GURDEV SINGH vs National Insurance Co. Ltd.

THIS appeal is under Section 15 of the Consumer Protection Act, 1986 against the judgment and order dated 24.7.1992 passed by the District Forum, Dibrugarh in C.P. Case No. 2 of 1992.

BRIEFLY stated facts are as follows : - The complainant, who is the appellant herein, filed a petition before the District Forum. The complainant was the owner of the vehicle, namely, a bus bearing registration No. ASQ.8871 which was covered by a comprehensive Insurance Policy issued by the National Insurance Company, Respondent herein. The bus met with an accident on 13.2.91 at Tengrai Chariali. This fact was duly communicated to the Insurance Company with a request to depute a Surveyor. Thereafter, the complainant-appellant complied with all the formalities for preferring a claim for the damage caused to the bus in the accident alongwith a report from the Foreman, Assam State Transport Corporation, an Undertaking of the State of Assam. The Insurance Company also appointed one Mr. B.R. Goswami as Surveyor, who after examination assessed the damage which included replacement of parts and the amount assessed was fixed at Rs. 68,958/-. It was alleged by the complainant that there was an agreement between the Surveyor and the complainant after which the Insurance Company sent an other Surveyor, namely, Shri Arun Hazarika, who after inspection, submitted another report stating that repairing was done perfectly and the salvage parts were found in order. But inspite of repeated requests, the Insurance Company did not settle the claim. A notice was served and thereafter the complaint petition was filed before the District Forum. The Insurance Company in their written objection pleaded, inter-alia, that the petition was not maintainable and that there was no deficiency in service from the side of the Insurance Company. According to the Insurance Company, the complainant did not submit the estimate as per the report of the Surveyor and the vehicle was examined by the Forman of the Assam State Transport Corporation, which did not tally with the report submitted by Mr. Goswami. Therefore, the opposite party appointed another Surveyor, namely, Mr. K.K. Jain, who in his assessment report stated that the earlier report of Mr. Goswami was in the higher and accordingly assessed the liability of the Insurance Company at Rs. 25,744/-.

Before the District Forum, the complainant deposed on oath and on behalf of the Insurance Company one witness was examined. Documents were also proved and exhibited.

THE District Forum first took up the question as to whether there was any deficiency in service in settling the claim by the Insurance Company. THE District Forum also considered whether the amount claimed from the Insurance Company is under the purview of the Forum so far as regards the expenditure incurred by the complainant at the time of repairing the vehicle." The District Forum ultimately arrived at the finding that the matter has to be referred to an Arbitrator and accordingly directed the Insurance Company to appoint an Arbitrator within a fortnight. The parties were directed to put in their claim before the Arbitrator and the Arbitrator was directed to dispose of the matter within one month from the date of reference. The District Forum noted that it was not disputed that the vehicle was insured by the Insurance Company and that the accident took place as alleged. It is also not disputed that Mr. Goswami was appointed as Surveyor by the Company and before that the Foreman of the Assam State Transport Corporation also surveyed the vehicle on the spot and made assessment. The District Forum noted that the main dispute was regarding the appointment of another Surveyor Mr. K.K. Jain and to report. The Insurance Policy, which is marked as Ext. ''C'' was duly noted by the District Forum. Though the complainant gave evidence as P.W.1 and documents were marked as Exhibits alongwith a list of expenditure incurred at the time of repairing the vehicle after assessment made by the Surveyor Mr. Goswami, the District Forum was unable to assess the actual expenditure on the ground that there was no evidence regarding bill, voucher etc. Keeping in view the Arbitration Clause in the Insurance Policy Ext. ''C'' the above direction to refer the matter to Arbitrator was passed.

WE have heard the learned Counsel for the parties. On behalf of the Insurance Company our attention has been drawn to the decision of the National Commission in United India Insurance Company Ltd. v. Ashok Kumar Dash, I (1992) CPJ 258 (NC). In that decision, the National Commission took note of the fact that in the Insurance Policy there was a clause for arbitration, and as such, the State Commission should not have proceeded to record the finding as to whether there was delay or deficiency on the part of the Insurance Company because these are essentially matters which will have to be decided by Arbitrator while considering the merits of the claim put forward by the complainant. Though the National Commission held that the matter should be decided by the Arbitrator regarding payment of compensation for delay and deficiency in service but directed that the complainant is entitled to receive forthwith from the Insurance Company the sum which was assessed by the second surveyor report and the only question left to be decided by the Arbitrator was whether the complainant was entitled to any further claim. In view of the second direction of the National Commission there cannot be any dispute that the Insurance Company shall have to pay the assessment made by the third Surveyor, namely, Mr. K.K. Jain at Rs. 25,744/-. Therefore, the District Forum erred in law in not awarding this amount as the Insurance Company cannot escape liability for this amount.

LET us now refer to Arbitration Clause in the Policy of Insurance Ext.''C''. This clause is contained in Clause No. 6 under the sub-head "Conditions" of the Policy. This clause, inter-alia, provides that if any difference shall arise as to quantum to be paid under this policy, such difference shall independently of all other questions be referred to the decision of an Arbitrator to be appointed in writing by the parties in difference or if they cannot agree upon a single Arbitrator to the decision of two disinterested persons as Arbitrators of whom one shall be appointed in writing by each of the parties within two calendar months after having been required to do so in writing by the other party in accordance with the provisions of the Arbitration Act, 1940. Thus it appears that this Arbitration Clause can be invoked only under two conditions, namely, (1) if there is any difference as to quantum of amount to be paid under the policy and secondly if a notice in writing has been given by any party to appoint an Arbitrator. In the case in hand, admittedly no such notice in writing was given either by the complainant or by the Insurance Company. Therefore, the first condition is absent.

NOW let us examine the second contention regarding the difference as to the quantum of amount to be paid. From Ext. 3, which is a report by the Foreman of the Assam State Transport Corporation dated 13.12.91. We find the condition of the vehicle after accident. From the letter dated 15.2.91, we find that the Insurance Company requested Mr. Monoranjan Goswami to survey the loss of the vehicle in question. This was followed by another reminder dated 25.4.91. These two letters have not been exhibited but we can take judicial notice as these are available on record. This will show that the Insurance Company itself requested Mr. Goswami to make an appropriate survey. We find on record the report of the Surveyor Mr. Goswami which is an elaborate one. On the basis of the said survey there was an agreement entered into between the complainant and the Insurance Company and claim assessment marked Exts. 5 and 6. This re port is dated 9.5.91. The survey was conducted by Mr. Goswami on 16 and 20th February, 1991. Thereafter at the request of the Insurance Company Mr. Aran Hazarika to re-inspect the vehicle and his report dated 7.6.91 has been marked as Ext. 7. This re-inspection was done immediately after the vehicle was repaired and it has specifically been stated by Mr. Hazarika that the vehicle was perfectly repaired. Therefore, till 7.6.91 there is no dispute regarding the quantum of claim to be paid by the Insurance Company. The Insurance Company requested Mr. K.K. Jain only by letter dated 1.10.91 tore-survey the vehicle. After the vehicle was inspected by the Foreman of the Assam State Transport Corporation proper survey was made by Mr. Goswami. Re-inspection was again made, after it was repaired, by Mr. Hazarika, the question of again making another survey Mr. Jain cannot arise as by this time the vehicle was not only repaired but it was also playing on the road. That apart, from the evidence of witness examined on behalf of the Insurance Company, we do not find that prior to repair of the vehicle and putting it on road for operation, the Insurance Company at any point of time disputed the survey report of Mr. Goswami and re-inspection by Mr. Hazarika. The question of disputing the claim in view of the above facts at such a late stage cannot arise. Therefore, we hold that the Arbitration Clause is also not attracted to the case in hand.

Situated thus, we are of the opinion, that the claimant is entitled to the amount as assessed by the Surveyor. We may add here that the claim of the claimant was on the higher side but it was reduced by the Surveyor Mr. Goswami and Mr. Hazarika. In his report stated that the vehicle was perfectly repaired and he also accepted the report of Mr. Goswami. Both Mr. Hazarika and Mr. Goswami being qualified Surveyors, we have no reason to reject their report.

IN the result, the order of the District Forum is set aside and the Respondent-INsurance Company is directed to pay Rs. 68,958/- (Sixty eight thousand nine hundred fifty eight) and interest @ 12% per annum from the date of filing of the petition on 4.2.92 before the District Forum. The amount shall be paid within a period on three (3) months from today. The appeal is allowed. No costs. Appeal Allowed.