New India Assurance Co. Ltd. vs BIJAY KUMAR SHARMA

IN this revision by the opposite party, challenge is to the order dated 21.10.2003 of Consumer Disputes Redressal Commission Orissa, Cuttack dismissing appeal against the order dated 7.8.2004 of a District Forum whereby petitioner was directed to pay further amount of Rs. 78,407.80 with interest to respondent No. 1/complainant.

TRUCK bearing registration No. OR-11A-4667 owned by respondent No. 1 was insured with petitioner-Insurance Company for the period from 8.3.2000 to 7.3.2001. On 17.11.2000, the truck met with an accident and was damaged. On being intimated about the accident by respondent No. 1, the petitioner appointed Surveyors. Estimate of damage to the truck to the tune of Rs. 1,60,000 prepared with the assistance of Mahindra Garage was submitted by respondent No. 1 to the petitioner. It was alleged that amount of Rs. 1,37,416 was incurred towards repairs of which vouchers were submitted to the petitioner by respondent No. 1. On claim for this amount not being settled, alleging deficiency in service, the respondent No. 1 filed complaint which was contested by the petitioner. In the written version, it was alleged that amount of Rs. 51,500 as assessed by Surveyor was paid to opposite party No. 2/respondent No. 2, financier of the truck towards full and final settlement of claim by the petitioner. It was denied that the damage to the truck was of Rs. 1,37,416.

Contention advanced by Mr. K.L. Nandwani for petitioner has been two-fold -(i) amount of Rs. 51,500 as recommended by Surveyor was received by respondent No. 2, financier towards full and final settlement of claim and complaint was, thus, not maintainable, (ii) Yashobanta Narayan Mohanty, final Surveyor as required by Section 64UM of Insurance Act, 1938 was appointed by the petitioner and none of the Fora below considered the report dated 25.1.2001 (copy at pp. 24-29) of that Surveyor.

IT is not the case of petitioner that respondent No. 1 had consented to the payment of said amount of Rs. 51,500 to respondent No. 2 towards full and final settlement of its claim. Therefore, that payment would not come in the way of respondent No. 1 in filing complaint. Coming to second limb of argument referred to above, bare reading of the order of District Forum would show that it did not specifically deal with the Surveyor''s report dated 25.1.2001 while assessing the damage and taking note of the failure to file photographs of the truck by petitioner and considering the vouchers produced by respondent No. 1 had passed the aforesaid order 7.8.2002. Bare perusal of the order of State Commission would reveal that it also did not consider the said report of Surveyor. In ''Summary of Assessment'' of the report dated 25.1.2001 against the original estimate for a total sum of Rs. 1,23,500 towards labour charges, cost of spare-parts, towing charges and supplementary, a total sum of Rs. 53,000 was assessed for payment by the Surveyor. Later amount includes Rs. 17,350 towards labour charges as against the original estimate of Rs. 66,000. Break-up of Rs. 17,350 has been given under the sub-head ''Labour charges''.

THUS, the major difference between the original estimate and as assessed by Surveyor concerns the labour charges. It seems that copy of said report was not made available by the petitioner by the time complaint came to be filed. Therefore, there was no occasion for respondent No. 1 to have assailed the correctness of that report. Photographs of the truck have now been filed by the petitioner. Having heard Mr. Chandrakant Nayak for respondent No. 1 and considering the extent of damage to the truck as reflected in photographs, we are of the view that labour charges deserve to be increased to Rs. 33,000 as against assessed amount of Rs. 17,350. Order passed by Fora below, thus, needs to be modified only to the extent that respondent No. 1 is entitled to Rs. 15,650 instead of Rs. 78,407.80 with proportionate interest. Order accordingly. Revision petition stands disposed of. R.P. disposed of.