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2001 DIGILAW 111 (HP)

NEW INDIA ASSURANCE CO. LTD. v. SUNIL KUMAR GUPTA

2001-06-09

ONKAR CHAND THAKUR, PREM CHAUHAN, SURINDER SARUP

body2001
ORDER Oral: Justice Surinder Sarup (Retd.). President: 1. This order will dispose of both the above mentioned appeals as they arise out of the same order of the District Forum, Shimla, dated 3-5-2000. by the said order, by accepting the complaint of Sunil Kumar Gupta, it has been ordered that the New India Assurance Co. which was made opposite party through its General manager (1) and Divisional Manager (2), shall pay to the complainant Rs. 1,99,000/-with interest @ 12% per annum with effect from 1-6-1999 till realization, alongwith litigation expenses of Rs. 500/-. 2. The brief facts are that the Maruti Van bearing Registration No. HP 02-6260 owned by the complainant was insured with the said Insurance Company for Rs. 1,98,000/- vide policy No. 313514009800566 for the period from 18-9-1998 to 17-9-1999. According to the complainant, he has purchased the said vehicle after taking loan from opposite party No. 3 i.e. the Punjab & Sindh Bank to the extent of Rs. 1, 45, 000/-. It met with an accident on 7-4-1999, as a result of which, it was totally damaged. Report of the accident and total loss of the vehicle was made by him to the opposite parties Nos. 1 & 2. subsequently, he made a claim of Rs. 1,98,000/- in accordance with the terms and conditions of the Insurance policy. On receipt of the same, the Insurance Company deputed a Surveyor to assess the damage, who assessed it as a case of total loss. This report of the Surveyor i.e. Shri R.B.L. Parashar is dated 10-4-1999 i.e. within three days of the date of accident and is part of the evidence produced by the complainant before the learned Forum below. However, the Insurance Company then appointed another Surveyor by the name of Shri Sunil Kumar Agarwal to assess the damage, who by his report dated 25-5-1999, assessed the total loss of the accidented vehicle to be of the extent of Rs. 1,45,500/-. The claim of Rs. 1,98,000/- having been repudiated on the basis of the report of the second Surveyor i.e. Shri Sunil Kumar Agrawal by the Insurance Company, which made an offer of Rs. 1,44,000/- towards full and final settlement of his claim, which was not acceptable to complainant, led to the filing of the complaint. 1,45,500/-. The claim of Rs. 1,98,000/- having been repudiated on the basis of the report of the second Surveyor i.e. Shri Sunil Kumar Agrawal by the Insurance Company, which made an offer of Rs. 1,44,000/- towards full and final settlement of his claim, which was not acceptable to complainant, led to the filing of the complaint. In the reply filed by the Insurance company, reliance was strongly placed on the report of Shri Sunil K. Agarwal and it was stated that the claim of total loss to the extent of Rs. 1,98,000/- by the complainant was untenable for there reasons, namely, (i) the vehicle had met with an accident after six months from the date of insurance, meaning thereby that there was a depreciation of its value due to normal wear and tear; (ii) the loss as assessed by the second Surveyor Shri Sunil K. Agarwal to the extent of Rs. 1,45,500/- was correct inasmuch as the vehicle at the time of accident had covered a distance of over 20,000 kms. from the date of purchase; and lastly that the less as assessed to the above extent was the actual sale value of the vehicle in the market. 3. The learned forum below rightly came to the conclusion that there is no evidence to the effect that market value of the vehicle, in question, at the time of the accident was less than the amount insured i.e. Rs. 1,98,000/-. However, it wrongly observed in the impugned order that the report of earlier Surveyor Shri R.B.L. Parashar has been withheld, although it is part of the evidence led by the complainant and is on the record. Be that as it may, the fact still remains that apart from the Survey report of Shri Sunil Kumar Agrawal, there is no other evidence on the record to justify the stand of the Insurance Company that the market value of the accidented vehicle was Rs. 1,45,500/-. Insofar as the said report is concerned, it runs contrary to the earlier report of Shri R.B.L. Parasar who held it to be a case of total loss of the accidented vehicle. 4. Since there are two reports on the record, both by the Surveyors appointed by the Insurance Company, in our considered view, it would be safer to place reliance on the earlier report rather than the subsequent one. 4. Since there are two reports on the record, both by the Surveyors appointed by the Insurance Company, in our considered view, it would be safer to place reliance on the earlier report rather than the subsequent one. The reasons for this approach are that there is no explanation on the record as to why the Insurance Company thought it necessary to ask for a second survey, that too after more than a month of the date of the accident, in the face of the prompt survey carried out within three days of the accident by Shri R.B.L. Parashar. Secondly, if two view are possible, based on the two reports of the Surveyors referred to above, this Commission being a creature of the stature, namely, the consumer Protection Act, 1986 which has been primarily enacted for the benefit of the Consumers of this country, we would be inclined to accept that view which helps the consumer i.e. the complainant in the present case, rather than the view which gees in favour of the Insurance Company. Lastly, Shri Sunil Kumar Agarwal, on his own showing is a Loss Assessor and is not such an export whose opinion regarding the market value of the vehicle on the date of the accident would be binding. 5. As a result of the above discussion, we do not find any error in the impugned order, which has been primarily challenged on merits by the Insurance Company in its appeal, insofar as the substance of the matter is concerned. However, there is an error in the operative part vide para-9 of the impugned order. Our pointed attention has been drawn to an order passed by the learned Forum below during the pendency of the complaint there, which is dated 29.11.1999 and runs as follows: "Reply filed. For arguments and evidence if any be listed on 4-1-2000. In the mean time if the O.P. Company intends to make any payment in order to save the burden of interest, they are at liberty to make the said payment to the Comp. In person against the valid receipt subject to the final decision of this complaint. The final liability of the Insurance Company shall be governed by the ultimate order likely to be passed in this complaint". It is, thus, manifest that while granting relief to the complainant, the learned Forum below has ignored the said order dated 29-11-1999. In person against the valid receipt subject to the final decision of this complaint. The final liability of the Insurance Company shall be governed by the ultimate order likely to be passed in this complaint". It is, thus, manifest that while granting relief to the complainant, the learned Forum below has ignored the said order dated 29-11-1999. Therefore, the operative part of the impugned order requires modification. It is accordingly modified to the extent that Rs. 1,44,000/- having admittedly been paid by the Insurance Company in compliance with the said order dated 29-11-1999, it was not liable to pay interest in view of the said order on that amount of Rs. 1,44,000/-. The balance amount being Rs. 54,000/-, which would be the difference between Rs. 1,98,000/- the insured amount and Rs. 1,44,000/- which was offered and paid by the Insurance Company in compliance of the order dated 29-11-1999, it is liable to pay interest @ 12% per annum only on the amount of Rs. 54,000/- with effect from 1-6-199-, the date mentioned in para-9 or the impugned order alongwith litigation expenses of Rs. 500/-. 6. Insofar as the appeal filed by the complainant is concerned, the same is regarding the rate of interest only on the ground that he was paying 14% interest on the loan taken by him from the Punjab & Sindh Bank and, therefore, was entitled to that rate of interest instead of 12%. On the facts and circumstances of the case, we do not find any ground to accept this contention on behalf of the complainant. For the reasons recorded above, the appeal filed by the Insurance Company is disposed of in the above terms, while the appeal filed by the complainant is dismissed.