Appellant is directed to pay to the respondent the sum of Rs. 4,23,900/- with interest @ 12% p.a from the date of filing of the claim till the date of payment within a period of six weeks.