R.K.PRADHAN vs AJAY THIRANI

THIS is an appeal arising out of a judgment passed by the District Consumer Disputes Redressal Forum, East District, Gangtok in Civil Misc. Case No. 16 of 1995. The judgment was delivered by the Forum on 10.8.95.

THE fact of the case, in short, is that a truck belonging to Shri Ajay Thirani, the claimant, had undergone an accident at Pakyong on 25.5.93. THE truck was duly registered with the Sikkim Government and was insured with the National Insurance Company. Immediately after the accident, the party informed the National Insurance Company and got the vehicle properly repaired. It had to be towed to the garage before repair and quite a goods number of parts were also to be changed. THE claimant made several representations with the Insurance Company for settlement of his claim, but nothing tangible came out. THE claimant had, therefore, to file the claim petition on 6,5.95 with the District Consumer Disputes Redressal Forum. In the said claim petition, the claimant charged Rs. 3,200/-towards the cost of towing of the vehicle, Rs. 33,300/-towards the repairing costs, Rs. 18,643/-towards the cost of the parts which were to be replaced. Besides above, he further claimed Rs. 10,000/-as compensation for his mental, physical and financial damages, Rs. 12,000/-towards compensation for the harassment caused to the claimant by the Insurance Company and Rs. 3/000/-towards the cost of the proceedings. THE total claim thus amounted to Rs. 80,143/-though it has been shown in the pleading of the claimant as Rs. 79,193/-. The District Forum in consideration of everything on record allowed Rs. 54,193/-towards towing charge, repairing charge and cost of parts. It was just the amount which was claimed by the claimant on this account. The District Forum granted Rs. 3,000/-as compensation towards mental harassment of the claimant and a further sum of Rs. 3,000/-as claimed on account of expenses for the suit. No compensation was, however, granted towards financial loss.

Being aggrieved by the aforesaid award, this appeal has been preferred by the Insurance Company. The main grievance of the appellant is that the District Forum ought not have granted any compensation at all as the vehicle was carrying passengers in the truck in violation of the contractual clause. Excessiveness of the award is also one of the points for challenge.

THE respondent while contesting the appeal defended the judgment of the District Forum in total. He has, further, contested the maintainability of the appeal as it was barred by the limitation. We are, therefore, to examine if the appeal is barred by limitation and if the delay in preference of appeal cannot be condoned. We are also to see if there was any violation of the contractual obligation between the parties. Lastly we are to examine if the award has been properly assessed.

WITH regard to the question of limitation, we may note that the impugned order was passed on 10.8.95. The copy of the judgment was supplied on 17.8.95. The appeal was preferred on 2.11.95. Thus by a modest calculation it appears that there was delay of about 46 days. It may be noted that there were holidays with effect from 1.10.95 to 7.10.95 and again from 23.10.95 to 25.10.95. Though such holidays or vacations do not count anything towards computation of limitation but we know that any Government office and its officials do not work during this period. The National Insurance Company is a nationalised body and there also the work culture is expected to be the same. Though such organisation cannot, as a matter of right claim any exoneration from the rigidity of the Limitation Act nor they can claim any differential treatment in this regard, but some relaxation for the Government organisations is bound to be given. Various Courts are in favour of this practical view. We may quote a not-too-old decision in this regard. In State v. Krishna Kurup, the Kerala High Court Held "We have to take a practical view of the working of Government without being unduly indulgent to the slow motion process of its wheels." And, therefore, in the aforesaid case reported in AIR 1971 Kerala 211, the Court proposed to take liberal view in examining the question of limitation. In this case also we take the same view and condone the delay made by the Appellant. It may incidentally be noted that long delay in filing of the claim petition was condoned by the District Forum. Admittedly at the pertinent moment the vehicle which was otherwise meant for carriage of goods only, was carrying a few passengers. It was, however, being done under the instruction of the State Government. The order under which the truck had to carry the passengers on a ceremonious occasion has been produced by the claimant. It shows that not only this particular vehicle but there were 9 other vehicles which were asked by the Motor Vehicles Department, Government of Sikkim to carry passengers on that date and on few other dates around that. The appellant contends that this was not intimated to the Insurance Company and hence the Insurance Company cannot have any obligation towards any causalty caused during this period. That is not the position of Law. Carrying of passengers were looked upon by the Insurance Company as a violation of condition, while in the same manner non-carrying of passengers denying the direction of the Motor Vehicles Department would have been another offence. The claimant fell in a dilemma and preferred to honour the Government order which was passed in public interest. Such a view was taken by the State Commission of the Karnataka in C as was reported in III (1993) CPJ 1640. Therefore, this plea of the appellant is rejected and we endorse the view taken by the District Forum in this respect. We have already spelt out the heads of the claim. It was Rs. 3,200/-on account of towing but under the policy contract it can never exceed Rs. 1,000/-such was also the assessment made by the Surveyor. We propose to grant Rs. 1,000/-towards the towing charge. The claimant submitted a bill of Rs. 33,300/-towards the repairing works. The Surveyor deducted substantial amounts from this bill on various accounts. We do not propose to deduct any amount from all these heads, but Rs.1,000/-as has been deducted for depreciation and salvage appears to be quite reasonable and hence the amount comes down to Rs. 32,300/-The claimant produced 3 cash memos towards purchase of parts. Out of these purchased items no depreciation should be accounted for with respect to glass materials. However, atleast 5% depreciation must be taken into account with regard to metal parts and 50% with regard to rubber parts. With respect to purchase of parts the cash memos indicated that 11 metal parts had to be purchased which as per cash memos did cost Rs. 11,183/-. 5% depreciation is to be calculated on it and the amount comes to Rs. 10,623/-. The claimant must get this amount. With respect to the rubber materials including battery the cash memos indicate 4 items totalling Rs. 6,328/-after deducting 50% depreciation the amount comes to Rs. 3,164/-. The claimant should get this amount also. Though there is no voucher or bill for payment towards glass items, the Surveyor calculated the same as Rs. 1,059/-. There would be no depreciation on these items. Adding the items of towing, repair charges, purchase of metal parts, rubber parts and glass materials the amount comes to a total of Rs. 48,146/-. The claimant must get an award with respect to this amount only towards making good the damage to the vehicle. We do not want to interfere with the award of the District FORA so far as it relates to compensation towards mental harassment and cost of the proceedings which are a total of Rs. 6,000/-. Therefore, the total amount should come to Rs. 54,146/-and the claimant should get an award of this amount. The award of District Forum should be modified to that extent.

THE claimant has further put forth a claim towards interest on the awarded amount. A decision reported in II (1996) CPJ 332=1996 (1) CPR 496 (Mrs. Yeshwanthia T. Kotian v. LIC), has been referred to in this context claiming that for causing delay in settlement of the claim, interest should be paid by the Insurance Company. No dispute with regard to this proposition. But the claimant did not ask for any interest in his claim petition nor he had filed any cross appeal to that effect. However, as per judgment of the District Forum the Insurance Company was to pay off the dues by 10.11.95. We propose that interest @ 18% should be paid by the Insurance Company on the aforesaid modified amount of award from 10.11.95 till the date of actual payment. We fix the rate of interest at a higher rate keeping in view the fact that the claimant has not received a single copper towards compensation though the claim petition was filed about a year back.

WITH these observations we allow the appeal, in part, on contest without cost and modify the judgment of the District Forum accordingly. Appeal partly allowed.