NATIONAL INSURANCE COMPANY vs BHAJAN SINGH BAL

IT is an appeal against the order dated 26.11.2002 of the District Consumer Disputes Redressal Forum, Amritsar (hereinafter called the District Forum).

BRIEF facts stated in the complaint are that the respondent-complainant (hereinafter called the complainant) got insured one Maruti Esteem LX car Model-2000 with the appellant-opposite parties (hereinafter called the opposite parties) vide cover note dated 6.10.2000 covering the period from 6.10.2000 to 5.10.2001. The car was stolen on 1.4.2001 in the area of Karol Bagh. New Delhi, FIR No. 83/2001 was lodged in the Police Station, Desh Bandhu Gupta Road, Karol Bagh, New Delhi. The complainant lodged claim with the appellant No. 1 (opposite party No. 1 before the District Forum) (hereinafter called opposite party No. 1) on 4.4.2001 and also supplied all necessary documents. The complainant had also delivered untraced report as issued by ACP of Desh Bandhu Pupta Road Police Station. Opposite parties failed to settle the claim, which according to the complainant was a deficiency in service on the part of opposite parties. A prayer was made by the complainant that the opposite parties be directed to pay Rs. 4,80,000/- with interest and compensation. Opposite parties filed reply on 18.3.2002. During the pendency of the case the claim was repudiated by the opposite parties and an amendment in the written reply was sought for. The case of the opposite parties as contained in the amended reply was that neither copy of FIR was supplied to the opposite parties nor the date of FIR was mentioned in the complaint. It was further pleaded that as per record of the opposite parties, copy of untraced report had not been supplied so far to the opposite parties although there was specific provision that all the documents should be supplied to the opposite parties. The next plea taken was that the value of Rs. 4,80,000/- as mentioned was not the sum insured, but was only estimated sum insured as per option of the insured and in case of total loss, the opposit parties were liable to pay market value or the sum insured, whichever was lesser. It was then stated in the written statement that it was incumbent upon the insured to give letter of authority to the Police Department confirming that in case the vehicle was recovered, the same was the property of the opposite party-Insurance Company and they had no objection for delivering the same Registration Certificate had also to be transferred in the name of the opposite party-Insurance Company. Second set of duplicate keys of the vehicle was also supposed to be deposited by the complainant. It was next pleaded that the claim of the complainant had been repudiated by the Competent Authority in the light of the report of the investigator. Ultimately, the complaint was allowed by the District Forum. Hence this appeal.

We have heard the learned Counsels for the parties and have gone through the record of the case with their assistance.

AT the outset, we say that we do not find any infirmity in the detailed order of the District Forum while allowing the complaint. Ex. R-8 is the copy of the repudiation letter, which shows that the claim of the complainant was repudiated by the competent authority on the basis of investigation report of R.S. Ahluwalia, the concluding part of which reads as under : "We sent a Questionaire to the insured by speed post and till date we did not get any reply. Keeping in view the above mentioned circumstantial evidences and non-cooperative attitude of the insured, we are of the opinion that the claim may be repudiated."

DISTRICT Forum has held the report of R.S. Ahluwalia as anything but genuine. It is also held by the DISTRICT Forum that R.S. Ahluwalia gave the report with a pre-determined mind to repudiate the claim of the complainant. It may be mentioned at the outset that the opposite parties had appointed Tarsem Lal, A.O. as investigator. Tarsem Lal gave the report, copy of which is placed on the record. Opposite Parties withheld that report and the same was filed only when the complainant fild application for production of documents by the opposite parties. In the investigation report, Tarsem Lal had concluded as under : "During the course of investigation, it has been observed that Maruti Esteem LX car No. PB-02-Y-5960 has been stolen on 1.4.2001 and the police authorities have clubbed the investigation of the case with FIR No. 83/2001 and the vehicle has not been recovered by the police." Tarsem Lal in his report dated 14.5.2001 had confirmed that the vehicle had been stolen and had not been recovered by the police. It is not understood as to what prompted the opposite parties to depute the second investigator. The District Forum has rightly drawn an adverse inference from the conduct of the opposite parties that the deputing of second investigator was mala fide and was only to obtain a tutored report for rejecting the claim of the complainant. It is again noticeable that on the application filed by the complainant for production of documents, the opposite parties had placed on record report of V.K. Mehta Asociates, Ex. R-7. In that report Mr. V.K. Mehta had assessed the market value of the vehicle as Rs. 3,80,000/-. Opposite Parties had suppressed the investigation report of Tarsem Lal as well as the survey report of V.K. Mehta. In these circumstances, report of R.S. Ahluwalia that the complainant had not cooperated with the investigation was rightly held as false by the District Forum. The complainant had filed a copy of the FIR, which was duly handed over to the investigator. Ex. C-3 is the copy of FIR produced on record. Ex. C-5 is the untraed report given by the competent police authorities. Tarsem Lal investigator had also reported that the vehicle had not yet been recovered by the police. Nothing else was required to establish the total loss of the vehicle by way of theft. Report of R.S. Ahluwalia does not stand the test of scrutiny and the findings recorded therein are untenable. Total loss of the vehicle is established and the repudiation of the claim of the complainant by the opposite parties is illegal.

THE other point for consideratioin before the District Forum was with regard to the amount to which the complainant was entitled. We also do not find any infirmity in the finding of the District Forum. THE vehicle was insured for Rs. 4,80,000/- as per policy Ex. C-2. It follows that at the time of entering into contract of insurance, opposite parties had accepted the market value of the vehicle as Rs. 4,80,000/-. Report of V.K. Mehta, Surveyor that the market value of the vehicle was Rs. 3,80,000/- was arbitrary. He has also mentioned in the report that the vehicle was purchased in October, 2000 and was used for about 6 months only. THE vehicle was Purchased for Rs. 4,75,888.89/- as per invoice placed on record and it was insured for Rs. 4,80,000/-. Report of V.K. Mehta is one-sided and has absolutely no basis. No effort was made to enquire into the current price of the vehicle. It has been held in case Vishan Narain v. Oriental Insurance Company Ltd., 97 (2002) DLT 225 (DB)=2002(3) Civil Court Cases 366, that when the vehicle is stolen it amounts to total loss and the amount to be reimbursed is the amount for which the vehicle was insured. It was further observed therein that question of asessment of market value did not arise when it was a case of total loss. THE case in hand also belongs to the same category of total loss and the assessment of market value by Surveyors of the opposite parties was highly arbitrary.

THE next point taken by the learned Counsel for the appellant-opposite parties is that the complainant had given consent to accept Rs. 3,80,000/- towards full and final settlement of claim and, thus, he was estopped from claiming any further amount. This argument of the learned Counsel is also without any basis. Opposite parties had appointed Tarsem Lal Investigator who gave the investigation report, but that report was withheld by the opposite parties. THE complainant gave the consent letter Ex. R-2 and that letter was addressed to V.K. Mehta, Surveyor. V.K. Mehta gave his report Ex. R-8 but the opposite parties did not accept that report and chose to repudiate the entire claim of the complainant. THE complainant gave an application dated 23.12.2001 to the opposite parties that his claim was pending with the opposite parties since April, 2001 and the consent was given by him because it was expected that his claim would be settled expeditiously and vide that letter he further stated that since the claim had not been settled he was incurring a heavy amount of interest on bank loan, he then withdrew the consent obtained by the Surveyor. THE complainant, thus, had a valid reason to withdraw his consent in the given circumstances. THE complainant was entitled to an amount of Rs. 4,80,000/- as it was a case of total loss and there was no question of market value of the vehicle being ascertained. Opposite parties failed to act upon the report of the Surveyor. THE complainant for valid reasons had withdrawn his consent and he was perfectly within his rights to do so. In this regard, a judgment of the Delhi High Court in case of Vishan Narain v. Oriental Insurance Company Ltd. (supra), an order of this Commission in case of New India Assurance Co. Ltd. and Another v. Ajay Kumar, reported as I (2001) CPJ 175=2001 (1) CON.LT 519 may be noted.

In these circumstances it has rightly been held by the District Forum that the complainant was not estopped from claiming the entire amount of Rs. 4,80,000/-. He was rather entitled to the amount of Rs. 4,80,000/-. District Forum has further held in its order that legal formalities, which were not complied with by the complainant shall be complied with within a given period. In these circumstances, we do not find any infirmity in the order of the District Forum. This appeal is, therefore, dismissed with costs, which are quantified as Rs. 1,000/-. Appeal dismissed.