This revision petition has been filed by the petitioner Ashok Kumar Mishra challenging the order dated 29.08.2013 passed in Appeal No. 1174 of 2010 by the Uttar Pradesh State Consumer Disputes Redressal Commission Lucknow (in short the State Commission).

2.      Brief facts of the case are that the petitioner had purchased a Tata mini truck in the year 1998. The petitioner purchased an insurance policy for his truck from the opposite party/ respondent No.1 herein with IDV of Rs.4,80,000 and the said policy was valid from 23.09.2000 to 22.09.2001. The said truck met with an accident on 14.01.2001 due to failure of brakes. The petitioner informed the insurance company and the insurance company appointed a surveyor who visited the spot and submitted his preliminary report. The complainant then got his vehicle repaired and submitted the claim to the insurance company. It is the case of the complainant that no response was received from the insurance company and therefore, he gave a legal notice to the insurance company on 05. 06.2002 but received no reply. Consequently, the complainant filed a consumer complaint before the District Forum being CC No. 253 of 2002. The complaint was resisted by the opposite party by filing the written statement stating that in reply to the legal notice, the insurance company had informed the complainant that after receiving the report of the spot surveyor a letter was sent to the complainant dated 11.04.2001 to inform where the vehicle was being repaired so that the final survey could be conducted. However, no response was received from the complainant and therefore claim was closed. The District Forum, however, allowed the complaint vide its order dated 29.05. 2010 and directed the insurance company to pay a sun of Rs. 1,46,680 as repairing charges along with Rs.10,000 as compensation for mental agony and Rs.1,000 as litigation expenses, thus totaling Rs. 1,57,680 to the complainant along with 6% per annum interest from the date of filing of the complaint. Aggrieved by the order of the District Forum, the opposite party insurance company preferred an appeal before the State Commission being FA 1174 of 2010. The State Commission vide its order dated 29.08.2013 accepted the appeal of the insurance company and dismissed the complaint.

3.      Hence the present revision petition by the petitioner complainant.

4.      Heard the learned counsel for both the parties and perused the record. The learned counsel for the complainant stated that after the primary survey, the complainant got the vehicle repaired from the authorized dealer and the insurance claim was submitted to the insurance company, but there was no response from the insurance company. It was the duty of the insurance company to have appointed a final surveyor or the first surveyor appointed by the insurance company should have done the final survey and the loss assessment, however nothing was done. It is wrong to say that the insurance company ever replied to the legal notice given by the complainant. The alleged letter dated 11.04.2001 was never sent by the insurance company and was never received by the complainant and this is a forged letter to cover up the inaction on the part of the insurance company. The State Commission has wrongly relied on this letter and has accepted the assertion of the insurance company that the final survey could not be done as the reply of this alleged letter dated 11.04.2001 was not received from the complainant. The learned counsel for the complainant further stated that though the letter bears the date of 10.04.2001, however, the details of registry mentioned on this letter reveals that it was dispatched only on 11.04.2003. Thus, there was no question of receiving this letter by the complainant.

5.      It was further pointed out by the learned counsel for the complainant that the primary surveyor in his report has clearly given the details of the damage suffered by the vehicle in the accident. Thus, it is clear that the vehicle was damaged and the bills submitted by the complainant clearly show that the vehicle was got repaired by the complainant and the complainant has paid an amount of Rs.1,46,680 for the repairs. As the insurance company did not pay this amount to the complainant, the financier repossessed the vehicle as soon as the petitioner got it repaired. Thus, the complainant has also suffered loss due to this repossession because of non-finalization of the insurance claim of the complainant.

6.      On the other hand, the learned counsel for the respondent insurance company stated that reply to the legal notice was sent which clearly stated that a letter dated 10.04.2001 was sent by registered post to the complainant and as the letter did not come back, it must have been received by the complainant. Otherwise also, it was the duty of the complainant to have informed the insurance company about the place where the vehicle was being repaired so that the final survey could have been conducted. Without the final survey, no claim can be finalized by the insurance company. The State Commission has rightly relied on the letter dated 110.4.2001 sent by the insurance company to the complainant asking for the information about the place of repair. As the complainant never replied this letter, final survey could not be conducted by the insurance company. There is no error in the impugned order passed by the State Commission dismissing the complaint of the complainant. It is wrong to say that the letter was dispatched on 11.04.2003 as the letter clearly bears the date 10.04.2001. Before the fora below, the complainant has not taken this ground that the letter dated 10. 04.2001 is a forged letter and therefore this plea cannot be taken before this Commission in the revision petition.

7.      We have carefully considered the arguments advanced by the learned counsel for the parties and examined record. The insurance company had appointed a surveyor on the information of the accident and the surveyor has submitted his preliminary report mentioning the following defects.

“Details of damages noted at spot.:

-Front Wind Shield Glass broken & its frame deshaped/twisted.

- Cowl assy. badly damaged and pushed back- Front bonnet badly crumpled, Front portion of –Dash Board pushed back, RH door dented/pressed/bulged and its glass broken, LH door upper frame twisted and door hinge damaged, complete door titled and door panel dented/bulged, LH door intact, Front portion of Roof Panel bulged/twisted, Inner ceiling torn.

CAB NO.T-386 RQ300514

-Instrument panel cracked.

-Both channel of main chassis frame bent/twisted near Cowl’s rear mounting.

-RH Indicator Light broken but both H/L & RH/I/L Intact, Fuse box broken.

-RH portion of front bumper bent/pressed.

-RH side of body pressed inwards & LH side bulged outwards

-Coolant container broken & its contents leaked but Radiator intact.

-Front axle got impact-to be checked.

-All leaf spring O.K.

-No other major damages were visible however minor possible damages to be ascertained at the time of final survey.”

8.      From the above observation of the surveyor, it is clear that the vehicle had suffered damage during the accident. Thus, the veracity about the accident and damage cannot be questioned. Both the parties seem to be at fault so far as the question of appointing the final surveyor is concerned. First of all, when the insurance company had got the preliminary report of the surveyor, it was the duty of the insurance company to have appointed a final surveyor to assess the loss and the damage to the vehicle. It is the case of the opposite party insurance company that the final surveyor was not appointed as they were not sure where the vehicle was being repaired. This argument of the insurance company is not convincing because once had they appointed the final surveyor, that surveyor would have asked the question from the complainant as to where the vehicle was being repaired or kept. The complainant is also at fault because the complainant did not inform either the primary surveyor or the insurance company as to where he will be taking his vehicle for repair. In fact, repairs could not have been started until there was a clearance from the surveyor appointed by the insurance company. The complainant has also failed on this count. The letter dated 10.04.2001 is the bone of contention between the parties. We are of the view that as the vehicle had met with an accident and was damaged as confirmed by the primary surveyor, the insurance claim can be decided irrespective of the letter dated 10.04.2001.

9.      The complainant had submitted certain bills of repair for a total amount of Rs.1,46,680 and the District Forum had allowed this amount without going into the details of the bills. Clearly these bills have not been examined by the surveyor or the insurance company. The vehicle was purchased in the year 1998 and the accident happened in the year 2001, therefore, on all the parts the depreciation which would be about 30%, was applicable. Similarly depreciation of 50% is applicable on all the rubber items. These things have not been considered by the District Forum. Thus, keeping in view the defects developed and damage suffered by the vehicle as mentioned in the report submitted by the primary surveyor and also keeping in mind that the vehicle was a 3-year-old vehicle at the time of accident and proper depreciation should have been applied by the surveyor had the surveyor examined these bills, we deem it appropriate to allow insurance claim for Rs.80,000/-.

10.    Based on the above discussion, the revision petition is partly allowed and the order dated 29.08.2013 of the State Commission is set aside and the order of the District Forum is modified to the extent that the opposite party insurance company shall pay an amount of Rs.80,000/- along with interest at the rate 6% per annum from the date of order of the District Forum i.e. from 29.05.2010 till date of actual payment. The award of the District Forum in respect of Rs.10,000 as compensation for mental agony is set aside as the complainant was also at fault as observed above. The cost of litigation of Rs.1,000 is maintained. The opposite party insurance company is directed to comply with this order within a period of 45 days from the date of receipt of the order.