SHANTI PRASAD SEMWAL vs New India Assurance Co. Ltd

THIS complaint has been filed for recovery of Rs. 2,44,118/- alongwith 24% per annum interest from the date of complaint till the date of payment and Rs. 1,000/- as rent for keeping salvages.

THE allegations of the complaint are that the complainant purchased a truck which was financed by opposite party No. 2, Tata Engineering and Locomotive Company Ltd., Bombay. It was comprehensively insured which was arranged by opposite party No. 2, New India Assurance Company. At the time of making advance, three years premium amount of insurance was charged by opposite party No. 2 and was included in the instalments of the amount of loan sanctioned to the complainant. THE insurance was for a period of one year, i.e. 10.9.1991 to 9.9.1992. THE said truck which was insured, met with an accident on 20.12.1991 on Lamgaon - Dharkot Motor Marg, District Tehri causing heavy damage to the insured truck and loss of life. THE complainant has claimed payment of own damages against opposite party No. 1. First Information Report (FIR) was lodged with the police station Patwari Kotga on 20.12.1991, a copy of which is Annexure 2 of the complaint. Opposite party No. 1 was also telegraphically informed about this incidence on 21.12.1991. On 22.12.1991 local branch office of Insurance Company at Tehri was also informed who arranged a spot survey on 22.12.1991 through Sri Sudhanshu Kumar Garg, Surveyor. A sum of Rs. 1715/- was charged as his fees from the complainant even though the liability was of the Insurance Company but the complainant paid the same so that early disposal of the claim may be made. THE report of the Surveyor is filed as Annexure 3. As the vehicle had fallen in a deep ditch, for removal of the truck a lot of expenses were borne as well as for bringing it to the workshop. The truck was taken out on 8.1.1992 and the office of opposite party No. 1 situated at Rishikesh was informed and was asked to arrange for final survey and assessment of loss. Copy of this letter is Annexure 4. This was to be done under the supervision of Hardwar Division. Sri M.M. Singha was appointed as Surveyor to do the final survey. Before this one Mr. Sharma was appointed to assess the loss.

As there was some deficiency in the service, the complainant wrote detailed letter on 22.1.1992 to the Divisional Manager, Hardwar, copy of this is Annexure 5. Thereafter complainant wrote several letters to the opposite party, copies of which have been filed on record, but nothing was done by the opposite party. Even the cash memos were also submitted to the opposite party but the claim has not been settled to this date. The complainant had to borrow the amount from several persons on interest to get the vehicle repaired. The complainant claimed a sum of Rs. 23,000/- as expenses for recovery of vehicle from Khud and to take the same to the workshop, a sum of Rs. 1,66,267.60 as amount of cash memos spent on repairing, survey fee paid to Sri Garg amounting to Rs. 1517/-, interest at the rate of 24% per annum besides Rs. 1,000/- as rent for keeping the salvage. The interest was claimed from 1.4.1992 till 10.5.1993 on which date the complaint was lodged amounting to Rs. 51,393.40. Interest has also been claimed at the rate of 24% per annum during the pendency of the complaint.

THE opposite party No. 2, Insurance Company, has alleged in the written statement that the file of the complainant has been lost and is not traceable. THE Insurance Company admitted the genuineness of the claim. It accepted the contents of letter dated 11.3.1992 filed by the complainant as Annexure 6 to the extent that Rs. 1,55,000/- was offered by the Divisional Manager of the Company as damages payable to the complainant. As the file is missing no other reply can be made to other allegations of the complaint. THE amount of Rs. 1,55,000/- can be paid to the complainant in case the salvage is given to the Company. The opposite party was never deficient in service. In reply to the replication it was further alleged by the opposite party No. 1 Insurance Company that the Company is still willing to pay Rs.1,55,000/-.

WE have heard learned Counsels for the parties and perused the entire record. It is an admitted fact that an accident of the truck took place as alleged by the complainant on 20.12.1991 of which an FIR was lodged and a claim was also lodged with the insurer. Learned Counsel for the complainant has argued that there was a deficiency in service on behalf of the opposite party in getting the vehicle repaired for which the complainant had to spend a sum of Rs. 1,66,207/-. Even after the submission of claim forms and the documents the Company slept over and did not take any steps to process the claim of the complainant. According to learned Counsel the claim has not been repudiated so far which shows that the Insurance Company was not at all serious in settling the claim. According to learned Counsel, the vehicle was only three months'' old and as such no depreciation was payable. On the other hand learned Counsel for the opposite party has argued that the Insurance Company offered a sum of Rs. 1,55,000/- on 27/28th January, 1992 but the complainant did not agree for payment of this amount. No reply to this letter was sent nor the offer was accepted. According to learned Counsel this offer stood revoked as it was not accepted. The contention of the opposite party is that the record was lost.

THE opposite party Insurance Company is taking shelter behind the fact that the file was lost and hence the claim could not be finally processed and amount paid to the complainant. It is not an excuse for the Insurance Company that the entire file was lost and therefore the claim was not processed. This fact was never informed to the complainant because the entire documents which were required, for processing the claim were submitted by the complainant to the Insurance Company. If these documents would have been asked,, the complainant could have furnished the copies of the insurance cover and other documents which he had already submitted to the Insurance Company. After that the Insurance Company could have reconstructed its file and processed the claim in order to settle the claim submitted by the complainant. This was not done by the Insurance Company and the Insurance Company cannot be allowed to take this plea. It has further been argued by the learned Counsel for the opposite parties that as it was not a total loss of the vehicle, therefore, the salvage which was of damaged articles should be returned to the Insurance Company and then only the payment can be made.

THUS we find that there is deficiency in service on behalf of the opposite party in not getting the vehicle repaired and in the alternative failing to pay the amount spent by the complainant in getting the vehicle repaired within the period allowed. We find that the claim of the complainant goes unrebutted from the side of the Insurance Company and as such the complainant is entitled to claim the following : 1. Expenses for recovery of vehicle from Khud to workshop Rs. 23,000.00 2. Amount spent by the complainant towards repairing of the vehicle Rs. 1,66,207.60 3. Fees paid to the Surveyor Rs. 1,517.00 4. Rent of salvage Rs. 1,000.00 p.m. Besides the above amount, the complainant is also entitled to get interest at the rate of 18% per annum on the above amount of Rs. 1,91,724/-.

The complainant has failed to prove that he raised loan from some parties and paid them interest for the same as no details of these persons and the amount borrowed from them have been disclosed in the complaint. ORDER Thus the complaint is decreed for a sum of Rs. 1,91,724/- alongwith interest at the rate of 18% per annum on the above amount from 1.4.1992 till the date of payment of the amount by the Insurance Company. Opposite party shall pay Rs. 2,000/- as cost. Let compliance of this order be made within a period of two months from the date of this order. Let copy of this order be made available to the parties as per rules. Complaint allowed.