Loss Assessment
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.12.2022
THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN
WP (MD)Nos.11033 & 11034 of 2019
S.Senthilkumar ... Petitioner
in W.P.(MD)No.11033 of 2019
M.Thetchinamoorthy ... Petitioner
in W.P.(MD)No.11034 of 2019
Vs.
1. The Director of Fisheries Department,
Thanjavur & District.
2. The Joint Director of Fisheries Department,
Nagapattinam & District.
3. The District Collector,
Thanjavur & District.
4. The Inspector of Fisheries Department,
Mallipattinam,
Thanjavur District.
8.The manner in which the assessment was done leaves much to be
desired. The writ petitioners in their applications have categorically asserted
that their boats have been fully damaged. It is true that the petitioners were
present to identify their boats. But their counter signatures have not been
taken in the assessment reports. Survey and loss assessment is a specialised
subject by itself. Section 64-UM of the Insurance Act, 1938 deals with
surveyors or loss assessors. Sub-section 4 reads as follows :
“...(4)No claim in respect of a loss which has occurred in India
and requiring to be paid or settled in India equal to or exceeding an
amount specified in the regulations by the Authority 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 commencement of the
Insurance Laws (Amendment) Act, 2015 (5 of 2015), shall, unless
otherwise directed by the Authority, 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”):”
Chapter IV of IRDA (Insurance Surveyors and Loss Assessors) Regulations,
2015 reads as follows :
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“13.It shall be the duty of every Licensed Surveyor
and Loss Assessor to investigate, manage, quantify, validate
and deal with losses (whether insured or not) arising from
any contingency, and report thereon to the insurer or
insured, as the case may be., All Licensed Surveyors and
Loss Assessors shall carry out the said work with
competence, objectivity and professional integrity and
strictly adhere to the code of conduct as stipulated in these
Regulations.
(1)The following, shall, inter alia, be the duties and
responsibilities of a Surveyor and Loss Assessor:-
(a)declaring whether he has any interest in the
subject-matter in question or whether it pertains to any of
his relatives, business partners or through material
shareholding;
Explanation: For the purpose of this clause ‘relatives’ shall
mean any of the relatives as defined in Subsection (77) of
Section 2 of the Companies Act, 2013;
(b) Bringing to the notice of the Authority, any change
in the information or particulars furnished at the time of
issuance of license, within a period not exceeding fifteen
days from the date of occurrence of such change, that has a
bearing on the license granted by the Authority
(c) maintaining confidentiality and neutrality without
jeopardising the liability of the insurer and claim of the
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insured;
(d) conducting inspection and re-inspection of the
property in question suffering a loss;
(e) examining, inquiring, investigating, verifying and
checking upon the causes and the circumstances of the loss
in question including extent of loss, nature of ownership and
insurable interest;
(f)conducting spot and final surveys, as and when
necessary and comment upon franchise, excess/under
insurance and any other related matter;
(g)estimating, measuring and determining the
quantum and description of the subject under loss;
(h)advising the insurer and the insured about loss
minimisation, loss control, security and safety measures,
wherever appropriate, to avoid further losses;
[(i) Commenting on the admissibility of the claim and
assessing the liability of the insurer as per the policy terms
and conditions;]
(j)surveying and assessing the loss on behalf of
insurer or insured;
{(k) [***]
(l) [***]}
(m)satisfying queries of the insured/insurer and of
persons connected thereto in respect of the claim/loss;
(n)recommending applicability of depreciation,
percentage and quantum of depreciation;
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(o)giving reasons for repudiation of claim, in case the
claim is not covered by policy terms and conditions;
(p)taking expert opinion, wherever required;
(q)commenting on salvage and its disposal wherever
necessary;
(r)Any licensed Surveyor and Loss Assessor appointed
as Director / Partner of a Company / Firm seeking
application for grant of Corporate Surveyor licence, shall
undertake survey jobs and issue survey reports only in the
capacity of Director / Partner of the Applicant Company /
Firm.]
(2)A surveyor or loss assessor whether appointed by
insurer or insured, shall submit his report to the insurer as
expeditiously as possible, but not later than 30 days of his
appointment, with a copy of the report to the insured giving
his comments on the insured’s consent or otherwise on the
assessment of loss. Where, in special circumstances of the
case, either due to its special and complicated nature, the
surveyor shall under intimation to the insured, seek an
extension, in any case not exceeding six months from the
insurer for submission of his report.
(3)In cases where the Survey report is pending due to
non completion of documents, the surveyor may issue the
final survey report independently based on the available
documents on record, giving minimum three reminders in
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writing to the insured.
(4)If an insurer, on the receipt of a survey report, finds
that it is incomplete in any respect, he shall require the
surveyor under intimation to the insured, to furnish an
additional report on such incomplete issues. Such a request
may be made by the insurer within 15 days of the receipt of
the original survey report. Provided that the facility of
calling for an additional report by the insurer shall not be
resorted to more than once in the case of a claim.
(5)The surveyor on receipt of this communication
shall furnish an additional report within three weeks of the
date of receipt of communication from the insurer.”