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2004 DIGILAW 84 (UTT)

New India Assurance Co. Ltd. v. Deepak Goyal

2004-06-04

K.D.SHAHI, LUXMI SINGH

body2004
JUDGMENT This is an appeal against the order dated 10.12.2003 passed by the District Forum, Udham Singh Nagar whereby the complaint of the complainant for recovery of insured amount of the vehicle amounting to Rs.1,00,000/- (Rupees One Lac) along with interest @ 9% and cost of Rs. 1,000/- was allowed. 2. The brief facts of the case are that the complainant was the owner of Marti Van which he had got insured with The opposite party for a sum of Rs.1,00,000/- (Rupees One Lac). During the insurance period, he left his vehicle in the workshop of Mistri Mohd. Usman, where the fire took place and the total vehicle was burnt the complainant lodged the claim with the insurance company who repudiated the claim. Therefore the complaint was filed before the Learned Forum. 3. The insurance company contested the petition and alleged that the complainant could not prove that he is the owner of the vehicle. It is alleged that the loss is not covered under the policy. Before the Learned Forum, the insurance policy or its conditions were. not produced. The report of the surveyor was also not produced. The Learned Forum found that the loss of the vehicle in the workshop of Mistri Mohd. Usman is also covered under the policy and therefore allowed the complaint. Against which order the present appeal has been filed. 4. We have heard the Learned Counsel for the parties and gone through the records. It is admitted fact that the policy was taken on 17.04.2001 and the fire took place in the workshop of Mistri Mohd. Us man on 01.01.2002. It was within the insurance period. The moot question is whether such a loss was covered under the policy or not? Before the Learned Forum, the insurance company did not file the terms and conditions of the policy but filed the terms of the policy before this Commission, wherein it is specifically written that the company will indemnify the insured against loss or damage to the Motor Vehicle if it was caused by fire explosion, self ignition or lightning. Therefore it is clear that loss due to fire is also to be indemnified by the insurance company. It is not written that if the fire takes place in the workshop, it is not to be indemnified. Fire is fire. Anywhere it takes place. Therefore it is clear that loss due to fire is also to be indemnified by the insurance company. It is not written that if the fire takes place in the workshop, it is not to be indemnified. Fire is fire. Anywhere it takes place. There is no law that the vehicle should not be left in the workshop of mistri for repairs etc and if the complainant was entitled to leave there his vehicle, he was also entitled to be indemnified if he suffers loss due to any fire. It is not said that the workshop was put to fire by the mistri himself. 5. Before us the only point which was raised by the Learned Counsel for the insurance company was that the vehicle was insured for a sum of Rs. 1,00,000/- (Rupees One Lac) and the Learned Forum has allowed total amount of Rs. 1,00,000/- (Rupees One Lac). Sh. T.S. Bindra, Learned Counsel for the insurance company stressed that the policy of the vehicle has been consumed for about 8 months even after the insurance. Therefore necessary deductions in amount of the policy are to be made. He also argued that according to the report of the surveyor, the complainant was entitled to Rs. 65,000/ -(Rupees Sixty Five Thousand). He argued that the complainant has also agreed for payment of Rs.65,000/- (Rupees Sixty Five Thousand). The amount of Rs.65,000/- (Rupees Sixty Five Thousand) has been carved out by the surveyor but there is no evidence on record that the complainant agreed to take Rs.65,000/- (Rupees Sixty Five Thousand). Had he agreed a discharge voucher should have been obtained at the same time and payment should have been made? The Learned Counsel for the appellant argued that the surveyor has reported that the loss to the complainant comes to Rs.82,573/- (Rupees Eighty Two Thousand Five Hundred Seventy Three) on repair basis, on total loss basis it was worked out• to Rs.65,000/- (Rupees Sixty Five Thousand) and on cash loss basis it was worked out to Rs. 66,499/- (Rupees Sixty Six Thousand Four Hundred Ninety Nine). 66,499/- (Rupees Sixty Six Thousand Four Hundred Ninety Nine). It was argued that the insurance company was free to give any of these amounts to the complainant This argument is not correct This is primary duty of the insurance company to get the vehicle repaired or to pay to the complainant on his repair but it cannot say that it will not repair but it has assessed the loss for repair and it will pay only this amount. Condition No.3 of the policy also reads; the company at its own option repair reinstate or replace the Motor Car or part thereof or may pay in cash the amount of the loss or damage and the liability of the company shall not exceed the value of the parts damaged. The company has never asked the complainant whether he will like to get the vehicle repaired by the company itself and without any option being given to the complainant, the insurance company cannot enforce on its own terms. 6. A ruling reported in 2004 (1) JRC. M. Lingan Vs. United India Insurance Co. Ltd. was also produced but firstly the surveyor report has filed in this appeal. Secondly, it has not been proved on affidavit. Thirdly the basis has not been given. 7. The Leaned Counsel for the complainant referred the case decided by this Commission itself reported in 2004 (1) CPR. 2.59, Now India Assurance Co. Ltd. Vs. Kamal Singh Pnwar, where in the total amount of insurance was awarded after 10% deduction because the vehicle has run about 10 months after the insurance. In this case, the vehicle was insured for Rs. 1,00,000/- (Rupees One Lac). If 10% deduction is given, the claim comes to ~~.90.000/(Rupees Ninety Thousand) and in our view, the complainant is entitled to a sum of Rs.90,000/- (Rupees Ninety Thousand), The order of the Learned Forum is to be modified only to tins extent. Rest part of the order of the Learned Forum is to be confirmed. ORDER The appeal is hereby partly allowed and partly dismissed. The amount of award modified to Rs.90,000/- (Rupees Ninety Thousand Only) in stead of Rs. 1,00,000/- (Rupees One Lac). Rest part of the order passed by the Learned Forum is hereby confirmed. Cost of this appeal shall be easy.