National Insurance Co. Ltd. vs NATHA MALDE LAGARIYA

THIS appeal arises from order dated 21.12.2001 rendered by the learned Consumer Disputes Redressal Forum, Jamnagar in Complaint No. 134 of 1999 directing the opponent Insurance Company to pay to the complainant Rs. 1,07,700/- by way of indemnity compensation for the damage to the truck in question with interest @ 15% p.a. from the date of complaint till payment and cost quantified at Rs. 10,000/-. We have heard the learned Advocates for the parties. We have gone through the impugned order.

IT would appear that the truck/vehicle in question was insured with the opponent Insurance Company and during the period of insurance it met with an accident on 9.11.1998 as per the particulars set out in the complaint. The complainant got the damage assessed and got the repairs carried out and accordingly preferred the claim. Opponent Insurance Company, however, as per letter dated 17.2.1998 offered in full and final settlement only Rs. 28,000/- against the expenses of Rs. 1,07,700/- incurred by the complainant. This resulted into filing of the complaint in question alleging deficiency in service on the part of the opponent Insurance Company. The learned District Forum, after considering the facts of the case, passed the impugned order, which has been carried in appeal by the opponent Insurance Company. The learned Advocate for the opponent Insurance Company would refer to the offer letter dated 31.1.2000 sent by the opponent Insurance Company to the complainant. The claim submitted by the complainant was treated as non-standard and that is how Rs. 28,000/- were offered. This letter does not set out any particulars with regard to how the amount was worked out and how it was treated as non-standard claim. Reference has, therefore, been made to letter dated 20.5.1998 (20.6.1998) appearing at page 32 in the appeal. It has been recited that on a visit to auto dealer M/s. Cargo Motors, it could be concluded that the vehicle was a long truck chassis vehicle and as per the condition of the warranty given by the manufacturer of the vehicle, it could be used only as long truck but the insured prepared tipper on long chassis which might have resulted into formation of crack in the chassis causing damage to the chassis at the time of the accident. It has been submitted that the insured violated the condition of warranty issued by the manufacturer of the vehicle in favour of the insured. However, there is no reference to any such condition in the policy of insurance. Besides, the cause of damage to the chassis with the alleged violation of the condition has also not been established. In fact there is no material on the record of the complaint to indicate that the complainant violated any of the terms and conditions of the policy of insurance in question. That in fact does not appear to be a specific case also. What the opponent Insurance Company ought to have done was to produce the policy of insurance in question, point out relevant condition so breached thereof by producing cogent evidence in respect thereof and then canvass for offering the non-standard claim on that basis. That having not been done, submission made on the strength of the aforesaid letter cannot be accepted.

It has then been submitted that Surveyor''s report which was very much on record should have been made the base for awarding the indemnity compensation. In our considered opinion, there is a great deal of substance in this submission in view of the decision of honourable National Commission in National Insurance Company Limited v. M/s. Winner Chorates Private Limited and Anr., reported in II (2004) CPJ 1 (NC)=2003 (2) CPC p. 355. The honourable National Commission had an occasion to deal with a case where loss by mixing of wrong chemical was occasioned. The National Commission has reproduced the observation of the Apex Court in following terms. "State Commission has not at all discussed the report of the surveyor which is an important document. Non-consideration of this document has resulted in serious miscarriage of justice and vitiates the judgment as held by the honourable Supreme Court in the case of United India Insurance Company Ltd. v. M/s. Roshanlal Oil Mills Limited reported in 2001 (2) CPC 304 (SC) in Live Appeal No. 414/93 and 2458/97".

THE complainant''s learned Advocate has not been able to show anything from the material or evidence placed on record before the learned Forum to controvert the survey report. THE Surveyor has assessed the value of damage to the vehicle in the sum of Rs. 70,500/- and excluded the salvage value which is stated to be Rs. 7,500/-. Thus, according to the survey report, the complainant would be entitled to Rs. 63,000/-. In view of what is stated above and bearing in mind the facts of the case, we propose to reduce the rate of interest from 15% to 9% [See Kaushnumma Begum v. The New India Assurance Co. Ltd., I (2001) SLT 300=I (2001) ACC 151 (SC)=(2001) 2 SCC P. 9]. We also propose to set aside the award of compensation and cost awarded in the sum of Rs. 10,000/-. However, we propose to award cost in the sum of Rs. 1,000/-. We, therefore, pass following order. ORDER (1) Impugned order dated 21.12.2001 rendered by the learned Consumer Disputes Redressal Forum, Jamnagar in Complaint No. 134 of 1999 is hereby modified as under: (2) Opponent Insurance Company will pay to the complainant Rs. 63,000/- with interest @ 9% p.a. from the date of complaint till payment and cost quantified at Rs. 1,000/-. (3) Opponent Insurance Company is stated to have deposited Rs. 70,500/- in this Commission. Office to verify the amount and pay the same by A/c Payee cheque to the complainant. If there is any balance payment or recovery, the same shall be paid or recovered from the respective parties within 8 weeks from today. This appeal is accordingly disposed of, with no further order as to costs.

Appeal partly allowed.