New India Assurance Co.Ltd. vs Iqbal I.Tada

THE present revision petition has been filed by the New India Assurance Co.Ltd. (hereinafter referred to as the Petitioner) against the order of the State Consumer Disputes Redressal Commission, Gujarat (hereinafter referred to as the State Commission) in favour of Iqbal I.Tada (hereinafter referred to as the Respondent).

THE facts of the case according to the Respondent are that he had taken an insurance policy for his truck from the Petitioner/Insurance Company for Rs.3,65,000/- for the period from 08.02.1994 to 07.08.1995. During the currency of the insurance policy, the truck met with an accident on 15.02.1994, for which a complaint was registered with the police station and the Petitioner/Insurance Company was also informed. THE Surveyor appointed for assessing the damage recommended that the loss be settled on total loss basis for Rs.3,15,000/-. However, Petitioner/Insurance Company offered Rs.2,22,525/- (settlement on non-standard basis) to the insured which was not acceptable to him. Respondent, therefore, filed a complaint before the District Forum claiming a total amount of Rs.4,15,0000/- along with interest @ 24% which included payment of original claim of Rs.3,15,000/-, Rs.75,600/- being the interest on that amount and Rs.25,000/- as compensation for mental shock and suffering. Respondent on the other hand challenged these claims on the grounds that at the time of the accident, the insurance policy was not in force because the cheque by which the premium had been paid was dishonoured by the bank as Petitioners signature did not tally. Further, unauthorised passengers were travelling in the truck at the time when it met with the accident.

The District Forum after hearing both parties and based on the evidence filed before it, accepted the complaint and directed the Petitioner/Insurance Company to pay the Respondent an amount of Rs.3,15,000/- with interest @ 9% within a period of 45 days.

AGGRIEVED by this, the Petitioner filed an appeal before the State Commission. The State Commission in its detailed order did not accept the contention of the Petitioner that the premium cheque has not been honoured by observing that the cheque had subsequently been deposited and cleared on 22.02.1994 and had been credited in the accounts of the Petitioner/Insurance Company on 02.03.1994. So far as the presence of unauthorised passengers is concerned, as contended by the Petitioner, the State Commission observed that there was no evidence of this fact and further it does not violate any condition of the insurance policy. Since the Surveyor had assessed the loss as total loss, which came to Rs.3,15,000/-, the District Forum had rightly accepted the contention of the Respondent. The State Commission, therefore, upheld the order of the District Forum in toto. AGGRIEVED by this, the Petitioner has filed this revision petition. Learned counsel for both parties were present and made oral submissions. Learned counsel for the Petitioner/Insurance Company again contended before us that the learned fora below failed to appreciate that at the time of the accident, the policy in question was technically not in existence because the cheque for the premium amount had not been cleared due to non-availability of sufficient balance in the account of the insured and later with the connivance of the bank, cash amount was deposited and cheque could be cleared. Even then, the cheque was cleared on 22.02.1994 whereas the accident took place on 15.02.1994. However, because the policy was not cancelled, Petitioner/Insurance Company could not refuse its liability and it was under these circumstances that the Petitioner/Insurance Company had decided to settle the claim for an amount Rs.2,22,525/-. This was fair and reasonable and the learned fora below erred in not appreciating this contention. Learned counsel for Petitioner also stated that at the time of the accident the actual value of the truck was about Rs.3 lakhs and this reduced value was also factored in while settling the claim. Further, the complaint was filed by a power of attorney holder and not by the original complainant and therefore, power of attorney being not a consumer could not have filed the complaint under the provisions of Consumer Protection Act, 1986. Therefore, the complaint of the Respondent was not maintainable.

LEARNED counsel for Respondent, on the other hand, stated that in view of the undisputed fact that there was total loss of the vehicle the Respondent had agreed to the suggestion of the Surveyor to reach an amicable settlement for Rs.3,15,000/-. The stand of the Respondent had been fully appreciated by the learned fora below which on the basis of evidence produced before it and in the interest of equity and justice had rightly directed the Petitioner to pay this amount to the Respondent. We have heard the learned counsel for both parties and have carefully gone through the evidence on record. It is a fact that the accident that took place on 15.02.1994 in which the truck was fully damaged and that the Surveyor had also recommended that the claim be settled on total loss basis. The plea of the Petitioner that there was connivance between the bank and the Respondent regarding the balance in his bank account is only a conjecture and not proved by any evidence. Further, the Petitioner now cannot take the plea that the market value of the truck was Rs.3 lakhs at the time of the accident whereas its market value at the time of insurance had been assessed at Rs.3,65,000/-in view of the Supreme Courts ruling in Dharmendra Goel Vs. Oriental Insurance Co. Ltd. - III (2008) CPJ 63 (SC). So far as the issue of filing the complaint by a power of attorney holder is concerned, there is no provision in the Act debarring the power of attorney holder to file the complaint. In general law, the power of attorney can file the suit if he is authorised to do. Therefore, we are of the view that the complaint could be presented by the holder of power of attorney in the instant case.

KEEPING in view all these facts, we agree with the State Commission that the claim be settled on total loss basis at Rs.3,15,000/-. It would, however, be necessary to deduct the salvage value from this amount before making the necessary payment to the Respondent. We, therefore, direct that an amount of Rs.25,000/- should be deducted as salvage value from this amount and the Petitioner should pay the Respondent an amount of Rs.2,90,000/- as full and final settlement of the claim along with 9% interest from the date of filing the complaint till the date of realisation within a period of 45 days from the date of this order. The order of the State Commission is upheld with the above modification. The revision petition is disposed of on the above terms and with no order as to costs.