(Per: Justice B.C. Kandpal, President):

This is insurer’s appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 04.08.2010 passed by the District Forum, Dehradun in consumer complaint No. 04 of 2005.  By the order impugned, the District Forum has allowed the consumer complaint against the appellant – opposite party No. 3 and directed the appellant to pay compensation of Rs. 3,60,000/- to respondent Nos. 1 and 2 – complainants together with interest @7% p.a. from the date of filing of the consumer complaint till payment.  The amount of compensation was directed to be paid to the complainants after adjusting the loan amount due to respondent No. 4 – opposite party No. 2.  The complainants were directed to hand over the salvage of the vehicle to the insurance company within one month from the date of the order.

2.       Briefly stated, the facts of the case as mentioned in the consumer complaint, are that Sh. Rakesh Singh Kathait, the deceased father of complainant No. 1 – Km. Rohini, was the owner of vehicle No. UA07-F-2401 (Tata 207), which met with an accident on 09.12.2003, resulting in death of four persons including Sh. Rakesh Singh Kathait, father of complainant No. 1.  The said vehicle was purchased by Sh. Rakesh Singh Kathait from opposite party No. 1 – Oberai Motors Limited on 13.08.2003 for sum of Rs. 3,92,900/- on hire purchase basis.  At the time of purchase, sum of Rs. 1,05,000/- was paid as advance and the remaining amount was financed by opposite party No. 2 – Tata Engineering and Locomotive Company Limited, which was to be repaid in 35 monthly installments.  The first installment for sum of Rs. 12,255/- was to be paid on 13.08.2003 and the remaining 34 installments for sum of Rs. 11,300/- each were to be paid w.e.f. 13.09.2003.  The said vehicle was insured with the opposite party No. 3 – United India Insurance Company Limited for the period from 13.08.2003 to 12.08.2004 at an IDV of Rs. 3,92,900/-.  Sh. Rakesh Singh Kathait paid three installments of Rs. 11,300/- each on 13.09.2003, 13.10.2003 and 09.12.2003 respectively.  On 09.12.2003 at about 7:30 p.m., the insured vehicle fell in a 300’ deep ditch at Chamiyala Nageshwar Shoar, Gona Marg and got damaged.  The FIR with regard to the accident of the insured vehicle was lodged with the P.S. Gona on 11.12.2003 and the news was also published in the newspaper.  The intimation of the accident of the insured vehicle was also given to the opposite parties on 11.12.2003.  The insurance company appointed spot surveyor Sh. P.C. Tewari, who submitted his report dated 31.12.2003 to the insurance company.  On the instructions of the insurance company, the vehicle was taken out from the ditch and brought to Dehradun and is lying in the garage w.e.f. 30.07.2004, but the insurance company has not settled the claim.  The estimate of repairs to the tune of Rs. 3,95,727/- was given by Uttam Automobiles.  The insurance company appointed surveyor Hamender Singh and Company for assessment of loss, who per their report dated 22.04.2004, assessed the loss to the tune of Rs. 1,39,903/- on repair basis, whereas the case is that of total loss.  However, the insurance company did not settle the claim of the complainants and, as such, alleging deficiency in service on the part of the opposite parties, the complainants filed a consumer complaint before the District Forum, Dehradun.

3.       The opposite party No. 1 – Oberai Motors Limited filed written statement before the District Forum and pleaded that they have sold the vehicle in question; that loan of Rs. 3,15,000/- was granted for purchase of the vehicle and that there is no deficiency in service on their part.  The opposite party No. 2 – Tata Engineering and Locomotive Company Limited also filed written statement before the District Forum and pleaded that loan was granted to late Sh. Rakesh Singh Kathait on the basis of the agreement; that as per the terms and conditions of the agreement, the loss caused to the borrower in the event of accident of the vehicle, is to be paid to them and that there is no deficiency in service on their part.

4.       The opposite party No. 3 – United India Insurance Company Limited (appellant herein) filed written statement before the District Forum and pleaded that the surveyor has assessed the loss to the tune of Rs. 1,39,903/- on repair basis; that the complainants have not submitted the required documents and, as such, the claim of the complainants was closed and that there is no deficiency in service on their part.

5.       The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 04.08.2010 in the above manner.  Aggrieved by the said order, the insurance company has filed the present appeal.         

6.       We have heard the learned counsel for the parties and have also perused the record.   

7.       There is no dispute that on the date of the accident, the vehicle was duly insured with the appellant – insurance company.  There is also no dispute with regard to the accident of the insured vehicle.  The main dispute in the present case is that of quantum.  According to the complainants, in the accident in question, the insured vehicle was totally damaged and the present case is that of total loss, whereas as per the insurance company, the vehicle was not totally damaged and the claim is to be settled on repair basis as per the assessment made by the surveyor at Rs. 1,39,903/-.

8.       On receipt of the intimation of the accident, the insurance company has appointed Sh. P.C. Tewari, surveyor and loss assessor for spot survey, who has submitted his report dated 31.12.2003 to the insurance company (Paper Nos. 50 to 52).  In column No. 15 page 3 of his report, the spot surveyor has given the details of the damage caused to the vehicle in the accident.  It has been stated that the front bumper has badly collapsed and its bracket has been damaged.  It has further been mentioned that the bonnet assembly has badly collapsed / pressed, all door glasses have been broken, radiator frame has been pressed / damaged, front seal got dismantled, chassis got bent, silencer got bent, engine oil sump got dented etc.  The spot surveyor has also stated that the vehicle was laying on its wheel on a slope and a number of parts got dismantled.  Thus, as per the spot survey report, there were extensive damages caused to the insured vehicle in the accident in question.

9.       The perusal of the impugned order passed by the District Forum shows that the photographs of the accidented vehicle were filed before the District Forum, which show that the vehicle has been completely damaged.  The surveyor Hamender Singh and Company per their report dated 22.04.2004 (Paper Nos. 42 to 48) have assessed the loss at Rs. 1,39,903/-, but they have not given the clear basis of their assessment and, as such, the said survey report was rightly not taken into consideration by the District Forum while granting compensation to the complainants.

10.     The vehicle was insured at an IDV of Rs. 3,92,900/- for the period from 13.08.2003 to 12.08.2004.  It met with an accident on 09.12.2003.  The District Forum has deducted 10% amount towards depreciation cost of the vehicle on account of use of the vehicle from the date of insurance till it met with an accident, which can not be faulted with and by deducting the said amount, the District Forum has awarded compensation of Rs. 3,60,000/-, which can not be said to be on the higher side.  The interest awarded by the District Forum @7% p.a. is also justified.  However, we are of the view that the District Forum was not justified in directing the complainants to hand over the salvage of the vehicle to the insurance company and in our view, 20% amount be deducted towards the value of the salvage and the remaining amount be paid to the complainants.  This way, the complainants are to be held entitled to sum of Rs. 2,88,000/-          (Rs. 3,60,000/- minus Rs. 72,000/-).  Thus, the appeal is to be allowed partly and the order impugned passed by the District Forum is to be modified accordingly.

11.     For the reasons aforesaid, appeal is partly allowed.  Order impugned dated 04.08.2010 passed by the District Forum is modified to the extent that the amount of compensation is reduced from         Rs. 3,60,000/- to Rs. 2,88,000/- and the complainants need not hand over the salvage of the vehicle to the insurance company.  Rest of the directions issued by the District Forum regarding payment of interest and payment of amount of compensation after adjustment of loan amount, are maintained.  No order as to costs.

            (D.K. TYAGI)                                            (JUSTICE B.C. KANDPAL)

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