NEW INDIA ASSURANCE COMPANY LIMITED vs BHAVNESH KUMAR

THE New India Assurance Company Limited appeals against the order of the District Forum, Fa rid a bad directing the payment of Rs. 50,720/50P to the insured, being the full amount of the insurance claim made by him.

THE respondent admittedly was the owner of a Light commercial vehicle of Canter brand bearing Registration No. HYW-1769, which stood insured with the appellant-Company. During the period of the insurance cover, the vehicle met with an accident on the 13th of October, 1990. It was the respondent''s case that the information of the accident was immediately lodged with the appellant''s branch at Shimla and after other formalities a claim of Rs. 55,720/- was lodged by him for the removal of the damaged vehicle to Faridabad and its repairs thereafter including brand new spare parts and the labour charges etc. THE primal grievance of the complainant-respondent was that the claimed amount had not been tendered to him in full and consequently it was not being settled. The appellant-insurers stoutly contested the complaint. The factum of the insurance and the accident was admitted, but it was firmly pleaded that on information lodged, a Surveyor was duly appointed to assess the same. He rendered his detailed report assessing the total loss at Rs. 19,170/-which was comprised of Rs. 14,300/-on account of labour charges and a sum of Rs. 4,870/- for spare parts. The firm stand taken was that the appellant-insurers were always ready and willing to make the payment of Rs. 16,170/- after making the scheduled deductions, subject to the deposit of salvage etc. It was pointed out that infact a copy of the report and the tender of the amount had been made to the respondent-insured, who had declined to accept the same and reiterated his claim for the full amount. Consequently, the appellant''s were compelled to close the case on the 26th of March, 1992.

The respondent rested himself content by putting in his own affidavit alongwith documents P-l to P-37, pertaining to the expenses incurred by him in replacement of damaged parts and the labour and repairing charges of the vehicle. In rebuttal the appellants put in the affidavit of their Senior Divisional Manager and the final survey report conducted by M/s. Prem and Co., who admittedly were the appointed Surveyor and also some bills submitted by the insured.

THOUGH, the appellant-insurers had hotly contested virtually every item of the respondent''s claim, the District Forum proceeded somewhat summarily to hold that they were guilty of deficiency in service in not accepting the respondent-claimant''s amount as the gospel truth and reducing the same to Rs. 16,170/- on the basis of the Surveyor''s report and the contractual deductions. Relief was inevitably granted in the terms noticed at the out-set. Mr. Deepak Suri, the learned Counsel for the appellants had frontly assailed the order under appeal as patently unsustainable on the core issue of there being any deficiency in the insurance services extended out by the appellant. It was pointed out that a Surveyor had been duly appointed with promptness on the intimation of the loss, who had after associating the respondent assessed the same in great detail vide his report dated the 2nd of March, 1991. Therein, after referring to each item of the loss and the spare parts etc. and making detailed calculations thereon, the figure of Rs. 19,170/- as the total assessed loss was arrived at Mr. Suri contended that the appellant-Company had served a copy of the report on the complainant and in accordance therewith offered to pay the assessed amount after the scheduled deductions, but the respondent had admittedly declined acceptance and insisted on a tall claim, which stood wholly unestablished on the record.

THERE appears to be patent merit in the aforesaid stand of the appellant-insurers. It has to be pointed out at the very out-set that in the consumer-jurisdiction the core issue is a patent deficiency in the insurance services for which alone, relief or compensation can be granted. The hotly contested matter of the pricing and replacement of each damaged part and the repairing and labour charges when disputed can hardly the subject matter of close adjudication in this jurisdiction. Herein, it is common ground that the appellants had duly appointed a Surveyor, whose report was placed on the record and even served on the respondent. The authenticity of the said report was not challenged before the District Forum nor before us. In acting in accordance with the final survey report, the insurers cannot easily be held guilty of deficiency in service, as has been preamptorily held by the District Forum. The latter having noticed that assuming for the sake of argument that the claim preferred by the complainant is somewhat exaggerated, nevertheless, proceeded to virtually grant the claimed amount in toto. This could hardly be done within the present jurisdiction, when every item of the claim stood contested and the survey report had duly taken into consideration every item and assessed it somewhat dispassionately. The appellants in all fairness tendered the amount in the wake of the survey report, which the respondent spurned, and consequently further blame could not possibly be laid at their door. Faced with the aforesaid situation, Mr. Mahesh Grover, learned Counsel for the respondent could hardly pin-point any factor on which the alleged deficiency in services could be plausibly based. All that was sought to be argued was that there was a wide disparity between the claim made by the respondent and that assessed by the Surveyor and subsequently marginally scaled down by the appellants in their offer. For the foregoing reasons, we regret our inability to agree with the District Forum that herein there was any patent deficiency in service entitling the respondent to the claimed amount in toto. Consequently, the order under appeal has to be necessarily modified.

IT is common ground that the appellant''s own surveyor had assessed the loss at Rs. 19,170/- and on that basis the appellants had themselves signified their willingness to tender the same. The respondent within the consumer jurisdiction was, therefore, primarily entitled to the said sum alone by way of relief, whilst for the balance the burden must lie upon him to establish the same either in the Civil Court or to make resort to the arbitration clause in the policy.

YET again it is well settled within this jurisdiction that once the insured loss has been assessed, the liability to pay the same arises from the insurers with effect from the date of the cause of action. In 1993 C.P.C. 588 ''Girdhari Lai Bansal of Chandigarh v. Oriental Insurance Co. Ltd. & Another'', it has been held as follows: "To finally conclude, it has to be held that the terminus from which the insured is entitled to be indemnified and reimbursed for the loss covered by the insurers is the very date of the loss and the arising of the cause of action, therefor. Inevitably, a reasonable time must be taken for the quantification and determination of such loss. However, when so determined the relief must necessarily relate back to the date of loss itself and not later."

In accordance therewith the respondent would also be entitled to interest on the assessed amount @ 18% from the date of the accident itself.

To conclude, the relief granted by the District Forum has to be scaled down to a round figure of Rs. 20,000/- (on the basis of the assessed loss by the Surveyor) with interest at the rate of 18% with effect from the 13th of October, 1990 till the date of realisation. This sum shall be tendered to the respondent within one month from today, failing which compliance will be enforced by the District Forum under Section 27 of the Act. This however, would in no way preclude the respondent from establishing the balance of his claim either in a Civil Court as he may be advised or by making resort within the para-meters of the arbitration clause in the insurance policy.

THIS appeal is partly allowed in the aforesaid terms without any order as to costs. Appeal partly allowed. _____________