NATIONAL INSURANCE CO. LTD. vs Mr. Abraham M.P. Mascarenhas

THIS first appeal has been filed under section 19 of the Consumer Protection Act, 1986 against the impugned order dated 18.04.2013, passed by the Goa State Consumer Disputes Redressal Commission (hereinafter referred as ''the State Commission'') in Consumer Complaint No. 13/2010, "Mr. Abraham M.P. Mascarenhas vs. National Insurance Company Ltd." vide which the said complaint filed by the present respondent was partly allowed and the petitioner/opposite party was directed to pay a sum of Rs.22,46,750/ - as compensation for damage to the vehicle and also to pay a sum of Rs.1 lakh as compensation for mental harassment, besides Rs.5,000/ - as cost of litigation. Briefly stated, the facts of the case are that the complainant/respondent is the owner of a passenger bus (Luxury 41 seater) bearing registration no. GA -03 -K -0315 and according to him, he spent an amount of Rs.9,30,000/ - for purchase of Leyland 222 Chassis and further Rs.14,35,000/ - for building a Volvo type Coach body on the said Chassis. The complainant had obtained financial assistance from the State Bank of India, Calangute Branch, Goa amounting to Rs.20 lakhs for purchase of the said bus. The loan was repayable in 60 installments of Rs.45,800/ - each. The vehicle was got insured with the petitioner/opposite party, i.e. the Insurance Company and while doing so, the value of the bus was declared as Rs.23,65,000/ - and after allowing 5% depreciation, the Insured Declared Value (IDV) in respect of the said bus was stated to be Rs.22,46,750/ -. The Insurance policy was valid from 15.02.2009 to 14.02.2010 and involved payment of Insurance premium of Rs.63,327/ -. On 17.01.2010, the said bus while plying on the National Highway no. 17 on Bombay -Goa route, met with an accident at 2.00 am at Saliste Talera, Maharashtra, in which two persons died and two more persons were injured. An intimation was immediately sent to the opposite party, Insurance Company and a claim was also lodged with the opposite party on 10.02.2010. It has been stated by the complainant that the insurance company appointed Sh. Amay Singnapurkar to carry out a spot survey, who submitted its report on 19.01.2010. After submission of the claim on 10.02.2010, the opposite party appointed Sh. M.N. Khandeparkar, surveyor/loss assessor/valuer to assess the loss and the said surveyor submitted its report on 18.04.2010. As per the complainant, it was a case of ''total loss'', as the vehicle was not in a repairable condition since the chassis, engine, body etc. were damaged and twisted. The complainant has stated that the claim of ''total loss'' was based on opinion from the experts in the field of manufacturing and bus body -building workshops. The complainant obtained quotation dated 27.01.2010 from M/s. Shree Sai Coach Builders, who had built the body of the bus and an estimate dated 05.02.2010 from M/s. Shiv Samarth Motors (I) Pvt. Ltd. from where, the chassis had been purchased and another estimate dated 27.02.2010 from Shree Damodar Coach Crafts Pvt. Ltd. The surveyor appointed by the Insurance Company stated that the bus could be repaired and also forwarded a repair estimate. A copy of the report of the surveyor was furnished by the Insurance Company to the complainant. However, vide his letter dated 07.05.2010, the complainant requested for appointment of a second surveyor. The complainant pointed out certain inconsistencies in the report of the surveyor. However, when the Insurance Company did not accept the request of the complainant, he sent a legal notice to the opposite party on 06.07.2010, calling upon them to settle his claim on total loss basis. On their failure to do so, the consumer complaint in question was filed, requesting for payment of Rs.22,46,750/ - on total loss basis, a compensation of Rs.2.5 lakhs for mental harassment, an amount of Rs.6.3 lakhs on account of loss of income and Rs.3,20,600/ - for payment to State Bank of India. In this way, claim was made for payment of a total amount of Rs.34,47,350/ -. The State Commission vide impugned order partly allowed the complaint and directed the opposite party, Insurance Company to pay a sum of Rs. 22,46,750/ - to the complainant as total loss of vehicle and also to pay compensation of Rs. 1 lakh for mental harassment and Rs.5,000/ - as cost of litigation. It is against this order that the present petition has been made.

AT the time of hearing before us, the learned counsel for the appellant has drawn our attention to the report submitted by the surveyor appointed by the Insurance Company dated 18.04.2010. As per this report, the assessment of the loss has been made to be Rs.8,64,986/ - including the labour charges of Rs.72,500/ -. Learned counsel argued that the said surveyor, in his report had given a detailed report about the parts to be replaced, after making due provisions for depreciation etc. in accordance with the terms and conditions of the Insurance Policy in question. Learned counsel stated that the complainant had filed a report by another surveyor K.B. Arora & Company dated 16.11.2010, in which it was stated that vehicle was damaged beyond limits of satisfactory repairs and complete bus body was required to be rebuilt on a new chassis frame. Learned counsel stated that the said report of K.B. Arora & Company was just an ''inspection certificate'' and there was no basis for accepting such a report. The report given by Laxmi Bus Body Builder, in which it had stated that no repair could be carried out to the said vehicle, was also without any basis. The report given by Shree Damodar Coach Crafts Pvt. Ltd. dated 27.02.2010 had stated that cost of repair will be 14.31 lakhs. The State Commission had based their order on the report of K.B. Arora & Company in preference to the report of the surveyor appointed by the insurer, but there was no reasonable basis for coming to the conclusion that it was a case of total loss. Learned counsel for the appellant has drawn our attention to the judgment passed by the Hon''ble Supreme Court, in United India Insurance Co. Ltd. & Ors. vs. Roshan Lal Oil Mills Ltd. & Ors. as reported in : (2000)10 SCC 19, Venkateswara Syndicate vs. Oriental Insurance Company Ltd. & Anr. as reported in : III (2009) CPJ 81 (SC) and also the orders of the National Commission in Pentagaon Steel Pvt. Ltd. vs. New India Assurance Company Ltd. & Ors., as reported in, III (2010) CPJ 339 (NC), saying that the report of the surveyor is a valuable document and should not be easily brushed aside. On the other hand, learned counsel for the respondent stated that the said vehicle had not even completed one year of insurance, and during the accident, it had been very severely damaged, and it was a case of total loss. The order passed by the State Commission was, therefore, in accordance with law and should be upheld. Learned counsel has drawn our attention to the report given by K.B. Arora & Company, in which it has been stated as follows: - 1) The vehicle has suffered extensive damages. Complete front show -cum -cowl assembly is crushed and crumpled.

2) Bus body full left side is smashed. Right side bus body is twisted. Complete flooring is crumpled, folded and damaged. Roof top & ceiling is damaged. Seats & doors are damaged. Front Wind shield glass & many window glasses area broken.

3) Complete chassis frame is severely twisted, both in horizontal as well as vertical planes.

4) Engine assembly, clutch assembly & gear box assembly are jerked, dislocated & shifted back. There is a strong possibility of damages being noticed once these assemblies are dismounted & dismantled.

5) Left tyre & wheel disc, front axle, front suspension, brake system, steering system, radiator assembly & many more parts are also damaged.

In our view the vehicle is damaged beyond limits of satisfactory repairs. Complete bus body is required to be rebuilt on a new chassis frame in order to ensure smooth & trouble free running of the vehicle in future.

LEARNED counsel stated that it was clear from the report of K.B. Arora & Company that it was a case of total loss as complete chassis frame had been severely twisted, engine assembly, clutch assembly and gear box had been dislocated and shifted back and most of the parts of the vehicle had been damaged. Learned counsel has also referred to the report given by Shree Damodar Coach Crafts Pvt. Ltd., in which details about body works, body parts and labour had been given, which goes to show that the vehicle suffered extensive damage. Learned counsel has also drawn our attention to letters from M/s. Shiv Samarth Motors (I) Pvt. Ltd., in which it has been stated that all the major aggregates are damaged beyond any economical repairs. Another letter from Laxmi Bus Body Builders says as follows: - We have seen and checked the above mentioned vehicle which is presently kept at our workshop and regret to say that there cannot be any repairs carried out to the said vehicle since the body is damaged beyond repairs. The damage from the roof top to the floor and the entire structure is twisted and has moved behind and cannot be straightened, if done the vehicle will pull to the right or left because of the power (hydraulic) steering and will be risky to the passengers travelling in it. The said vehicle will have to be built on another chassis as the chassis is also damaged severely and if at all you try to build the body on the same chassis you will be doing so at your own risk and we will not be responsible for the same.

LEARNED counsel has also stated that there are various inconsistencies in the report of the surveyor as narrated in the complaint. The items no. 36, 37, 38, 49 and 51 are put at 50% depreciation, considering they are rubber parts, whereas they are made of metal. At serial no. 62, regarding front bumper, depreciation of 52.5% has been allowed, whereas the said part is made of metal. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

THERE is a delay of 29 days in filing the present appeal. An application I.A. No. 3959/2013 has been filed requesting for condonation of delay. It has been stated therein that although a copy of the impugned order dated 18.04.2013 was received on 22.04.2013, the delay in filing the appeal occurred due to administrative delay in examining the matter at various levels in the Company and obtain the necessary approvals. Moreover, learned counsel for the appellant also remained out of station due to holidays in the month of June, 2013. In view of the position explained in the application for condonation of delay, the said delay is ordered to be condoned.

NOW , coming to the merits of the case, the basic issue involved in the present case revolves around the proposition whether the damage to the bus, as a result of accident, can be termed as ''total loss'' or not. The State Commission observed in the impugned order that there were two reports of surveyors on record of equal weight, one produced by the surveyor of opposite party, Sh. Khandeparkar and the other produced by that of the complainant, Sh. K.B. Arora and Company. The latter report was allowed to be produced by order dated 08.11.2011 of the State Commission. The report of Sh. Khandeparkar is accompanied by an affidavit, whereas the report of Sh. K.B. Arora & Company is not supported by an affidavit. However, the State Commission gave weightage to both these reports, saying that Sh. K.B. Arora & Company was also an approved surveyor. We, however, do not agree with this contention of the State Commission, because a report which is accompanied by an affidavit should carry more weight as compared to the other report. It was open to the complainant to file an affidavit when the report of Sh. K.B. Arora & Company was placed on record. Moreover, the report given by Sh. Damodar Coach Crafts Private Limited and letter from M/s. Shiv Samarth Motors should have been duly proved on record. However, a critical examination of the report submitted by Sh. M.N. Khandeparkar, the surveyor appointed by the Insurance Company and which is accompanied by an affidavit, reveals that the vehicle suffered an extensive damage and hence, the case falls under the category of ''total loss''. The report submitted by Shri M.N. Khandeparkar states as follows: - BODY: -

Front w/s glass was broken. The frontal impact had ripped the panelling/structure upto the front seats on the LHS. Passenger door was crushed, flooring was crushed. Front panels were dented. Top was dented. Dashboard was damaged. W/s frame was twisted. The entire structure on the LHS was affected and the pillars were bent. Repairs involved complete dismantling of panels on the LHS, repairing/aligning the structure and repaneling with new panels wherever necessary. The impact on the LHS had also distorted/twisted the RHS of the body. The RHS pillars were bent as is evident in the photographs. As such, the entire body had skewed from its centre axis, warranting reconstruction.

CHASSIS FRAME:

Chassis longitudinal members were distinctly bent and twisted. The LHS front tyre was pushed back and had hit against the LHS members. The frame had also sagged in its vertical axis. Same was beyond economical repairs.

N.B.: The chassis number was not physically accessible for tracing. The number though was visually confirmed. Tracing would be availed during inspectors on dismantling. (Photograph attached)

MISCELLANEOUS:

The seats were twisted, warranting repairs. Wiper arms/blades were sheared. Dashboard had cracked. H/L''s were broken. Side indicators had cracked. R/V mirrors were broken. Wiring was cut in places. Front axle had dislocated, causing damages to the front stearing/suspension components. LHS front wheel disc was dented. Air cleaner was pressed.

A perusal of the above report shows that the chassis, longitudinal members were distinctly bent and twisted, the frame had sagged in vertical axis and the same was beyond economical repairs. The entire body had skewed from its centre axis warranting reconstruction. A plain reading of the report submitted by the surveyor appointed by the Insurance Company indicates that there has been an extensive damage to the bus and certain parts were beyond economical repairs. The said surveyor has, however, attached an estimate for repair of the vehicle amounting to Rs. 8.65 lakhs. The State Commission came to the conclusion, however, that it is a case of "total loss" and hence the Insurance Company was liable to make payment as per the stated IDV of the vehicle. Based on the entire factual matrix of the case and considering the report produced by the surveyor, appointed by appellant/opposite party, Insurance Company, we shall like to give an opportunity to the appellant to make attempt for the repair of the vehicle on their own and at their own cost, restore it back to its original condition and hand over the same to the complainant with a certificate duly signed by appropriate technical authority that the vehicle is in a perfect road -worthy condition. For this purpose, we allow a time of three months from today for doing the needful and provide the vehicle back to the respondent. In case, the petitioners are not in a position to do the needful within the stipulated period, the appeal shall stand automatically dismissed and order of the State Commission sustained. With these directions, this appeal stands disposed of. There shall be no order as to costs.