Per Mr B A Shaikh, Hon’ble Presiding Member

1.      This appeal is filed by the original opposite party, who is hereinafter referred to as appellant.  The appellant has assailed in this appeal the order dtd.22.09.2014, passed by District Consumer Forum, Washim in consumer complaint No.37/2013, by which the complaint has been partly allowed.

2.      The case of the original complainants (who are hereinafter referred to as respondents) as set out in their complaint can be summarized as follows.

          A three wheeler vehicle called as Auto belonging to deceased Manoj Sadashiv Mahule was insured by him with the appellant, for the period from 07.09.2012 to 06.09.2013. The said vehicle met with an accident when Manoj was driving it and while crossing a railway line.  A train passing from that track gave dash to the said vehicle and therefore the vehicle was badly damaged and deceased Manoj suffered fatal injuries and died.  The said accident took place on 15.03.2013 and therefore it was covered under the policy.  The claim was submitted by the respondents Nos.1 & 2, who are respectively father and mother of the deceased Manoj, claiming from the appellant insured declared value of Rs.1.40 Lac as the vehicle was not repairable.  However, as it was not settled, the respondents herein / original complainants filed the complaint before the Forum below, claiming from the appellant Rs.1.40 Lac with interest @ 18% p.a. and litigation cost of Rs.5,000/-, with compensation of Rs.10,000/- for physical & mental harassment.

3.      The said complaint was resisted by the appellant by filing reply, mainly on the following grounds.

          The deceased Manoj violated rules of railway while crossing the railway track and damage to the insured vehicle was caused to the extent of Rs.76,591/- only.  The insured declared value of Rs.1.40 Lac cannot be paid as loss to the insured vehicle was not caused more than 75% of the Insured Declared Value (for short IDV). Moreover, the respondent did not provide necessary documents demanded from them vide letters dtd.03.04.2013, 20.06.2013, 09.06.2013 & 17.09.2013.  The respondents are not prepared to get vehicle repaired as per report of the surveyor and therefore, the respondents are not entitled to claim any such amount of Rs.1.40 Lac, which is exorbitant.  On this ground the appellant has requested that the complaint may be dismissed.

4.      The Forum below after hearing both parties and considering evidence brought on record observed in the impugned order that the accident did not take place due to negligence on the part of the driver of the vehicle, but there was no railway gate at the place of crossing and no railway employee was given the duty at the time of accident.  Moreover, the insured vehicle was very new.  It had run only for a distance of 5978 Kms. The surveyor did not properly assess the depreciation value.  The Forum below found that in the surveyor’s report the approximate loss is shown at Rs.1,61,461/-.  Thus, the Forum below did not agree with the loss assessed by the surveyor and held that the respondents are entitled to entire insured declalred value of Rs.1.46 Lac considering damage caused to the vehicle. Therefore, directed the appellant to pay to the respondents Rs.1.40 Lac towards loss sustained by them and to get compensation of Rs.5,000/- for physical & mental harassment and litigation cost of Rs.3,000/-.

5.      As observed above, this appeal is filed by the original opposite party.  We have heard advocate Mr W G Paunikar appearing for the appellant. None appeared for the respondents for making oral submission at the time of final hearing. However, the respondents’ advocate already filed Written Notes of Arguments, which we have considered. We also considered the other material placed before us by both parties in appeal.

6.      The sum & substance of the submission of learned advocate of the appellant is that the loss assessed by the surveyor was to the extent of only Rs.76,591/- and the Forum below has not considered the said material aspect of the case. The said amount is not more than 75% of the sum assured of Rs.1.40 Lac and hence as per policy condition the respondents are not entitled to claim the sum assured.  Moreover, as the deceased / driver of the vehicle tried to cross the railway line knowing fully that the train is approaching there and therefore the appellant cannot be held responsible to indemnify the loss.  Hence, he requested that the appeal may be allowed and impugned order may be set aside.

7.      On the other hand, the learned advocate of the respondents in his Written Notes of Arguments submitted that as the insured vehicle was fully damaged, the Forum below has rightly awarded the sum assured under the policy.  He also submitted that the deceased was not negligent and there was no breach of policy condition and hence the Forum below rightly allowed the complaint. Hence, he requested that the appeal may be dismissed.

8.      Thus, the occurrence of the accident due to dash given by a running train to the insured vehicle during the period of policy is not disputed.  It is not the case of the appellant that there is a breach of any of the conditions of the policy. Therefore, the appellant is liable to indemnify the respondents in respect of the loss sustained in the accident.

9.      The report of the surveyor shows that he deducted 5% and 50% amounts towards depreciation value from the estimated cost of each of the spare part of the vehicle required for repairing. As per said report, insured vehicle was newly registered with registration authority on 13.09.2012.  The period of policy was from 07.09.2012 to 06.09.2013. The accident took place on 15.03.2013.  Thus, within six months from the registration of the newly purchased vehicle, the accident took place.  The insured declared value of Rs.1.40 Lac under the policy is also admitted.

10.    The value of the estimated parts required for repairing of the vehicle is shown as Rs.1,61,461/-.  The surveyor deducted the depreciation value at Rs.67,809 + Rs.10,945/- + Rs.2,500/- from the said value of spare parts i.e. from Rs.1,61,461/-. The surveyor then after said deduction, assessed the payable loss at Rs.80,591/-.  The surveyor also deducted salvage value of Rs.4,000/-.

11.    In our view, when the insured vehicle was purchased only six months before the accident and when it was driven only for a distance of 5978 Kms only, the depreciation value assessed as above by the surveyor is not just & proper. The private package policy shows that if the age of vehicle is exceeding six months but not exceeding one year, the depreciation value should be up to 5%. Therefore, we hold that the depreciation value, assessed by the surveyor cannot be more than 5% of the total insured declared value of Rs.1.40 Lac.

12.    The policy also shows that for all rubber / nylon / plastic parts, tyre, tubes, batteries and air bags there will be deduction of 50% value and for fiber glass components, there will be deduction of 30% value. The surveyor has not stated in the report that 50% deduction is towards rubber, nylon, plastic parts, tyres, tubes, batteries and air bags.

          We, therefore, hold that the Forum below has rightly not accepted the report of the surveyor as true & correct.

13.    Thus, considering that the vehicle was badly damaged in the accident on railway track due to dash given to it by a running train and considering spare parts required for repairing to the extent of cost of Rs.1,61,461/-, it can be said that the expenses required for repairing of the vehicle must be more than sum of Rs.1.40 Lac. Hence, the Forum below has rightly awarded the sum assured of Rs.1.40 Lac with compensation and cost.

14.    However, the appellant is entitled to retain salvage of the vehicle after making payment of the said amount as per impugned order to the respondents.  Hence, we proceed to pass the following order.

ORDER

i.        The appeal is dismissed.

ii.       It is made clear that upon appellants making compliance of the direction given in the impugned order, the respondents shall handover the salvage of the vehicle to the appellant of which value is assessed at Rs.4,000/- in the surveyor’s report.

iii.      No order as to costs in this appeal.

iv.      Copy of the order be furnished to both parties free of cost.