R.ANTHONY DOSS vs BRANCH MANAGER, THE NEW INDIA ASSURANCE COMPANY

THIS is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.

THE complainant purchased a new Ashok Leyland Comet Vehicle on 21.3.89 and insured the same with the first opposite party for a sum of Rs. 3,50,000/-, for a period of one year and subsequently it was extended to another one year expiring on 21.3.91. THE vehicle met with an accident on 30.10.90 near Attur in Salem District and a claim was preferred. THE surveyor appointed by the opposite party valued the damage at Rs. 80,920.25, whereas the complainant has spent nearly Rs. 1,03,900/-, for repairing the vehicle. According to the complainant the surveyor has allowed 20% depreciation for various items while it ought to have allowed only 10%, as the vehicle was less than 2 years old. For rubber parts he has allowed 50% depreciation, which is erroneous. THE opposite party failed to settle the claim. THEre was deficiency of service and negligence. He therefore claimed compensation for damages in the sum of Rs. 1,03,900/-, Rs. 28,800/- towards rent paid to the shed, and Rs. 29,092/- towards interest paid to the borrowers. The claim is resisted by the opposite party. The complainant''s public carrier is not authorised to carry passengers. At the time of the accident it was carrying passengers which amounted to breach of the policy and the opposite party is entitled to deny the claim, though it agreed to settle the claim on non-standard basis. According to the opposite party as per the survey report the repairing charges including labour and pars amounted to Rs. 79,125.95 subject to depreciation. The opposite party agreed to settle the claim at 75% namely Rs. 59,344/- subject to surrender of salvages. It is the case of the opposite parties that the vehicle was a public carrier and was put to regular use. Hence depreciation is allowed to parts repaired at 20%. This is reasonable. For crankshaft 50% depreciation was allowed taking into consideration the wear and tear. Regarding salvage, the opposite party advised the complainant to surrender the same, but the complainant failed to do so. The value of the salvage will come to Rs. 7,000/-. The complainant is not entitled to claim any rent for the shed or for interest. There was no deficiency of service.

Exhibits A1 to A4 and B1 to B5 are marked. Proof affidavits are filed.

THE first contention of the learned Counsel for the opposite party is that the complainant''s vehicle in question was at the time of the accident carrying passengers contrary to the terms of the permit and policy and the complainant is therefore disentitled to make any claim on the policy. But this contention is clearly unsustainable. As pointed out by the State Commission of Ahmedabad in Jagdish Harilal Thakkar v. THE New India Assurance Company Ltd. II (1992) CPJ 497 merely because some persons were taken by the driver and the cleaner without the knowledge of the owner who had not contributed to increase of risk, a contractual liability for which a very high premium has been paid by the insured cannot be repudiated by the Insurance Company. An irregularity which is not fundamental in nature cannot put an end to a contract. We therefore hold that the fact that the driver of this vehicle carried some passengers at the time of the accident is no bar to the entertainment of this claim. According to the complainant he has incurred a sum of Rs. 1,03,900/- for repairing the vehicle and this amount includes parts replaced and labour charges. Exhibits A6, A7, A8, A9 and A10 are the bills therefor. The surveyor appointed by the Insurance Company has submitted his report under Exhibit 32. He has also catalogued in detail, the parts to be replaced and the labour charges. The dispute is really with respect to the depreciation allowed by the surveyor. So far as the labour charges are concerned, the surveyor has assessed it at Rs. 13,400/- and no serious objection has been taken thereto. In respect of rubber parts, the surveyor has allowed depreciation at 50% and this reasonable in view of the fact that rubber parts are subject to heavy wear and tear. The value of the rubber parts replaced comes to Rs. 19,675.70 and after deducting 50% the net liability arrived at by the surveyor is Rs. 9,837.85, and we accept the same.

IN respect of glass parts no depreciation is allowed and the liability in respect thereof comes to Rs. 2,550/-. No exception is taken thereto. But in respect of other parts, the value of which comes to Rs. 69,540.49 the surveyor has allowed depreciation at 20%. This is strongly objected to by the complainant as the vehicle at the time of the accident was less than 2 years old and according to him depreciation at 10% only can be allowed. We accept this contention of the complainant and allow depreciation only at 10%. When depreciation is allowed at 10%, the amount will come to Rs. 62,586.44 instead of Rs. 55,632.40 arrived at by the surveyor. On the above basis the net amount to which the complainant will be entitled to comes to Rs. 88,374.29. The complainant is bound to surrender the salvage parts. But he has failed to do so. According to the opposite parties the value of the salvaged parts will come to Rs. 7,000/-. Deducting this amount, the net amount payable to the complainant will come to Rs. 81,374.29. The complainant is entitled to this amount.

THE complainant has claimed rental charges for the shed and interest paid on borrowed amounts. THEse are consequential losses which cannot be claimed against the insurer. THE claim must there- fore fail.

THE complainant will however be entitled to interest on this amount of Rs. 81,374.29 at 12% from the date of the claim till payment. In the result we order the opposite parties to pay to the complainant Rs. 81,374.29 with interest thereon at 12% from the date of the claim till payment, and costs of Rs. 1,000/-. Complaint allowed with costs.