MALIKT MEMRATH vs Oriental Insurance Co.Ltd

BRIEFLY the facts are that the complainant got insured his Contessa Classic car bearing No. DNU 3983 with the opposite party for a total sum of Rs. 2,05,000/- w.e.f. 2.1.91 till 1.1.92. The car was purchased by him in the year 1989. It met with serious accident near Sarhand (Punjab) on 8.4.91 and was very badly damaged. The complainant brought it to Delhi, sent it to the workshop of M/s. Allied Motors, 60, Najafgarh Road, New Delhi for preparing an estimate and lodged the report of the accident with the opposite party.

ALLIED Motors submitted an estimate vide letter dated 18.4.91 for more than Rs. 1,15,000/- A copy of the estimate was submitted by them on 18.4.91 to the opposite party. It was mentioned in a note given in the estimate that the car was beyond economical repairs. This fact ''was specifically brought to the notice of the opposite party by the complainant vide his letter dated 10.5.91. It is further pleaded by the complainant that he has been using taxi since the date of accident, which is costing him Rs. 300/- per day, and that he was entitled to be reimbursed the expense incurred by him. He has consequently, claimed a sum of Rs. 2,05,000/- on account of the insurance amount and Rs. 24,400/- as taxi charges till 7.4.91. He has further claimed damages for mental torture, pain etc.

The complaint has been contested by the respondent They have inter-alia pleaded that there has not been any negligence on their part in settling the claim. On receipt of the intimation about the accident they appointed M/s. S.K. Narula and Associates, as Surveyor(hereinafter referred to as the first Surveyor). Their representative investigated the vehicle on 16.4.91 and submitted a report dated 7.5.91 to the (opposite party) on 13.5.91. In the report it was suggested that the claim be settled for Rs. 66,566/- . On 30.4.91, it is pleaded, the Surveyor directed the Allied Motors to go ahead-with the repairs. However, the respondent was not agreeable to get the vehicle repaired. He insisted that the insurance money be paid to him.

IT is next pleaded that in that situation, they decided to get the loss re-assessed from Sh. R.B. Chaturvedi, Surveyor (hereinafter referred to as the 2nd surveyor). The complainant inspite of telephonic calls by Sh. Chaturvedi avoided to discuss the loss with him. Ultimately Sh. Chaturvedi submitted his report dated 9.8.91. The opposite party was, under a belief that the Allied Motors had started the repair of the car as per instruction of M/s. S.K. Narula and Associates, the first Surveyor, but from the report of Shri Chaturvedi they came to know, that according to the instructions of the complainant, the repair had not been started. Thus the delay in the repairs took place on account of the complainant. It is next pleaded that the price of the spare parts had increased thereafter. The complainant should bear the cost of the additional repairs of the car as the delay took place because of him. The complainant is neither entitled to taxi charges nor to the compensation as claimed by him.

IT is not disputed that the car met with an accident and was badly damaged. IT is also not disputed that the claimant is entitled to get the car repaired at the cost of the respondent. The complainant got an estimate of repairs from Allied Motors according to which the labour charges came to Rs. 15,950/- and the cost of the parts come to Rs. 1,02,547.42. IT was further mentioned in the estimate that the air conditioner of the car had been damaged, the estimate of which would be given by the A.C. dealer alongwith labour charges. After making the actual repairs the fresh estimate will be submitted. The rates mentioned above were subject to revision and that sales tax @ 10% would be paid in addition to the price of the parts. The complainant in view of the aforesaid estimate requested the respondent vide his letters dated 10.5.91 & 30.5.91 to approve the claim for total loss and make the payment of the insurance money as suggested by the Allied Motor. However, it appears that the respondent did not pay any heed to the request of the complainant. Now it is to be seen whether the complainant is entitled to the insurance money treating the car as a total loss or to get the vehicle repaired. It appears from the letters dated 10.5.91 and 30.5.91 that the complainant was interested more in taking the insurance money on account of the note of the Allied Motors. On the other hand the reports of the surveyors show that the car was not damaged beyond repairs. They, consequently suggested that the car should be got repaired by the opposite party. In view of the surveyor''s report, the Insurance Company may not like to pay the insurance money. In such matters it is the will of the insurer that will prevail and not that of the insured. However, it is not established by the opposite party that the complainant refused to get the car repaired. The letters dated 10.5.91 & 30.5.91 to which reference has been made, show that a suggestion was made by the complainant that it would be proper for the opposite party to make payment of the insurance money in view of the damage done to the car. The claimant even before us did not make any claim for the insurance amount. Consequently we are of the opinion that he is entitled to get the car repaired. A controversy was raised by the respondents that the copy of the estimate supplied to them did not contain the price of the spare parts and the note that the car was beyond repairs It is true that in the estimate Annexure R1 supplied to the respondent the price of the parts and the note that the car was beyond repairs do not find place. But in the report of the first surveyor the prices of the spare parts have been mentioned and those prices are the same as those given in the estimate supplied by the Allied Motors, to the complainant. The labour charges in both the estimates are the same. It appears from the report of the first surveyor that he had also been provided with the copy of the estimate which was supplied to the complainant. The surveyor was appointed by the opposite party and had been acting on their behalf. In the circumstances it cannot be said that the opposite party did not came to know about the cost of parts which were required to be fitted by the Allied Motors. The learned Counsel for the opposite party vehemently argued that the opposite" party had given clearance for the repair of the vehicle but the complainant did not agree to that, and consequently the repair work was not undertaken. According to him in that situation the complainant should bear the difference in the price of the parts, which prevailed at the time of preparing the report by the 1st Surveyor and that which prevails now.

WE have duly considered the matter but do not find any substance therein. Nothing has been placed on the record to show that clearance was given by the opposite party or the surveyor on (heir behalf to the Allied Motors, to repair the vehicle In the report of the 1st surveyor dated 7.5.91, it is stated that the Allied Motors had sent the estimate dated 18.4.91 to them on 21.4.91. They (the surveyor) discussed the matter with Sh. Pradeep Singula, AO, (ENCR), Regional Office of M/s, Oriental Insurance Co. on 22.4.91. Mr. Singula perused the estimate as well as the photographs. He (the surveyor) as well as Mr. Singhla were of the opinion that the Allied Motors be persuaded to repair the body instead of replacing it. He (the surveyor) therefore persuaded Allied Motors to repair the body. Before giving clearance for starting the work they again discussed the matter. It was again considered that it would be beneficial to allow repairs. It is further stated that on 30.4.91 they asked repairer to go-ahead with the repairs, invite them for inspection of the parts, as they required detailed inspection after dismantling and that the final report would be submitted alter the car had been dismantled. From a perusal of the report it is evident that intact no direction was given by the surveyor to the Allied Motors for carrying out the repairs. Though it is mentioned by him that he asked Allied Motors to repair the car but the last para shows that the final decision had been reserved till that time, when the car was dismentaled. This conclusion is further affirmed from the reply of the interrogatories given by the opposite party in answer to questions 29 of the interrogatories. It is mentioned by them that no letter was written by them to the Allied Motors for repair of the vehicle. There is also no order in writing by the surveyor to the Allied Motors. No authority has been shown by the 1st surveyor, that they had been authorised to direct Allied Motors to repair the car. Therefore, it cannot be held that the respondent or the surveyor on their behalf had asked the Allied Motors to go ahead with repair of the car.

THE question now to be seen is who is liable to pay for the hike in the price of the spare parts on account of revision therein. We are not satisfied that the repair of the car was stopped by the complainant. On the other hand it is the opposite party who, for the reasons known to them did not direct the Allied Motors to go ahead with the repair of the car. In the circumstances the opposite party is liable to pay the hike in the prices of the spare parts. The complainant has claimed an amount of Rs. 26,000/- on account of taxi charges. He has not produced any receipts of any other documentary evidence, such as account books, showing the expenditure incurred by him towards transport charges. In the circumstances we are not inclined to grant him any such charges.

The complainant has further claimed damages for mental torture, pain etc. The accident took place as far back as 8.4.91. It was the duty of the opposite party to settle the matter at the earliest and to get the car repaired. However, the matter has been delayed by them on one pretext or the other. In the present times vehicle has became a necessity for every one. It is seen that in a city like Delhi the mental pain and suffering is higher, if a person who owns a car, has to do without it. In the circumstances we are of the view that the complainant is entitled to compensation for mental torture, pain etc. which we assess at Rs. 15,000/- . Responsibility be fixed of the official, on account of whom the delay took place in getting the car repaired and appropriate action be taken against him as deemed by the company. Consequently we accept the complaint with costs and direct the opposite party to get the car of the complainant repaired expeditiously, preferably within a period of eight weeks from the date of the order and also pay him an amount of Rs. 15,000/- as damages for mental torture etc. within that period. Costs Rs. 2,000/- . Complaint allowed with costs.