DINESH CHANDRA MODY vs United India Insurance Co. Ltd.

WE have heard the Representative of the complainant and the learned Counsel for the O.P. at length. WE also carefully perused the pleadings in the proceedings i.e. complaint, written statement and rejoinder filed by the complainant. Brief facts.

FACTS are very brief and not much in dispute. The complainant had made the claim against the Insurance Company/O.P. in respect of vehicle Tata Sumo purchased by him on 26.10.1999 for sum of Rs. 5,60,000/- (inclusive of Rs. 20,000/- towards the accessories etc.). Complainant then obtained insurance coverage from the Insurance Company for sum of Rs. 5,60,000/-.

While the said insurance coverage was in force, the complainant''s vehicle was stolen in the early morning on 2.2.2000.

IT is noticed that necessary steps to report about theft of vehicle to the local police station, as also to the Insurance Company was promptly done. Written complaint to the police also was lodged. However, it so turned out that despite lodging the complaint at the police and repeatedly complainant enquiring about the progress, the stolen vehicle could not be found and recovered. Hence the complaint.

IT appears that the Insurance Company at one stage, prior to filing of the complaint offered a sum of Rs. 4,00,000/- against the claim of the complainant of Rs. 5,60,000/-. As however, the same was not found acceptable to the complainant, that this complaint was filed. Complainant has asserted that theft had occurred within a short period of purchase of vehicle and the condition of the vehicle was perfectly sound and that being so, he is entitled to the amount of Rs. 5,60,000/- being the amount of insurance coverage. Insurance Company proceeded to engage the services of their Surveyor as is normally done, who after investigation, recommended a sum of Rs. 5,25,000/-. It is to be stated that Surveyor has taken into consideration the short interval between the date of purchase of the vehicle and its theft.

INSURANCE Company held that the valuation recommended by the Surveyor was on higher side and it did not find the same acceptable. In the written statement, the INSURANCE Company has also reiterated all these facts.

IT is the bone of contention of the Insurance Company that while assessing the value of the vehicle, its depreciation and market trend at the relevant date as also period of use, etc. has to be taken into consideration and if that is done, the claim should not exceed over Rs. 4 lakhs. Following points would arise for our consideration : (1) Whether complainant proves deficiency against the Insurance Company/O.P. in the matter of settlement of his claim on account of non-sanctioning of the claim to the amount that was made for the loss of vehicle ? (2) What amount towards the claim the complainant is entitled to be awarded ?

Our findings on the aforesaid points are as under : (1) Yes. (2) As will be indicated in the final order. Reasoning :

Point Nos. 1 and 2 : We take both the points together for consideration to avoid overlapping discussion thereon. As enumerated earlier, there is not much dispute about the factual aspects such as purchase of vehicle, its theft, complainant lodging the claim, Insurance Company taking steps and offering certain amount as mentioned herein above, engagement of services of the Surveyor/Investigator by it, etc.

IT is to be stated that the complainant in the complaint has specifically stated and reiterated, more particularly in the rejoinder filed in answer to the written statement of the O.P./Insurance Company that the condition of the vehicle was perfectly sound and that being so, taking into consideration the fact that theft occurred within a short period of 4 months from the date of purchase, on the guies of depreciation, Insurance Company is not justifiable in slashing down the amount, particularly when there is no evidence adduced by the Insurance Company to establish otherwise about the condition of the vehicle than what has been represented by the complainant. Certainly, the Insurance Company when it engaged the services of the Investigator/Surveyor, he could have with little efforts obtained such information with regard to condition of vehicle from the service agencies, which the complainant was entitled to get on the basis of guarantee of the Manufacturer/Dealer from the particular Service Agency. IT does not appear that any efforts were made by and on behalf of the Insurance Company to get the best evidence, which could have been available. That being so, case of the complainant about the condition of the vehicle being sound and perfect has to be accepted. This point is being specifically highlighted since the Insurance Company has asserted about the concept of market value, which it needs to be stated depends upon several factors including the service condition of the vehicle.

SURVEYOR/Investigator engaged by the Insurance Company/O.P. herein has estimated and recommended a sum of Rs. 5,25,000/- about which there is no dispute. The learned Counsel for the Insurance Company by relying upon the judgment of the Supreme Court in the case of National Insurance Co. v. Dinesh, reported in II (2001) SLT 407=2001 CCJ page 805, submitted that it is not obligatory upon the Insurance Company to accept the recommendation as made by its Surveyor/Investigator. Reference is made to Section 64-UM of Insurance Act. It is to be stated that by reading the judgment of the Supreme Court in Dinesh''s case (supra), which is very brief, it is not possible to visualise what were factual aspects about the condition of the vehicle being the subject matter of the decision of the Supreme Court. As stated above, the said aspect would depend upon several factors such as condition of the vehicle, time lag between the purchase and theft and duration of period of use, purpose for use and such other factors. As far as matter in hand is concerned, as noticed earlier, there is no evidence made available to rebut the case of the complainant about the perfect and sound condition of the vehicle at the relevant time.

THAT being so, judgment of the Supreme Court referred to herein above would not be applicable and as such would not render any assistance to the Insurance Company. More so when, the Insurance Company, has not laid down foundation, by adducing evidence, that the case in hand justified invocation and applicable to the provisions of Section 64-MM of Insurance Act. It is to be stated that facts must justify the application of the law to the stand taken, which is not the case herein.

IN our view, taking appraisal of the fact-situation as obtained in the matter herein, a sum of Rs. 5,25,000/- as has been recommended by the Surveyor of the INsurance Company, in our view will be appropriate and proper criteria, as also reasonable standard, while assessing the claim of the complainant in the complaint herein. IN our view, sum of Rs. 5,25,000/- will be fair and reasonable towards the amount of compensation that should be awarded. As far as rate of interest is concerned, Mr. Vidyarthi submitted that Insurance Company had already offered Rs. 4,00,000/- in the year November, 2000 and that being so, Insurance Company should not be saddled with the payment of interest.

It is however to be stated that considering the fact that there was vast difference between the amount, which Insurance Company offered and what was claimed, complainant was justified in his non-acceptance and it cannot be stated as being reflective upon the conduct of the complainant in refusing to receive and accept the said amount, which was offered. Hence the following order : ORDER 1. Complaint is allowed. 2. O.Ps. are ordered and directed to pay a sum of Rs. 5,25,000/- towards the compensation to the complainant towards the loss of vehicle in question. 3. As far as interest is concerned, O.Ps. shall pay interest @ 7.5% on the aforesaid amount w.e.f. 1.8.2000 till realization. 4. No order as to cost. 5. Six weeks'' time from today is granted to the O.Ps. for compliance of the order. 6. Copies of the order herein to be furnished to the parties. Complaint allowed.