HARYANA STORES PRIVATE LIMITED vs National Insurance Company Limited

THIS is an appeal filed against the order of District Consumer Disputes Redressal Forum-II, U.T., Chandigarh [hereinafter for short, referred to as District Forum-II], dated 5.8.2004 in Complaint Case No. 897 of 2002: M/s. Haryana Stores Private Limited v. National Insurance Company Limited.

THE complaint in brief is that the complainant is owner of a freezer truck with a special body. THE aforesaid truck was insured with the O.P. Insurance Company for a sum of Rs. 7,47,000/- and the policy covered the period from 31.5.2000 to 30.5.2001. However, on 19.3.2001 this truck met with an accident. THE matter was not reported to the police as there was no wilful error on the part of any person nor any human life was lost but the matter was reported to the O.P. Insurance Company and O.P. Insurance Company appointed a Surveyor, who submitted his report to the O.P. Insurance Company. THE truck in question was tow-chained to Chandigarh and estimate of repair was prepared by M/s. Delhi Automobiles Limited, who is the authorised dealer of the manufacturer of the vehicle. After inspection of the damaged truck by the Surveyor appointed by the O.P. Insurance Company, the complainant got repaired the truck from M/s. Freeze King Industries Limited, New Delhi and M/s. Delhi Automobiles Limited, Chandigarh, who is the authorised dealer of the manufacturer of the vehicle. THE cost of repairs was Rs. 1,56,542.72 p. All relevant repair bills were submitted by complainant to the O.P. Insurance Company on 6.6.2001. THE complainant on his part made the payments of these bills to the repairs. Copies of the receipts of payment have been duly annexed with the complaint as Annexures C-5/1 to C-5/11. However, the amount of Rs. 1,56,542.72 p. spent by the complainant had not been paid by the O.P. to the complainant till the filing of the complaint on 8.10.2002. THE complainant served a legal notice dated 10.7.2002 but the O.P. did not respond. Non-payment of bills being a deficiency in service, the complainant has filed this complaint craving for the following reliefs: "It is, therefore, respectfully prayed that the complaint may kindly be allowed and the O.P. are directed to pay the sum of Rs. 1,56,542.72 p. to the complainant along with the interest at the rate of 15% p.a. on this amount from the date of submission of the repairs bills to the O.P. till payment. THE cost of the present litigation be also awarded."

The version of the O.P. is that the cost of repairs was not Rs. 1,56,542.72 p. as averred by the complainant. As per their surveyor, the estimate of repairs has been put at Rs. 92,767.12 p. The main grouse of the O.P. is that the vehicle in question i.e., Ashok Leyland Cargo 909 is a Medium Goods Vehicle (MGV) as its laden weight is 10050 kg. whereas the driver of the vehicle was holding a driving licence for LMV (T) only. This being a breach of terms and conditions of the insurance policy the complainant is not entitled to receive any insurance claim from the O.P. The District Forum in their analysis of the complaint first dealt with the issue of the vehicle being MGV or LMV. From the record, it found that Sh. Gopal Krishan, Surveyor, appointed by the O.P. Insurance Company, in his report had mentioned unladen weight of the vehicle as 4050 kg and had termed it is LMV (T). Even the Registration Certificate, as certified by the Surveyor in the class of vehicle it is entered as LMV (T) and since the driver was holding a valid licence to drive LMV (T) the District Forum held that there was no breach of any terms and conditions of the policy and that the complainant was entitled to receive the payment for the loss suffered. Since the O.P. Insurance Company neither paid the claim nor formally repudiated it till the filing of the complaint, it held that there was deficiency in service on the part of the O.P. Insurance Company.

Coming to the amount of compensation to be paid, the learned District Forum observed that the complainant has not supported his repair bills or the receipts of payment by the affidavit of the concerned repair while the O.P. Insurance Company has supported the Surveyor''s report by the affidavit of the Surveyor, therefore, it held that the complainant was entitled to receive only Rs. 92,767.12 p. as insurance claim as per recommendations of the Surveyor. Consequently, the learned District Forum directed the O.P. Insurance Company to pay Rs. 92,767.12 p. as insurance claim to the complainant with interest @ 6% per annum from a date three months after the date on which he had filed his insurance claim with the O.P. The O.P. was also directed to pay Rs. 8,000/- as compensation for not formally repudiating the claim for a period of more than one year after the lodgment of the claim. The cost of litigation of Rs. 2,000/- was also directed to be paid by the O.P. Insurance Company to the complainant.

AGGRIEVED by this order, the complainant has filed this appeal. The appeal having been taken on board, record of the complaint case was summoned and notice was sent to the respondent. Mr. Ashok Sharma, Advocate appeared on behalf of the appellant/complainant whereas Mr. Parminder Singh, Advocate represented the respondent/O.P. The sole point urged by Mr. Ashok Sharma, Advocate was that the compensation awarded is meagre. He submitted that the complainant is entitled to payment of full amount of Rs. 1,56,742.72 p. being the amount paid by him to the repairer, who is the authorised dealer of the manufacturer of the vehicle. He further submitted that he has duly produced all the bills and receipts for having made this payment. He further added that the original bills and receipts were produced before the Surveyor and the Surveyor has nowhere in his report mentioned any reason for any deduction to be made from this amount. He emphatically prayed that the full amount of Rs. 1,56,742.72 p. be paid to the complainant. To support his plea he cited K.L. Malhotra v. Oriental Insurance Company and Another, I (2003) CPJ 107 (NC), in which it was held by the Hon''ble National Commission that the loss assessed by the authorised agent of the manufacturer, the award cannot be reduced without any justification.

MR. Parminder Singh, Advocate in his response submitted that the Insurance Company is only liable to pay the loss assessed by the Surveyor and since the Surveyor has filed his affidavit sworn on oath to his report, no amount more than the amount recommended by the Surveyor for payment is liable to be paid to the complainant. In support of his arguments, he read out para 5 of the impugned order where the learned District Forum had also directed the O.P. Insurance Company to pay only Rs. 92,568.17 p. i.e., the amount recommended by the Surveyor for payment. We have seen the record on the file with due care and have also listened to the pleadings of the parties. The short question that needs to be gone into is the adequacy of compensation or otherwise of the amount paid to the complainant consequent to his claim. It is not denied by the O.P. Insurance Company that the complainant got the vehicle repaired from the various dealers of the manufacturer. It is also not denied by the O.P. Insurance Company that the bills and receipts for payment were produced by the complainant to the Surveyor appointed by the O.P. Insurance Company. A detailed analysis of the Surveyor''s report indicates that the Surveyor has nowhere mentioned about the bills and receipts submitted by the complainant. He has also nowhere mentioned that these bills/receipts are fictitious or incorrect. The report is also silent about the non-allowance of any item claimed by the complainant and no reason for the same has been given. The learned District Forum has disallowed the amount claimed by the complainant in his claim and has directed the payment of the only amount recommended by the Surveyor on the plea that the affidavit of the repairer regarding authenticity of the bills/receipts has not been filed by the complainant. However, the learned District Forum has chosen to negate the affidavit of the complainant filed in this regard wherein he on oath has certified the veracity of the bill as well as receipts. The learned District Forum does not have the liberty to accept the affidavit of the Surveyor and yet at the same time not take into consideration the affidavit of the complainant. Para 10 of the affidavit of the complaint is explicit in stating that a total sum of Rs. 1,56,742.72 p. was incurred by the complainant in repairing the accidental vehicle. The Surveyor in his report should have clearly mentioned the non-allowance of any item with reasons from the repair bills as submitted by the complainant. In the absence of such a clarification, we find that the reduction of the claimed amount from Rs. 1,56,742.72 p. to Rs. 92,568.17 p. as recommended by the Surveyor is not justified. However, at this juncture, it is also pertinent to mention that the complainant is not entitled to full payment of Rs. 1,56,742.72 p. because as per the terms and conditions of the policy he is liable to pay from his pocket the cost of depreciation of various parts as indicated by the Surveyor. In this case the Surveyor''s report indicates this amount to be Rs. 9,997.25 p. and its breakdown is Rs. 2,135.20 p. being 50% cost of rubber parts, Rs. 2,849.60 p. being depreciation for items required for insulated truck body/repair and Rs. 5,012.45 p. being depreciation for the items used for the refrigeration unit Model TF-400. In view of the foregoing discussion and keeping in mind the authority of Hon''ble National Commission K.L. Malhotra v. Oriental Insurance Company and Another, (supra), we are of the considered view that the complainant is entitled to receive Rs. 1,56,742.72 p, less Rs. 9,997.25 p. being the amount of depreciation, from the O.P. Insurance Company as payment for the claim preferred by him. Consequently, we find that the order of the District Forum regarding amount of compensation needs to be modified. It is also noticed by us that the learned District Forum has in this case allowed both interest @ 6% per annum as well as compensation amounting to Rs. 8,000/-. As per settled law, both interest as well as compensation cannot be awarded as it amounts to duplication of relief. However, we uphold the finding of the learned District Forum regarding deficiency in service on the part of the O.P. Insurance Company and consequently modify the impugned order regarding compensation, which would now read as under: "The opponent Insurance Company is directed to pay an amount of Rs. 1,56,742.72 p., less Rs. 9,997.25 p. being the cost of depreciation, which comes to Rs. 1,46,745.47 p. to the complainant as cost of repair along with interest @ 6% per annum from a date three months after the date on which the complainant had filed his insurance claim with the O.P." The order of the District Forum regarding payment of cost of Rs. 2,000/- to the complainant by the O.P. is upheld. Thus the appeal is partly allowed and the impugned order is modified as above. The complaint is disposed of in the aforesaid terms with the parties left to bear their own costs of litigation. Copies of this order be sent to the parties free of charges. Appeal partly allowed.