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2009 DIGILAW 408 (HP)

New India Assurance Co. Ltd. v. Sohan Lal

2009-05-04

ARUN KUMAR GOEL, CHANDER SHEKHAR SHARMA, SAROJ SHARMA

body2009
ORDER Arun Kumar Goel, President (Oral)- On 17.3.2009 when hearing of this appeal commenced, it was felt that hearing of opposite party, i.e. the respondent Sohan Lal is necessary with a view to come to a correct conclusion. As such following order was passed: "When hearing in this case commenced, it was felt that hearing the opposite side, i.e., Mr. Sohan Lal is necessary with a view to come to the correct conclusion. Issue fresh notice to Mr. Sohan Lal returnable for 4.5.2009. It will be mentioned in the notice that in case he either fails to appear and or make arrangement for conduct of this appeal, then the same will be heard in his absence. Copy of this order will also be attached alongwith the notice to him" 2. As per office report respondent is duly served with copy of the above order. We have examined Part-B of this appeal and are satisfied that respondent is duly served through registered post and acknowledgment, duly signed by Sohan Lal is there on the file. He is absent after due service. 3. In these circumstances; we have heard Mr. Sharma learned counsel for the appellant and with his assistance have also examined the record of- the complaint file. 4. Vehicle bearing registration No. HP-32B-0813 was insured with the appellant on the date of its accident, i.e., 22.6.2006 under valid policy of insurance is not in dispute. It was insured in the sum of Rs. 6.80 lacs. This vehicle was registered on 8.6.2005. O-4 is the copy of the registration certificate. When the matter was under process on 23.3.2007 vide Annexure O-11 respondent consented to accept Rs. 3.18 lacs, in full and final settlement on net of salvage basis and on compromise basis. 5. After having waited for more than 2 months he preferred Consumer Complaint No. 129/2007 on 4.6.2007. He claimed Rs. 5.10 lacs as assessed by the appellant, besides interest @ 9% per annum, Rs. 10,000/- as cost and Rs. 20,000/- as compensation. 6. District Forum below after hearing the parties has allowed the complaint by directing the appellant to pay Rs. 6.80 lacs on account of own damage, plus Rs. 20,000/ - on account of mental, physical and financial loss caused to the respondent. This amount of Rs. 10,000/- as cost and Rs. 20,000/- as compensation. 6. District Forum below after hearing the parties has allowed the complaint by directing the appellant to pay Rs. 6.80 lacs on account of own damage, plus Rs. 20,000/ - on account of mental, physical and financial loss caused to the respondent. This amount of Rs. 7 lacs was to carry interest @ 9% per annum from the date of institution of the complaint, (i.e. 4.6.2007) till the date of payment alongwith cost of Rs. 2,000/-. 7. Perusal of the impugned order shows that while allowing the complaint, remarks have been made by the District Forum below against the Mr. Sunder Goel, Advocate of Mandi who had appeared for the Insurance Company before it in the complaint, out of which this appeal has arisen. 8. Suffice to say in this behalf, that the remarks made against Mr. Goel were totally unwarranted and in fact should not have been made. In case the District Forum below intended to do so, it ought to have put Mr. Goel to notice by calling upon him to place on record as to on what basis he was arguing that the matter needs to be settled in the sum of Rs. 3.18 lacs, particularly when the consent given by the respondent had not been approved by the Regional Office of the appellant. In this behalf we are constrained to observe, that because of laxity on the part of the Regional Office of the appellant for reasons best known. to it, its learned counsel has been made to suffer. As a public Sector Undertaking, as well as a wholly owned and controlled Nationalized Insurance Company, all its actions have to be reasonable, fair and just more especially when public funds are involved those being handled by the appellant. In these circumstances all remarks made, as well as anything said in the impugned order by the District Forum below, passed in Consumer Complaint No 129/2007 dated 23.8.2007 against Mr. Sunder Goel Advocate, Mandi are ordered to be expunged from it. 9. Now coming to the merits of the case, Vehicle was registered on 8.6.2005, whereas it met with accident on 22.6.2006. Sunder Goel Advocate, Mandi are ordered to be expunged from it. 9. Now coming to the merits of the case, Vehicle was registered on 8.6.2005, whereas it met with accident on 22.6.2006. On having been called upon to explain what is the depreciation to be worked out, learned counsel for the appellant, stated at the bar that since vehicle was more than one year old, 10% depreciation is to be deducted out of the sum insured. 10. In the face of this statement, after deducting 10% depreciation out of the sum insured, the depreciated value of the vehicle comes to Rs. 6.12 lacs. Salvage value of the vehicle has been assessed by the surveyor at Rs. 2.25 lacs as is evident from Annexure O-4, his interim report. This being a case of constructive total loss, because value of the repair was exceeding more than 75% of the sum insured according to learned counsel for the appellant, as such it was for this reason that the consent was given by the respondent to accept Rs. 3.18 lacs on net of salvage basis vide Annexure O-12. 11. District Forum below according to us had not bothered to examine the matter in its right perspective. Reason being that the amount of salvage when the claim was being allowed for the total sum insured, was to be adjusted by directing either the salvage should have been ordered to be returned to the appellant-insurer, or else its value should have been ordered to be deducted out of the compensation awarded. We are unable to appreciate why this was not ordered by the District Forum below in the impugned order. We leave this matter here only. After deducting Rs. 2.25 lacs being the value of the salvage, total amount payable to the respondent works out to Rs. 3.87 lacs. 12. In support of this appeal, Mr. Sharma learned counsel for the appellant made two fold submissions. That there were 5 unauthorized passengers in the vehicle travelling at the time of accident which in fact was goods carriage vehicle meant as well as adapted for carriage of goods alone. By allowing unauthorized passengers, to travel in the vehicle, terms of policy of insurance subject to which it was insured stood violated, therefore his client is not liable for the payment of any amount. 13. By allowing unauthorized passengers, to travel in the vehicle, terms of policy of insurance subject to which it was insured stood violated, therefore his client is not liable for the payment of any amount. 13. We would have very much examined this submission, but perusal of the complaint file shows, that terms and conditions of the insurance policy have not been placed on record on behalf of the appellant. Why, Mr. Sharma learned counsel for the appellant was not in a position to say anything in this behalf. As per Annexure O-4 photostat copy of the registration certificate sitting capacity is given as six. Number of passengers sitting in the vehicle at the time of its accident was also six. That being the position, submission of Mr. Sharma has no substance and is thus rejected. 14. Next submission urged by Mr. Sharma was that after having consented to accept Rs. 3.18 lacs on net of salvage basis on compromise basis, respondent is not entitled to anything over and above this amount. Great emphasis was laid by him on Annexure O-12. Suffice it to say in this behalf, that in case appellant wanted to act on this consent letter, then it ought to have acted swiftly by taking a decision either way. Respondent cannot be left at the whim and fancy or mercy of the appellant to wait indefinitely for settlement of his case. At a particular point of time an insured, like respondent might like to accept lesser amount. In case the appellant wanted to take advantage of the consent, minimum that was expected of it was to have at least deposited this amount during the proceedings before the District Forum below. We specifically asked learned counsel for the appellant, why this was not done, again he had no answer, save and except that since offer was not accepted by the respondent, therefore there was no need to have deposited the amount. This plea is totally fallacious. Reason being that at least liability to pay interest on this amount would have ceased. Above all it would have shown the bonafides of the appellant. As such we will go to the extent of observing, that the plea now being raised based on consent contained in Annexure O-12 raised by Me Sharma on behalf of the appellant was only a trap laid by it without intending to honour it. Above all it would have shown the bonafides of the appellant. As such we will go to the extent of observing, that the plea now being raised based on consent contained in Annexure O-12 raised by Me Sharma on behalf of the appellant was only a trap laid by it without intending to honour it. As such it is hereby rejected. 15. Regarding consent, we are of the view that it cannot bind down a litigant, like respondent for all times to come. Appellant while dealing with public funds is expected to act in a businesslike and professional manner to have disposed of the matter either way by accepting or rejecting the consent given by the respondent. At least from the complaint file there is nothing to suggest that the content given by the respondent was ever accepted by the appellant. 16. For the view that we have taken in the preceding paras, that this appeal deserves to be partly allowed. Ordered accordingly. 17. No other point is urged. In view of the aforesaid discussion, while partly' allowing this appeal, order passed by District Forum Mandi, in Consumer Complaint No. 129/2007 on 23.8.2007 is modified thereby holding that after deducting depreciation and value of the salvage from Rs. 6,80,000/- the sum for which vehicle' at the time of its accident was insured, respondent is only entitled to Rs. 3,87,000/-. Rest of the order regarding compensation and cost passed by District Forum below is upheld. Interest allowed at the rate and from the date will now be payable by the appellant only on the sum of Rs. 3,87,000/-. Appeal is finally disposed of subject to this modification, leaving the parties to bear their own costs. All interim orders passed from time to time in this appeal shall stand vacated forthwith. Learned counsel for the appellant has undertaken to collect copy of this order from the Court Secretary free of cost as per rules and office is directed to send the same in the like manner to the respondent. Appeal partly allowed. M.R.B.