Oriental Insurance Co vs MADAN GOPAL CHOPRA

BOTH the appeals have been directed against one judgment, hence both the appeals are being disposed of by a common judgment. Against the judgment dated 25.8.1994 passed by District Forum, Kanpur Nagar in Complaint Case No. 953/93 both the parties have filed appeals.

THE facts of the case are: That Sri Madan Gopal Chopra purchased Mahendra Jeep Model 1992 in the year 1992 and got it insured for Rs. two lacs with Oriental Insurance Company from 15.10.1993 to 14.10.1994. THE jeep was used for self- employment. While the jeep was going towards Orai on 18.6.1993, it met with an accident on Panki Bridge with truck No. 3220 and the driver of jeep Sri Ganesh Prasad got hurt in the accident. He had a valid driving licence at the time of accident. A report was lodged in Panki Police Station and the claim was also lodged with Insurance Company on 23rd June, 1993. THE Insurance Company appointed a Surveyor Sri A.K. Misra but he did not submit his survey report. THErefore, Sri V.K. Malhotra was appointed as Surveyor. He submitted his report. THE complainant enquired into the matter from Insurance Company several times but no satisfactory reply was received by him. Hence, he filed complaint case before the District Forum and claimed the insured amount alongwith 24% per annum interest thereon alongwith Rs. 2,000/- as cartage charges and Rs. 1,500/- as fee charges of Advocates. The opposite party Insurance Company filed its reply and has alleged that the jeep was insured with the Company. For damages Sri V.K. Malhotra, Surveyor was deputed who submitted his report on 23.8.1993 whereas Sri A.K. Misra, Surveyor submitted his report on 19.7.1993. It was further said from the side of Insurance Company that the case has yet not been finalised and the complaint is pre-mature. Hence, the Forum has no jurisdiction to try the claim. On 26.11.1993 the Insurance Company had written to the claimant for giving his consent to settle the claim finally for Rs. 1,35,000/-.

The learned District Forum after perusing the evidence and facts of the case awarded Rs. 1,90,000/- as insurance amount for damage of jeep and Rs. 500/- as cost with 18% p.a. interest thereon in case the amount is not paid within 60 days.

WE have heard learned Counsel for the parties and have perused the evidence of both the parties placed before us. Learned Counsel for Sri Madan Gopal Chopra has raised a preliminary objection about limitation. According to him the appeal filed by Insurance Company is barred by limitation as the same has not been filed within the period of limitation. Further, according to learned Counsel, the Insurance Company has alleged that this appeal has been filed by Oriental Company on 10.10.1994. But copy of judgment of District Forum dated 25.8.1994 shows that the copy of judgment was issued on 7.10.1994. This appeal being within 30 days of the issue of the copy is within time. But the complainant has filed question/answer obtained by him from District Forum in regard to the same Complaint Case No. 453/93, perusal of which shows that in this case copy of judgment was issued to the Insurance Company on 31.8.1994. Thus, when the copy had been issued to the Insurance Company on 31.8.1994 the appeal should have been filed within 30 days of its obtaining i.e. by September, 1994. But the appeal has been filed on 10.10.1994 which obviously shows that it is barred by limitation. According to learned Counsel for Insurance Company there is a delay of only 7 days in filing the appeal and that such delays can be condoned keeping the merit of the case in view. No doubt, it is true as evident from the case cited by learned Counsel from Insurance Company wherein it has been held that in Government Department and Public Undertaking the working is not so smooth as in private sector and Government Department''s decision of filing an appeal has to be taken at the highest level. Therefore, some allowance has to be given to such department in the matter of condonation of delay in filing the appeal. No doubt, we agree to it but this does not apply in the present case. The case of Insurance Company is that the appeal was filed within the period of limitation. But Insurance Company has now come forward with the plea for condoning of delay, when an objection was raised by the complainant by saying that copy of impugned judgment was obtained by Insurance Company on 31st August, 1994. An application has been moved alongwith the appeal for condonation of delay but no mention has been made either in Memo of Appeal or application for condonation of delay about this fact. Thus, on the basis of evidence on record we hold that the appeal is barred by limitation.

ACCORDING to learned Counsel for Insurance Company the accident, no doubt, took place within the period of insurance policy. But on the basis of report of the Surveyor, the estimate of damage was Rs. 135,000/- and this amount was confirmed before filing of complaint. ACCORDING to Counsel when the claim could not be finalised by Insurance Company upto 10.10.1993, the complainant filed the complaint on 11.11.1993. We find that accident took place on 18th June, 1993 and Surveyor submitted his report also within the time but the Insurance Company took more than three months in settling the claim. As per decisions taken by Commission and Hon''ble Supreme Court in similar cases claims should be settled within 3 months of the date of claim. It is clear from evidence on record that the claim could not be finalised within 3 months from the date of claim, hence, the complainant was forced to file the complaint. Therefore, we did not find that this complaint filed by the claimant was premature. Learned Counsel for the Insurance Company has argued that the claim of Rs. 1,90,000/- has been wrongly awarded by District Forum. ACCORDING to him, amount of claim petition should have been Rs. 1,35,000/- as stated by Insurance Company on the basis of survey report. It has been accepted that the vehicle was insured for Rs. two lacs. It met with an accident within a period of 8 months from the date of its purchase. ACCORDING to learned Counsel for Insurance Company deductions made by District Forum of Rs. 10,000/- out of a policy of Rs. two lacs is very less. Copy of insurance policy is on record. It will be seen therein that if the vehicle is damaged between 6 months to 12 months then the percentage of depreciation is 5%. Thus, in view of this, the depreciation of Rs. 10,000/- over policy of Rs. 2 lacs will be 5% which has been correctly assessed by District Forum. Even in terms of policy, no further deduction can be made except the one mentioned in the policy. Learned Counsel for the Insurance Company could not justify its argument on the basis of terms of the policy. Thus, we find that learned District Forum has rightly reached the figure Rs. 1,90,000/ - for which claim was decreed in favour of the complainant. It has further been argued by learned Counsel for Insurance Company that a sum of Rs. 1,20,000/- has been paid to the financier and he has issued a receipt in full and final settlement of the claim. He has argued that on the basis of terms and conditions of policy the financier can issue a receipt in full and final settlement of claim without reference to insured of vehicle. No doubt, it is in the terms and conditions of the policy but we find that claim has been finalised without taking consent of the claimant who has to be paid the amount of the insurance policy and who has suffered the damages. The claim cannot be finally settled by financier alone. The next argument of learned Counsel for Insurance Company is that the matter should go in the Civil Court. The District Forum is competent under the Consumer Protection Act, 1986 to try this claim and the jurisdiction of the District Forum to try such claim cannot be challenged in view of Section 20(o) and read with Section 3 of the C.P.A., 1986. Thus, we find that even on merits the appeal filed by Insurance Company has no force and dismissed. Learned Counsel for claimant Sri Madan Gopal has argued that the amount claimed by claimant of Rs. 2,000/- as cartage charges has not been awarded by District Forum. We find, that District Forum has not given any reason as to why Rs. 2,000/- has not been awarded when the claimant paid this amount. We find that the cartage charges claimed are to be allowed. This amount should have been allowed to the claimant by District Forum.

IT has been further argued that interest @ 24% should have been awarded on the amount awarded by claimant. We find interest @ 18% per annum is awarded by District Forum as well as by this Commission. In the judgment interest @ 18% per annum has been awarded only if the payment of Rs. 1,90,000/- is not made within two months. The District Forum has not awarded any interest on this amount when the claim was not settled within a period of 3-4 months. The District Forum should have awarded interest @ 18%p.a. when it found the Insurance Company''s delay in settlement of the claim. The Insurance Company was informed for accident on 23.6.1993 and claim was settled and communicated on 10.11.1993. We find that a period of about five months has been taken in settlement of the claim.

IN view of the facts the claim was settled in 4-5 months. We find that claim was settled for a lesser amount only and not amount which was due. Therefore, claimant is entitled to an interest @ 18% p.a. on a sum of Rs. 1,90,000/- from 1.12.1993 till the date of filing of the complainant before the District Forum. Thus, we came to conclusion that appeal filed by Insurance Company deserved to be dismissed while the appeal filed by Sri Madan Gopal is to be partly allowed to the extent indicated above alongwith cost of appeal of Rs. 1,000/-.

Appeal No. 2750/94 filed by Oriental Corporation v. Sri Madan Gopal, is dismissed with cost of Rs. 1,000/-. The Appeal No. 2642/ 94, Madan Gopal v. Insurance Company, is partly allowed to the extent that a sum of Rs. 2,000/- is further allowed to the complainant as cartage charges, interest at the rate of 18% p.a. shall also be payable by respondent-Insurance Company from 1.12.1993 till the date of filing of the complaint. The amount of cost of Rs. 1,000/-, cartage charges of Rs. 2,000/- and interest shall be paid by Insurance Company within six weeks from today to the complainant.

LET the copy of this order be made available to the parties as per rule. Appeal No. 2750/94 dismissed with costs. Appeal No. 2642/94 partly allowed with costs.