GAJENDRA KUMAR PANIGRAHI vs NEW INDIA ASSURANCE CO. LTD.

THIS is an original case. The complainant''s oil tanker bearing registration No. OR-01A/4887 was comprehensively insured with the opposite party Insurance Company and the policy was valid in between 13.11.1998 and 12.11.1999. It met with an accident on 26.7.1999 around 11.30 a.m. while coming from Baripada on National Highway No. 5. The accident occurred when it collided with a truck bearing No. OR-09A/3956 coming from the opposite side. As a result of this, the tanker sustained heavy damage, both internally and externally. The complainant claims to have spent Rs. 7 lakhs in repairing the tanker. The matter was reported to the Insurance Company on 27.7.1999 with a request to settle the claim. But since there was no settlement, the case was filed.

THE Insurance Company filed a written version denying the material facts narrated in the complaint petition. However, they admitted the fact of insurance of the vehicle and the validity of the period of insurance and the sum assured, i.e. Rs. 5,65,000/-. THEy admitted to have received the intimation given by the complainant about the accident. THEy also admitted to have deputed the Surveyor B.P. Mohanty who submitted a survey report. THEy further admitted that the Surveyor assessed the loss on repair basis which was estimated at Rs. 2,50,000/- and on cash loss basis at Rs. 2,72,000/- and on total loss basis at Rs. 2,50,000/-. THEy however, pleaded that the claim was settled for Rs. 1,80,754/-. THErefore, they are not liable for deficiency in service. We have heard Mr. B.B. Jena, learned Counsel for complainant and Mr. N.N. Misra, learned Counsel for the Insurance Company. Mr. Misra, learned Counsel for the Insurance Company, has drawn our attention to the terms and conditions of the policy and has submitted that there is a clause of arbitration and, therefore, this Court should not adjudiate the dispute. We are conscious of the position that there is an arbitration clause, but it is well-settled that even if there is an arbitration clause for settlement that would not prevent the Consumer Court to judge the deficiency in service by the service provider and the Insurance Company being one of such service providers is also amenable to the jurisdiction of the Consumer Forum.

Mr. Misra further argued that once the Insurance Company has settled the claim after due application of mind and there has been no palpable inaction or arbitrariness on their part, it could not be held that they are in anyway deficient in providing service. In this regard Mr. Misra drew the attention of the Court to the report of the Surveyor and submitted that it is only according to the assessment made by the Surveyor the amount was settled at Rs. 1,80,754/-. There may not be any deficiency in case according to Mr. Misra where the matter of claim is taken up at the earliest point of time, but in our view, if the settlement of the claim is found to be arbitrary and unreasonable, that itself would amounts to deficiency of service. The written version does not take a stand that the claim was to be totally repudiated on any tenable ground. Their case is that the Insurance Company on the basis of repairing loss is liable to pay that much of amount. But basing on the Surveyor''s report settling of the claim, as reported by him, on the lower side, is certainly an arbitrary decision and, therefore, the complainant is entitled to the relief as claimed. Having gone through the Surveyor''s report, we find loss assessed on repairing basis comes to Rs. 2,50,000/-. Considering the nature of damage caused to the vehicle, we would hold that the Insurance Company should reimburse the amount of Rs. 2,50,000/- towards the repair of the vehicle and there should not be any deduction by way of any depreciation, etc. since the assessment is not found to be in anyway inadequate or unreasonable. The accident took place on 26.7.1999. The Surveyor submitted the report on 19.11.1999 and the Insurance Company intimated the complainant by their letter dated 7.7.2000 that they were to settle the claim at Rs. 1,80,754/- only. This is exactly one year after the accident. Since it is the money of the claimant that remained with the Insurance Company and it did not settle the claim within a reasonable period, they are liable to pay interest on it. We may point out that since the complainant repaired the vehicle, there is no question of directing for settlement on the basis of total loss. Had he not gone for the repair, that question might have been taken up for consideration. But having repaired the vehicle, he cannot claim the amount on total loss basis.

IN the result, the complaint petition is allowed. The INsurance Company is directed to pay Rs. 2,50,000/- (Rupees Two lakh fifty thousand) with interest at the rate of 10 (Ten) per cent per annum to be calculated from the date of making the claim till payment. No cost. Complaint allowed.