National Insurance Co. Ltd. vs BHAGWATI CHARAN AGARWAL

THIS is an appeal against the judgment and order dated 2.7.1998 passed by District Forum, Pauri Garhwal, whereby the claim of the complainant was allowed for compensation of Rs. 1,38,438/-.

THE brief facts of the case are that the complainant had a truck. It was insured from 23.11.1995 to 27.11.1996. On 29.2.1996 it met with an accident. THE Surveyor inspected the truck and assessed the loss. But the respondent was ready to pay only Rs. 22,000/-. THErefore, the complaint was filed. THE learned Counsel for the Insurance Company argued that the District Forum, Pauri Garhwal has got no jurisdiction because the accident took place near Nazibabad, Distt. Bijnore and the insurance was also made at Nazibabad. THEre is no branch office at Kotdwar. It was further alleged that the complainant is not entitled to the amount of claim, but his only loss was not more than Rs. 22,000/-. After hearing the learned Counsel for the parties, the learned Forum allowed a compensation of Rs. 1,38,438/-, against which order, the present appeal has been filed. We have heard the learned Counsel for the parties and gone through the records. The accident took place on 29.2.1996 while it was coming from Bijnore to Kotdwar near Jalalabad. It is said that the accident took place in Bijnore District. However, the insurance was done at Kotdwar. The cover note was issued at Kotdwar. The insurance amount was paid at Kotdwar. Therefore, the insurance being one of the part of the cause of action, the complainant was fully entitled to file a complaint before the District Forum, Pauri Garhwal within which jurisdiction, Kotdwar town is situated.

As regards the quantum of compensation, the accident took place on 29.2.1996. The Insurance Company had relied upon the report of Shri Prem Ratan Sud. It appears that he did not visit the spot in person, but proceeded only on the basis of the earlier inspections, etc. He has submitted his report on 16.2.1997 after about one year of the accident. He, too, has reported that the truck is damaged badly. In the last line of the report, Shri Prem Ratan Sud has reported that insured had not given his consent for the assessment made above and as such, he was submitted his independent report based on the spot report, photos and circumstances of loss. Therefore, it appears that he has given an opinion on the basis of the papers on record. Whereas the complainant has also filed the report of Shri Anuj Kumar Agarwal. He is also the Surveyor and after receiving the instructions from the Branch Office, National Insurance Company Ltd., Nazibabad, he visited many places and inspected the bills from the record of the shop and he verified that all the above bills have been checked by him from the record of the shop and shopkeepers also certified the bills. All the bills were found genuine and true. He has reported that the vehicle was repaired by spending the amount, which comes to the amount as awarded by the learned Forum. It is baseless to argue that even after spending a sum of more than Rs. 1,30,000/-, one is asked to receive Rs. 22,000/- and to go away. In the Forum, as well, the Insurance Company has withheld the spot survey report dated 11.8.1996. The survey report dated 16.2.1997 filed by the appellant cannot be relied upon because it is highly delayed. Survey reports are required to be submitted within 7 days. There is no reason to believe a report prepared after a year.

IT was further argued by the learned Counsel for the appellant that the dispute is only of quantum and it should have been referred to Arbitrator under the terms of the policy. He also referred ruling reported in III (1996) CPJ 183 (NC), Shri Ganesh Spinners v. United India Insurance Co. Ltd. Against this ruling, there are a number of rulings, which say that mere existence of an Arbitration Clause is no bar to a consumer proceeding. The rights of a consumer under Section 3 of the Consumer Protection Act is supplemental and mere existence of an Arbitration Clause will not bar the complaint before the District Forum. We are supported by the ruling of the Supreme Court in the matter of Fair Air Engineers Ltd. v. N.K. Modi, reported in III (1996) CPJ 1 (SC). Supreme Court, while confirming the orders of the National Commission held that District Forum has got all the trappings of a Civil Court and a judicial authority and further held that mere existence of an Arbitration Clause should not come in the way of aggrieved party from seeking legitimate relief under the Consumer Protection Act which is a special piece of legislation to protect the interest of the consumer notwithstanding the other law in force. The National Commission, further, in the case of Udaypur Cement Works v. Punjab Quality Supply & Sewage Board, reported in I (1999) CPJ 67 (NC) has, again, confirmed the above view. The same matter was earlier decided by the Supreme Court also in Canera Bank v. Nuclear Power Corporation of India Ltd. & Ors., reported in Judgment Today 1995 (3) Supreme Court 42. All these judgments of Supreme Court and National Commission fortify the view that mere existence of arbitration clause is no bar to start a proceeding before the Consumer Forum and to claim appropriate relief. We find nothing for which the order passed by the learned Forum can be interfered with. This appeal has got no force and is to be dismissed. ORDER The appeal is, hereby, dismissed. Cost of this appeal shall be easy. Appeal dismissed.