D N Badoni vs ORIENTAL INSURANCE CO LTD

THIS revision petition has been filed by D.N. Badoni (hereinafter referred to as petitioner) being aggrieved by the order of the Uttaranchal State Consumer Disputes Redressal Commission, Dehradun which was decided in favour of Oriental Insurance Company (hereinafter referred to as respondent).

THE facts of the case according to the petitioner who was the original complainant before the District Forum was that he had got his tanker No. UP-0-7D-9877 insured with the respondent Insurance Company for Rs. 5,05,000 for the period from 3.11.1997 to 2.11.1998 for covering various risks including accident by external means and that he had paid the required premium of Rs. 8,202. The vehicle got buried under snow on 15.10.1998 at Malari near ITBP camp where it had gone to deliver a cargo and since the road leading to the accidental site was washed away, the vehicle could not be recovered till the snow melted in June the following year which resulted in total loss of the vehicle. Immediate information was given to the respondent by the petitioner regarding this incident, followed by reminders but it was only on 15.3.1999 that respondent appointed Shri Kamal Kumar Naithani as Surveyor to assess the loss. The Surveyor could only reach the site on 16.6.1999. After inspection, the Surveyor advised the petitioner to bring the vehicle to Dehradun which was done and petitioner was asked to submit estimate of repairs. Petitioner submitted estimate of damages to the extent of Rs. 93,340. Thereafter, the respondent appointed another Surveyor to make final assessment of the loss and although all the necessary documents were supplied and repairs carried out by the petitioner amounting to Rs. 90,677, the respondent took no action to settle the claim. Aggrieved by this deficiency in service petitioner filed a complaint with the District Forum requesting that the respondent be directed to pay Rs. 90,677 being the cost of the repairs of the vehicle. Rs. 1,49,500 on account of loss of earnings and idle depreciation, etc. and Rs. 1,00,000 for interest payable to State Bank of India from whom he had taken a loan to purchase the tanker and therefore the total amount claimed was Rs. 3,40,177.

COUNSEL for respondent while refuting the above contention stated that as per the report of the Surveyor the loss to the vehicle was assessed at Rs. 3,715 and the Regional Manager of the Insurance Company had also informed the petitioner about the same and had sent a discharge voucher for signatures.

DISTRICT Forum vide its order dated 27.9.2003 after hearing both parties and considering the evidence on record allowed the complaint and directed the respondent to pay the petitioner Rs. 90,670 towards repairs of the vehicle along with Rs. 5,000 as compensation and Rs. 2,000 as costs.

THE respondent preferred an appeal against the order of the District Forum. The State Commission after hearing the parties and on the basis of the evidence on record including the report of the Surveyors and the photographs of the vehicle concluded that the loss suffered was only Rs. 7,717 and directed the respondent/Insurance Company to pay this amount to the petitioner within two months, failing which interest @ 9% would be levied from the date of filing the complaint to the date of payment of this amount. The operative part of the order of the State Commission is reproduced as under: "...The complainant has claimed a sum of Rs. 42,000 as driver''s salary. Who has asked him to keep the driver for 8 months? He could have employed him somewhere else and if he was under his employment, he could have taken other work from him. He has also claimed the refund of the premium. We do not know under what law the complainant shall get compensation on the one hand and on the other hand he will ask for the refund of the premium. He has also claimed a sum of Rs. 25,000 for the taxes of the vehicle. Where is any law that in case of damage, the taxes shall be paid by the Insurance Company? He has further claimed a sum of Rs. 50,000 because the vehicle could not be used. If the vehicle is buried under snow, how come the Insurance Company can be blamed. It is not for any negligence of the Insurance Company that the vehicle could not be used for 8 months. ... The complainant has again claimed 18% interest as if he has deposited this money in some private bank and Rs. 25,000 as compensation for mental and physical pain. It is not for the conduct of the Insurance Company that he has suffered mental pain. He brought his vehicle to that place, it is God who showers snow and if it was so, he will suffer himself and not the Insurance Company. ... It is not a case of deficiency in service of the Insurance Company because when nobody can go there, how the vehicle could have been surveyed and how the loss could have been assessed. It is only when the snow melted, the Surveyor reached the spot at the earliest and surveyed the vehicle. In these circumstances we are of the view that claims as made by the complainant cannot be allowed in the form he has claimed. The complainant is not entitled to any loss of tyres and tubes. However, there was some defect in paints of the vehicle, which the Surveyor has given in his report. In the garb of this cover in the snow if the complainant got his vehicle totally changed as a new vehicle, he should be happy for that but in our view the complainant is not entitled to such huge repairs, which were never necessary in this case. Therefore, the complainant is entitled to compensation only as reported by the Surveyor. The Surveyor Sh. B.B. Garg has reported the loss to the tune of Rs. 5,215.63, say Rs. 5,215. He has deduced a sum of Rs. 1,500 as excess Clause. We do not find any ground for such deduction. However, the complainant has alleged that it is at the dictates of the Insurance Company that he has toed the vehicle to Dehradun and for that the payment should be made by the Insurance Company. The complainant is entitled to toeing charges. The Surveyor has allowed toeing charges of Rs. 2,500 only. The complainant has filed a receipt of Rs. 5,000. The complainant is entitled to this amount and not only Rs. 2,500. In these circumstances the complainant is entitled to get a sum of Rs. 7,715 only."

Hence, the present revision petition.

MR. H.L. Khanna who was appointed Authorised Agent by the petitioner and Mr. Vishnu Mehra, learned Counsel for respondent made oral submissions.

MR. H.L. Khanna contended that as a result of being buried under the snow, there was total loss of the vehicle and it was under these circumstances that the petitioner had to spend over Rs. 90,000 on its repairs alone apart from loss of his livelihood and other expenses. Under these circumstances, it was unfortunate that the State Commission assessed the loss to the vehicle and other costs to be only a meagre sum of Rs. 7,715. Mr. Khanna stated that to prove that petitioner had spent large amount of money on the repairs of the vehicle, the bills in respect of the repairs carried out in the tanker from one Sohan Singh and Sons, Dehradun giving details of the repairs have been filed as evidence. Further according to Mr. Khanna even the Surveyor in his final survey report dated 23.7.1999 had assessed that the repairs amounted to Rs. 93,340 which included Rs. 24,900 as labour charges and Rs. 68,440 as expenditure on the spare parts replaced. Therefore, the revision petition deserves to be allowed.

COUNSEL for respondent on the other hand stated that as per spot inspection of the Surveyor and the assessment of a second Surveyor, only minimal damage was done to the vehicle which was buried under the snow and there was no question of total loss to the vehicle since it had not met with any accident or other such mishap which could have caused extensive damage. The actual damage caused to it was listed out in detail by the Surveyor who specifically stated that only paint of the vehicle had chipped off in a number of places, the battery was discharged but no damage was observed and there was no external damage to the vehicle and that all the mechanical systems were undamaged and safe. These were confirmed by photographs taken during the inspection. In view of these facts, the loss was rightly assessed at Rs. 3,655. The contention of the petitioner that the Surveyor had actually assessed the cost of repairs to be Rs. 93,340 is not correct. Further, even the bills produced by the petitioner could not be accepted as proof of the actual damage caused and if at all these repairs were carried out it was done by the petitioner to use this opportunity to upgrade the condition of his tanker and not because these repairs were required as a result of the tanker being buried under the snow. The State Commission had rightly appreciated these facts and, therefore, there is no merit in this revision petition.

WE have heard learned Counsel and authorized representative for both parties and have carefully gone through the evidence on record.

THE facts pertaining to the insurance policy taken by the petitioner and his vehicle being buried under snow for several months is not in dispute, it is also a fact that because of the washing away of the roads and inclement weather where the tanker was stranded, it took several months before the Surveyor could get the vehicle inspected and this delay could not, therefore, constitute deficiency in service. We have carefully gone through the report of the Surveyor based on his inspection of the vehicle and note that he has meticulously listed out the physical condition of the vehicle at the time of his inspection, which clearly indicates that no damage had been caused to the vehicle including to its engine and other mechanical systems. As a result of being buried under the snow, some paint had got chipped off from the body of the tanker and there was some external rusting and minor cracks in the tyre.

WE see no reason to disbelieve the report of the Surveyor particularly since the petitioner has not been able to produce any credible evidence to contradict the same. The contention of the authorized agent of the petitioner that the Surveyor had admitted that the loss suffered was Rs. 93,340 is not correct. In fact, in his report Surveyor has just quoted the assessment and the details of the repairs given by the petitioner. In the next column of his report, he has listed out the approximate net amount of the loss as Rs. 3,665.63. The District Forum erred in not taking this important evidence into consideration and relied only on the petitioner''s version of the loss suffered based on some bills produced by him which have not been proved. It is well settled law that a Surveyor''s report has significant evidentiary value unless it is proved otherwise which petitioner has failed to do so the instant case. The State Commission apart from being a Court of appeal is also a Court of fact and has correctly concluded that the actual loss suffered to the vehicle as reported by the Surveyor was Rs. 3,715. To this amount the Surveyor has added another Rs. 4,000 being the actual amount paid for the toeing charges and by not deducting Rs. 1,500 as excess clause, which is reasonable. We, therefore, agree with the well reasoned order of the State Commission that the petitioner is entitled to get Rs. 7,500 from the respondent as insurance and there is no other compensation warranted in the instant case.

WE, therefore, uphold the order of the State Commission and dismiss the complaint. Revision Petition dismissed.