National Insurance Co. Ltd. vs MADHVA NAND

THIS is an appeal by the Insurance Company against the judgment and order dated 10.10.2002 passed by the District Forum, Nainital whereby a sum of Rs. 46,000/- and Rs. 5,000/- as compensation and Rs. 1,500/- for legal expenses along with interest was allowed in favour of the complainant Madhva Nand.

THE brief facts of the case are that the complainant Madhva Nand is the owner of a truck. It was insured for Rs. 5,00,000/- for a period from 12.12.1999 to 11.12.2000. On 18.10.2000 it fell in a Khad and was totally damaged. Information was given to the Insurance Company on 19.10.2000 who appointed a Surveyor. THE Surveyor found the truck totally damaged and directed to tow it to Haldwani. THE complainant brought the salvage to Haldwani at expenses of Rs. 10,000/-. Shri D.K. Saxena, Surveyor was appointed to assess the loss. He also found the truck totally damaged and assessed the loss for Rs. 5,00,000/-. THEreafter the Insurance Company appointed a third Surveyor Shri P.K. Agarwal who declared the truck totally damaged and assess the price of the salvage to Rs. 1,50,000/-. After deducting this amount he recommeded for payment of Rs. 3,50,000/- as compensation. THE complainant ran to the office of the Insurance Company for a number of times and he was promised payment. On 22.6.2001, he was called upon in the office and his signatures were taken on some printed papers. THE complainant was given a cheque of Rs. 1,39,000/-. It was said that the amount of salvage is Rs. 1,50,000/-. His claim has been settled at Rs. 2,89,000/-. THE Insurance Company gave a letter on 22.6.2001 and told "Take it to the house and read it with comforts." THE complainant has taken loan from bank. Interest was increasing day by day and on the pressure of the officers of the Company, he took the cheque. THEn and there he informed the officers of the Company that his loss is of Rs. 5,00,000/-. If Rs. 1,50,000/- is deducted, then he is entitled to Rs. 3,50,000/-. THE officer told that it shall be referred to the higher authorities and then payment shall be made. He was asked to take the cheque as given and when the higher authorities will allow, he shall get the rest of the claim. Again the claimant went to the office of the Insurance Company on 26.6.2001 and 20.7.2001 and asked for the balance but he was not paid. Rather he was informed that his claim has been settled for Rs. 1,39,000/- and if he is dis-satisfied, he may go to the Court. The Insurance Company contested the case, admitted the accident. It further admitted that on 19.10.2000, an information was given to it. It was said that the claim of the complainant has been settled within three months. Therefore, he has got no right to file a case. It is alleged that on 25.1.2001 the complainant gave a letter that he is ready to settle the claim at Rs. 3,35,000/- and after keeping the damaged vehicle with himself, he agreed to take back Rs. 1,85,000/-. It is alleged that there were illegal passengers in the truck at the time of the accident. Therefore, after deducting 25% the claim was rightly settled. It is further said that it was settled with the consent of the complainant and he has taken the cheque in full and final satisfaction on 22.6.2001 and issued a discharge voucher therefor. It is said that towing charges of Rs. 2,500/- has also been paid to the complainant. The learned Forum took the evidence of the parties and came to the conclusion that in view of the decision of the Hon''ble Supreme Court, if the accident did not take place due to sitting of extra passengers, it has got no effect and therefore, deduction of 25% is not justified. The deduction of 25% is Rs. 46,000/- on which amount, the Forum passed the decree in favour of the complainant. Regarding the insurance discharge voucher and full and final settlement in agreement with the parties, the learned Forum was of the view that the complainant has agreed for a sum of Rs. 1,85,000/- and not for any deduction to which the complainant is entitled.

We have heard the learned Counsels for the parties and gone through the records. The insurance is admited, the accident is admitted, appointment of three Surveyors is admitted. Shri D.K. Saxena recommended net liability of the Insurance Company on total loss net on salvage basis Rs. 1,85,000/-. The letter of the Insurance Company dated 22.6.2001 does not show that there was any agreement between the parties and the claimant agreed for the discharge of the entire liabilities of the Insurance Company on payment of Rs. 1,39,000/-. The letter shows that the Insurance Company was pleased to inform the claimant that his claim has been approved for Rs. 1,39,000/- (1,36,500 + 2,500/- as claim charges) on non-standard total loss net of salvage basis by the Competent Authority. The cheque was sent and the claimant was directed to accept the cheque. Merely because the claimant has received the cheque, it cannot be said that he has discharged the Insurance Company. Immediately he made protest. Immediately, he again ran to the office that he should get Rs. 1,85,000/-. In fact, the total loss of the complainant was Rs. 5,00,000/- as said by the Surveyor. If salvage price is deducted from it, it becomes Rs. 3,50,000/-. The price of salvage is admitted to be Rs. 1,50,000/- by both the parties. However, the Surveyor has recommended for Rs. 1,85,000/-. In the written statement para 16 also the appellant has alleged that the claim was for Rs. 3,35,000/- but keeping the salvage with himself, the complainant has agreed for Rs. 1,85,000/-. If the complainant has agreed for Rs. 1,85,000/-, where is the question of deduction of 25%. The agreement binds both the parties and there was no agreement at all that 25% shall be deducted because some passengers were also travelling in the truck. The learned Forum has very specifically decided that when the sitting of extra passengers did not contribute to the accident, there is no question of any repudiation of the claim. However, it may also be possible that looking the fact that there was extra passengers, the claimant might have agreed for Rs. 1,85,000/- instead of Rs. 3,50,000/-. All the facts and circumstances might have been considered by the parties and then alone, it was possible to have been agreed at a sum of Rs. 1,85,000/-. In these circumstances, the Insurance Company was not entitled to deduct any amount.

THE learned Counsel for the Insurance Company has referred the ruling reported in I (2003) SLT 515=AIR 2003 Supreme Court 1009, Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy with Oriental Insurance Co. Ltd. v. Jogi Subbamma. THE facts of this ruling are quite dis-similar to the facts of the present case. In this ruling, the passengers who were either unauthorized passengers or gratuitous passengers died as a result of an accident. THE kith and kins of the said passengers filed a claim petition in Motor Accident Tribunal for compensation. It was held that since the passengers were unauthorised or gratuitous, their kith and kins are not entitled to any compensation. But in this particular case, there is damage to the vehicle and the claim has been filed for compensation for the damaged vehicle and not for unauthorised passengers. THErefore, this ruling shall not apply to the facts of the present case. He further referred the ruling reported in III (2002) CPJ 179 (NC), Sri Jayajothi & Co. Ltd. v. Oriental Insurance Co. Ltd. In this case, there was payment in full and final satisfaction of the claim. THEre was consent letter, there was discharge voucher but no such paper has been produced in this case. To the contrary, the agreement was for payment of Rs. 1,85,000/- and after the agreement, the Insurance Company started to deduct 25% to which it was not entitled because agreement is agreement and it was agreed upon taking into account all the circumstances of the case. The learned Counsel for the Insurance Company has tried to show by production of a copy of the voucher making payment of Rs. 1,39,000/-. This is not a discharge voucher. By this voucher, only payment has been made. There is nothing to show that this is in full and final satisfaction. He further produced the letter written by Madhva Nand in which he has written : This is also signed by some P.K. Singh and it has been written/agreed for Rs. 3,35,000/-. The claimant also admitted that he has agreed for Rs. 3,35,000/- and after Rs. 1,50,000/- is deducted as price of salvage out of this amount, he is entitled to a sum of Rs. 1,85,000/-. If this is taken to be a consent letter or discharge voucher, this is totally in favour of the complainant and the Insurance Company cannot resile from it.

WE do not find anything for which we may differ from the finding recorded by the learned Forum. This appeal has got no force and it is to be dismissed. ORDER The appeal is, hereby, dismissed. However, cost of the appeal shall be easy. Appeal dismissed.