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2009 DIGILAW 223 (JK)

National Insurance Co. Ltd. v. Mohd. Ashraf Bhat

2009-05-14

G.D.Sharma, Rifat Aijaz

body2009
G.D. Sharma, J. 1. Through the medium of this appeal, order dated 30.12.2004 passed by the learned Divisional Consumer Protection Forum Srinagar, (hereinafter to be referred to as the `Forum'), has been challenged. Brief facts of the case are that the respondent had got his truck insured with the appellant under insurance policy No.121004/31/2000/63/00/383/1 and it became effective from 26.7.2000 and had no expire on 25.7.2001 on 27.2.2001, goods in the form of kacha plywood was loaded from the factory of Renzu Traders Zakura Srinagar and was to be unloaded in Delhi. The truck left for Delhi on 01.3.2001 and met with accident at a place known as by-pass Nowgam. The engine of the insured truck had struck against a standing tree and loss was caused. The claim was raised with the appellant within time for getting insured amount of Rs. 80,000/- which, according to the respondent, was the loss suffered by him. It is admitted fact that Mr. G.Q. Peer who conducted the survey and assessed the loss of the accident is in the sum of Rs. 12,980/-. Learned Forum has assessed the liability of the company to the tune of Rs. 20,000/- for reimbursement. The appellant has felt aggrieved and in the memo of appeal following grounds have been taken: - 1- That the accident had taken place on 1.3.2001 and immediately after receiving information surveyor was appointed who visited the spot on 1.3.2001. Thereafter the respondent did not extend cooperation and as the repair bills were not submitted so on 29.3.2001 the claim was closed; 2- The respondent made an application during the month of May 2001 for reopening of his case and his request was accepted. He had given some repair bills which were being considered but did not wait for the final outcome of the decision of the appellant and approached the Forum; 3- The surveyor Mr. G.Q. Peer had assessed the loss on the basis of estimates because he had visited the spot. Some of the items which were considered by him were not covered under the insurance policy so he excluded those items and confined his assessment report to the insurable loss which was in the amount of Rs. 12,980/-. 2. Heard the arguments. 3. Mr. Some of the items which were considered by him were not covered under the insurance policy so he excluded those items and confined his assessment report to the insurable loss which was in the amount of Rs. 12,980/-. 2. Heard the arguments. 3. Mr. Lone has contended that the respondent had tried to hoodwink the Forum by producing fake and fabricated bills which were not accepted by the learned Forum on the basis of the reasons given in the impugned order. The assessment which had been correctly made by the surveyor and loss assessor was to be tune of Rs. 12980/- but the learned Forum has fell into error by allowing the depreciation cost of the vehicle which had been deducted under the terms and conditions of the insurance policy and thus the amount payable was increased upto Rs. 20,000/-. This mode, according to the learned counsel, is not permissible under law. Concluding his arguments, he has contended that there was no jurisdiction in awarding interest beyond the month of May 2001 when there was no fault on the part of the appellant in the settlement of the claim which stood settled on 29.3.2001 when Mr. G.Q. Peer had already submitted his report. 4. In rebuttal, Mr. Manzoor Ali has argued that the appeal is time barred by 15 days and no cogent reason has been assigned in the application for condonation of delay. On merits he has contended that the appellant has no case. That the insurance policy does not specify any part of the truck which was not covered under the insurance policy and the respondent had claimed damages to the tune of Rs. 80,000/- for repairs and Rs. 10,000/- as labour charges, against that the surveyor had assessed the liability of the company only to the tune of Rs. 12,980/-. Depreciation value of the parts which are to be repaired had been deducted by the surveyor by 50% which comes to Rs. 8,480/-. This method was not permissible because the appellant had failed to produce any record or the terms and conditions of the contract of insurance policy which were of binding nature for the respondent to make such type of deduction. That in the written version, averment was made that the appellants was prepared to make payment of the assessed loss but that obligation was not fulfilled. That in the written version, averment was made that the appellants was prepared to make payment of the assessed loss but that obligation was not fulfilled. Since the appellant has failed to provide any service till date, so this is a deficiency and interest has to be paid on the amount which become payable. 5. We have considered the respective contentions of counsel for the parties and find no plausible reason to differ from the conclusions arrived at by the Forum. The only dispute is with regard to an amount of Rs. 8,480/- which the learned Forum has allowed on the plea that it was the actual loss suffered by the respondent, rather the assessed amount of Rs. 12,980/- which was is on the lower side. It was the duty of the appellant to prove the terms and conditions of the contract of insurance which debarred the respondent to receive the actual price of the replaced spare parts but made it compulsory to receive only 50% thereof on the basis of depreciation value. There is undoubtedly deficiency in service because the amount assessed by the surveyor has neither been paid nor deposited in the Forum. In this view of the matter, we find no merit in this appeal which is dismissed with costs of Rs. 3,000/-. Rather of the D.F. be returned at once and the appeal be consigned to records.