Sumit Kumar Agarwal vs ORIENTAL INSURANCE CO. LTD

COMPLAINANT /Petitioner is the registered owner of the Swaraj Mazda vehicle bearing registration No. UA-04A-1545. The said vehicle was insured with the Respondent Insurance Company for a sum of Rs. 3,50,000 for the period from 10.3.2004 to 9.3.2005. On 11.4.2004, the said vehicle met with an accident at P.S. Kaladhunga and got completely damaged. A police report was lodged and intimation was given to the Respondent Insurance Company. Respondent appointed a surveyor to inspect the spot and later on the vehicle was brought to the Amit Automobile, Dealer Swaraj Mazda at Haldwani. Amit Automobile submitted the estimate of Rs.

,50,000 FOR repairing the said vehicle. After inspection of the vehicle, the Surveyor found that the steel body of the vehicle was not damaged, the engine assembly was intact and that the cabin was badly damaged. But the Surveyor did not agree to change the cabin shell and assessed the loss "on repair " basis. Complainant, being aggrieved, filed the complaint beFORe the District Forum alleging that the vehicle was new and it was badly damaged in the accident and was not worth repairable. That the claim be settled on ''total loss " basis instead of "repair basis ". Complainant claimed the total sum of Rs. 4,08,500 on total loss basis. 2. Insurance Company, on being served, entered appearance and filed its written statement. It was admitted that the vehicle was insured with it. However, it is contended that the claim was highly exaggerated and excessive; that as per report submitted by the Surveyor, the damage to the vehicle was not total and the same could be restored on repair basis; that the Surveyor after making certain deductions had assessed the loss at Rs. 57,454.70 which the Respondent was prepared to pay. District Forum was not satisfied with the report submitted by the Surveyor and directed the A.R.M, U.P. Roadway of Kathgodam Depot Haldwani, District Nainital to appoint Senior Foreman FOR the investigation of the said vehicle. Based upon the report submitted by the Senior Foreman of the U.P. Roadway, District Forum allowed the complaint and held that the loss to the vehicle was total. District Forum directed the Respondent to pay Rs. 3,50,000 to the Complainant on ''total loss '' basis along with interest @ 6% from the date of filing of complaint till realization. Rs. 1,500 were awarded by way of costs.

RESPONDENT , being aggrieved, filed the appeal before the State Commission.

STATE Commission accepted the report submitted by the surveyor and held that the vehicle can be restored on repair. Accordingly State Commission partly allowed the appeal and directed the Respondent to pay a sum of Rs. 81,113 instead of Rs. 3.50,000 to the Petitioner along with interest @ 8% p.a. from the date of filing of complaint till realization. Rs. 1,500 were awarded towards litigation expenses. Counsel for the parties have been heard at length.

LEARNED Counsel appearing for the Petitioner contends that in case of complete damage to the chassis, front axle and cabin, the claim should be settled on ''total loss '' basis and not on "repair basis ". He further submits that the District Forum had rightly accepted the report of the Foreman appointed by the UP Roadways who came to the conclusion in his report that the vehicle was not worth-repairing. As against this, learned Counsel appearing for the Respondent submits that the Surveyor ''s report is a vital and importance piece of evidence and the same cannot be ignored and discarded by mere casual reference without there being cogent reasons to disagree with it or part thereof. That the District Forum had erred in accepting the report of the Foreman and awarding compensation on "total loss " basis.

REPORTS submitted by the Surveyor as well as the Foreman of the UP Roadways, have been perused. Surveyor in his report recorded the following observations and findings regarding the damage to the vehicle: "Due to impact cab assembly crushed, front show panel crushed, flooring buldged, wind screen pillar bent, roof structure deshaped. R/s door assembly crushed. L/s door assembly deshaped/disalligned, door hinges, R/s bent, wind screen glass smashed, door glass R/smashed. R/s. regulator assembly bent. R/s. door lock broken. R/s door trim torn, door handle, chanel, weather strip, inner handle bent/torn, plate R air guide torn, hood meter, cushion meter hood, panel meter broken/torn, panel instrument broken front grill plastic upper broken, lower, grill metal deshaped. Radiator assembly 30 cores smashed, fan cooling broken, hose pipe torn, steering shaft bent, switch combination broken, ceiling top deshaped, drag fink bent, the rod bent. R/s ball joint bent, front axle assembly bent at R/s. R/s kingpin set bent, front rear spring main broken/cracked. Wire accelerator broken, cable accelerator broken, stay mirror and outer mirror dashed, case meter broken, stuff R side sill, meter set broken, boss steering bent. Chassis assembly bent near 1st to 2nd cross member, front and 2nd cross meter bent. Captioned vehicle is getting 20%, No Claim Bonus. Apart from Spot Survey report following parts and assemblies were also found damaged which were physically verified by me. Radiator make GS 30 cores smashed, fan blade broken, cushion meter hood, hood meter case meter panel meter, panel instrument, meter set broken, steering wheel bent, drag link bent, ball joint R/s bent, rod bend, R/s kingpin set bent. Above losses were recommended after physical inspection of the vehicle and losses sustained only due to this accident. "

After recording the above findings, the Surveyor had assessed the loss as Rs. 63,713 "on repair " basis.

THE expert appointed by the District Forumi.e. Foreman of the UP Roadways in his report, detailed the following damages to the vehicle: "(a) Chassis -bent on driver ''s side (b) Front Axle -bent on driver ''s side (c) Steering -damaged (d) Cabin -completely damaged from the front side and bent (e) Body -fully bent. "

AFTER technical-inspection of the Chassis, Front Axle and Cabin of the damaged vehicle, the expert came to the conclusion that these cannot be repaired because in the future the chassis either can be bent or weak due to the tyres getting wear away with the running of the vehicle. A perusal of both these reports shows that the vehicle was badly damaged. There is not much difference in the reports submitted by the Surveyor and the expert appointed by the District Forum regarding the damage to the vehicle. The Surveyor as well as Foreman has found that the chassis was bent, steering was damaged and there was damage to the front axle. Foreman in his report had stated that the cabin was completely damaged. Report of surveyor does not mention about the damage to the cabin but overall reading of the observations and findings of the Surveyor shows that the structure of the vehicle was completely damaged. The only difference in these reports is that while the Surveyor assessed the loss "on repair " basis the expert (Foreman) found it to be complete. In spite of the finding regarding the extensive damage to the vehicle, the Surveyor in his report did not give any reason in support of the recommendation made by him to settle the claim "on repair " basis. State Commission in its order has observed that the report of the Surveyor is an important piece of evidence and has to be given due weight. There is no doubt that the report submitted by the surveyor is an important piece of evidence and has to be given due weight but as observed by the Apex Court in New India Assurance Co. Ltd. v. Pradeep Kumar, IV (2009) CPJ 46 (SC)=IX (2009) SLT 17=IV (2009) ACC 356 (SC)=(2009) 7 SCC 787, the same is not sacrosanct and can be displaced by the Complainant by leading cogent and trustworthy evidence to the contrary. In the present case, District Forum was not satisfied with the recommendation made by the surveyor that the vehicle can be repaired and appointed an expert to report the extent of damage and as to whether the vehicle was in a repairable condition. The independent expert came to the conclusion that the vehicle could not be repaired because of the damage caused to the chassis, front axle and steering. According to the expert, the chassis in future could bend or go weak as and when the tyres wear out. Surveyor has submitted that the vehicle was extensively damaged but recommended the claim to be settled "on repair " basis without giving any reason. Perusal of the findings recorded by the Surveyor regarding the extent of damage caused to the car leaves no doubt in our mind that the car could not be repaired and that too with a paltry sum of Rs. 63,713. We are of the opinion that the vehicle was extensively damaged and could not be repaired. District Forum had rightly accepted the report of the independent expert appointed by it and awarded the compensation on "total loss " basis. State Commission erred in reversing the finding recorded by the District Forum.

FOR the reasons stated above, the Revision Petition is allowed, the order of the State Commission is set aside and that of the District Forum is restored. Respondent is directed to comply with the order of the District Forum within fours weeks from the date of receipt of copy of the order. Revision Petition allowed.