The New India Assurance Co. Ltd vs M/S. Protection Manufacturers Pvt.Ltd

23 of the Consumer Protection Act, 1986,

hereinafter referred to as `the 1986 Act', from an

order dated 24th October, 2005, passed by the 2

National Consumer Disputes Redressal Commission,

New Delhi, hereinafter referred to as the "National

Commission", in O.P. No.60 of 2003. By the said

order, the National Commission accepted the claim

of the Respondent herein, M/s. Protection

Manufacturers Pvt. Ltd., in respect of insurance

claim on account of a fire which had broken out in

its factory at about 8.45 a.m. on 29th March, 2000,

and directed the Appellant Insurance Company to pay

Rs.2,26,36,179/- to the Respondent with interest at

the rate of 12 per cent per annum from three months

after the date of the fire. In other words, the

interest was to be reckoned from 1st July, 2000,

till date.

2. Although, the scope of the appeal is to some

extent limited, a few facts may be stated for

proper appreciation of the case made out by the

Respondent/complainant.

3

3. On 29th March, 2000, at about 8.45 a.m., there

was a devastating fire in the factory of the

Respondent/complainant. The same was noticed by

the factory workers who had assembled in front of

the factory premises and were waiting for the

factory to open. On being informed, the fire

brigade reached the site at about 9.10 a.m. and

began their operations immediately. However, the

fire was so severe that it continued to flicker for

the next three to four days and was completely

extinguished only on 4th April, 2000. As the

factory premises of the Respondent was covered by

Fire Insurance Policy for the period from 19th

February, 2000, to 18th February, 2001, against the

risk of fire, the Respondent made its claim to the

Insurance Company amounting to Rs.2,85,50,000/- on

account of damage and loss suffered to the

building, plant and machinery, stocks and stock-in- 4

process and the transformer for which the

Respondent Company had paid Rs.1,16,636/- as

premium. It appears that while the Policy was in

force, the insurance coverage was enhanced.

4. On the very same day when the fire broke out,

the Insurance Company appointed Mr. A.S. Asthana,

Surveyor, to conduct a preliminary spot survey.

On 30th March, 2000, Mr. Asthana and the

representatives of the Insurance Company took joint

stock of burnt motors and air coolers which were

being manufactured by the Respondent/complainant.

Mr. Asthana submitted his preliminary report on 3rd

April, 2000, but did not specify the cause of fire.

Thereafter, on 9th April, 2000, one Mr. Bhaskar

Joshi was appointed as Joint Surveyor to conduct a

final survey along with Mr. Asthana. On 13th April,

2000, a status report was submitted by Mr. Bhaskar

Joshi. The Joint Surveyors prepared a draft 5

assessment report and estimated the loss suffered

by the Respondent/complainant to be

Rs.2,37,09,372.12 paise. The joint assessment

report which was submitted on 28th August, 2000,

clearly stated that the exact cause of fire was not

known, though it could be due to a short circuit.

5. Thereafter, on 30th October, 2000, the Regional

Manager of the Insurance Company appointed M/s. J.

Basheer & Associates as investigator to conduct an

investigation into the cause of fire and to assess

the loss. As many as six independent investigation

reports were filed by M/s. J. Basheer & Associates

on 28th May, 2001, 3rd July, 2001, 27th August, 2002,

4th October, 2002, 7th November, 2002 and 10th

December, 2002. According to M/s. J. Basheer &

Associates, the net amount of loss suffered by the

Respondent Company on account of the fire would be

Rs.1,10,57,034/-, which tallies almost exactly with 6

the assessment made by the Insurance Company

amounting to Rs.1,10,67,230/-. Interestingly,

although in the report submitted by M/s. J. Basheer

& Associates it has been mentioned in clause 6 that

their appointment was for investigation into (i)

cause of fire and (ii) assessment of loss, there is

nothing definite in the 67 page report as to the

cause of fire, except for a reference to the reply

sent by the Fire Officer, Cuttack, to the Khurda

Branch Manager of the Insurance Company on 5th May,

2001, stating that the estimate of fire amount was

about Rs.15 lakhs and the cause of fire was "short

circuit" in the raw material section.

6. On 25th June, 2001, the Appellant Insurance

Company requested Mr. Bhaskar Joshi to make his

observations on the report submitted by M/s. J.

Basheer & Associates on 28th May, 2001. In his

comments submitted on 10th August, 2001, Mr. Bhaskar 7

Joshi severely criticized the report filed by M/s.

J. Basheer & Associates and even went to the extent

of observing that they had failed to measure upto

the faith and responsibility reposed on them by the

insurers. The report seemed to suggest that the

same had been tailor-made in order to fit the loss

assessed by the Insurance Company at

Rs.1,10,67,230/-, which uncannily tallied with the

estimate of M/s. J. Basheer & Associates, namely,

Rs.1,10,57,034/-.

7. After receipt of the views expressed by the

Joint Surveyors, the Appellant Insurance Company

decided to obtain the views of Justice Y.V.

Chandrachud, former Chief Justice of India, on the

question as to the cause of fire. In his report,

Chief Justice Chandrachud arrived at the conclusion

that the report of M/s. J. Basheer & Associates was

unfounded and speculative while that of the Joint 8

Surveyors contained a careful analysis of the

events. Chief Justice Chandrachud was of the view

that he had no doubt that the fire was accidental

and could not by any reasonable norm or standard be

characterized as an act of arson.

8. Mr. Bhaskar Joshi also commented on the report

submitted by M/s. J. Basheer & Associates on 3rd

July, 2001, and 29th November, 2001, and castigated

the same in no uncertain terms. Mr. Joshi observed

that M/s. J. Basheer & Associates had not gone into

the roots of documentation and had not even

bothered to verify the original documents. On the

other hand, they had gone around creating confusion

and controversies and to create an air of

suspicion, which was a classic example of table-top

investigation.

9. Thereafter, as the claim of the Respondent

Company was not being settled by the Appellant 9

Insurance Company, a complaint was filed by the

Respondent Company with the National Commission on

13th February, 2003, for a direction to the

Insurance Company to pay compensation of

Rs.2,48,94,000/- for the loss suffered by it,

together with interest @18% p.a. and to also grant

compensation of Rs.10 lakhs for the delay in

settlement of the claim, which had caused mental

agony and harassment to the Respondent/Complainant.

10. The claim of the Respondent-Company was

repudiated by the Appellant Insurance Company on

20th February, 2003, when the National Commission

admitted the complaint filed by the Respondent-

Company and directed notice to issue to the

Insurance Company limited to the question of

deficiency of service. After considering the reply

filed by the Insurance Company and after examining

one Mr. Amit Biswas, the representative of the 10

Insurance Company, and Mr. J. Basheer of M/s. J.

Basheer & Associates, who admitted that he had not

visited the Excise Office, the Vendors and had also

not provided any supporting evidence to bolster his

findings, the National Commission, by its order

dated 24th October, 2005, directed the Appellant

Insurance Company to pay to the Respondent Company

a sum of Rs.2,26,36,179 with interest @12% p.a.

with effect from 1st July, 2000 and to also pay a

sum of Rs.1 lakh by way of compensation. The

Insurance Company was given liberty to recover the

said amount from its defaulting officers.

Incidentally, it may be indicated that in the final

assessment report of the Joint Surveyors the loss

suffered by the Respondent Company was assessed at

Rs.2,26,36,180.23 paise.

11. Aggrieved by the said Award of the National

Commission, the Appellant Insurance Company has 11

filed this appeal and questioned the said Award on

several grounds.

12. Appearing for the Insurance Company, Mr.

Jaideep Gupta, learned Senior Advocate, submitted

that the National Commission had erroneously

approached the problem by concentrating only on the

reports submitted by the Joint Assessors and the

opinion given by former Chief Justice of India,

Y.V. Chandrachud, while rejecting the several

reports submitted by M/s. J. Basheer & Associates.

It was submitted that the specific issues and the

allegations made in respect thereof were not

seriously considered by the National Commission.

13. Mr. Gupta submitted that the National

Commission had not considered the evidence in its

totality. Out of the six reports submitted by M/s.

J. Basheer & Associates only two were taken into

consideration, while the other four, including the 12

Final Report submitted on 10th December, 2002, were

ignored and were wrongly rejected. The National

Commission relied only on the Joint Report

submitted by the M/s. Asthana and Joshi and the

views expressed by Chief Justice Chandrachud, which

was only an opinion and hence not admissible in

evidence. Mr. Gupta urged that the only

certificate available as to the cause of the fire

was the Fire Certificate issued by the Fire

Officer, Orissa, Cuttack, on 17th May, 2000,

indicating that the fire was the result of an

electrical short circuit, but except for a bald

statement, no evidence was produced to corroborate

such opinion.

14. Mr. Gupta also referred to paragraph 6 of the

Final Assessment Report on the basis of the joint

survey conducted by M/s. A. Asthana & Co. and

Bhaskar Joshi, which deals with the cause of the 13

fire. It was pointed out that the very first

sentence of paragraph 6 indicates that the exact

cause of the fire was not known, but the police had

attributed it to short circuit. Sub-paragraph 2

records the fact that nothing specific as to the

cause of the fire could be found even on further

probe and hence it had to be presumed that short

circuit could be one of the probable causes out of

other probables. It was also indicated that in the

light of the reports issued by the local

authorities, such as the police and the fire

brigade, the cause of the fire could only be

attributed to a short-circuit, since no evidence

could be found that would point towards a

deliberate act of arson. The final opinion

expressed in Sub-paragraph (a) of paragraph 6 was

that the fire appeared to be accidental and the

loss would be indemnifiable under the Fire Policy

issued to and held by the insured.

14

15. Mr. Gupta also referred to the opinion of Chief

Justice, Y.V. Chandrachud, wherein His Lordship

indicated that on a perusal of the Survey Report

and the Investigation Report it was quite clear

that the Report of J. Basheer & Associates was

unfounded and speculative, whereas the Report of

the Joint Surveyors contained a careful analysis

and assessment of the cause of fire and the facts

incidental to and attendant upon the event of fire.

16. Mr. Gupta reiterated his earlier submission

that except the Fire Certificate issued by the Fire

Officer, Orissa, Cuttack, there were no other

reports as to the cause of the fire and the views

expressed by the Joint Surveyors and also Chief

Justice Chandrachud were without foundation and

were themselves speculative and conjectural and

could not, there, be relied on. If, however, all

the reports submitted by J. Basheer & Associates 15

were taken together, it would point towards an act

of arson as to the cause of the fire.

17. Mr. Gupta then referred to the decision of the

National Commission on the question of cause of the

fire. It was pointed out that the National

Commission in considering the report of J. Basheer

& Associates and the opinion of Chief Justice Y.V.

Chandrachud and the views expressed by Bhaskar

Joshi which had been accepted by the Insurance

Company, observed as follows :

"Undisputedly, this report is accepted by the Insurance Company and the learned counsel for the Insurance Company had stated that the Insurance Company accepted that the fire was accidental and could not be characterized as an act of arson."

18. Mr. Gupta submitted that the said observation

was made on the basis of a concession which had

been made by Counsel for the Insurance Company and

not on the pleadings, wherein it had been 16

consistently stated that the cause of the fire had

not been finally determined by any of the Assessors

or Investigators and that the opinion of M/s. J.

Basheer & Associates, that an act of arson was the

cause of fire, could not be ruled out. Mr. Gupta

reiterated that even in the Joint Survey Report of

M/s. Asthana and Joshi it had been mentioned that

the exact cause of fire is not known but that the

police had attributed it to a short circuit. But

it had also been indicated that the same was only a

probable hypothesis. Mr. Gupta submitted that it is

on such improved probability that an opinion was

given that the fire appeared to be accidental and

the loss would be indemnifiable under the fire

policy issued to and held by the insured. Mr.

Gupta submitted that in the circumstances when the

cause of fire had not been established with any

certainty, the direction given by the Commission to

make payment of insurance on the Fire Policy, was 17

not justifiable.

19. Mr. Gupta urged that this was a fit case for

remand to enable the National Commission to

ascertain the cause of the fire before making any

Award for payment of insurance under the aforesaid

policy. In support of his submissions, Mr. Gupta

firstly referred to the decision of this Court in

National Insurance Co. Ltd. vs. Harjeet Rice Mills

[(2005) 6 SCC 45], wherein it was held that since

the High Court had failed to consider the

allegations of the Insurance Company, that the

claim of the complainant was fraudulent, though

there was adequate prima facie material available

to warrant a proper inquiry, the matter was

required to be remanded for a decision afresh for

adjudication on such submissions made on the behalf

of the Insurance Company. Learned Counsel also

referred to the decision of this Court in United 18

India Insurance Co. Ltd. & Ors. vs. Roshan Lal Oil

Mills Ltd. & Ors. [(2000) 10 SCC 19], where in a

somewhat similar situation as existing in the

instant case, the matter was remanded to the

Commission for a fresh hearing.

20. Mr. Gupta submitted that the National

Commission had wrongly relied on the opinion of

Justice Y.V. Chandrachud, former Chief Justice of

India, in contravention of the provisions of

Section 45 of the Indian Evidence Act, 1872.

Learned counsel urged that if the Commission wanted

to rely on the opinion given by Justice Y.V.

Chandrachud, as if it were an expert opinion, it

could only have done so after examining His

Lordship in order to satisfy the provisions of

Section 45 of the aforesaid Act. In support of his

said submissions Mr. Gupta relied on the decision

of this Court in Ramesh Chandra Agrawal vs. Regency 19

Hospital Ltd. & Ors. [2009) 9 SCC 709, wherein,

while considering the evidence of experts in the

light of Section 45 of the Evidence Act, it was

held that such evidence is only advisory in

character since such expert is not a witness of

fact.

21. Mr. Gupta urged that in view of the

inconclusive nature of the reports as submitted,

the matter was required to be sent back on remand

to the National Commission for a fresh

determination in accordance with law.

22. Mr. Piyush Gupta, who appeared in-person on

behalf of the Respondent-Company, submitted that

the allegations made about inclusion of the damage

in respect of the products manufactured at the

manufacturing unit at SCR-14, Suryanagar,

Bhubaneswar, was misleading, since after the

establishment of the new factory premises at 20

Bhatkuri, the Suryanagar Factory ceased to exist.

A request was made to the Central Excise

Authorities to cancel the licence for production of

air coolers at Suryanagar with effect from 1st July,

1999 and all manufacturing operations were being

carried on by the insured at its new location at

Bhatkuri which was affected by the fire.

23. Mr. Piyush Gupta submitted that the Company

maintained computerized financial accounts which

combined financial accounting as well as inventory

management in one software. Learned counsel

submitted that in making their report the Joint

Surveyors, M/s. Asthana and Joshi, had relied on

the same after carrying out a detailed check of the

system to ascertain its integrity. A substantial

quantity of raw materials which had been damaged

during the super cyclone in October, 1999, had been

found to be subtracted from the other material 21

which had been damaged on account of the fire.

Learned counsel pointed out that in their report,

M/s. Asthana and Joshi had in paragraph 8.03.1.14

indicated that they had verified the integrity of

the system by making dummy entries and the results

were found to be reliable. In order to further

cross-check the account, ledger entries of the

Company's accounts in the vendor's books were also

called for and the same when reconciled with the

Company's system produced corroborative results.

Mr. Piyush Gupta submitted that based on their

examination of the stock and the entries in the

computer which were reconciled with the accounts of

the suppliers (vendors), they submitted a draft

assessment report assessing the loss incurred by

the Company on account of the fire amounting to

Rs.2,37,09,372.12/-. However, upon visiting the

Regional Office of the Appellant-Insurance Company

for discussions, they were given the version of the 22

assessment made by the Insurance Company amounting

to Rs.1,10,67,230/-. As against this, the loss

assessed by M/s. J. Basheer & Associates was almost

identical, namely, Rs.1,10,67,034/-. Mr. Gupta

urged that it was obvious that the assessment made

by the investigators was based on the Insurance

Company's assessment of the loss suffered by the

Company on account of the fire.

24. Mr. Piyush Gupta then submitted that Section

64UM of the Insurance Act, 1938, which provides for

licensing of Surveyors and Loss Assessors, would be

attracted to the facts of this case and instead of

appointing another surveyor, as was done in the

instant case by the appointment of M/s. J. Basheer

& Associates, the Insurance Company ought to have

gone to the Regulatory Authority under the

Insurance Regulatory and Development Authority Act,

1999, and under Sub-Section (3) it was for the said 23

Authority to call for an independent report from

any other Approved Surveyor or Loss Assessor

specified by it. Mr. Gupta urged that by appointing

another surveyor/assessor/investigator after M/s.

Asthana and Joshi had submitted their report, the

Insurance Company had presented two different

reports as to the loss caused and had also

introduced a third opinion as to the cause of the

fire from a former Chief Justice of India, Justice

Y.V. Chandrachud, although, an attempt was made to

play down the same since it went completely against

the case of the Insurance Company. It was pointed

out that Chief Justice Chandrachud had observed

that the report submitted by M/s. J. Basheer &

Associates was unfounded and was in any way of

speaking, speculative, while the Joint Surveyors'

report contained a careful analysis of the event.

It was further pointed out that Chief Justice

Chandrachud came to the conclusion that he had no 24

doubt that the fire was accidental and could not by

any reasonable norm or standard be characterized as

an act of arson.

25. On the merits of the report submitted by M/s.

J. Basheer & Associates, Mr. Piyush Gupta submitted

that one Mr. J. Basheer had been deputed by M/s. J.

Basheer & Associates to visit the factory premises

of the Respondent-Company, which had been damaged

by the fire, only on 14th November, 2000, i.e., 8

months after the fire had occurred and by that time

rehabilitation work had already been commenced

after obtaining due permission from the Appellant-

Insurance Company. Even then, Mr. Basheer was in

the factory for barely half an hour and did not

visit the factory ever again.

26. On the point of non-consideration of the last 3

reports filed by M/s. J. Basheer & Associates,

learned counsel submitted that the same was nothing 25

but a repetition of what had been mentioned in the

earlier reports and did not reflect anything new

which deserved separate consideration.

27. On the quantum of damages, Mr. Piyush Gupta

referred to the assessment made by the Commission

on a comparison of the reports submitted by M/s.

Asthana and Joshi and M/s. J. Basheer & Associates.

It was submitted that the conclusion arrived at by

the Commission holding that the report submitted by

M/s. J. Basheer & Associates was totally unreliable

and tailor-made with regard to the loss suffered by

the Respondent-Company on the basis of the

suggestions made by its Regional Office at Orissa

and its agreement with the observations made by the

Joint Surveyors to the effect that the whole

exercise of M/s. J. Basheer & Associates was beyond

their competence, cannot be called into question

and the ultimate Award directing the Appellant- 26

Assurance Company to pay Rs.2,26,36,179/- with

interest @12% per annum from 3 months after the

date of occurrence of the fire, i.e., from 1st July,

2000 till payment, was fully justified and the

further direction to the Insurance Company to pay a

further sum of Rs.1 lakh to the Respondent-Company

by way of compensation for unjustly repudiating the

claim of the Respondent-company did not also call

for any interference.

28. A further submission was made by Mr. Gupta

claiming payment of interest from the date of the

fire and not from the date of the final decision of

the Commission as the delay was on account of the

Insurance Company, whose repudiation of the claim

of the Respondent-Company was found to be unjust.

In this regard reference was made to the decision

of this Court in Sovintorg (India) Ltd. vs. State

Bank of India, New Delhi [(1999) 6 SCC 406], 27

wherein Section 14 of the Consumer Protection Act,

1986, fell for consideration and it was observed

that where no contract existed between the parties

regarding payment of interest on delayed deposit or

service, interest could not be claimed under

Section 34 C.P.C. as the provisions of the C.P.C.

have not been made applicable to proceedings under

the 1986 Act. However, the general provisions of

Section 34 of the Code being based on justice,

equity and good conscience, would authorize the

consumer courts to grant interest according to the

circumstances of each case. It was submitted that

in the said case the direction to pay interest @12%

given by the State Commission was enhanced by the

National Commission to 15% per annum. Reference

was also made to the decision of this Court in

Ghaziabad Development Authority vs. Balbir Singh

[(2004) 5 SCC 65], where somewhat similar views

were expressed in the context of Section 73 of the 28 Contract Act, 1872, and it was observed that the

award of compensation had to be made under

different and separate set of circumstances and

must vary from case to case depending on the facts

of each case and no hard and fast rule, could,

therefore, be laid down.

29. Mr. Gupta submitted that no interference was

called for with the impugned Award of the National

Commission and the appeal was liable to be

dismissed.

30. The nature of the controversy between the

parties has made us dwell on the facts of the case

at some length. Despite the extensive submissions

made on behalf of the parties, the issues to be

resolved in this Appeal are confined to two

questions, namely, 29

(i) What was the cause of fire which broke out

in the factory premises of the assured at

Bhatkuri at about 8.45 a.m. on 29th March,

2000?

(ii) What was the extent of loss and damage

suffered by the assured on account of such

fire?

31. As far as the answer to the first question is

concerned, the report of the Joint Surveyors, M/s.

Asthana & Joshi, dated 28th August, 2000, indicates

that the exact cause of the fire was not known,

though it could be due to a short circuit.

Interestingly, while referring in its report dated

28th May, 2001, to the reply given by the Fire

Officer, Cuttack, to the Khurda Branch Manager of

the Insurance Company on 5th May, 2001, stating that

the cause of fire was a "short circuit" in the raw

material section of the factory premises, M/s. J. 30

Basheer & Associates ultimately observed that the

fire could reasonably be attributed to an act of

"Arson" by vested interests, for some pecuniary

benefit, without any factual basis for the same.

Apart from the aforesaid observation made at the

end of the report, no foundation has been laid down

in the report for such an observation which

literally appears out of the blues.

32. Even if the views expressed by the Joint

Surveyors, M/s. Asthana and Joshi, on the reports

submitted by M/s. J. Basheer & Associates are

discounted, although they were appointed by the

Insurance Company itself, one cannot ignore the

views obtained by the Insurance Company from former

Chief Justice, Y.V. Chandrachud, although, an

attempt has been made on behalf of the Insurance

Company to exclude the said views from

consideration or at least to water down the same by 31

taking refuge in Section 45 of the Evidence Act.

Such a stand has no legs to stand upon, since the

opinion given by Justice Chandrachud was based on

an analysis of the materials placed before him by

the Insurance Company, including the reports

submitted by the Joint Surveyors, M/s. Asthana and

Joshi and M/s. J. Basheer & Associates. Section 45

of the Evidence Act empowers the Court, in order to

form an opinion upon a point of foreign law or of

science or of art, or as to identity of handwriting

or finger impressions, to rely upon the opinions of

persons specially skilled in such matters. The

case in hand is quite different, as the views

expressed by Justice Chandrachud were not meant to

be an opinion within the meaning of Section 45 of

the Evidence Act, but an analysis of the reports

and the materials provided to His Lordship by the

Insurance Company. In fact, the attempt made on

behalf of the Appellant Insurance Company to 32

exclude the views expressed by Justice Chandrachud

with regard to the cause of fire from the area of

consideration does not commend itself to us as the

same is a completely independent and unbiased

assessment of the events relating to the cause of

fire on the basis of the materials made available

to His Lordship.

33. Without any material to support the theory of

arson projected by M/s. J. Basheer & Associates and

sufficient material to hold otherwise, it would be

entirely unjust and inequitable to accept such a

theory without any evidence whatsoever in support

thereof. Reference can be made in this context to

the submission made by the counsel for the

Insurance Company before the National Commission

and quoted in para 17 above. Accordingly, we

endorse the views expressed by the National

Commission that the cause of fire was accidental 33

and that the attempt made by M/s. J. Basheer &

Associates to show that the fire had been caused by

an act of arson, was motivated and intended to

benefit the Appellant Insurance Company. The

decisions cited by the parties were rendered in

their own particular fact situations in accordance

with law which is not disputed. The fact situations

are, however, distinguishable.

34. This brings us to the second question regarding

the quantum of loss suffered by the Respondent

Company on account of the fire. As has been

commented upon by the Joint Surveyors and Chief

Justice Chandrachud and subsequently by the

National Commission, the almost identical amounts,

barring a few rupees, arrived at by the Insurance

Company and M/s. J. Basheer & Associates speak

volumes of the exercise carried out by the latter

on a wholly cursory investigation which has quite 34

aptly been described as "tailor-made". The amount

of loss suffered by the Respondent Company on

account of the fire has been calculated by the

Joint Surveyors on the basis of the amounts

mentioned by the Respondent Company and the

computer data available in support thereof and also

upon cross-checking with the accounts of suppliers

and vendors of raw materials to the Respondent

Company. We see no reason to differ with the views

expressed by the National Commission in this

regard. We also accept the discretion exercised by

the National Commission regarding the rate of

interest awarded from three months after the date

of the Award. The submissions made on behalf of the

Respondent Company for enhancement of the same is

rejected as we are of the view that such exercise

of discretion was just and equitable in the absence

of any agreement between the parties regarding

payment of interest or the quantum thereof. 35

35. The submissions of Mr. Piyush Gupta in regard

to Section 64 UM of the Insurance Act, 1938, are

also of substance, as the Appellant Insurance

Company should have applied to the Regulatory

Authority under the Act for a second opinion

instead of appointing M/s. J. Basheer & Associates

for the said purpose unilaterally. The reports

submitted by M/s. J. Basheer & Associates are

liable to be discarded on such ground as well.

36. The Appeal filed by the Insurance Company,

therefore, fails on all counts and is dismissed.

There will be no order as to costs.

37. Having regard to the judgment delivered today,

no further orders are required to be passed on the

application for directions filed on 30.4.2010 on

behalf of the Respondent Company and supported by 36

an affidavit dated 27.4.2010 affirmed by Mr. Piyush

Gupta and the same is disposed of accordingly.

________________J.

(ALTAMAS KABIR)

________________J.

(CYRIAC JOSEPH) New Delhi Dated: 8th July, 2010.

37

ITEM No.1-A Court No.2 SECTION XVII (for judgment)

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

CIVIL APPEAL NO.312 OF 2006

THE NEW INDIA ASSURANCE CO. LTD. Appellant (s)

VERSUS

M/S PROTECTION MANUFACTURERS PVT. LTD. Respondent (s)

Date : 08/07/2010 This Petition was called on for judgment today.

For Appellant (s) Mr. Dinesh Mathur,Adv. Mr. Nishant Menon,Adv. Mr. Rameshwar Prasad Goyal,Adv.

For Respondent(s) In person

Hon'ble Mr. Justice Altamas Kabir pronounced the Judgment of the Bench

comprising His Lordship, and Hon'ble Mr. Justice Cyriac Joseph.

The appeal is dismissed in terms of the signed judgment placed on the file. There will be no order as to costs.

(Ganga Thakur) (Juginder Kaur) P.S. to Registrar Court Master

(Signed Reportable judgment is placed on the file.) 38