Allowed

Icici Lombard General Insurance Comp Ltd. v. State of Haryana and Ors.

Punjab & Haryana HC6 Jan 2012FAO/5723/2011

Case brief

AI extract

What is this about?

The High Court allowed the insurer's appeal against an MACT award because the claim assessment relied on reports from department employees instead of an approved surveyor. The court remanded the case to the tribunal for a fresh award based on an independent surveyor's report.

What did the court decide?

Impugned award dated 7.4.2011 set aside. Case remanded to the Tribunal to decide afresh after obtaining an independent surveyor's report.

Icici Lombard General Insurance Comp Ltd. Vs State… — Cheque Dishonour | Punjab & Haryana HC (2012)

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FAO No.5723 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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FAO No.5723 of 2011 Date of Order:6.1.2012

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ICICI Lombard General Insurance Company Ltd.

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....Appellant

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Versus

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State of Haryana and others

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...Respondents

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CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN

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Present: Mr.Subhash Goyal, Advocate for the appellant.

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Mr.Kunal Garg, Assistant Advocate General, Haryana for respondent Nos. 1,3 and 4.

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Jitendra Chauhan, J.(Oral)

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The Insurer has filed the present appeal, assailing the impugned award dated 7.4.2011, passed by the learned Motor Accident Claims Tribunal, Ambala, vide which the claim petition was allowed and the appellant was held liable to pay the compensation amount.

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Learned counsel for the appellant refers to the statement of PW3, HC Subhash Chander, who in his cross-examination has admitted that he has no personal knowledge of the case nor he did visit the spot and the actual loss to the vehicle can only be disclosed by the private workshop keeper or the police workshop keeper. He has further stated that surveyor was not appointed and the reports were procured from the employees of the

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Department, who are the interested parties. He further refers to Section 64 UM of the Insurance Act, 1938 and states that the award passed by the learned Tribunal is not maintainable in view of the same. Section 64 of the Insurance Act reads as under:

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“ 64. UM. Licensing of surveyors and loss assessors. -

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(1), (A) Save as otherwise provided in this section, no person shall act as a surveyor or loss assess or in respect of general insurance business after the expiry of a period of one year from the commencement of the Insurance (Amendment) Act, 1968, unless he holds a valid licence issued to him by the Controller.

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(B) Every person who intends to act as a surveyor or loss assessor after the expiry of a period of one year from the commencement of the Insurance (Amendment) Act, 1968, shall make an application to the Controller within such time, in such form, in such manner and on payment of such fee, not exceeding rupees two hundred and fifty, as may be prescribed .

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(C) Every license issued under this section shall remain in force, unless cancelled earlier, for a period of five years form the date of issue thereof, and any be renewed for a period of five years at a time, on payment of such fee, not exceeding rupees two hundred, as may be prescribed .

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(D) No licence to act as a surveyour or loss assessor shall

FAO No.5723 of 2011

be issued unless -

(i) the applicant, where he is an individual, satisfies the Controller that he -

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(a) has been in practice as a surveyor or loss assessor on the 26th day of October, 1968, or

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(b) holds a degree of a recognized University in any branch a engineering, or

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(c) is a fellow or associate member of the Institute of Chartered Accountants of India or the Institute of Cost and Works Accountants of India, or

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(d) possesses actuarial qualifications or holds a degree or diploma of any recognized University or institute in relation of insurance, or

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(e) holds a diploma in insurance granted or recognized by the Government, or

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(f) possesses such other technical qualification as any be prescribed, and

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(g) does not suffer from any of the disqualification mentioned in sub - section (4) of section 42;

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(ii) the applicant, where he is a company or firm, satisfies the Controller that all his directors or partners,

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as the case may be, possess one or more of the qualifications specified in clause (i) and none of such directors or partners suffer from any of the disqualification's mentioned in sub - section (4) of section

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42 .

(E) Every application for the renewal of the licence shall be made at least thirty days before the expiry of the period of validity thereof .

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(F) The Controller may, if he is satisfied that any licence issued or renewed under this section has been lost or destroyed, issue a duplicate licence on payment of a fee of rupees five and the duplicate licence so issued shall remain in force for the remainder of the period of validity of the licence in lieu of which it is issued .

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(G) Without prejudice to the powers conferred by sub - section (7), the Controller, 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 sub - section (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 .

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(2) No claim in respect of 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

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commencement of the Insurance (Amendment) Act, 1968 (62 of 1968), shall, unless otherwise directed by the Controller, 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"):

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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 . (3) The Controller may, at any time, in respect of any claim of the nature referred to in sub - section (2), call for an independent report from any other approved surveyor or loss assessor specified by him and such surveyor or loss assessor shall furnish such report to the Controller within such time as may be specified by the Controller or if no time limit has been specified by him within a reasonable time and the cost of, or incidental to, such report shall be borne by the insurer .

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(4) The Controller may, no receipt of a report referred to in sub - section (3), issue such directions as he may consider necessary with regard to the settlement of the claim including any direction to settle a claim at a figure

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less than or more than that at which it is proposed to settle it or it was settled and the insurer shall be bound to comply with such directions :

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Provided that where the Controller issues a direction for settling a claim at a figure lower the that at which it has already been settled, the insurer shall be deemed to comply with such direction if he satisfies the Controller that all reasonable steps, with due regard to the question whether the expenditure involved is not disproportionate to the amount required to be recovered, have been taken with due dispatch by him .

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Provided further that no direction fro the payment of a lesser sum shall be made where the amount of the claim has already been paid and the Controller is of opinion that the recovery of the amount paid in excess would cause undue hardship to the insured :

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Provided also that nothing in this section shall relieve the insurer from any liability, civil or criminal, to which he would have been subject but or the provisions of this sub - section .

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(5) No insurer shall, after the expiry of a period of one year from the commencement of the Insurance (Amendment) Act, 1968, pay to any person any fee or remuneration for surveying, verifying or reporting on a claim of a loss under a policy of insurance unless the

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person making such survey, verification or report is an approved surveyor or loss assessor .

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(6) Where, in the case of a claim of less than twenty thousand rupees in value on any policy of insurance it is not practicable for an insurer to employ an approved surveyor or loss assessor without incurring expenses disproportionate to the amount of the claim, the insurer any employ any other person (not being a person disqualified for the time being for being employed as a surveyor or loss assessor) for surveying such loss and may pay such reasonable fee or remuneration to the person so employed as he may think fit .

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(7) If the Controller is satisfied that an approved surveyor or loss assessor has been guilty of willfully making a false statement knowing it to be false or of being knowingly a party to the settlement of a claim in a fraudulent manner, he, may, after giving such surveyor

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or loss assessor an opportunity of being heard, cancel the licence issued to him with effect from such date as may be specified by him and shall notify such cancellation in the Official Gazette .

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(8) Any surveyor or loss assessor whose licence has been cancelled shall not be legible for having a licence to act as a surveyor or loss asessor for a period of three years from the date on which the cancellation is notified in the

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Official Gazette .

(9) The Controller may, in respect of any claim of value of less than twenty thousand rupees on an insurance policy, if the claim has not been or is not proposed to be reported upon by a surveyor or loss assessor, direct that such claim shall be reported upon by a approved surveyor or loss assessor and where the Controller makes such direction the provisions of sub - sections (3) and (4) shall apply in respect of such claim .

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(10) Where, in relation to any class of claims the Central Government is satisfied that it is customary to entrust the work of survey or loss assessment to any person other than a licensed surveyor or loss assessor, or it is not practicable to make any survey or loss assessment, if any, by an order published in the Official Gazette, exempt such class of claims for the operation of this section.

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On the other hand, learned counsel for the respondents-State contends that there are two unambiguous mechanical reports of the damage, caused in the accident, occurred due to the negligence of the Bus driver, insured by the appellant. These two reports i.e. Exs.P4 and P5 are admissible.

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I have heard learned counsel for the parties and perused the record carefully.

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From the perusal of Section 64 of the Act, it can be safely

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inferred that the claim has not been proceeded as per Procedure. In the present case, the claim has been assessed on the basis of Exs. P 4 and P5, the reports prepared by the persons, who were the employees of the Department. These reports are not prepared by the independent Surveyor. But at the same time, the fact that the vehicle stands disposed of and is not available for preparation of any further report.

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Faced with the situation, this Court deems it appropriate that these two reports be put to the Surveyor, who will be appointed with the consent of the parties because the versions of Subhash Chander PW3, and Puran Singh PW5 cannot be doubted as they were not likely to be benefited personally by the reports. The two reports i.e. Exs.P4 and P5 be made available to the Surveyor. Both the parties will have the liberty to crossexamine the Surveyor. Both the parties will bear the expenses of the Surveyor equally.

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Accordingly, the impugned Award 7.4.2011 is set aside and the present case is remanded back to the learned Tribunal to decide the matter afresh after considering the report submitted by the Surveyor and other documentary as well as oral evidence available on the file. As the accident occurred in the year 2008, the learned Tribunal is directed to decide the matter as expeditiously as possible, preferably within three months.

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The parties are directed to appear before the learned Tribunal on 4.2.2012 at 10 AM.

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(JITENDRA CHAUHAN) JUDGE

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6.01.2012 gsv

Icici Lombard General Insurance Comp Ltd. v. State of Haryana and Ors.

Case brief

What is this about?

What did the court decide?

Icici Lombard General Insurance Comp Ltd. v. State of Haryana and Ors.

Case brief

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What did the court decide?

What the court decided

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