New India Assurance Company Ltd. vs MAJOR (RETD.) SURAT SINGH

THIS is an appeal filed by New India Assurance Company Limited against the judgment and order dated 28.8.1993 passed by District Consumer Forum, Meerut, in Complaint Case No. 4/92.

THE facts of the case as stated are that the complainant Major (Retd.) Surat Singh was the owner of the vehicle Maruti Van (Taxi) UP-15-3842 Model 1989 registered on 21.12.1989. THE vehicle was hypothecated to the Bank as loan was taken for purchase of the same. THE said van was insured with the Insurance Company, the opposite party vide Insurance Policy No. 3132220103223 and the sum assured was Rs. 1 lac. THE insurance was valid for the period w.e.f. 11.2.1991 to 10.2.1992. THE complainant''s said vehicle was stolen on 12.9.1991 from Sidharth Extension, New Delhi, for which an FIR was lodged immediately on the same day with the Police Station Sri Niwaspuri, South Delhi. THE Insurance Company was informed of the said theft of the vehicle on 14.9.1991. A claim for insurance under the said policy was lodged by the complainant to the opposite party. THE complainant was asked by the opposite party to file final report of the police. THE final report was submitted on 21.10.1991 by the complainant to the Insurance Company. THE opposite party No. 1, the Insurance Company was delaying the payment of the insurance claim to the complainant without any reason inspite of several reminders. THE opposite party was bound to pay Rs. 1 lac alongwith interest @ 2% per month w.e.f. submission of the final report by the complainant on 21.10.1991. THE complainant was suffering financial loss on account of business and interest on the amount of loan. THE complainant is a retired Army personnel and taxi was being used for his livelihood. Since inspite of several requests the Insurance Company did not sanction the claim, the complainant filed a claim of Rs. 1 lac alongwith interest before District Consumer Forum. During the pendency of the complaint the vehicle was recovered and the complainant filed an additional application alleging that the vehicle Maruti Van has since been recovered by the police in a damaged condition with various deficiencies. The recovered Maruti Van was handed over to the complainant alongwith police report. The complainant alleged that on the repair of the vehicle an amount of Rs. 21,000/- was spent. The complainant, therefore, requested Rs. 21,000/- to be paid to him by the opposite party No. 1, the Insurance Company alongwith interest.

The opposite party, the Insurance Company filed written version before the District Forum denying the allegation of the complaint and has stated that the District Consumer Forum has no jurisdiction to try the complaint as neither goods were sold or delivered nor any service was provided as contemplated in the Consumer Protection Act. As soon as the claim was lodged prompt necessary action was taken by the opposite party and the entire claim was settled against the amount of Rs. 79,000/- as per survey report on 4.2.1992 and the complainant was offered the said amount on 6.2.1992 and 21.2.1992 and, therefore, the claim has been satisfied. The complainant cannot re-agitate the already settled claim. If the complainant is not satisfied with the claim then he should invoke the jurisdiction of the Civil Court.

IN the additional written version the opposite party stated before the District Forum that when the vehicle was recovered it was not in damaged condition with various deficiencies. As soon as the recovery of the vehicle was reported to the INsurance Company an independent Surveyor was appointed. The cost of the repair of the vehicle amounting to Rs. 21,000/- was not admitted and is without any basis. The claim can only be settled, as per G.I.C. guidelines after the assessment of loss, if any, by the Surveyor. The complainant''s claim was excessive and arbitrary. After hearing both the parties the District Consumer Forum decreed the complaint and directed the opposite party to pay Rs. 20,400.37 p. and interest @ 12% per annum from 3.3.1992 till the date of actual payment. A cost of Rs. 500/- was also awarded to the complainant.

AGGRIEVED of this order of the District Consumer Forum the appellant New India Assurance Company Ltd. has come in this appeal. In the memo of appeal the opposite party has stated that the District Consumer Forum erred in entertaining the amended claim while the original claim before the District Consumer Forum was for the lost vehicle. Since the vehicle was recovered by the police, therefore, the claim filed before the Forum could not have been entertained for the additional request that the amount spent on repair be given to the complainant. The Surveyor''s report was not duly considered by the District Forum nor the depreciation factor was taken into consideration. The vehicle in question was taken back by the complainant from the police when it was in running condition. Therefore, the District Consumer Forum erred in decreeing the complaint. In reply to the memo of appeal the complainant has denied the allegations of the appellant and has stated that the complaint was amended after the vehicle was recovered and no objection to the amendment was made at that stage by the opposite party. Since the amended claim was not settled for two months the amended petition was allowed by the Forum and no objection was made by the opposite party before the District Forum. Even the Surveyor has estimated the loss to the vehicle of the order of Rs. 22,250.37 p. The opposite party did not file the survey report before the District Forum in time and when the report was filed there was no dispute on the loss estimated by the Surveyor of the order of Rs. 22,250.37 p. Because of the pressure from the appellant''s side the claim was wrongly passed for Rs. 10,701.68 as the appellant''s Surveyor had disallowed several items without any basis and has assessed the value of replacements at less cost. Depreciation on certain parts has been allowed by the learned District Forum and against the claim of Rs. 22,250.37 a claim of Rs. 20,400.37 has been allowed. It has also been stated that the complainant is entitled for an amount of Rs. 1,15,250/- on account of expenditure of repair, interest, interest on loan and prolonged loss of income. Interest @ 18% instead of 12% allowed by the Forum has been claimed.

WE have heard the learned Counsel of the two parties. The learned Counsel for the appellant has argued that when the vehicle was recovered it was given in the custody of complainant and the vehicle was in the running condition. Earlier the loss assessed by the opposite party was for Rs. 69,000/- but the amount was not given as the vehicle was later-on recovered. It was also argued by the learned Counsel that the complainant demanded the damages for repairs in the subsequent application before the Forum for which only fresh cause of action could have occurred and a fresh complaint only could have been filed.

A perusal of the evidence goes to show that the claim was filed for loss of the vehicle. Subsequently when the vehicle was recovered amendment was allowed for grant of the damages and repairs by the District Consumer Forum. At that stage no objection was filed by the opposite party. Therefore, at the appellate stage the plea of the opposite party that a fresh complaint should have been filed cannot be accepted. Even otherwise also the complainant has every right to make amendment at the appropriate stage before the District Forum. Therefore, when the vehicle was recovered and found in damaged condition the appellant was perfectly right in demanding the amount of repairs and not the cost of the vehicle which had since been recovered. On the question of the extent of damage caused to the vehicle on its recovery, the case of the opposite party is that the vehicle was in running condition. On page 6 of the judgment and order of District Forum a reference has been made of the letter acknowledging the receipt of the recovered vehicle. In the said letter the complainant has only made a mention that he had received the Omini Van No. UP-15/3842 on Sapurdigi of Rs. 1 lac. This nowhere indicates that the vehicle was in running condition. Before the District Consumer Forum this plea has not been rebutted by the opposite party. The District Consumer Forum rightly came to the conclusion that complainant was entitled to Rs. 20,400.37 as the Surveyor had assessed the loss of Rs. 22,250.37 as the estimate of the amount of Rs. 20,400.37 was confirmed by the report of Allied Motors filed on behalf of the complainant. In the circumstances, we do not find any justification to interfere with the judgment and order of the District Consumer Forum and the same are liable to be confirmed. At the same time we do not find any justification for awarding any more amount other than what has been awarded by the District Forum as the plea for higher rate of interest and more amount of damages has been raised at the appellate stage only. The appeal is, therefore, liable to be dismissed. Order

The appeal is dismissed and the judgment and order dated 28.8.1993 passed by District Consumer Forum, Meerut, in Complaint Case No. 4/1992 are confirmed.

LET compliance be made within six weeks of the date of this order. The complainant shall also be entitled to amount of Rs. 2,000/- as cost of this appeal which shall be paid by the opposite party New India Assurance Company Limited. Let copy as per rules be made available to the parties. Appeal dismissed with costs.