PURNA CHANDRA NANDA vs REGIONAL MANAGER, ORIENTAL INSURANCE CO. LTD.

THIS is an original C.D. case. Complainant''s bus CRU 6441 which was covered under a policy of insurance valid till 28.6.1988 met with an accident on 20.2.1988 near Pipilia on Champua to Joroda Road. It was severely damaged. On a claim made by the complainant, Surveyor was deputed and on his asking the complainant by his letter dated 26.11.1988 furnished documents claiming total loss. The complainant claimed the insurance money on total loss basis, and a Surveyor was deputed. The complainant did not accept the assessment made by the Surveyor at Rs. 60,000/-. The complainant served legal notice and then filed the case. He claims that because of this deficiency in service on the part of the Insurance Company in not finalising the claim, the loan amount of Rs. 1,08,031.73 p. which he has incurred to purchase the bus became more than Rs. 3/- lakhs.

IN the written version the INsurance Company admitted the accident to have taken place on 20.2.1988 and also deputing the Surveyor. They took the plea that they closed the case by their letter dated 31.3.1992 and the claim for that became grossly barred by limitation. It is further their case that they deputed Sri S.K. Brahma, Surveyor who submitted his report on 31.3.1988. Thereafter they deputed another Surveyor Er. R.C. Patnaik to survey the vehicle in the garage and the Surveyor by his report dated 29.8.1989 assessed the loss to the tune of Rs. 60,000. Though the Surveyor continuously from 24.4.1988 to 27.4.1988 was there to the garage to assess the loss, the complainant never made himself available. They claim that the case of the complainant for money on total loss basis was rightly rejected by the INsurance Company. We have heard Mr. D.K. Misra, learned Counsel for the complainant and Mr. G.P. Dutta for the Insurance Company and have perused the documents on record.

The first Surveyor was S.K. Brahma who visited the spot on 23.2.1988, the accident having taken place on 20.2.1988. The cause of accident ascertained by him was because of the bursting of the front tyre and the vehicle being out of control of the driver dashed against a roadside tree and the bus was badly damaged and few passengers died and some got injuries. The Surveyor under Col. 12 of the report observed the damaged condition of the vehicle. He noticed the following damages : "Wind shield glasses broken. Rear wind shield glass 1 No. broken. Front corner fixed glass, left side window glasses except 2 pairs, right side window glasses except 3 pairs, sun set glasses 7 pieces cracked and broken. Passenger seats uprooted and frame bent and damaged. Chassis was badly bent, twisted and damaged. Front cross member badly bent twisted and damaged. Front shock absorbers broken. Mobile chamber pressed and damaged. U bolts bent, broken and damaged. Hanger bent, cracked and damaged. Gear box housing cracked and the gears were to be checked at the time of final survey. Air governor broken.. Front driving shaft bent and damaged. Battery broken. Dash board, cowl pressed, bent and badly damaged. Radiator pressed by fan and tree and got badly damaged. Fan blades got bent. Steering wheel got bent. Dynamo bracket broken." The Surveyor mentioned in his report that he only noted the visible damage. Against this assessment of loss by the Surveyor the complainant has submitted a calculation regarding the cost of repair and the same relates to the body building, vide quotation obtained from Kusaleswar Modern Fabrication and Bus Body Builders dated 10.4.1988 for Rs. 1,20,000/- and mechanical side repairing quotation given by Gishi Mechanical Works dated 10.4.1988 (Annexure-H/2) is for Rs. 26,000.

IF the complainant obtained a quotation for repair of the vehicle which would cost Rs. 1,46,000/-, it cannot be said that the bus would be totally rendered useless and could not be repaired. The very fact that the quotations had been obtained does itself indicate that the vehicle and the engine parts could have been repaired and, therefore, the question of claiming total loss does not arise. That apart, we have already noted the extensive damage caused to the bus, and we for ourselves are satisfied that cost of repair as estimated by the complainant is correct and not on higher side and we accept the same. The main thrust of argument of the learned Counsel for the Insurance Company is that the claim is barred by limitation, since according to him the Insurance Company by their letter dated 18.3.1992 they informed the complainant that since he did not submit any cash memo or repairing bill, etc. and remained silent, he was no more interested to pursue the claim and the last chance was given to submit all those documents by 31.3.1992. Thereafter on 31.3.1992 by registered letter with A.D. they informed that since no papers were filed by the complainant they closed the claim finally and further intimated that no further correspondence would be entertained in the matter. Therefore, we are of the view that the letter dated 31.3.1992 is the letter which finally informed the complainant that the claim had been closed, therefore, cause of action would arise from that date and the complaint petition could have been filed within a period of 3 years because that was the period of limitation prescribed under the residuary Article 113 of the Limitation Act, because the amendment to the Consumer Protection Act with regard to limitation only came in 1993 (to be precise on 18.6.1993). 7.In that case, then the complaint petition in this case should have been filed by 31.3.1995. The same having been filed on 16.8.1995, there was delay of about 5 months. For that amount of delay this cannot be said to be a stale claim. Be that as it may in the case of New India Assurance Co. Ltd. v. Vivek Cold Storage (P.) Ltd., II (1999) CPJ 26 (NC)=Rev. Petition No. 910 of 1996, decided on 15.4.1999, it has been held by the National Commission that if the State Commission had condoned the delay after taking into account all facts and circumstances of the case and the decision of the State Commission is not shown to be perverse in any way, the question of interference with the discretionary order passed by the State Commission would not arise. 8. In the present case the accident is admitted. The Insurance Company also deputed a Surveyor who assessed the loss at Rs. 60,000/-. Having carried on a lot of correspondence with the complainant for producing certain documents, they have also not come forward with a case that the complainant repaired the vehicle and was even plying it but making a false claim on the basis of total loss, though at the same time the complainant has also not come forward with any material before us to show that the vehicle has been lying since then without repair. The claim of the complainant cannot be said to be a false one since fact of accident and the coverage under the insurance policy and the assessment of the loss by the Insurance Company through their own agency are all admitted facts. With these admitted facts because the complaint was filed about 5 months after the period of limitation the Insurance Company should not be allowed to take the advantage of late filing of the case. He has been pursuing the remedy since 1988 and it went upto 1992. There must have been some unavoidable delay in filing the case. Therefore it is appropriate that we would exercise our discretionary power in condoning the delay, and we accordingly do the same. We hold that the complainant is entitled to the relief. 9. So far as the claim of the complainant about total loss is concerned, we are unable to accept it because of the reasons already stated above. The vehicle was in a repairable condition for which the complainant could produce the estimated cost of the vehicle. We do not feel it would be justified to hold that this should be a total loss, particularly when the complainant has not produced any document to show that the same was irreparable. Accordingly we allow the claim to the extent of Rs. 1,46,000/- (Rupees one lakh forty-six thousand) which the Insurance Company should pay within a period of three months from the date of communication of this order along with interest at the rate of ten per cent per annum to be calculated from 16.8.1995, i.e., the date of filing of the complaint case. Complaint allowed.