KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. APPEAL No. 918/2000 JUDGEMENT DATED : 27-02-2010 PRESENT: SMT. VALSALA SARANGADHARAN : MEMBER SHRI. S. CHANDRA MOHAN NAIR : MEMBER APPELLANT The Divisional Manager, Oriental Insurance Company Ltd., Cherooty Road, Calicut. (Rep. by Adv. Sri. Varkala B. Ravikumar) Vs RESPONDENTS 1. Gracy Vincent, W/o Vincent, Mullaparambil House, Kampatty P.O. 2. The Manager, I.C.D.S., Calicut. (R1 rep. by Adv. Sri. V.B. Harinarayan & others) (R2 rep. by Adv. Sri. S.R. Dayananda Prabhu & others) JUDGMENT SMT. VALSALA SARANGADHARAN : MEMBER This appeal is directed against the order dated 05-07-2000 in OP No 296/97 of CDRF, Wayanad. The complaint was filed by the 1st respondent herein as complainant against the appellant and 2nd respondent as opposite parties whereby the Forum directed 1st opposite party to pay to the complainant a sum of Rs. 4,10,000/- with interest at 12% from the date of order till the date of payment with costs of Rs. 1,000/-. 2. The complainant has approached the Forum stating that she is the owner of a Mini Lorry, which was insured with the first opposite party and during the validity period of insurance, the vehicle was burnt on 05-06-1997 during night and the first opposite party inspected the vehicle and assessed the damage. It is the case of the complainant that though the amount insured was for a sum of Rs. 4,10,000/-, the opposite party had assessed the damage only at Rs. 1,10,000/- and even the same was not paid to the complainant. It is also her case that even if the opposite party was ready to settle the claim for Rs. 1,10,000/-, she was not ready as she purchased the vehicle to earn a livelihood and that the vehicle had met with heavy damage and limiting the claim to such a meager amount is deficiency in service. She filed the complaint praying for directions to pay to the complainant a sum of Rs. 5,00,000/- with interest and costs. 3. The opposite parties filed versions. In the version filed by the first opposite party it was contended that the vehicle was hypothecated to the second opposite party and that the complaint was not maintainable as there was an arbitration clause in the contract of policy and also that the Forum had no jurisdiction to try the complaint. It was further submitted that on a detailed investigation, it was revealed that the claim was false and that the alleged fire that had taken place on 05-06-1997 was reported to the opposite party only on 09-06-1997. It is also their case that on believing that the case was genuine they were ready to settle the claim at Rs. 1,10,000/- which was intimated to the complainant and it was due to non execution of the advance voucher that the amount was not paid. The first opposite party further submitted before the Forum that the claim was fraudulent and the vehicle was not fully damaged and was not beyond repairs. Contending that there was no deficiency in their part, the first opposite party prayed for dismissal of the complaint. 4. The second opposite party in his version denied the allegations against him and submitted that the subject matter was of hire purchase and he has nothing to do with the calculation and sanctioning of the claim amount arising out of the policy. He also prayed for dismissal of the complaint as against him. 5. The evidence consisted of the oral testimony of the complainant as PW1 and Exts. A1 to A9. The opposite party examined witnesses 1 to 4 and marked documents as Exts.B1 to B13. The Forum has appointed a Commission who has filed his report, which is marked as Ext.C1. It is based on the said evidence that the Forum below passed the impugned order directing the opposite party to pay the aforesaid amount. 6. We heard the learned Counsel for both sides. 7. The learned Counsel for the appellant vehemently argued before us that the order of the Forum below is without appreciation of the facts and circumstances of the case and hence is liable to be set aside. It is his case that the Forum below has not adverted to the Surveyor’s report and also that the Forum has erred in quantifying the compensation for loss of earnings and mental agony without any basis. It is further argued by him that the Forum has not considered the conditions of the policy and that it was without proper appreciation of the facts and circumstances of the case that the order fastening the liability on the opposite party was passed by the Forum below. 8. On the other hand, the learned Counsel for the first respondent/complainant has supported the findings and conclusions of the Forum below and has argued for the dismissal of the appeal on the ground that the first opposite party/appellant had taken a negative stand to the claim petition filed by the complainant. He has also argued that the first opposite party/appellant has committed grave deficiency in service in not repudiating the claim so far. He further submitted that the opposite party ought to have settled the claim within 3 months and in the instant case either the repudiation or the payment of the amounts was not done till date which amounts to deficiency in service for which the Forum ought to have awarded high compensation. He has also argued before us that the award of Rs. 5,000/- as compensation is nominal and he prayed for moulding of the relief by enhancing of the compensation already passed by the Forum below. 9. On hearing the learned Counsel for the appellant and the first respondent and on perusing the records, we find that it is the admitted case of both the parties that the vehicle insured with the first opposite party appellant got fire on 05-06-1997. Though the appellant would argue that the said accident was not genuine or that it was a false claim, it is the admitted fact that the vehicle got fire. The appellants have not adduced any evidence to show that it is because of some mischief that the vehicle got fire and that the damage had occurred to the vehicle. On a perusal of the Surveyor’s report, which is marked as Ext.B9, we find that the Surveyor had assessed an amount of Rs. 1,81,000/- as total loss basis. Though the market value of the insured vehicle is arrived at Rs. 3,25,000/- and the salvage value is calculated at Rs. 1,50,000/- it is seen that nobody from either side has raised any dispute with regard to the said findings of the Surveyor. The learned Counsel for the complainant/first respondent would argue that the salvage value is on a higher side and the market value is on a lower side, the complainant has not chosen to adduce any evidence to show otherwise. On an appreciation of Ext.C1, it is found that the Commissioner has stated that the vehicle is beyond repairs and that the vehicle had sustained damage to the major parts. In the said circumstances, we are of the view that the opposite party ought to have settled the claim on total loss basis and the sum of Rs. 1,81,000/- ought to have been paid immediately. It is also noted that the appellant has agreed to a settlement at Rs. 1,10,000/-. The complainant/first respondent would say that she was not ready for such a settlement. The appellant would argue that the amount was not paid due to their finding that the claim was made under fraudulent circumstances. But no evidence is forthcoming to show that the complainant/1st respondent had committed fraud or misrepresentation in claiming the amount. It is also noted that the opposite party has not repudiated the claim till date as argued by the learned Counsel for the first respondent/complainant. On a perusal of the order, it is observed that the Forum below has calculated Rs. 5,000/- as compensation for the mental agony endured by the complainant apart from the order directing cost. The Hon’ble National Commission in Kantha Rani KDR Vs Meerut Development Authority (2008) II CPR 343 (NC) has justified the award of compensation over and above the award of interest in justifiable circumstances. On an appreciation of the entire facts and circumstances and also the fact that the opposite party has not taken any effort either to settle the claim or to repudiate the claim, we find that the Forum was justified in awarding compensation though the learned Counsel for the appellant would argue that interest and compensation couldn’t be awarded together. 10. The Forum has awarded Rs. 4,10,000/- with 12% interest from the date of order. The said amount is inclusive of the compensation of Rs. 5,000/-. We find that the complainant is entitled to get the amount arrived at by the Surveyor at total loss basis which is 1,81,000/-. We find that the first opposite party/appellant is liable to pay the said amount of Rs. 1,81,000/- with interest at 12% per annum from the date of the order of the Forum below ie, 05-07-2000 till the date of payment. The appellant is also liable to pay cost of Rs. 1,000/- which is ordered by the Forum below. In the result, the appeal is allowed in part with the modifications as indicated above, thereby the appellant is liable to pay Rs. 1,81,000/- with 12% interest per annum from 05-07-2000 till the date of payment. The appellant is also directed to pay the compensation of Rs. 5,000/- and costs of Rs. 1,000/- as ordered by the Forum below. As far as the present appeal is concerned, there shall be no order as to costs. VALSALA SARANGADHARAN: MEMBER S. CHANDRA MOHAN NAIR: MEMBER Sr. | 
