MURARI LAL vs United India Insurance Co Ltd

-THIS appeal has been filed by the appellant under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ''1986 Act'') against the order dated 21. 3. 2006 passed by the learned District Forum, Jhunjhunu in C. C. No. 426/2003 whereby the complaint of the complainant-appellant was partly allowed and the respondents-O. P. were directed to pay compensation to the complainant.

THE brief facts giving rise to this appeal are that the complainant-appellant got his Mini Truck bearing Registration No. RJ 18 G 1636 insured comprehensively for a sum of Rs. 4. 25 lacs for the period from 21. 9. 2002 to 20. 9. 2003. During the insured period, the said truck was proceeding on Navalgarh road dashed into a Jeep No. RJ 23 T 0206 coming from the opposite direction, and further in an effort to save the casualties, the insured truck dashed against a tree, thereby sustaining heavy damages. The complainant informed the concerned Police Station a well as the Insurance Company. The Insurance Company appointed Mr. Vijay Kumar Janu as Spot Surveyor and then Mr. Dwarika Prasad Gupta as final surveyor. The complainant then preferred an insurance claim of Rs. 2,35,046 with the O. P. Insurance Company. Under its letter dated 19. 8. 2003, the Insurance Company offered an amount of Rs. 29,770 against the insurance claim of the complainant. The complainant alleged that the Insurance Company had deliberately offered a meagre sum to him against his claim and accordingly filed a complaint in the Forum below claiming total damages amounting to Rs. 2,75,046. The O. P. Insurance Company filed a reply to the complaint stating that on the basis of report of the Surveyor, it had offered an amount of Rs. 29,770 to the complainant but he did not accept it and that the loss estimated by the complainant is exaggerated one.

After hearing both the parties, the learned District Forum came to the following conclusion: 1. The complainant has not been able to prove that the report of the Surveyor was an erroneous one. 2. The complainant is only entitled to receive compensation on the basis of the report of the Surveyor.

THE learned District Forum, accordingly, allowed the complaint of the complainant and directed the O. P.- appellants to pay a sum of Rs. 30,790 to the complainant towards the damages to the insured vehicle, along with interest @ 9% p. a. from 2. 9. 2003 to the date of payment, as also an amount of Rs. 2,000 for mental agony and litigation expenses. Aggrieved by this order of the learned District Forum, the appellant-complainant has come up before us in appeal.

WE have heard the learned Counsel for the parties at length, perused the impugned order and considered the materials placed on record. We generally agree with the findings of the Forum below and as such it is not necessary for us either to restate the effect of the evidence or to reiterate the reasons given by the learned District Forum. The learned Counsel for the appellant has contended that the learned District Forum has failed to consider the material produced on the records in its right perspective and, therefore, the impugned order deserves to be amended and enhanced compensation paid to him. On the other hand, the learned Counsel for respondent has sought to justify the impugned order which is based on the report of the Surveyor.

THERE is no dispute between the parties about entitlement of the complainant-appellant to receive compensation on the basis of insurance policy taken by it in respect of the insured mini truck.

THE only dispute between the parties is whether the assessment of the loss sustained by the insured truck as made by the Surveyor is an erroneous one. In this connection, it is not in dispute that the Surveyors are the best persons to assess the loss because they are independent and qualified persons and are appointed under the relevant provisions of the Insurance Act, 1938. It is an accepted legal preposition that their report has to be given greater importance but, in our opinion, it is not an infallible rule or principle of law that the Fora established under the Consumer Protection Act cannot pass any orders in variance to the report of the surveyors.

In this context, Their Lordships of the Supreme Court in New India Assurance Co. v. Roshan Lal Oil Mills, (2000) 10 SCC 19, have held that the survey reports cannot be brushed aside easily, meaning thereby that in appropriate cases the Fora can take a contrary view. Again, the Hon''ble National Commission in Vatorgard Chemicals Private Limited v. National Insurance Company Limited, II (2005) CPJ 10 (NC)=2005 NCJ 430 (NC), have held that the appellant has to challenge the survey report on the basis of documentary or any specific evidence.

IN the light of the above legal position, we have considered the material produced in this case. In the present case, there is a wide hiatus between the loss as assessed by the Surveyor and the loss claimed by the complainant, and in these circumstances it is necessary to closely scrutinize the Surveyor''s report to examine whether or not the Surveyor has acted correctly. In this connection, the complainant has placed on record bills dated 6. 5. 2003 of M/s. J. K. Auto Agencies amounting to Rs. 1,80,463 and other bills. The complainant has placed on record the photographs of the damaged vehicle also.

AT the outset, we admit that there is no report of any expert which may prove that the works covered by the bills/estimate submitted by the complainant are necessitated because of the accident that had taken place. The complainant might have got repairs done to his vehicle but here we are concerned with the reimbursement of the expenses incurred by the complainant as a result of the accident only. There are, however, Spot Survey and Final Survey Reports which throw light on the controversy. Admittedly, both the Spot Survey and Final Survey were done by two different Surveyors appointed by the Insurance Company. The report of the Spot Survey conducted by Mr. Vijay Kumar Janu is dated 19th April, 2003, and inter alia it makes the following assessment: front Bumper bent/pressed bonnet pressed/dented w. S. Glass broken front Head Light broken and Indicator RH broken apart from it, the Surveyor has stated that though every care has been taken to note down all the visible losses, but any invisible losses may be checked at the time of final survey. We have compared the defects pointed out by the Spot Surveyor which was first in point of time, with the report of the Final Surveyor Shri Dwarika Prasad Gupta. We find that the Final Surveyor has not allowed any amount for the above defects. The complainant has submitted bills amounting to Rs. 9,350 for these items.

APART from it, it is clear from the reports of the Spot Surveyor and the Final Surveyor as also from the photographs submitted by the complainant that the front body of the insured vehicle was badly smashed. The Final Surveyor admits that the whole body of the vehicle had to be opened. But even then, the Final Surveyor has not considered the necessity for painting of the affected parts. Looking to the damage to the vehicle, it was necessary for the Surveyor have considered about the painting of the vehicle. The complainant has rightly submitted a bill for Rs. 5,500 on this count and the Final Surveyor should have considered this bill. Thus broadly speaking, a total expenditure on the repairs comes to Rs. 14,850. In addition to this, small parts are bound to be broken in the accident.

IN view of the above facts, it is clear that the amount assessed by the Final Surveyor is not complete inasmuch as it does not take into account some of the damages reported by the Spot Surveyor. Therefore, the complainant is entitled to some compensation, over and above the amount awarded by the learned District Forum on the basis of Survey Report. Considering all the aspects of the matter detailed above, in our considered opinion, it would subserve the interest of justice and fair play if the complainant is awarded a further amount of Rs. 25,000 as damages under the policy of insurance. Thus, the appeal deserves to be partly allowed.

Accordingly, the appeal is partly allowed and the impugned order is amended in the manner that in addition to the amount of compensation awarded by the learned District Forum, the respondents, jointly and severally, shall pay a further sum of Rs. 25,000 to the complainant-appellant under the policy of insurance aforesaid within two months from the date of this judgment, failing which the complainant shall be entitled to interest on this amount @ 9% p. a. from the date of this judgment till payment is made. No costs. Appeal partly allowed.