Hitendra Shamra vs ORIENTAL INSURANCE CO LTD

THESE two appeals one by the complainant, insured (First Appeal No. 46/ 1995) and the other by the Supreme Court, the insurer (First Appeal No. 211/1995) are against the same order dated 15.12.1994 of the Madhya Pradesh State Consumer Disputes Redressal Commission. Both are aggrieved by that order.

COMPLAINANT owned a truck which he got insured with the insurer. Insurance policy was valid from 3.1.1991 to 2.1.1992. The truck met with an accident on 28.9.1991. Complainant said it was a total loss and wanted the whole amount under the policy. However, the insurer was of the view that it was not a case of total loss and had appointed one Mr. Pradeep as Surveyor who gave his report on 5.10.1991. The Surveyor opined that it was not a case of total loss. In spite of request made by the insurer, complainant did not gave estimate of the repairs with the result insurer declined to process the claim and filed the same as no claim. According to insured it was the duty of the complainant to give complete details to justify the insurance claim. But since he committed breach of terms of the insurance policy and did not furnish the estimate he was not entitled to any claim under the policy. This led the complainant to file a complaint before the State Commission. The verification to the complaint shows that it was filed on 25.1.1994. The complainant claimed the following reliefs : (a) Expenses to bring the damaged vehicle to Shrivapuri 10,000.00 (b) Insurance amount 2,70,000.00 (c) Interest at the rate of 18 per cent till the date of payment from the rate of compound interest calculated quarterly as per rule of the Bank...for two years only, 1,87,888.00 (d) Business loss ,00,000.00 (e) Damages for mental tension and troubles 1,00,000.00 (f) Cost of watching the vehicles at the rate of Rs. 600 per month app. 18,000.00 Grand Total Rs.8,85,888.00 3. When the matter came up before the State Commission it found that though the Surveyor appointed by the insurer had given its report, yet it does not quantify the damages. State Commission gave direction that Surveyor should quantify the damages within six weeks from the date of the order and that amount be paid by the insurer to the complainant within next four weeks. It is further directed that if the complainant felt aggrieved and wanted more money it could then well go to the Civil Court. In pursuance of the order of the State Commission, ''it would appear that Mr. M.P. Bhargava was appointed as Surveyor. He estimated the loss at Rs. 43,534/ - by report dated 11.1.1995. This report of the second Surveyor has been filed by the complainant himself in the appeal and also forms part of the appeal filed by the insurer. Complainant has not cared to file any objection to this report and his only stand throughout before the State Commission and before us has been that it was a case of total loss. There is no evidence whatsoever in support of the claim of the complainant except for his bald statement that it was a total loss.

SECOND Surveyor had been appointed in pursuance of the order of the State Commission. This Surveyor is also appointed under Section 64UM of the Insurance Act and is to be given due weight unless contradicted by evidence. It has not been so in the present case and we find no ground not to act on the report of the second Surveyor Mr. Bhargava.

TAKING all the facts into consideration we find that the claim made by the complainant is highly exaggerated and has no relevance to the facts of the case. It was also the stand of the complainant that the insurer was bound to carry out repairs itself or to accept the claim of the complainant as total loss. We refer to Clause 26 of the policy. It gives option to the insurer either to get the vehicle repaired or to pay in cash the amount for the loss or damage to the vehicle. In the present case the insurer is willing to pay in cash damage to the truck as found by the second Surveyor Mr. Bhargava. During the pendency of appeal it appears the appellant in F.A. 46/1995 died leaving behind his widow and minor son, Smt. Pallavi Sharma and Bito, respectively as the sole surviving heirs. An application has been filed by Smt. Pallavi Sharma and by Bito through his mother as natural guardian, to bring on record their name as legal heirs. They are substituted in place of the appellant.

CONSIDERING the whole aspect of the matter, we are of the view that the aforesaid amount of Rs. 43,534/ - as found by the second Surveyor, with interest @ 12% per annum from 1.12.1991 till payment, is paid to the complainant would meet the ends of justice. We order accordingly. Complainant in his appeal is entitled to cost which we assess at Rs. 5,000/ -. The appeal filed by the insured is allowed to this extent, while the appeal filed by the insurer is dismissed with no order as to costs. Ordered accordingly.