MOTI LAL MEGHWAL vs UNITED INDIA INSURANCE CO. LTD.

THIS is an appeal filed by the complainant against the order dated 23rd May, 1992 passed by the State Consumer Disputes Redressal Commission, Rajasthan at Jaipur by which the complaint filed by the complainant was dismissed as a belated one.

THE facts as gathered from the complaint are that the complainant was the owner of a truck bearing Registration No. RSO-5071. The truck was hypothecated to the Rajasthan Financial Corporation (for short ''RFC'') as the Complainant had sought financial assistance from it for purchasing the said truck. For the period from 9.9.1983 to 8.9.1984 the complainant had got the said truck insured with the Opposite Party-United India Insurance Co. Ltd. (Respondent herein) through RFC for a sum of Rs. 2,18,000/- vide cover note Annexure-V appended to the Memo of Appeal. For nonpayment of some instalments, the RFC had seized the said truck. While the truck was in possession of the RFC it cought fire at about 3.00 a.m. on 11.9.1983. The RFC lodged a First Information Report at the Police Station, Gumanpura, Kota, and information was also given to the Insurance Company. After receipt of the aforesaid information, the police and the Insurance Co. carried out necessary investigation. The Complainant also submitted a claim form to the Insurance Co. for payment for the loss suffered by him. A surveyor was appointed and the investigation was done. The Complainant being an illiterate person, personally went several times to the office of the Opposite Party and requested the officers to settle the claim. Though the complainant was assured that his claim would be settled, but it has not done so. The Complainant claimed Rs. 9,92,680/- on the various items including the insured amount and interest and the loss suffered by him by the non-settlement of the claim and in respect of the expenses incurred by him in visiting the office of the Insurance Co. several times and also for suffering for mental agony. The Insurance Co. contested the claim. A preliminary objection was taken to the effect that the complaint was barred by time. On merits, the Opposite Party denied all the allegations of the complainant including the factum of insurance of the truk on the ground that the original policy of insurance or the cover note had not produced by the complainant and it was difficult to trace the whole records. It was also pleaded that there was no information in the office about submitting any claim form, estimate bill etc. by the called insured to the Insurance Co. through the surveyor or directly.

THE State Commission by the impugned order remarked that under Article 44(b) of the Limitation Act, the period of limitation for preferring the claim of the insurance as three years from the date of occurrence causing the loss or where the claim on the policy is denied, either partly or wholly, the date of such denial. The truck caught fire as per averment made in the complaint on 11.9.83 while the complaint was filed on 9.10.90. The State Commission held that the complaint was clearly barred by time. The complainant had placed reliance upon the letters dated 23.1.84 and 4.5.85 written by the Deputy Manager, RFC to the insurer; About those letters it was remarked by the State Commission that those did not extend the limitation and there was no document of the Opposite Party acknowledging the liability nor any survey report was issued. Accordingly the State Commission placed reliance upon the decisions of this Commission reported as M. Salhi v. United India Insurance Co, Ltd., II (1991) CPJ 697. In that case, the insurer had repudiated the claim on 24th September, 1986 while the complaint was filed on 14th November, 1990. That case related to the loss of a vessel which had sunk on 26th May, 1984. The claim was lodged immediately but the insurer repudiated the claim on 24th September, 1986. On those facts this Commission had remarked "when calculated either with reference to the date of the occurrence of the loss or the date of the repudiation of the claim by the insurer, the petition is found to have been filed long after the expiry of the period of three years. Hence is manifestly barred by limitation". The above observations are not applicable to the present case as the Opposite Party has not repudiated the claim so far to the knowledge of the complainant or RFC.

IT may be mentioned here that in reply to the memorandum of appeal, the Opposite Party (respondent herein) has pleaded that the surveyor Mr. G.P. Jain, vide his letter dated 9th January, 1984 had requested the Manager M/s. RFC, Kota to complete all the formalities within a fortnight failing which they would submit their independent survey report to the Insurance Co. A copy of the said letter was also addressed to the respondent-Insurance Co. who ultimately closed the chapter by writing the remarks on the said copy of letter dated 9th January "no claim Sd/- 29.11.84". On the basis of it, it was urged on behalf of the respondent company that the chapter had been closed on 29.12.84 and if the period of limitation is computed from that date the complaint petition is hopelessly barred by time. There is nothing on the record to show that the said decision of the Insurance Company was communicated either to the RFC or to the complainant. Hence, the date 29.12.84 cannot be taken as the date of repudiation of the claim. As far as the complainant is concerned, the claim is still pending with the Insurance Co. On 23rd January, 1984, the Deputy Manager, RFC had written a letter (at page 45) which reads as follows: Branch Manager, United India Insurance Co. Ltd., Above the Allahabad Bank, Kota-324007. Subject: ''''Regarding Truck No. RSO 5071" Sir, This office got the truck No. RSO 5071 of Shri Motilal surveyed by Shri G.P. Jain, Surveyor during last month. In the abovementioned connection, claim-form, copy of FIR Report and estmate are being sent to you alongwith this letter. You are requested to kindly send the approval of the above mentioned vehicle to this office as soon as possible. Your''s faithfully, Sd/- (Deputy Manager) Copy for information: 1. Shri G.P. Jain (Surveyor), 2-M-4, Talwandi Housing Board Colony, Kota, information regarding your letter dated 9.1.1984. Sd/- (Deputy Manager)

A copy of the letter was sent to Shri G.P. Jain, Surveyor in the face of the contents of the letter, the Insurance Co. cannot be permitted to say that the claim form, estimate etc. has not been sent and therefore, it closed the case on 29.12.84 with the remarks "no claim". The surveryor ought to have collected the documents from the Insurance Company and submitted his report.

IN May 1985, the Deputy Manager, RFC again wrote a letter (annexure at page 31) to the respondent company with reference to their earlier letter dated 23rd January, 1984 reminding that the necessary documents alongwith the claim in respect of Mr. Motilal''s truck No. RS-05071 had been sent but the claim had not been settled so far though more than one year had elapsed. Thus, it cannot be said that the claim in respect of the loss was not being pursued. The RFC was pursuing the claim on behalf of the complainant. It appears that after the present complaint was filed on 9th October, 1990, the Insurance Co. again took up the matter with Shri G.P. Jain, Surveyor. Shri G.P. Jain wrote a letter dated 18th May, 1991 to the Insurance Co. which is annexed as R-2 appended to the reply filed to the memo of appeal. Shri G.P. Jain admitted that he had not submitted the survey report and the reason given by him is that it was due to non-cooperation of the insured/or insured''s representatives. He was able to trace out the photographs taken by him at the time of survey and he enclosed those photographs along with that letter. In this letter he had also specified the damage caused to the truck by fire. Of course, he did not assess the loss in this letter. In the face of this voluminous evidence it is held that as the claim has not been repudiated so fat, to the knowledge of the complainant or RFC, the period of limitation has not

/EN commENced under Article 44(b) and therefore, the finding of the State Commission that the complaint is time barred is erroneous and is accordingly set aside.

THE next question that arises is to what amount of loss has been suffered by the Complainant due to the truck catching fire. The RFC got prepared an estimate (at pages 32 and 33) from one Hiramani Motors on 28.12.83. According to the estimate, the cost of repairs were assessed by the said repairer at Rs. 25,198/-. To support its plea about the non-submission of the documents, the Insurance Company relied upon the letter dated 9th January, 1984 (Annexure R-l) written by the surveyor to the RFC. Subsequent to that letter the RFC has sent a letter dated 23rd January, 1984 reproduced above. It appears that there was some communication gap or non-cooperation between the insurer and its surveyor. The Insurance Company has not led any evidence to show that the said estimate is exaggerated. It would not be out of place to mention here that the said estimate was not obtained by the complainant for undue richment. It was obtained by the RFC. We can take that estimate as the loss suffered by the complainant to the truck. The complainant has also claimed the amount in respect of loss suffered by him on account of loss of income. The Insurance Company cannot be burdened with that loss because that truck had already been seized by the RFC.

THE Complainant has claimed the full amount of insurance with interest. There was not a total loss of the truck and therefore, he cannot be awarded that amount. RFC has since sold the burnt truck.

THE complainant has also claimed the compensation for mental agony and the expenses incurred by him in visiting the office of the Opposite Party. We think that the amount of interest on the loss assessed by us would sufficiently compensate him on this account. In view of the above discussions, we award Rs. 25,198/- to the complainant with interest @ 15% p.a. till payment. That interest will start to run from the date of expiry of two months from 23rd January, 1984 when RFC had sent the necessary papers to the Insurance Company since we think that the period I of two months was sufficient to settle the claim. the Insurance Company is directed to make the above payment within two months of the receipt of the copy of this order. Such payment shall be made to RFC on behalf of the complainant as the truck was hypothecated with it. The RFC after adjusting the account of the complainant will remit the surplus, if any, to the complainant. A copy of this order be also sent to RFC, Udyog Marg, Kota. The appeal is accordingly allowed in the above terms and the order of the State Commission is set aside. The Appellant will be entitled to Rs. 5,000/- as costs of the present proceedings.