VINOD KUMAR NAGRATH vs ORIENTAL INSURANCE CO. LTD.

FIRST Appeal No. 177/94 by the complainant Shri Vinod Kumar Nagrath and the Cross First Appeal No. 291/94 by Oriental Insurance Co. Ltd. are directed against the order dated 7.2.94 passed by the State Commission, Delhi directing the Insurance Company to Pay Rs. 2,05,000/- together with interest @ 15% per annum from 1st May, 1992 till the date of payment.

THE material facts which are not in dispute may be noticed. The complainant had obtained a comprehensive Insurance Policy No. 21221/109/00000/31/92/10156 for a sum of Rs. 2,20,000/- by paying a premium of Rs. 4,270/-from Oriental Insurance Co. Ltd. effective from 23.7.91 to 22.7.92 in respect of Goods Carrying Vehicle (Commercial) Registration No. D.B.L. 6438, owned by him. The said vehicle met with an accident on 18.12.91 on G.T. Road near Net Ram Puri after crossing Bulandshahar. The intimation about the accident and loss/damage of the vehicle was given to the Insurance Co. on 19.12.91 at New Delhi Office which wanted the complainant to also give intimation to Bulandshahar Office of the Insurance Co. The intimation was given to them on 24.12.91. The Insurance Co. appointed Shri S.C. Tayal Surveyor and Less Assessor who conducted the spot survey of the damaged vehicle on 25.12.91. F.I.R. No. 687 dated 24.12.91 was lodged with Police Station, Sikandrabad, District Bulandshahar. There is no dispute that the Insurance Co. had agreed to indemnify the complainant against loss or damage to the said vehicle and its accessories while thereon on account of accident, external means besides other risks and that the loss/damage caused to the said vehicle as a result of accident on 18.12.91 is duly covered in the risks. It is also not the case of Insurance Co. that any terms or conditions of the said policy have been violated or the case is excepted under any exception clause. The dispute then centres round the quantum of loss or damages or other claims. The complainant alleged that damages and losses suffered by him due to the Insurance Co. not providing services they had agreed to provide under the terms of the policy is Rs. 4,17,325/- which included the damage caused to the vehilce due to the accident, loss of earnings of Rs. 90,000/- and loss suffered or likely to suffer under various heads specified in the complaint. The Insurance Company''s version is that Shri S.C. Tayal. Spot Surveyor submitted his report dated 14.5.92 and that was handed over to M/s. Deepak Annand Associates who submitted their final report on 21.9.92. The final Surveyors studied the estimated loss and assessed the same at Rs. 62,972/- less excess of Rs. 1500/-, thus in all Rs. 61,292/- and the delay in settling the claim is attributed to the complainant who did not submit the relevant documents. The complainant had denied the delay on his part, firstly, on the ground that he received serious injuries due to the accident and was not fit to move till 24.6.92 and secondly his brother on his behalf had complied with all the requirements. The State Commission on the basis of the material on record came to the conclusion that the Insurance Co. had full knowledge of accident claim at least from 25.12.91 when they appointed spot Surveyor who conducted the spot survey on 25.12.91 and should have expeditious and settled the claim. Not settling the claim is deficiency in service. On quantum, the State Commission allowed Rs. 1,70,675/- as damage as assessed by the complainant''s repairer M/s. Inderson Motors, besides allowing Rs. 25,000/-as loss of earning, Rs. 2,125/- as damage to seats and Rs. 7,200/- as damage to tyres, in all Rs. 2,05,000/- with interest @ 15% per annum w.e.f. 1.5.92.

WE have heard the learned Counsel for the parties and have gone through the records with their help. The submission of the complainant''s Counsel is that the vehicle damaged in the accident on 18.12.91 has not been repaired as the Insurance Co. did not settle his just claim and the losses and liabilities have been increased due to his inability to bring the vehicle on road due to withholding of the payments by the Insurance Co. The contention is that his modest claim of Rs. 90,000/- for loss of earning should have been allowed in toto. The Counsel also urged that the other items of claim of the complainant of Rs. 48,000/- for damage to the Dalla, Rs. 25,000/-damages to the engine head, Rs. 15,000/- towards taxes and Rs. 10,000/-towards penalty on taxes should have also been allowed. On the other hand the Counsel for the Insurance Co. urged that the complainant is only entitled to Rs. 61,292/- as assessed by the final Surveyors subject to furnishing actual cash memos/invoices on completion of repairs to the said vehicle. It is contended that in the final survey report the delay was explained attributing it to the complainant and thus the complainant is not entitled to any interest.

WE have given our careful consideration to the submissions made by the Counsel for the parties. The vehicle met with an accident on 18.12.91 and was extensively damaged while being driven by the complainant himself who was seriously injured and had to be hsopitalised. The F.I.R. was lodged on 19.12.91 and actually registered as F.I.R. No. 2687 dated 24.12.91 and an intimation was given on 19.12.91 to New Delhi Office of the Insurance Co. who admittedly appointed Shri S.C. Tayal, Surveyor and Assessor, who conducted the spot survey on 25.12.91. It is pleaded in the version of the Insurance Co. that the appointment of Mr. S.C. Tayal, Surveyor and Loss Assessor, the date of his inspection and the contents of report are a matter of record of the Insurance Company and Surveyor''s records. In the typed matter of the written statement it is typed that "a copy of the report of Mr. S.C. Tayal is annexed to this written statement as Annexure R l" This is scored out and copy of the report is withheld. The inference is irresistible that if produced, it would have gone against the Insurance Co. The final report of M/s. Deepak Anand and Associates, Annexure R2 states that "the delay in submission of Survey Report is due to late receipt of Spot Survey Report and subsequently late availability of the insured for settlement of the loss". If the spot Surveyor submitted his report late, then the complainant cannot be held responsible for this delay. The assessment of the loss is entirely the function of the Insurance Company''s Surveyor and the complainant could not be compelled to accept the quantum as assessed by the Insurance Company''s Surveyors and if the insured is not available for settlement of that loss then the Insurance Co. cannot take any advantage. Despite the issue of legal notice dated 21.9.92 by the complainant''s Counsel and earlier letters by the complainant, the claim was neither settled nor repudiated till 9.10.92 when the complaint was filed before the State Commission. The State Commission rightly held that since the Insurance Co. was seized of the mater it should have done the needful expeditiously to settle the claim and thus there is gross deficiency in service. The State Commission preferred to accept the assessment of the loss/damage to the vehicle as estimated by M/s. Indersons Motors (P) Ltd. on 26.4.92. This estimate of repairs was submitted by the complainant to the Insurance Co. on 30.4.92. The letter dated 16.6.92 written by the complainant''s brother to the Insurance Company, reminded Head office of the Insurance Co. to do needful in the matter and for taking action against the erring persons after referring to vari-ous documents/claims filed, visits of Bulandshahar office of the Insurance Co. and the spot Surveyor and non-submission of the spot survey report. The Insurance Co. neither disputed the assessment, nor took any action to get the damaged vehicle repaired through their repairer nor settled the claim. The survey was carried out by M / s. Deepak Anand and Associates on 2.5.92 and onwards and they received the spot survey report on 10.7.92 as mentioned in their report. The report dated 14.9.92 of M/s. Deepak Anand and Associates does not refer to or meet or criticise the assessment of damage made by M/s. Indersons Motors (P) Ltd. It is evident that the Insurance Co. was not satisfied with the assessment of loss made by M / s. Deepak Anand and Associates as the Senior Divisional Manager of the Insurance Co. sent a letter dated 30.9.92 to M/s. Kohli Engineers for re-inspection of the vehicle and reminded on 17.11.1992, but no report was submitted. It would thus be prudent to confirm the loss/damage to the vehicle and uphold the State Commission''s finding of the quantum of Rs. 1,70,675/-. The other items allowed by the State Commission of Rs. 2,125/-for damaged seats and Rs. 7200/- for tyres spoiled is set aside as there is no assessment of this loss in the report of M/s. Indersons Motors (P) Ltd. These losses are alleged to have been suffered by the complainant after the accident for which there is no proof, besides are attributable to the complainant or his agents in not taking proper care, of the accidented vehicle.

THE alleged loss of earnings by the complainant due to non-repairs of the vehicle/settlement of claim is not covered under the terms and conditions of the policy of insurance. Risk involving loss of profit is not covered under the said policy and thus no claim can be allowed. The State Commission''s award of Rs. 25,000/- is hereby set aside.

IN the result, the appeal of the complainant is dismissed. The appeal of the Insurance Co. is party allowed. The order of the State Commission is modified to the extent that the Insurance Co. is directed to pay Rs. 1,70,675/- with interest @ 15% per annum from 1.5.92 till the date of payment. The parties shall bear their own costs of these appeals. The complainant shall refund the excess amount received in pursuance of the order dated 14.12.94 of this Commission to the Insurance Company within one month of the receipt of this order.