Rajesh Kumar Yadav vs CHAIRMAN, M/S. NEW INDIA INSURANCE CO.LTD

THIS complaint has been filed under Sec. 12 read with Sec. 17(a)(i) of the Consumer Protection Act, 1986 ("The Act" herein) against the opposite parties (insurers) on 25-1-1990 praying that the opposite parties may be directed to pay immediately Rs, 4,80,000/- to the Complainant. The complaint on behalf of the complainant has been filed by Shri Jag Mohan Lal Yadav, power of attorney holder of the complainant. The complainant has alleged that he is a registered owner of bus No. RNP 1771. The complainant after paying premium of Rs. 3,133/- on 11-7-1988 got it insured with opposite party No. 3 (Branch Manager, New India Insurance Co. Ltd., M.I. Road, Jaipur) and obtained a receipt thereof. A certificate of Insurance No. 178936-E was issued. Policy No. being 31/3772. Total amount for which the vehicle was insured was Rs. 1,75,000/- . The period of insurance was 11-7-1988 to 10-7-1989. It has been alleged that the bus met with an accident on 7-61989 at Sarwar, near Kekari. At that time the bus was running as a contract carriage of the Rajasthan Road Transport Corporation. The complainant is said to have informed about the damage caused to the vehicle to the insurers who got them surveyed. It is alleged that all the documents were made available to the insurers and as per the instructions given by them the complainant started repairing it. The total loss caused to the complainant for the replacement of the parts and repairs was to the turn of Rs. 2,80,000/- . The bus remained standing for a period of 7 months for which the complainant has suffered loss of Rs. 1,20,000/- . The complainant has alleged that besides the aforesaid amount he is entitled to the amounts of road tax, interest, penalty and also for compensation for harassment amounting to Rs. 50,000/- . A sum of Rs. 30,000/- has been claimed as workshop charges. In all the complainant has assessed the loss at Rs. 4,80,000/- and prayed that he is entitled to this amount from the insurers.

WITH the complaint the complainant submitted photostat copies of the power of attorney, certificate of Insurance, certificate of fitness and compromise dated 9-6-1989, relevant portion of the driving licence, letter written by the power of attorney holder to the Branch Manager, New India Insurance Company, Ajmer for conducting final survey, letter for final survey enclosing the estimate of loss, officer order, two receipts dated 7-689 and 10-6-1989, estimates of spare parts and labour charges. The opposite parties submitted the version of the case on 16-4-1990. The opposite parties submitted that the insured is Mr. Rajesh Kumar Yadav of bus No. RNP 1771. It was submitted that survey was conducted by the nominated surveyor of the insurers. However the complainant did not sumbit any First Information Report to the police and it is for the complainant to establish the facts of the accident, date and place. It was submitted that in accordance with the terms of the insurance, the complainant has not submitted registration and fitness, certificate route permit, bills and cash memos and he did not get the vehicle inspected after repairs. The survey of the vehicle was done by two impartial and independent surveyors. The complainant did not agree to accept the amount and as desired by him Mr. Vinod Kumar Varma was appointed as Surveyor. Mr. Vinod Kumar assessed the loss at Rs. 58,608.86p. The insurers in their version of the case stated that they are ready to pay the amount, if the documents and salvage are delivered to them. A plea of pecuniary jurisdiction was raised. It was submitted that the claim for Rs.4,80,000/- filed by the complainant is frivolous and it should be dismissed under Sec. 26 of the Act, It was also submitted that no relief can be granted to the complainant under the Act

The opposite parties submitted photo stat copy of Motor (Spot) Survey report dated 9-61989, and Motor (Final) survey report dated 8-11990.

ON behalf of the complainant affidavits of Shri Jag Mohan Lal Yadav, power of attorney holder and Mr. Altap Ahmed and Shri Mahendra Kumar were submitted. The insurers submitted affidavits of Shri D.C. Bhandari Senior Divisional Manager and Mr. Vinod Kumar Varma, Surveyor. On behalf of the complainant learned Counsel for the complainant was heard on 19-1-1991. On behalf of the opposite parties-insurers written arguments were submitted on 22-2-1991 after delivering a copy of Mr. Jag Mohan Lal Yadav.

WE have carefully considered the complaint, version of the case, documents filed by the parties and the affidavits submitted by them. WE have also considered the written arguments submitted on behalf of the opposite parties-insurers. In the first instance it was urged on behalf of the insurers that Mr. Jag Mohan Lal Yadav has no authority to file the complaint on behalf of Mr. Rajendra Kumar Yadav for he is neither consumer nor beneficiary and therefore he has on locusstandi to file the complaint. In the complaint it is written that the complainant is Mr. Rajendra Kumar Yadav and the complaint has been filed through power of attorney holder, Shri Jag Mohan Lal Yadav. Mr. Jag Mohan Yadav has been appearing on various dates as power of attorney holder. It is Jag Mohan Lal Yadav who has engaged a Counsel for the complainant The complaint has been signed by him. Under Rule 2(b) of the Consumer Protection (Rajasthan) Rules, 1987 "Agent" has been defined as a person duly authorised by a party to present any complaint or appeal or reply on its behalf before the State Commission or the District Forum. Mr. Jag Mohan Lai as power of attorney holder of the complainant has presented the complaint and participated in the proceedings. He is the agent of the complainant. No valid exception can be taken that the complaint has been filed by a duly authorised person. It is firmly established by the highest Redressal Forum of the country that if any Insurance Company fails to settle the claim of the insured in pursuance of the policy, then the service rendered by the Insurance Company suffers from deficiency as envisaged by Sec. 2(1)(g) of the Act. The next questions that arises for our determination is that as to what loss the complainant has suffered. It may be recalled that the complainant has stated in the complaint that for the replacement of the parts and the repairs a sum of Rs. 2,80,000/- was spent and as the bus stood idle for 7 months, the complainant had suffered loss of Rs. 1,20,000/- . Besides the aforesaid sum of Rs. 50,000/- has been claimed as road tax, interest, penalty and harassment. In addition to this an amount of Rs. 30,000/- has been claimed as workshop charges. The complainant has merely produced photostat copies of the estimates which are three in number. He has not produced any bills, cash memos or vouchers in this regard to show the purchase of the parts or receipt showing the payment of the labour charges. It is true that the complainant has submitted three unsworn and unverified affidavits of Shri Jag Mohan Lal Yadav, Altap Ahmed and Mahendra Kumar. They cannot be characterized as affidavits as their contents are not sworn. They cannot be admitted in evidence as affidavits. The production of the estimates by itself is not proof of the fact regarding the purchase of the motor parts and the amount paid as labour charges. These estimates do not throw any light on the question of loss suffered by the complainant. It is significant to note that the complainant has not specified or mentioned the details of the amount of Rs. 4,80,000/- . He rest contented by stating that he suffered a loss of Rs. 4,80,000/- . No proof has been led by the complainant in this respect. The complainant did not avail of the opportunity afforded by the insurers to produce the receipts, evidencing payment. The opposite parties appointed Mr. Vinod Kumar Varma as spot surveyor. He also worked as final surveyor. Before him Shri Swadesh Kumar Dhamija and Mr. P.K. Bhatia jointly did the survey and submitted a report. The complainant requested the insurers that Shri Vinod Kumar Varma may be appointed as surveyor and whatever amount is determined by him it will be accepted. Mr. Vinod Kumar Varma has also submitted his affidavit duly sworn on 25-10-1990. He has inspected bus No. RNP 1771 and assessed the loss, after full investigation and having taken over the matter with the owner of the vehicle and the representatives of the insurer. According to him the loss assessed was Rs. 58,607/- .

WE have carefully perused the report dated 19-3-1990 captioned as "Opinion Assessment Final Survey Report" of Mr. Vinod Kumar Varma. It appears that he has taken into consideration the two estimates of M/s. India Coach Builders, Jaipur relating to the parts etc. There is one hand written estimate received by the insurers on 12-6-1989. It is strange that this estimate was submitted after five months of the accident. He has given reasons for not accepting the estimate at page 2 of the report. He has dealt exhaustively with the joint final survey also. After discussing exhaustively he has assessed the loss as under:- 1. Loss to Mechanical parts - as per Joint survey report - page 3 4041.86 2. Labour charges as per Joint survey report page 3,4 - Item Sr. No. 1-8. 5100.00 3. Loss to Battery - Make Dhabai refer para 2, page-2 of this report 1200.00 4. Loss to coach - as assessed above 48267.00 Total 58608.86

A sum of Rs. 500/- was added to this amount as towing/lifting charges. A sum of Rs. 500/- has been deducted as Less Excess Clause Amount. Thus the net loss assessed for liability subject to other responsible factors was Rs. 58,608.86p. Before the insurers pay the amount the opposite parties are entitled to the salvage of the replaced of parts. According to the surveyor approximately value is Rs. 500/- . The surveyor has also under the head Cash Loss Basis Settlement has stated that net loss assessed on Cash Loss Basis (Liability) depending upon other responsible factors is Rs. 31,768/- . In this report there is an endorsement that the insured''s representative, Shri Jagmohan Lal Yadav consented to the assessment by the earlier surveyors on. the last page of the claim form. He has agreed to the Coach Assessment part but not to the Mechanical portion. 12 Having considered the "opinion Assessment final survey report dated 19-3-1990 and the affidavit of Shri Vinod Kumar Varma, surveyor and loss assessor we are of opinion that according to the report the complainant has suffered loss of Rs. 58,608.86 p. and the insurers are liable to indemnify them in respect of this amount. We have already stated that in terms of the policy the complainant is entitled to be indemnified in regard to this amount. The other amounts which the complainant has claimed cannot be allowed as there is not an iota evidence put on record by the complainant in support of the complaint for compensation claimed under Sec. 14(1)(d) of the Act. There are certain well recognised principles laid down by the National Commission for the award of compensation and its quantification. It cannot be arbitrary. As stated above in the absence of proof no amount of compensation can be awarded to the complainant, besides that in accordance with the report of Mr. Vinod Kumar Varma dated 19-31990. The insurers should have indemnified the insured after the receipt of the report dated 19-31990 atleast. It may be stated that the complaint was filed on 25-1-1990 and it was at the time of filing the version of the case on 16-4-1990 that this report was placed on record by the opposite parties (insurers). Even after the filing of the report, the insured was not indemnified, obviously for the reason that the complainant did not produce the documents as detailed in para 4 of the version of the case before the insurers. The insurers have stated that the amount of Rs. 58,607/- can be paid to the complainant on production of the documents. The complainant shall produce the original certificate of insurance and road permit before the insurers. There is nothing on the record that the complainant took any bills, vouchers in respect of the parts purchased or the amount paid as labour charges. Photostat copy of the certificate of fitness is also on the record. If the road permit is not in possession of the complainant, he shall submit an affidavit duly verified before the Insurers stating that road permit is not with him. The complainant is not entitled to any interest on the amount of Rs. 58,608/- upto the date of the decision of the complaint for he did not submit the documents as asked for by the opposite parties, even the certificate of fitness was not filed. Before the insurers make payment of Rs. 58,608.86p to the complainant, the complainant shall produce before them the documents showing that atleast Rs. 58,608.86p. have been paid by him by way of purchase of the replaced parts and as labour charges. 13. We direct the opposite parties (insurers) to settle the claim of the complainant arising out of certificate of Insurance No. 178936-E in respect of policy No. 3132040203772 for indemnifying loss of bus No. RNP 1771 by accident by making payment of Rs. 58,608.86p to the complainant insured. The insured shall deliver the salvage of the parts replaced to the insurers failing which the insurers will be entitled to deduct a sum of Rs. 500/- as stated by Mr. Vinod Kumar Varma in his survey report dated 19-3-1990. For complying with the directions relating to the payment of Rs. 58,608.86p. and taking and making the delivery of the salvage, one month''s time from the date of the receipt of the order is allowed to the complainant as well as the opposite parties. If the opposite parties-insurers fail to make payment within one month from the date of the receipt of the order, the complainant will be entitled to interest @ 12% p.a. on the amount of Rs. 58,608.86p from the date of the expiry of one month from the receipt of the order until the date of payment and resort shall also be made to Sec. 27 of the Act. The rest of the claim made by the complainant-insured in his complaint is dismissed. The complaint is accordingly decided as indicated above. There is will be no order as to costs. Complaint accordingly decided.