UNITED INDIA INSURANCE COMPANY vs N.C. BANSAL

THIS is an appeal under Section 15 of the Consumer Protection Act (hereinafter called ''the Act'') against the order dated 2.7.1993 passed by District Consumer Forum, Aligarh in Complaint Case No. 343 of 1992.

A complaint was filed with the allegation that the computer in question which was subject matter of theft was insured with the appellant and for no rhyme or reason the sustainable claim of the complainant was repudiated. Compelled by the situation a complaint was preferred under Section 12 of the Act. Written statement was filed by the appellant. The learned District Forum passed the impugned order allowing the complaint for a sum of Rs. 60,200/-. Being aggrieved the present appeal has been preferred by the appellant.

We have heard Mr. V.P. Sharma for appellant and Mr. M.H. Khan for complainant and perused the record.

IT is argued by Mr. V.P. Sharma, Counsel for appellant that the impugned order is not a speaking order and as well as it is based on no materials. Mr. M.H. Khan on the other hand with a view to support the order tried to counter the argument of Mr. Sharma by asserting that in the instant case the facts which were necessary for justifying the claim were taken into account by the learned District Forum. There is no denial that the order in question is not a well reasoned order. Even the basis of the facts which were necessary for appreciating the complaint were not taken into consideration. We are, thus, satisfied that the order being not speaking is not liable to be maintained. However, the matter does not end there. The complaint was preferred in the year 1992. The judgment has been delivered on 22.7.1993. The appeal has been preferred on 13.9.1993. There is thus long lapse of time consumed in prosecuting a complaint. Although the complainant was under the expectation that his case could be decided at the earliest which painfully has not been done. The proceeding has been prolonged and long one. However, we had the benefit that the relevant materials which are necessary for the decision of the complaint have been annexed with the memo of appeal. Under these circumstances while entertaining the view that the impugned order is not speaking and well reasoned we are not taking recourse of merely setting aside the order and remanding the proceedings to the District Forum concerned for a decision afresh according to law. The learned Counsel for the parties too thus submitted the case on merits. In the instant case it is admitted to the appellant that there was insurance of the computer in question. This is also a fact that the computer in question which was insured has been stolen. It is also a fact that during the currency of the contract of insurance the insurer appellant is liable for indemnification. Thus the point for determination is quantum as we have taken the view that in view of theft and in view of the terms and conditions the appellant insurer is liable to indemnify the loss. On the point of quantum of compensation too the impugned order suffers from vagueness. Total compensation as claim has been awarded by the learned District Forum for no rhyme or reason even there has been no attempt to look into the Surveyor''s report and other materials which could have been proper recourse for deciding the quantum of loss occasioned to the complainant. We had occasion to pursue the Surveyor report. According to Surveyor the total loss assessed is Rs. 41,330/- but after taking into account the depreciation and salvage the net loss assessed is Rs. 12,399/-. Thus the complainant is entitled for Rs. 12,399/-. being the amount of loss occasioned because of the theft of computer in question.

MR. Sharma has also tried to argue that in the circumstances of the case no liability of payment of interest could be fastened on the Insurance Company whereas on the other hand MR. Khan submitted that the repudiation has been done without any rhyme or reason and it is merely a case of wrong exercise of discretion by the Insurance Company and since the complainant has been dragged to a proceeding of present nature and since he has to still await for compensation for more than 10 years the rate of interest should be on higher side and the complainant is entitled for the sum of interest. As has been held in GDA v. Balbir Singh case, the Hon''ble Apex Court has expanded the theory of interest. It has been held that the interest is a term which is to be coupled with harassment and mental agony of the complainant. There is yet another principle of awarding interest and that is longer the period the lesser rate of interest will be appropriate rate of interest unless the case is carved out as being termed special cases. This is not one of those rare and special cases. Taking the totality of the circumstances and having a look of the matter we are of the view that the appropriate rate of interest will be 6% p.a. which will be applicable from the date of judgment. Mr. Sharma has then argued that the complainant is not a "consumer" within the meaning of Section 2(d) of the Act and the complainant is not a consumer at all. It was argued that the purchase of the computer was for imparting education to the students seeking admissions for knowledge of the computer. Obviously such argument could have survived after the amendment incorporated in Section 21(d)(ii) inserted by the Consumer Protection (Amendment) Act, 2002. This matter relates to a period prior to the amendment. The effect of Consumer Protection (Amendment) Act, 2002 is prospective and not retrospective. Thus on that score the contrary argument raised by Mr. Sharma does not hold any ground and it is not accepted. The appeal is, therefore, liable to be partly allowed. ORDER The appeal is allowed in part. The impugned judgment and order is modified to the extent that the appellant will pay to the complainant Rs. 12,399/- along with interest @ 6% per annum from the date of judgment i.e., 22.7.1993, within two months. Parties will bear their own cost. Appeal partly allowed.