Mallikarjun Sakri vs Branch Manager Oriental Insurance Co. Ltd.

THIS revision petition has been filed by Mallikarjun Sakri, Petitioner herein and Original Complainant before the Raichur District Consumer Disputes Redressal Forum (for short the District Forum), being aggrieved by the order of the Karnataka State Consumer Disputes Redressal Commission (for short the State Commission), which had allowed the appeal of Oriental Insurance Co. Ltd., Respondent herein and Opposite Party before the District Forum, by setting aside the order of the District Forum.

IN his complaint before the District Forum under Section 12 of the Consumer Protection Act, 1986 the Petitioner/Complainant had contended that he was the registered owner of vehicle Mini Lorry TATA -709 which was insured with the Respondent/Insurance Company from 02.04.2007 to 01.04.2008. During the subsistence of the said policy on 09.10.2007 at night the said vehicle which was carrying goods from Raichur to Lingasugur met with an accident while trying to avoid dashing against a bullock cart as a result of which the vehicle fell 15 ft. into a canal, causing extensive damage to the vehicle. Intimation about the accident was given to the police as also the Respondent/Insurance Company. Subsequently, the vehicle was inspected by a Surveyor appointed by the Respondent/Insurance Company. The Petitioner/Complainant thereafter got the vehicle repaired and sent a bill amounting to Rs.85,234/ - alongwith necessary police records and other documents and sought settlement of the claim on 23.10.2007. In the month of November, 2007 the Respondent/Insurance Company sought further documents which were also provided but despite cooperating with the Surveyor and Insurance Company in submitting all the required documents, the Respondent/Insurance Company failed to settle the claim. Being aggrieved by the Respondent/Insurance Company in not settling the claim and also not responding to various reminders sent to it, Petitioner/Complainant filed a complaint before the District Forum on grounds of deficiency in service and requested that Respondent/Insurance Company be directed to pay him an amount of Rs.85,234/ - being the cost incurred on repairs of the vehicle following the accident with interest at 18% per annum from 23.10.2007 till realization and Rs.25,000/ - as litigation costs. Respondent/Insurance Company on being served denied that there was any deficiency in service on its part. It was stated in the first instance that the driver of the vehicle did not have the required license to drive the vehicle. Further, the claim made by the Petitioner/Complainant was highly exaggerated and excessive and was also without any basis. In any case, the Petitioner/Complainant was not entitled to compensation more than what was assessed by the Surveyor. It was stated that the Surveyor had assessed the loss at Rs.30,000/ - and Rs.2500/ - towards spot repairs and towing charges.

THE District Forum after hearing the parties and on the basis of evidence produced before it allowed the complaint by concluding that the driver of the vehicle did have a valid license to drive the vehicle and further the Respondent/Insurance Company had not produced any documents to show that the Petitioner/Complainant was carrying more than the permitted weight of goods. Further, in the driving license issued by the Transport Authority an endorsement had been made permitting the Petitioner/Complainant to drive both a Heavy Transport Vehicle (goods vehicle) as also a Light Motor Vehicle as per the Exhibit P -4. The District Forum also stated that although the Surveyor had assessed the total net loss towards damage of Petitioner/Complainant ''s vehicle at Rs.30,000/ - with Rs.2500/ - towards spot repairs and towing charges, there was credible evidence filed by the Petitioner/Complainant who had produced the bills (Exhibits P -9 and P -10) in respect of the repairs of the vehicle clearly indicating that he had spent Rs.75,000/ - (i.e. Rs.55,000/ - being the repairs from M.D. Shaikhhusain, Lorry Body Builder & Labour Works, Raichur and Rs.20,000/ - being the labour charges of Ramesh Automobiles, Raichur), apart from additional charges due to spot repairs and towing charges amounting to Rs.10,000/ -. The Petitioner/Complainant filed an affidavit of the mechanic who had repaired the vehicle as proof. On the other hand, the Surveyor ''s affidavit in support of his findings was not filed. The District Forum, therefore, held that the Petitioner/Complainant was entitled to recover the amount of Rs.90,235/ - which was rounded off to Rs.90,200/ - as also interest @ 9% per annum from the date of that order till realization of the amount. The Respondent/Insurance Company was given six weeks time to comply with the order of the District Forum.

BEING aggrieved, the Respondent/Insurance Company filed an appeal before the State Commission, which allowed the same on the ground that at the time of the accident the driver of the vehicle possessed a driving license only to drive Light Motor Vehicle whereas the vehicle involved in the accident was a goods vehicle for which the necessary endorsement to drive a Heavy Transport Vehicle was not there. The State Commission further concluded that the Petitioner/Complainant had failed to produce some important documents, which were required to settle the claim. It was under these circumstances that the claim could not be settled and, therefore, this does not amount to any deficiency in service on the part of the Insurance Company. Hence, the present revision petition.

LEARNED Counsel for both parties made oral submissions.

COUNSEL for the Petitioner/Complainant contended that the State Commission erred in concluding that the Petitioner/Complainant did not have a driving license whereas the driving license permitting the Petitioner/Complainant to drive both Light Motor Vehicle as also Heavy Transport Vehicle had been placed before the District Forum, which as a first court of fact had duly noted the same. It was further contended that there was clearly deficiency in service in not settling the insurance claim. In fact all the necessary documents had been produced and the Surveyor had also inspected the vehicle and had concluded that the loss was Rs.30,000/ -. The Respondent/Insurance Company did not attempt to settle the claim even after receipt of the report of the Surveyor and kept the claim pending which itself is a clear deficiency in service. Learned Counsel for the Respondent/Insurance Company essentially reiterated the submissions made by him before the Fora below and concluded that the State Commission as a court of fact as also appeal had rightly allowed its appeal. It was specifically stated that the Surveyor after carefully inspecting the report had concluded that the loss was Rs.30,000/ - besides Rs.2500/ - towards spot repairs and towing charges and the bills produced by the Petitioner/Complainant had grossly inflated the repairs and other labour charges.

WE have considered the submissions made by learned Counsel for the parties and have also examined the evidence on record. We are unable to agree with the finding of the State Commission that at the time of the accident the Petitioner/Complainant did not have a valid driving license to drive a goods vehicle and that he only had a driving license for a Light Motor Vehicle. We note from the evidence on record that there is a clear endorsement on the Petitioner/Complainant ''s driving license permitting him to also drive a Heavy Transport Vehicle which was valid for the period from 24.11.2006 to 23.11.2009 apart from a license to drive Light Motor Vehicle which was valid from 22.11.2000 to 21.11.2020. Thus, both licenses were valid at the time of the accident which occurred on 09.10.2007. We have also gone through the report of the Surveyor and we note from the same that the following damages were noted in his report in respect of the vehicle: ''''01. Cabin crushed, Wind Screen Glass and Cabin side glass broken, Dash board dent 02. Chassis long members bend, and first Cross members racked, 03. Radiator Core damaged, Radiators mountings cut, Engine beds, cut Bolhousing crack. 04. Body side planks, Body MS vertical angles, Chassis Wooden Cross Bearers broken, Rear Body Door damaged, 05. Main axle bend check, it has hit the road side RCC guards and Bridge Culvert, Tierod bend, Push rod bend, 06. Battery acid rained/battery case to check for possible cracks, 15. Electrical wiring to check for possible cut/shot circuit. ''''

Even in the loss assessment report of the Surveyor it was stated that the repairs included dismantling and thereafter reconstructing the damaged cabin and replacing a number of important items. However, in its report, the Surveyor has substantially reduced the repair costs as projected by the Petitioner/Complainant purportedly on the grounds that it was in consonance with current market price. The costs have been further reduced by 50% on grounds of depreciation which is not plausible since the vehicle had been insured just about a year prior to the accident. Similarly, in respect of the labour charges without any plausible reason the amount has been reduced to Rs.3500/ -. Further, the report of the Surveyor has not been backed by any affidavit. On the other hand, we have also gone through the repair documents filed by the Petitioner/Complainant in support of his contention that the cost of repairs was Rs.55,000/ -. We note that in this document the repair cost of each damaged items has been listed out. The details have also been given in respect of labour charges of Rs.20,200/ -. This statement has been backed by an affidavit of the concerned mechanic.

NO doubt, it is a settled principle of law that the report of a Surveyor being an important document has substantial evidentiary value unless it is displaced by more credible evidence to the contrary. In the instant case, we note that the documents submitted by the Petitioner/Complainant, namely, the bill indicating the repairs done carries more credibility than the Surveyor ''s report because it clearly indicates item -wise damage caused to the vehicle as also the cost of repairs. It is also supported by an affidavit of the mechanic whereas we note and as also observed by the District Forum no affidavit has been filed by the Surveyor to support its report. Further, it is difficult to accept that the vehicle, which had suffered such extensive damage as noted by the Surveyor in his report, could be repaired for a relatively small amount of Rs.32,500/ -. It has to be kept in mind that it was a major accident in which the vehicle had collided with a culvert and fallen 15 ft. into a canal. Such type of accidents would undoubtedly cause extensive damage to the vehicle involved in the accident. We had also specifically asked Counsel for the Respondent/Insurance Company to explain why despite the report of the Surveyor the Respondent/Insurance Company did not offer to settle the claim on the basis of the Surveyor ''s assessment and instead kept the claim pending for so long. No satisfactory response was forthcoming, which clearly indicates that there was deficiency in service on the part of the Respondent/Insurance Company in keeping the claim pending without any reasonable explanation, for such a long time.

IN view of the above facts, we have no option but to set aside the order of the State Commission and restore the order of the District Forum. The revision petition is allowed and the complaint filed by the Petitioner/Complainant is accepted in terms of the order of the District Forum. The Respondent/Insurance Company is directed to comply with the order of the District Forum and pay the amount of Rs.90,200/ - alongwith 9% interest per annum from 14.08.2009 till realization within a period of two months.