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2009 DIGILAW 274 (JK)

United India Insurance Co. Ltd. v. Mohd. Yaqoob Khan

2009-05-29

G.D.Sharma, Rifat Aijaz

body2009
G.D. Sharma, J. 1. Through the medium of above stated appeals, order dated 31-08-2004 passed by the learned Divisional Forum, Srinagar (hereinafter to be referred as `Forum') has been challenged. The Forum has applied the rule of depreciation of the insured vehicle @ 15% and arrived at the conclusion that the insured respondent of appeal no. 28 was entitled to the claim of Rs. 3,23,000/- instead of the assessment of loss made by the surveyors and loss assessors namely, Alak Consultants and M.K. Arora to the tune of Rs. 2,60,000/-. The Forum after making a calculation on the basis of the chart of assessment has awarded an additional amount of Rs. 63000/- in favour of the respondent of appeal no. 28 alongwith interest @ 8% per annum from the date of presentation of the complaint till the amount is actually realized. The insurer of appeal no.28 has felt aggrieved of the order by pleading that rate of interest should not have been from the date of filing the complaint because the appellant insurer was not at fault for with-holding this much of amount because the payment had been made in accordance with the assessment made by the competent surveyors. Other grounds are also taken in the memo of appeal, but they have not been pressed at the time of arguments as of inconsequential legal value. It is an admitted case of the parties that it was a case of extortion of the insured Tata Sumo at gun point and consequently a total loss of the vehicle because the same could not be recovered. The sum assured is also admitted. The insurer in cross-appeal no.29 has felt aggrieved of the fact that depreciation value should have been assessed by the learned Forum not @ 15% but @ 10%. 2. Heard the arguments. 3. After the perusal of the record of case, we find that the insured motor vehicle was of 1999 model. The counsel of the insured in appeal no.28 has strenuously contended that the learned Forum should have applied the year of model from the date of purchase and not from the date of manufacture. Mr. 2. Heard the arguments. 3. After the perusal of the record of case, we find that the insured motor vehicle was of 1999 model. The counsel of the insured in appeal no.28 has strenuously contended that the learned Forum should have applied the year of model from the date of purchase and not from the date of manufacture. Mr. Noor-ul-Amin, advocate has contended in rebuttal that it is an admitted fact that model of the insured vehicle is always taken from the date of its manufacturing and there is no factual or legal mistake committed by the Forum in assessing the depreciation value @ 15% from the sum assured. We are in agreement with the argument advanced by Mr. Noor-ul-Amin, advocate that there is no illegality or irregularity committed by the learned Forum in making the assessment of the actual loss @ 15% of the depreciation value because it falls within the category of between 2 years to 3 years. Equally, there is force in the argument of Mr. Noor-ul-Amin that the interest should have been made payable from the date of the impugned order and not from the date of making the complaint because the appellant insurer was not at fault. In this view of the mater, we decide both the appeals by this common order by modifying the impugned order to the extent that interest @ 6% per annum shall be paid by the insurer appellant of appeal no.28 from the date of the impugned order and not from the date of making the complaint in the Forum. On the facts and in the circumstances of the case, the parties are left to bear their own costs. A copy of this order be placed on the record of appeal no. 29/2004 and the record of the Forum be returned at once.