NATIONAL INSURANCE COMPANY LIMITED vs J.K. MITTAL

-THIS appeal is directed against order dated 21.9.2002, passed by District Forum (East), Saini Enclave, Delhi, in Complaint Case No. 87/2002 entitled Shri J.K. Mittal v. National Insurance Company Limited.

THE relevant facts of the case, in brief, are that the respondent Shri J.K. Mittal had filed a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') before the District Forum alleging deficiency in service on the part of the appellant on the ground that the respondent had purchased a Maruti Car, bearing Registration No. DL-7C-B-6513 from M/s. Bagga Link Motors Limited on 29.9.2001 which was duly insured with the appellant through its Preet Vihar Branch for Rs. 2,65,952/- vide Cover Note No. 0855105. THE delivery of the above said car was, however, taken on 18.10.2001. THE said car was stolen on 19.11.2001 i.e. after one month of delivery for which the respondent had lodged a complaint with the concerned Police Station but the F.I.R. was registered on 20.11.2001. On the same day the respondent had informed the appellant insurance company and had also lodged his claim with it after depositing all the relevant documents. THEreafter the respondent had also submitted the non-traceable report of the police on 24.12.2001. However, despite having fulfilled all the formalities the appellant had failed to settle the claim of the respondent and as such the respondent had prayed for directions to the appellant to pay the entire insured amount of Rs. 2,65,952/- with interest @ 18% p.a. from the date of lodging of the claim till payment, together with Rs. 1,00,000/- as compensation for loss suffered by the complainant, as well as cost of litigation. The O.P. in its reply/written version filed before the District Forum had taken the defence that on receiving the claim of the respondent the appellant had immediately appointed Shri. P.T. Thomas as Investigator and M/s. Darbari Lal Puri & Sons as Surveyor and Loss Assessor to assess the loss incurred on account of theft of the car. Thereafter immediately on receipt of the respective reports from the aforesaid Investigator and Assessor, the appellant had approved the claim of the respondent for Rs. 2,45,000/- subject to the compliance of certain conditions, including handing over of the original keys and the Registration Certificate of the stolen car to the appellant. A communication in this regard was duly addressed to the respondent vide letter dated 22.1.2002. However, the complainant refused to accept the said amount and insisted on the payment of full insured value of the car. It was, therefore, stated by the appellants in its reply/written version that there was no deficiency in service on the part of the appellant and as such the complaint, filed by the respondent, was liable to be dismissed with heavy costs.

The learned District Forum, however, came to the conclusion that the appellant had been deficient in service in not passing the claim of the respondent for the full insured value of the car and as such directed the appellant to pay to the complainant the full insured value of the car i.e. Rs. 2,65,952/- together with 12% interest from the date of lodging of the claim on 20.11.2001 till actual payment and also awarded Rs. 5,000/- as compensation and Rs. 1,000/- as cost of litigation to the respondent.

AGGRIEVED by the aforesaid order, the appellant has preferred the present appeal before this Commission. We have carefully perused the documents/material on record, as well as have heard the arguments advanced on behalf of both the parties. We have also duly considered the written submissions filed on behalf of the appellant. At the very outset an objection has been taken on behalf of the respondent that the present appeal being time-barred is liable to be rejected on the said ground alone. The appellant has, however, filed an application for condonation of delay along with the present appeal whereby it has been stated that though the impugned order was passed on 21.9.2002 the certified true copy of the same was received by the appellant on 28.9.2002 and thereafter the same was forwarded by the Counsel to the concerned Divisional Office of the appellant Insurance Company on 4.10.2002 for approval for filing an appeal. The said file, however, got mixed up with other files and as such the appeal could be filed only when the same was traced out and the approval of the competent authority for filing an appeal was received. The appellant has, therefore, sought condonation of delay of about 25 days in filing the present appeal. In terms of Section 15 of the Act an appeal against the order of the learned District Forum passed under Section 14 of the Act has to be preferred before the State Commission within 30 days of the impugned order. However, in terms of the proviso to the above said provision, the delay in filing the appeal can be condoned if the appellant shows ''sufficient cause'' for not being able to file the appeal in time. So far as the reason assigned for the delay in filing the present appeal by the appellant is concerned, the same in no way constitutes ''sufficent cause'' and as such we are not inclined to condone the delay in filing the present appeal. In consequence, the application of the appellant for condonation of delay is dismissed as being devoid of merit. With the dismissal of the application of the appellant for condonation of delay the present appeal is also liable to the dismissed as being barred by time.

HOWEVER, on merits also the appellant has no case because the appellant has challenged the impugned order on the ground that the learned District Forum had erred in directing the payment of full insured value of the car on the basis of copy of GR 8, filed by the respondent along with his rejoinder, according to which no depreciation was applicable in case of total loss of a car occurring within six months of the date of purchase. It was further contended that the said provision was not applicable as the said provision was introduced w.e.f. 30.6.2002 whereas the car was insured on 30.9.2001 much prior to the coming into force of the above said provision. It was also contended that the learned District Forum had ignored the terms and conditions of the policy in question which form the basis of the contract of insurance between the parties and according to condition No. TMT 75 in case of total loss of a car the claim was to be settled only on the basis of the insured''s estimated value, or the market value of the car whichever was less. The above said contention of the appellant even if accepted to be correct, the fact remains that no data/basis for arriving at the market value of the car in question at Rs. 2,45,000/- has been mentioned in the report of the Surveyor and Assessors M/s. Darbari Lal Puri & Sons. In its report dated 12.1.2002, the said Surveyor has stated as under- "that on considering the fact that the vehicle is one month old and that these days new cars are available freely in the open market, we are of the opinion that fair market value of the vehicle would be in the vicinity of Rs. 2,45,000/-."

Thus no criteria for holding the estimated value of the car at Rs. 2,45,000/- has been mentioned nor has any survey been carried out by the said Surveyor and Assessor from the market to assess the exact market value of the car at the time of theft. As such it cannot be said that there was any infirmity in the order of the District Forum on the aforesaid issue. It is also contended on behalf of the appellant that the complaint was not maintainable under the Act as the respondent had failed to invoke the arbitration clause mentioned in the insurance policy. In this regard the law already stands settled by a catena of decisions of the Hon''ble National Commission that despite the existence of arbitration clause in the contract between the parties, a consumer can approach the Foras, established under the Act for the redressal of his grievances in reference to the loss occasioned to him on account of the deficiency in service on the part of the other party, as in terms of Section 3 of the Act the remedy under the Act is in addition to the other remedies available to the consumer. As such, the said contention of the appellant is also devoid of force. The appellant has also challenged the date from which the interest has been awarded together with the rate of interest awarded. However, in view of the circumstances of the case we do not find any infirmity in the impugned order, which is a detailed and reasoned order, as to the date and rate of interest awarded. Accordingly, the present appeal, filed by the appellant, being barred by time and also devoid of merit, is liable to be dismissed and is dismissed accordingly with no order as to costs. The above mentioned appeal stands disposed of in above terms. Appeal dismissed.