JUDGMENT Per Justice Sham Sunder , President This appeal for enhancement of compensation is directed against the order dated 10.08.2009, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which the complaint was accepted and the OP (now respondent) was directed to pay to the complainant(now appellant) the balance amount of (Rs.38,370.10p – Rs.29,546.24p)=Rs.8823.26p alongwith Rs.500/- as costs of litigation, within thirty days from the date of receipt of a copy of the order. It was also directed that if the amount was not paid within the aforesaid period, the OP shall be liable to pay interest @ 12% p.a. from the date of filing the complaint i.e. 27.2.2009 till the payment was actually made. 2. The complainant purchased a motorcycle on 24.8.2005 for Rs.70,648/- vide Annexure C-1. He got it insured with the OP Insurance Company vide Annexure C-2. It met with an accident on 6.5.2007 and was badly damaged. The matter was reported to the Police, as a result of it, an FIR was lodged. The motorcycle, thereafter, was taken to the authorized dealer i.e. M/s. Charisma Goldwheels, Industrial Area, Phase-I, Chandigarh for necessary repairs, which gave an estimate of Rs.48,338/-. The OP appointed a Surveyor to assess the loss, but he did not cooperate with the complainant, despite the fact, that all the documents were supplied to him. Thereafter, a claim was lodged with the OP for Rs. .48,866/- alongwith the bills and for declaring the vehicle as total loss, but it paid a sum of Rs.29,546/- only vide Annexure C-6. It was further stated that the OP was many a time, requested to give details/reasons, as to why, the full repair amount of Rs.48,866/- was not paid, to the complainant, but to no avail. It was further stated that the complainant suffered financial loss, as also great mental tension. It was further stated that the OP was also deficient in service. When the grievance of the complainant was not redressed, left with no other alternative, a complaint under Section 12 of the Consumer Protection Act,1986(hereinafter to be called to as the Act only) was filed by him. 3. In reply, it was stated that the OP, on receipt of the information from the complainant, about damage to the motorcycle, in question, appointed Sh.Kailash Chandra, Surveyor, to conduct the survey of the accidental vehicle and submit his report on the actual and admissible loss. The Surveyor vide his report dated 11.9.2007 Annexure C-2 assessed the loss to the tune of Rs.29,546/-, which amount, was duly paid to the complainant. It was further stated that since the amount assessed by the Surveyor was Rs.29,546/-, as such, the vehicle could not be declared as total loss. The remaining averments, were denied, being wrong. It was further stated that there was no deficiency, in service ,on the part of the OP Insurance Company, nor it indulged into unfair trade practice. 4. The parties led evidence. 5. After hearing the complainant, the Counsel for the OP, and, on going through the record, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of this judgment. 6. Feeling aggrieved, the instant appeal, was filed by the appellant/complainant for enhancement of compensation. 7. We have heard the appellant, in person, the Counsel for the respondent, and have gone through the evidence, and record of the case ,carefully. 8. The appellant, submitted that the estimate of repairs submitted by the authorized dealer, was for a sum of Rs.48,338/-. He further submitted that if the depreciation formula was to be applied, the payment was contrary to the contract of Insurance. He further submitted that the District Forum was wrong, in working out the depreciation, to the tune of 25%, 50% and 30% on different parts of the vehicle. He further submitted that in the report of Surveyor, he did not mention the details, on the basis whereof, he came to the conclusion, that the loss was to the tune of Rs.29546.24p. He further submitted that the appellant was entitled to full repair amount of Rs.48,360/- alongwith other reliefs. He further submitted that the order of the District Forum granting an amount of Rs.38,370.10p minus the amount already paid, being wrong, is liable to be modified. 9. On the other hand, the Counsel for the respondent, submitted that , the District Forum was right, in coming to the conclusion, that the complainant was entitled to Rs.38370.10p minus the amount already paid, after allowing necessary depreciation, as per contract of Insurance executed between the parties. He further submitted that the complainant was only entitled to Rs.38370.10, out of which, he had already been paid Rs.29,546.24. He further submitted that the District Forum was also right, in coming to the conclusion, that depreciation on the rubber , nylon, plastic, fiber glass or glass parts should be at the same rate, at which, the depreciation. on other parts, was to be given. He further submitted that no ground for enhancement of compensation, was made out. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld. 10. After giving our thoughtful consideration, to the rival contentions, raised by the appellant, as well as the Counsel for the respondent , we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons, to be recorded hereinafter. Undisputedly, motorcycle of the complainant of 2005 model was insured for Rs.54,360/- with the OP, for the period from 22.1.2008 to 21.1.2009. There is also, no dispute, about the factum that the motorcycle met with an accident, as a result whereof, damage was caused to the same. When the accident took place, the motorcycle, in question, was already about two years old. The complainant was only having an estimate with regard to the repairs, whereas, the Surveyor, after inspecting the vehicle, submitted report R-2, wherein, he took all the facts and circumstances, as also the documents into consideration. After giving depreciation, the Surveyor came to the conclusion, that the complainant was entitled only to the amount of Rs.29,546.24p. However, the District Forum was right, in coming to the conclusion, that, as the vehicle was about two years old, as per contract of Insurance R-1, depreciation of 50% on rubber/nylon/plastic parts amounted to unfair trade practice. The District Forum was also right, in coming to the conclusion, that depreciation on rubber, nylon, plastic, fiber glass or glass parts should be at the same rate, at which, depreciation on other parts of the vehicle, was to be given, because to the owner replacement of rubber, nylon, plastic parts or glass components costs the same, as a new part, and at the same rate, at which the other part costs. To this extent, the District Forum deviated from the report of Surveyor. Otherwise, the report of Surveyor, in respect of other aspects, in our considered opinion, was rightly held to be correct, by the District Forum. The amount of estimate of repairs, supplied by the complainant was reduced by the Surveyor, as per the terms and conditions of the contract. In these circumstances, the complainant was not entitled to compensation in the sum of Rs.48,338/-. The order of the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission. 11. For the reasons recorded above, the appeal, being without merit, must fail, and the same is dismissed with no order as to costs. 12. Certified Copies of this order be sent to the parties, free of charge. 13.. The file be consigned to the record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
