NATIONAL INSURANCE COMPANY LIMITED vs RAJESH TRIPATHI

THIS is an appeal against the order and judgment dated 10.11.1993 passed by the District Consumer Forum, Lakhimpur in Complaint No. 38/1991. The facts of the case, stated in brief, are that vehicle No. UP-31 9057 was insured with the National Insurance Company - opposite party, for Rs. 1,31,000/-. THIS Ambassador Car met with an accident, on 22nd of January 1990 at about 9 p.m. The information about the accident was conveyed to the Insurance Company on 25th January, 1990. Before that, on the date of accident, First Information Report was also lodged. The Insurance Company appointed a Surveyor who visited the spot on 25.1.1990. Thereafter second Surveyor'' for assessment of damages was appointed on 21.2.1990 who inspected the vehicle and submitted his report on 10th April, 1990. He recommended a claim of Rs. 53,675/- only which amount was paid accordingly by the Insurance Company. Now the claimant has said that in presence of one Farid Ahmed, who was owner of Dilli Motor Garage, Krishna Kumar and Others, the agent had settled the claim for Rs. 70,000/-. It is further mentioned that it was also agreed upon that in case engine and gear box of this vehicle was found defective, then a supplementary report may also be submitted and the balance is to be paid to the complainant. According to complainant he consented to this amount, but when the Surveyor submitted his report only claim of Rs. 53,675/- was forwarded. THIS amount is inadequate and the complainant had filed objections to the effect that Surveyor should be sent again and a supplementary report should be called for. The Surveyor was not again sent and hence complainant got the vehicle repaired and the information of this was conveyed to the Insurance Company on 6.3.1991. The list of damaged parts is given in Annexure-II to the complaint which were replaced.

IT is further alleged that depreciation at the rate of 10% has been deducted as the vehicle met with an accident within six months of its purchase and no deduction on account of depreciation is to be made. The amount has not been paid and a further claim of Rs. 46,312/- in addition to the assessment made by the Surveyor has been claimed. The opposite party, Insurance Company, has in its written statement, alleged that the vehicle was got immediately inspected on the spot after information of the accident was received, Thereafter, the final survey was got done. The Surveyor reported a loss of Rs. 53,657/- which was allowed by the Insurance Company. It is alleged that the Surveyor never offered settlement of Rs. 70,000/- as alleged by the claimant. According to the Insurance Company the cheque was sent but it was not accepted by the complainant.

A further plea was taken by the Insurance Company that the District Forum has no jurisdiction to settle the matter because the claim under the Motor Vehicles Act has already been lodged at Shahjahanpur. Both the claims cannot go together as judgments could contradict each other.

ACCORDING to the learned Counsel for the appellant when once a claim has been lodged by the claimant before the Motor Accident Claims Tribunal, the complaint is not maintainable. This argument cannot be accepted. The learned District Forum has also decided this question by order dated 1.5.1993 and has come to the conclusion that this claim is not barred on account of lodging of previous claim before the Motor Accident Claims Tribunal. It maybe mentioned that under the Motor Vehicles Act, decision is taken about the compensation and damages which has to be given on account of injury caused to the persons who are involved in the accident. The Motor Accident Claims Tribunal cannot go into this question about the damages to the vehicle where the claim can be confined to Rs. 2,000/-. The rest of the amount has to be claimed before the normal Courts. Therefore, the order of learned District Forum on the question of jurisdiction is perfectly correct and needs no interference. Now the question raised by the learned Counsel for appellant is the claim of quantum of damage could only be gone into by an Arbitrator as provided in the terms of the insurance policy. No doubt the policy says that if any dispute arises between the parties about the quantum of the damages, then it has to be referred to the arbitration. Section 3 of the Consumer Protection Act provides that this Act is not derogatory of any other law, but it shall be in addition to the provisions of any other law for the time being in force. In case of New Jaipur Deying and Tents Works v. Oriental Insurance Company Limited, II (1991) CPJ 241 (NC), the Hon''ble Court held that under the provisions of Section III of the Consumer Protection Act, a consumer is entitled to file a claim before the District Forum even if arbitration clause exists in the agreement. Thus we find that the remedy given is in addition to it, does not exclude the remedy provided under the Arbitration Agreement or any other law. The consumer is entitled to choose the jurisdiction which he wants to invoke. In view of this law, the present dispute can be settled by the District Forum and the jurisdiction of the District Forum is not barred.

RELIANCE has been placed on the case of Patel Lalji Bhai Ukabhai v. Adarsh Welding Works, II (1991) CPJ 276 (Guj. SC). In this case it was held that if the matter is sub-judice before the Civil Court, the District Forum has no territorial jurisdiction. This case does not apply to the facts of the present case because in this case the matter before the Motor Accident Claims Tribunal is entirely different and is in respect of the body injuries while this matter relates to the damage to the vehicle. Now we come to the amount claimed by the claimant. According to the claimant he should further get an amount of Rs. 46,312/- which he has spent on the repair of vehicle, on purchase of new shell for which claim had not been allowed by the Insurance Company. According to the claimant the report of the Surveyor is silent about the replacement of the body shell by new shell and damage and repair charges. The complainant''s evidence reveals that a new body shell was purchased and it was brought from outside and has also claimed the transportation charges. The body shell was purchased from Calcutta. According to complainant this body shell was not available in Lucknow or nearby place. According to the learned Counsel for the Insurance Company, the body shell was available locally and it should not have been brought from outside. But there is no evidence on record to show that the body shell was available locally at the time or near about when it was purchased by the claimant. Unless evidence is forthcoming the version of the appellant cannot be relied upon. Therefore we come to the conclusion that the body shell was not available locally and the claimant was justified in bringing the same from Calcutta and is thus entitled to claim transportation cost also from Calcutta to the place where the vehicle was repaired. But we cannot allow these transportation charges because the learned District Forum has not allowed these charges and cross appeal has not been filed by the claimant. Thus we have to upheld the judgment of the learned District Forum on the question of transportation charges, but as the price of the shell has been allowed by the District Forum, we uphold the same. The claimant is also entitled to other charges which he has claimed because the same has not been allowed by the Surveyor for insufficient reasons. At page No. 3 of the survey report, the Surveyor has indicated that in photo R-2 it would be observed that rear portion of the vehicle is also damaged but from the spot photographs it is obvious that rear portion was absolutely clear at this point, i.e. rear portion has been damaged either in towing or in taking out the vehicle from off the road side and is not covered in the course of accident hence not taken into consideration. This observation of the Surveyor cannot be approved because the vehicle had to be taken out from the place of accident for repairs and that will also be treated as a damage incidental to the accident. The Surveyor has not stated in the report that the vehicle could have been taken out in any way from the spot without rear portion being damaged. In this specific averment only report to the fact is made. We are not in agreement with the observation made in this report and also that the repair charges of the rear portion is also payable by the Insurance Company. The Surveyor has even deducted 10% depreciation on the sales tax amount which was levied on the parts. Amount of sales tax does not get depreciated and hence no amount is to be deducted by a consumer. The Surveyor has deducted 10% depreciation on the metal part. As mentioned in the earlier part of the judgment, the vehicle was only 6 months old when it met with an accident. Within a year of accident of a newly purchased vehicle, no depreciation is to be allowed. Thus .the deduction made of 10% cannot be justified :

CLAIMANT has claimed a sum of Rs. 46,312/- after adjusting the amount of Rs. 53,675/- which has been allowed by the Insurance Company. We find that the claimant has been able to prove his claim for this much of amount.

THE claimant has claimed interest which the learned District Forum has allowed at the rate of 16%. As a matter of fact the damages in the form of interest is allowed if there is a delay in settlement of claim. In the present case, as has been shown in the earlier part of the judgment, the total claim of the complainant was not settled. THE claimant had to seek remedy before the District Forum. If claimant had accepted the amount offered by the Insurance Company in full and final settlement of the claim, he could not have claimed further damages unless the settlement received was given under coercion. THErefore, we will have to presume that the Insurance Company did not settle the claim reasonably and for the amount which should have been allowed to the complainant. We find that there is a deficiency in service on the part of the Insurance Company for which, besides the claim amount, damages in the form of interest etc. are to be allowed. Thus we come to the finding that the learned District Forum did not commit any mistake in arriving at the conclusion that a further sum of Rs. 46,312/- is to be paid by the Insurance Company, besides the amount already assessed by the Insurance Company. The damages have to be paid in the form of interest at the rate granted by the learned District Forum.

We assess the cost of this appeal at Rs. 2,000/- which shall be paid by the appellant to opposite party within one month.

COMPLIANCE of the order be made as directed by the learned District Forum. Let copy of this order be made available to the parties as per rules. Appeal disposed of.