MIRZA NASAR ALI BAIG vs Branch Manager, New India Assurance Co. Ltd.

THE complainant''s vehicle, a luxury bus bearing Registration No. OSB-1127 met with an accident on 28.5.1996 i.e. on the date when the insurance coverage was valid in between the dates 9.12.1996 to 8.12.1996. THE complainant claims the insurance coverage of Rs. 6,00,000/- on the basis of the total loss. THE Insurance Company on the basis of the report of the Surveyor offered Rs. 1,45,000/- in full and final satisfaction of the claim to which the complainant did not agree and filed this case.

THE case of the O.P.-Insurance Company was that valuation report of one R.C. Sahu, the Loss Assessor and Investigator was of the year 1995 which was before the accident and the Insurance Company accepted valuation in good faith and thus issued the policy, for that reason alone it did not make them liable for the claim. It was further pleaded that the complainant had filed a C.D. Case No. 49/1999 and also Motor Accident Claim Cases and further these matters were before the Hon''ble High Court for which the case before Consumer Forum was not maintainable. Heard Mr. S.S. Das, the learned Counsel for the complainant and Mr. S.S. Rao, the learned Counsel for the Insurance Company. Perused the materials on record. We propose to dispose of the matter in the following manner : Police report does indicate that the accident took place which is also not disputed by the Insurance Company. The report of the M.V.I. indicates also a damage certificate given by him. It is found from the report dated 5.1.1998 that there has been complete damage to the bus. The letter of the R.T.O., Chandikhol addressed to the R.T.O., Balasore is the one requesting for cancellation of the registration certificate of the bus. It further indicates that the bus met with an accident on 28.5.1996 at Kuakhia in the district of Jaipur and the vehicle was fully damaged and M.V.I. Chandikhol also investigated the same and it was reported that the vehicle was permanently incapable for further use and, therefore, recommended for cancellation of the registration mark. It is further indicated that after the accident the vehicle was also declared off road from 1.6.1996 to 31.5.1997. From this document it is amply clear that the vehicle was totally damaged, because of the accident. Mr. Rao raised the following contentions :

Once the Insurance Company by applying their mind and without any lapses on their part and delay on their part settled the claim amount of Rs. 1,46,800/- and that too on the basis of Surveyor''s report this complaint petition is not maintainable having become infructuous since there has been a settlement at the end of the Insurance Company. We do not accept the contention of Mr. Rao. The statutory liability of the Insurance Company is to satisfy the claim under a policy of insurance. The settlement unilaterally from their side is the one which cannot be forced upon the complainant to accept the settlement. Therefore, the settlement is of no settlements, for which we reject the contention of Mr. Rao.

SECONDLY, it was urged that under the terms of agreement as per the policy any dispute between the parties could be referred to an Arbitrator. In this contention we may mention that law is well-settled that in spite of any arbitration clause, the jurisdiction of the Consumer Forum is not ousted accordingly we reject that contention also. Thirdly, it was submitted with reference to clause 7 of the policy that if the complainant did not move the Civil Court within a period of one year from the date of repudiation of the claim, it would be deemed that he has abandoned his claim, therefore, this consumer case would not be maintainable. On this point we have already rendered judgments. Firstly we interpret the clause that the Consumer Forums are not Civil Court and, therefore, it could not be said that the complainant cannot approach the Forum, the language is that he shall have to file a suit. That apart such a clause virtually curtails the period of limitation prescribed under the common law of limitation to file any case within a period of 3 years. Therefore, we hold that the remedy of the complainant would not be barred under the clause 7 of the conditions of the policy as advanced by Mr. Rao.

THE complainant informed about the accident on the next day which is admitted by the Insurance Company as disclosed from para 7 of the written version. Though it is their case that immediately they deputed the Surveyor who conducted the survey on 30.5.1996 and submitted the report on 2.6.1996, but it is admitted that the complainant submitted the claim form along with estimate of expenses prepared by Tarani Body Builders, Cuttack. THE claim was repudiated on 21.1.1999. This is about 3 years after the accident. This delay cannot be said to be a delay in normal course of dealing with a settlement of the insurance claim. We have already held it above that there is a total loss because of the extensive damage to the bus. THErefore, it is appropriate that the Company should pay Rs. 6,00,000/- as covered under the policy besides Rs. 2,000/- as cost of litigation. THE order be complied within a period of two months from the date of communication of the order. Complaint disposed of.