UNITED INDIA INSURANCE CO.LTD vs P.DURAIPANDIYAN

THIS appeal is by the opposite party, Branch Manager, United India Insurance Company against whom an award has been passed by the District Forum, Ramanathapuram. The complainant had insured his lorry with the opposite party. During the currency of insurance, on 21.7.1994, the lorry met with an accident. As per the averments in the complaint, when the lorry was going from Sudiyur towards Parthibanoor at a moderate speed, suddenly a child came across. To avoid hitting at the child, the lorry was turned towards the side and it was then hit at a palm tree. The lorry was heavily damaged in the cabin, wooden parts, bonnet and mudguard. A report was given to the police. The complainant approached M/s. A.B.T. for repairing the lorry and they gave a quotation for Rs. 70,000 /- While so, the opposite party Insurance Company obtained a report prepared by a Surveyor of them by name Mr. Manimuthu. But, suppressing this fact, the opposite party repudiated the claim made with them by the complainant. On account of this repudiation, the complainant had suffered monetary loss and mental agony. On these allegations, the com- plaint has been filed.

THE opposite party in its written version, denied the circumstances alleged in the com- plaint as to how the accident occurred and also the alleged damages. It contended that immediately after the report of the accident, they appointed a Spot Surveyor just to note down the external damages caused to the vehicle and not for assessing the loss. If any opinion as to the value of the damage was given by the Spot Surveyor that will not be binding on the opposite party Insurance Company. After the vehicle was removed to the repairer''s workshop, one Mr. Srinivasan, an independent Surveyor was appointed. That Surveyor has given his report stating that the damage caused to the bumper and in the centre bonnet are relevant to the cause stated in the claim form. He has stated that there was no damage in the cowl and cabin and he has also stated that the main item of the claim viz., crack in the chassis number was at the right hand side and this was not due to the accident in question. He has further stated that the cost of repair of other items of damage would be Rs. 750/-. As per the policy, the opposite party will be liable to pay damages only if it exceeds Rs. 1,500/-. This has been conveyed to the complain- ant. THErefore, it cannot be said that there was deficiency in service on the part of the opposite party, and hence the complaint is liable to be dismissed. The District Forum, on consideration of the pleadings and evidence, came to the conclusion that the repudiation of the claim by the opposite party is wrong and it amounts to deficiency in service. The District Forum passed an award directing the opposite party to pay to the complainant a sum of Rs. 70,000/- as repair charges, Rs. 15,000/- for loss of income and Rs. 15,000/- for mental agony. It also ordered the opposite party to pay a sum of Rs. 1,500/- as costs.

Now in the appeal, it is contended that the order of the District Forum is against the evidence and probabilities in the case and it cannot be sustained in law. The main contention of the opposite party Insurance Company is that the main item of the damage in the lorry viz., crack in the chassis number has not occurred in the relevant accident. It other words, according to them it had been there already in the lorry. The final Surveyor Mr. Srinivasan had given his opinion to this effect in his report Ex. B9, dated 17.8.1994. He has also given reasons therefor. According to him, considering the circumstances in which the accident had occurred, the said damage to the chassis number could not have happened in this accident. Even according to the averments in the complaint, the lorry was being driven in a moderate speed. It is then stated in the complaint that one child came across and, to avoid the child, the vehicle was turned to the side, and it was then hit against the palm tree. When the lorry was thus turned to the side to avoid the child, the speed would have considerably come down. We have seen supra that according to the complainant, the vehicle was being driven at a moderate speed. In these circumstances, if the lorry had hit against a palm tree, it is quite likely that the damage found in the chassis would not have happened. This being the case, when the Surveyor Mr. Srinivasan states that the damage to the chassis had not happened in the accident in question that cannot be rejected as unacceptable. It is argued on behalf of the complainant (respondent herein) that the Spot Surveyor had given a report and that report has been suppressed by the opposite party Insurance Company and they have done so only because that was against them. But normally, the Spot Surveyor would only note down the fact of the accident and the external damages to the vehicle. Therefore, only because the Spot Surveyor''s report has not been filed, it cannot be concluded that the report given by the Final Surveyor Mr. Srinivasan is to be considered as an unacceptable one. As seen above, according to him, the damage to the bumper and the centre bonnet alone have been caused by the accident in question, and the repair charges of this accident would only be Rs. 750 /-. It is not in dispute that if the value of the damage would be below Rs. 1,500/-, the Insurance Company will not be liable to pay any amount. In these circum- stances, we are of the view that the question whether the damage to the chassis of the lorry had happened in the accident in question or it had happened earlier cannot be decided on the evidence available on record. It requires oral evidence. This alleged accident itself could very well be a stage-managed one. Then, as regards the quantum of compensation claimed, the only evidence let in by the complainant is the quotation said to have been given by M/s. A.B.T. But this has not been proved by any evidence. Only on the basis of the quotation, it cannot be said that really the repair charges was to such an extent.

IN these circumstances, we think it would be proper to remand the matter to the District Forum for fresh consideration of the matter after recording oral evidence regarding the said point. Accordingly, we allow the appeal, set aside the order of the District Forum and remand the matter to the District Forum for fresh consideration. The parties will be at liberty to let in further evidence both oral and documentary. Parties to be present in the District Forum on 17.9.1997. Appeal allowed.