New India Assurance Co. Ltd. vs TOBACCO CENTRE

THIS appeal is directed against the order dated 18th day of September, 1998 in O.P. No. 263/97 on the file of the District Consumer Disputes Redressal Forum, Chennai (North).

THE appellant is the opposite party while the respondent is the complainant. Short facts may be related in order to understand the crux of the issue arising for consideration.

The complainant purchased a new Tata 407 vehicle of 1996 model. After purchase, the vehicle was registered and its Registration No. was TN-09-J-0984. The said vehicle was insured with the opposite party Insurance Company for Rs. 4.25 lakhs for a period of one year between on 1.10.1996 and 30.9.1997.

THE said vehicle met with accident on 18.11.1996 within a period of two months from the date of its purchase which event happened on 30.9.1996. Immediately after the accident, the same was informed to the opposite party Insurance Company. THE vehicle, which met with an accident was left with the V.S.T. Service Station Private Ltd. for effecting repairs. THE repairs as a matter of fact to the vehicle did not at all commence till upto the inspection of the same by the Surveyor appointed by the opposite party Insurance Company. The opposite party Insurance Company appointed a Surveyor by name one Mr. Jagadeesan, who in turn inspected the vehicle in the V.S.T. Service Station on 30.11.1996 and required the V.S.T. Service Station Pvt. Ltd. to commence the work. The V.S.T. Service Station Pvt. Ltd. also intimated to the complainant about the same and also required a sum of Rs. 40,000/- to be paid as advance. This sort of an intimation was sent by the V.S.T. Service Station Pvt. Ltd. to the complainant on 2.12.1996. For effecting certain other works relatable to the body of the vehicles, the same was entrusted to the Chamundeeswary Body Works (P) Ltd. V.S.T. Service Station Pvt. Ltd. and Chamundeeswary Body Works (P) Ltd. effected repairs and ultimately submitted bills totaling to Rs. 79,197/-.

THE opposite party Insurance Company appointed a second Surveyor by name one V. Rangarajan and he submitted report dated 23.12.1996 to the opposite party Insurance Company and he assessed the net liability of the underwrites at Rs. 53,250/-. The opposite party Insurance Company did not accept the claim as made by the complainant to the tune of Rs. 79,197/-. However, the opposite party Insurance Company has prepared to settle the claim at Rs. 48,220/- in full and final settlement. The complainant was not amenable to such a course. In such a backdrop and setting, the complainant knocked at the doors of the Forum below alleging deficiency in service on the part of the opposite party Insurance Company and claiming certain reliefs as prayed for in the complaint.

THE opposite party Insurance Company in pith and substance contended that there was no deficiency in service on the part of the opposite party and they were always prepared to pay an amount of Rs. 48,220/- and to settle the claim with the complainant in full to which course the complainant was not amenable. THE complaint as such is liable to be dismissed.

THE Forum below after taking into consideration the materials placed on record, recorded a finding that there was deficiency in service on the part of the opposite party and consequently directed the opposite party Insurance Company to pay the sun of Rs. 79,197/- towards the repairing charges with cost of Rs. 1,000/- within two months from the date of its order failing which the complainant would be at liberty to invoke Section 27 of the Consumer Protection Act, 1986 (for short, "the Act, 1986"). Aggrieved by the order as above, the opposite party Insurance Company resorted to the present action by engaging a Counsel of their choice namely learned Counsel M/s. M.B. Gopalan, N. Vijayraghavan and M.B. Raghavan.

On service of process, the respondent/complainant entered appearance through a Counsel of his choice namely learned Counsel Mr. S. Udayasankar and Mrs. P. Kalpa Reddy.

WE heard the arguments of learned Counsel Mr. M.K. Srinivasan representing learned Counsel M/s. M.B. Gopalan, N. Vijayaraghavan and M.B. Raghavan appearing for the appellant/opposite party and learned Counsel Mr. S. Udayasankar appearing for the respondent/complainant. From the pith and submission of learned Counsel representing the respective parties, the one and only question that crops up for consideration is as to whether the order of the Forum below on the facts and in the circumstances of the case is sustainable in law. There is no pale of controversy that the complainant purchased a new vehicle Tata 407 vehicle of 1996 model on 30.9.1996 and the said vehicle immediately after the purchase met with an accident on 18.11.1996, i.e. within a period of two months from the date of its purchase. Yet another fact about which there is no dispute is that the said vehicle had been insured with the opposite party Insurance Company for Rs. 4.25 lakhs for a period of one year between 1.10.1996 and 30.9.1997. There is no dispute that immediately after the accident on receiving intimation from the complainant, the opposite party Insurance Company deputed its Surveyor by name one Jagadeesan to inspect the vehicle which was left at V.S.T. Service Station Private Ltd. and the Surveyor so appointed also inspected the vehicle in the said service station on 30.11.1996 and asked service station people to commence the work. The body works were attended to at Chamundeeswary Body Works (P) Ltd. In the meantime, the opposite party Insurance Company for the reasons best known to themselves appointed a second Surveyor by name V. Rangarajan after inspecting the vehicle after the completion of the repairs assessed the net liability of the underwriters at Rs. 53,250/- as against the actual amount said to have been expended by the complainant namely Rs. 79,197/-. The opposite party Insurance Company on its part, it appears, after deducting the salvage amount was agreeble to pay to the complainant, according to the second Surveyor''s report, only a sum of Rs. 48,220/- and not Rs. 79,197/- as claimed by the complainant. The Forum below, of course, without assigning any reason for the rejection of the report of the second Surveyor, accepted the claim as made by the complainant and directed the opposite party Insurance Company to pay to the complainant the amount claimed by them. The fact that the Forum below rejected the report of the second Surveyor without assigning any reasons and accepted the claim as made by the complainant on the facts and in the circumstances of the case is of no consequence. There are manifold reasons. One fact of signal importance to be taken into account is that the vehicle, which was purchased as a new one met with an accident within a period of two months from the date of its purchase. The policy of Insurance Company marked as Ex. A34 also points out in crystal clear terms that in respect of new vehicles purchased and met with an accident within a period of six months from the date of the purchase, the depreciation to be deducted in nil. What is further provided in the said policy of insurance is that the company shall pay all costs and expenses incurred with its consent. The opposite party Insurance Company as a matter of fact deputed its first Surveyor on receiving the intimation from the complainant as respects the vehicle insured with them having been met with an accident and the Surveyor also inspected the vehicle at V.S.T. Service Station Pvt. Ltd. on 30.11.1996 and gave green signal for the commencement of the works of the repairs and it is only subsequent thereto, the repair works of the vehicle had been undertaken. Such deputation of a Surveyor and giving of green signal for the commencement of the repair works would on the facts and in the circumstances of the case tantamount to a written consent given by the opposite party Insurance Company for the effecting of the repairs and thereby impliedly agreed to pay all costs and expenses incurred. The second Surveyor V. Rangarajan had not taken into account the terms and conditions of the policy and went to the extent of providing depreciation at 50% in the assessment of the net liability of the underwriters and also allowing labour charges only to the extent of 50%. No doubt true it is under the terms and conditions of the policy, for replacement of all rubber nylon plastic parts, tyres, battery, etc., 50% depreciation can be made even in respect of vehicles within 6 months. But from the report of the second Surveyor it is not crystal clear as to whether the depreciation is made to the extent of 50% is relatable to the said items. Therefore, we are of the view that the assessment made by the second Surveyor suffers from such inherent infirmities and therefore it is that we are not prepared to accept the report of the second Surveyor while assessing net liability of the underwriters. This apart, the terms and conditions of the policy as we have already indicated specifically provides that the company will pay all costs and expenses incurred with its written consent. We have already said that the facts and circumstances of the case indicate in no uncertain terms as respects the giving of written consent by the opposite party Insurance Company for effecting of repairs and agreeing to pay all costs and expenses incurred by the complainant. The complainant as a matter of fact incurred total expenses of Rs. 79,197/- for effecting repairs to the vehicles. It is, in this view, this amount which the Forum below directed the opposite party Insurance Company to pay to the complainant. The Forum below also awarded costs quantified in a sum of Rs. 1,000/- which, we feel, is rather reasonable on the facts and in the circumstances of the case not calling for interference. The appeal as such deserves to be dismissed.

IN fine, the appeal fails and the same is dismissed. We, however, make no order as to costs on the facts and in the circumstances of the case. We, however, make it crystal clear that the order of the Forum below as confirmed by us is required to be complied with by the opposite party within a month from the date of receipt of our order or otherwise it will be open to the complainant to invoke the jurisdiction of Section 27 of the Act, 1986. Appeal dismissed.