S J M Traders Pvt Ltd vs Dhl Worldwide Express

BRIEFLY the facts of the case are that the complainant Shri Vinod Kumar Nagrath had purchased a Swraj Mazda Truck No. DBI -6438 in the year 1987 which was financed by the Delhi Financial Corporation. The truck was insured with the Oriental Insurance Co. for a sum of Rs. 2,20,000/ - under a Comprehensive Insurance Policy which was valid for 1991 -92.

THE said vehicle of the complainant met with an accident on G.T. Road on 18.12.91 when the complainant was driving the vehicle from Jagdishpur towards Delhi in Distt. Bulandshahar. Extensive damage was caused to the vehicle and the complainant was also injured and remained confined to bed from 18.12.91 to 24.6.92. Immediately after the accident an FIR was lodged with the Police Station Sikandrabad on 19.12.91. Complainant further informed the respondent Co. Branch Office in Bulandshahar on 24 -12 -91. It has been stated that on receipt of this information, the respondent -Insurance Company appointed a Surveyor M/s. S.C Tayal, to inspect the damaged vehicle. A spot survey was carried out by him on 25 -12 -91 when necessary documents were also produced by the brother of the complainant. The vehicle was brought to Delhi towed by the crane and a sum of Rs. 1,600/ -was spent towards the towing charges. Complainant had to further incur an expenditure of Rs. 470/ - for getting the vehicle released. Another amount of Rs. 275/ - was spent for removing the vehicle from the residence of the petitioner to the authorized repairer M/s. Intercoms Motors (Pvt.) Ltd. It is contended by the complainant that since the claim of the complainant was not being expedited by the respondent, he wrote a letter to the respondent on 27 -4 -92 requesting an early settlement of the claim without any further delay. It is further alleged by the complainant that inspite of protracted correspondence and personal requests the respondent did no>t settle his claim. He, therefore, filed the complaint before the State Commission on 9 -10 -93. In his complaint he has claimed the following damages : - (a) Damages caused to the vehicle due to the accident. Rs. 01,70,675/ -

(b) For loss of earning suffered by the complainant on account of vehicleNo. DBL -6438 remaining unused from 18 -12 -91 till 18 -9 -92 Rs. 00,90,000/ -

(c) Losses suffered and likely to be suffered after the accident due to continuous standing and remaining unused vehicle

No. DBL -6438 : (i) Seats damaged Rs. 00,04,250/ - (ii) Rear dalla and chains got rusted and need replacement Rs. 00,48,000/ - (iii) Tyres spolied due to constant standing (Rs. 3600 x 4) Rs. 00,14,000/ - (iv) Damages to engine and head due to non -use Rs. 00,25,000/ - (v) Taxes liability and National permit liability Rs. 00,15,000/ - (vi) Penalty on taxes Rs. 00,10,000/ - Total Rs. 04,17,325/ -

The respondent -Company in their reply have raised the preliminary objections that the complaint does not fall within the definition of the term service under the Consumer Protection Act. They have further state that there is no stipulation in the insurance policy that their liability can be fixed higher than the amount for which the vehicle was insured. The Insurance Company is, therefore, liable to examine the claim as per the policy documents. As to the facts the respondent -Company have taken the plea that the contention of the complainant is that he had informed the Branch Office of the respondent in Bulandshahar on 24 -12 -91 is not correct, since the communication sent to the respondents Company did not specify the date when this was done. It has been averred by the respondent that the spot survey report of Mr. S. C. Tayal was given on 14 -12 -91 in which he has stated that the registration book and permit etc. were not produced. It is further stated that the spot survey report of Mr. S.C. Tayal was delivered to Mr. Deepak Anand and Associates dated 10.7.92. Any delay in the submission of report was due to the injury sustained by the complainant and the conduct of the insured. Even in the report of M/s. Deepak Anand & Associates it is stated that the delay, if any, was due to the late receipt of the spot survey report which was delayed due to non -receipt of documents.

IT is pertinant to observe that the complainant, has sustained serious injuries due to the accident and was not fit to move till 24.6.92. As such his brother was although pursuing the matter with the Insurance Company by complying with the requirements of the policy claim conditions and had furnished the required information and documents.

THE respondents main contentions are that the report and the documents were filed late by the complainant and that he did not given any specific date on which he filed the same, that the respondents have nothing to do with any payments to be made by the complainant to Delhi Financial Corporation in respect of the loan taken by him, that as per their rules only Rs. 1000/ - are payable towards protection, removal and re -delivery of the vehicle, that any delay in the settlement of the claim is attributable to the conduct of the complainant, that M/s. Deepak Anand and Associates (Surveyors) report was received by the respondent on 21 -9 -92 and as per this report the loss assessed was Rs. 62,792/ - and less excess of Rs. 1500/ -. Thus fixing the total claim amount at Rs. 61,292/ -. It is also contended that this amount was payable only after the vehicle was got repaired by the insured. The respondent to have further pleaded that the claim amount of Rs. 4,17,325/ - is not admissible to the complainant since the total value of the Insurance Policy was Rs. 2,20,000/ -, which is maximum liability to which respondents liability can be extended. We have heard the learned Counsel on both sides. The important facts to be taken note of are that the truck met with an accident on road and was extensively damaged and that the complainant was also seriously injured and had to be removed to the hospital, that an FIR report was lodged with the Police Station Sikandrabad Distt. Bulandshahar, where the Branch Office of the respondent Company is located. It is also not denied that Mr. S.C. Tayal Spot Surveyor was appointed by the respondent company and obviously this could be done by the Branch Office on the advice of the H.O. of the respondent. As such both the H.O. and the Branch Office were seized with the matter. The fact that the Spot Surveyors report was submitted on 18 -12 -91 goes to prove that the delay had taken place at the hands of the Spot Surveyor and subsequently at the level of the Surveyor M/s. Deepak Anand & Associates who gave their report on 10 -7 -92. Under these circumstances, the respondents Co. can not escape the responsibility for the delay on the part of the two Surveyors who were appointed by them. This argument of the respondent, therefore, has no force. Even otherwise the complainant who was himself driving the vehicle and had sustained serious injuries and who had taken a loan from Delhi Financial Corporation and had also taken the earliest opportunity to lodge the F.I.R. could not be careless and negligent as not to inform the respondents Company with which the vehicle was insured. Infact, as per complainants version the Branch Office of respondents Company was informed on 24 -12 -91 and the Spot Surveyor carried out the survey on 25 -12 -91. The mere fact that the Spot Surveyor was appointed establishes the fact that the respondents Company were in full knowledge of the accident claim and they cant get away with their liability merely by blaming the complainant for the alleged delay in processing the claim. Since they were seized with the matter they should have done the needful expeditiously to settle the claim.

IN taking this view, we are fortified by the following observation of the National Commission in Jeet Ram Shiv Kumar v. National Insurance Co., (1993) 1 CTJ (Consumer Protection and Trade Practices Journal) 465 (NCDRC) : ''There is therefore no doubt that the repudiation of the claim by the opposite party Insurance Co. is mala fide. There has also been inordinate delay in repudiating the claim depriving the complainant of a sum of Rs. 8,20,575/ - which obviously would have caused services inconvenience and financial embarrassment to the insured.''

IN another order the National Commission in Ajmet Singh Cotton and General Mills have held (1993) 1 CTJ 469 (NCDRC) that two months time can be taken as reasonable time even for scrutinizing of the report of the Surveyor. It is not the case of the Insurance Companies that after the Insurance Companies required any further information from the insured. In consequence the complaint is allowed. As to the reliefs claimed we award as follows : - (1) Damage caused to the vehicle: Rs. 1,70,675/ - due to the accident as assessedby M/s. Inderson Moters.

(2) For loss of earning suffered: Rs. 25,000/ - by the complainant on account of vehicle No. DBL -6438 remaining unused from 11 -12 -91 to 18 -9 -92.

(3) Losses suffered an account of (a) Seats damaged : Rs. 2,125/ - (b) Rear Dalla and Chains got rusted. : Rs. Disallowed (c) Tyres spoiled : Rs. 7,200/ - (d) Damage to engine and head due to non use. : Disallowed for want of proof. (e) Taxes liability and National permit liability. : Disallowed for want of proof. (f) Penalty on taxes : Disallowed for want of proof. Total: Rs. 2,05,000/ -

In view of the foregoing the respondents Co. is directed to pay Rs. 2,05,0 -00/ - together with interest @ 15% p.a. from 1st May, 1992 till the date of payment within three months failing which action shall be taken against them under Section 27 of the Consumer Protection Act, 1986. Cost of litigation Rs. 2,000/ -. Complaint allowed with costs.