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2004 DIGILAW 58 (UTT)

New India Assurance Co. Ltd. v. Ramesh Singh

2004-05-17

K.D.SHAHI, LUXMI SINGH, SURENDRA KUMAR

body2004
JUDGMENT These are two cross appeals arising out of order dated 31.03.2003 passed by the District Forum, Pitthoragarh whereby the complaint of the complainant was allowed for compensation of Rs.2,43,900/(Rupees Two Lacs Forty Three Thousand Nine Hundred) to be paid within a month and in default of payment to pay interest @ 9% from the date of order till the date of payment. 2. Against this order, the complainant Sh. Ramesh Singh has filed Appeal No.477 / 2003, Sh. Ramesh Singh Vs. New India Assurance Co. Ltd. alleging that he should be paid compensation of Rs.4,50,000/- (Rupees Four Lacs Fifty Thol1sand). He has also alleged that he should have been allowed pendentelite and future interest and also cost of litigation. 3. The New India Assurance Co. Ltd. has filed Appeal No.303 / 2003, New India Assurance Co. Ltd Vs. Sh. Ramesh 'Singh alleging that there was absolutely no deficiency in service on their part, there fore the complaint should have been dismissed. 4. Both the appeals arise out of the same order, therefore both have been taken together for disposal. Copy of the judgment shall be placed in the records of each case. ' 5. The brief facts of the case are that the complainant Sh. Ramesh Singh had purchased a Canter No.UP29/0962 on 06.01.2000 for a sum of Rs.5,10,000/(Rupees Five Lacs Ten Thousand). The vehicle was insured for the period 04.01.2000 to 03.01.2001 for a sum of RS.5,10,000/- (Rupees Five Lacs Ten Thousand)., On 18.07.2000, the Canter was coming from Tanakpur, loaded with bricks. It met with an accident before 3 kms. of Sukhidang. It fell down in a• deep ditch, therefore was totally damaged. Information was given to the insurance company. The insurance company appointed its surveyor. The complainant was assured that after deducting 10% , depreciation, the complainant shall be paid Rs.4,59,000/(Rupees Four Lacs Fifty Nine Thousand). But all of a sudden on 30.10.2000; the claim was repudiated. The complainant completed all the formalities but his claim was not paid. Therefore he filed the complaint before the. Learned Forum. . 6. The insurance company filed written statement and affidavit and admitted that the complainant was the owner of the Canter. The factum of accident, etc. was also admitted. However, the insurance company alleged that• after accident Sh. Girish Joshi and Sh.Sunii Kumar Aggarwal were appointed as surveyors and on investigation, it was found that the driver Sh. Learned Forum. . 6. The insurance company filed written statement and affidavit and admitted that the complainant was the owner of the Canter. The factum of accident, etc. was also admitted. However, the insurance company alleged that• after accident Sh. Girish Joshi and Sh.Sunii Kumar Aggarwal were appointed as surveyors and on investigation, it was found that the driver Sh. Mohan Singh has got no valid driving licence for driving the vehicle on hill area. The licence filed by the complainant was verified by the RTO Office, wherein it was revealed that the driving licence was endorsed for driving on, hill area on 26.07.2000. Therefore on the date of accident, the driver was not holding a valid driving licence. It is therefore the claim was repudiated and the complainant was informed of this fact.. 7. After taking the evidence of the parties and hearing them, the Learned Forum allowed the complaint, as above for recovery of Rs.2,43,900/- (Rupees Two Lacs Forty Three Thousand Nine Hundred). The Forum has alleged the loss assessed by the investigator is Rs.4,01,000/- (Rupees Four Lacs One Thousand); The price of the salvage is Rs. 1,30,000/- (Rupees One Lac Thirty Thousand) and., if this amount is reduced, it comes to Rs, 2,71,000/- (Rupees Two Lacs Seventy One Thousand). The Learned Forum has further allowed 10% depreciation out of this amount and has allowed the complaint for a sum of Rs. 2,43,900/- (Rupees Two Lacs Forty Three Thousand Nine Hundred). 8. Against this order, both the parties have preferred their appeals. 9. We have heard the Learned Counsel for the parties and gone through the records. The vehicle was purchased only on 06.01. 2000 and it met with' an accident of 18.07.2000, only after six and a half months of the purchase. The purchase amount was Rs.5,10,000/- (Rupee's Five Lacs Ten Thousand), It is therefore the depreciation of 10% for six-month user should have been from this amount and the claim should have been settled on the value of the vehicle. But the Learned Forum has relied upon the report of the investigator Sh. Sunil Kumar Aggarwal. The report of the investigator Sh.Sunil Kumar Aggarwal is on the record. He has admitted the insured amount to be Rs.5,10,000/- (Rupees Five Lacs Ten Thousand). But the Learned Forum has relied upon the report of the investigator Sh. Sunil Kumar Aggarwal. The report of the investigator Sh.Sunil Kumar Aggarwal is on the record. He has admitted the insured amount to be Rs.5,10,000/- (Rupees Five Lacs Ten Thousand). He has also given the details of accident and has also reported that on proper inspection of the said accident vehicle in the same condition, he was of the opinion that the nature and cause of accident as narrated, above in :convincingly genuine. He further reported that at the time of the final survey, it was observed that the vehicle sustained severe damages on account of the said accident as all the major assemblies were found damaged badly beyond satisfactory repairs. He reported that the settlement of the claim on repair basis would not be feasible and asked for settlement of claim on total loss basis. Thus according to the survey report, it was a case of total loss and it was to be settled on total loss basis. Still the investigator calculated the price and came to the conclusion that liability of the company on repair basis will be Rs.4,13,722.85/- (Rupees Four Lacs Thirteen Thousand Seven Hundred Twenty Two and Eighty Five Paise). He has admitted the insurance for Rs.5, 10,000/- (Rupees Five Lacs Ten Thousand). But how he came to the conclusion that resale market value is Rs - (Rupees Four Lacs) is not clear? We have already said above, that the vehicle was purchased on 06.01.2000. 'The accident took place on 18.07.2000 only within six and a half months. Within this period the value shall come from Rs.5,l0,000/- to Rs.4,00,0001 - cannot be believed and such type of report without any evidence from the market, from the manufacturer or from the seller or purchaser is meaningless. 10. On the evidence of the parties, we find that the settlement should have been made on the basis of the market value, which was admittedly Rs. 5, 10,000/- (Rupees Five Lacs Ten Thousand) on the date of purchase and if 10% depreciation for 6 month user is given then the market value shall be Rs.4,59,0001(Rupees Four Lacs Fifty Nine Thousand) and the claim should have been settled considering this, amount. 11. However, it was argued by the Learned Counsel for the insurance company that there was no valid driving liecence with the driver on the date of accident. 11. However, it was argued by the Learned Counsel for the insurance company that there was no valid driving liecence with the driver on the date of accident. There was no endorsement for driving the vehicle on hill area on the date of accident. The driving licence was filed by the complainant, which shows that the endorsement was made on 26.02.2000. The Learned Counsel for the insurance company argued that there is interpolation in this date. Actually the endorsement was made on 26.07.2000 but the complainant has interpolated in this and has made the endorsement to appear as 26.02.2000 in steadof 26.07.2000. A certificate was also filed before the Licened Forum issued by the RTO, from which it is clear that interpolation was made to show that such endorsement was dated 26.02.2000 and not 26.07.2000. There is no reason to disbelieve the certificate of the RTO and this will show that there was no endorsement for driving the vehicle on hill area on the particular date of accident. 12. The Learned Counsel for the complainant has referred the judgment of MACT in MACP No.12 1 2001, Smt. Lachima Devi VS. Sh. Ramesh Singh, wherein it has been held that the driver was holding valid driving licence. We have seen the decision of issue No.2 of the said judgment. There absolutely no evidence was produced by the insurance company, Here there is specific evidence that the endorsement is a forged one: 13. The vehicle therefore was being driven against the terms of the policy and it is settled principle of law as also held in the ruling of B. V Nagaraju Vs. M/s. Oriental-Insurance Co. Ltd., Divisional Office, Hassan reported in II (1996) CPJ 18 (SC) & I (2003) CPJ '92 (NC), Oriental Insurance Co. Ltd. Vs. Raj Kumar Gupta that if the breach is not so fundamental so as to put the terms of the policy it Self to an end, the claimant can be allowed claim on non standard basis. It was also held that breach of the policy should have no nexus with the accident. Admittedly merely because there was no endorsement, it cannot be said that the accident took place. The driver was driving the vehicle. It is not said that he was not competent to drive at the hill area. He was in fact driving the vehicle in the hill area. Admittedly merely because there was no endorsement, it cannot be said that the accident took place. The driver was driving the vehicle. It is not said that he was not competent to drive at the hill area. He was in fact driving the vehicle in the hill area. The accident did not take place because of this non-endorsement. It is therefore clear that there was no nexus of endorsement with the accident. 14. in these circumstances the claim can should have been allowed on nonstandard basis and if the claim is allowed on non-standard basis, the complainant is entitled, to Rs.3,44,2501-(Rupees Three Lacs Forty Four Thousand Two Hundred Fifty). The price of the salvage as assessed by the investigator is between Rs.1,10,000/- 1,30,000/- if it is taken to be, on the higher side and if we roughly take price of salvage as Rs.1, 00,0001(Rupees One Lac), then the compensation shall be Rs.2,44,2501- (Rupees Two Lacs Forty Four Thousand Two Hundred Fifty). , 15. The Learned Forum has allowed the compensation of Rs.2,43,9001- (Rupees Two Lacs Forty Three Thousand Nine Hundred). Although it has adopted different mode. But even if that mode is left out and the claim is allowed on non-standard basis after deducting depreciation of the vehicle at 10%, then also the amount is roughly the same. Therefore as regards the amount of compensation, we find that it need not be interfered and there is no scope either to enhance or to reduce this amount. The Learned Forum has also rightly allowed the interest @9% which cannot be said in any way on the higher or on the lower side. 16. The net result is that both the appeals have got no force and are liable to be dismissed. ORDER Appeal No.303 /2003, New India Assurance Co. Ltd: Vs. Sh. Ramesh Singh and Appeal No. 477/2003, Sh. Ramesh Singh Vs. New India Assurance Co. Ltd. are hereby dismissed. Cost of both these appeals shall be easy.