Heard learned counsel for both the sides.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The factual matrix leading to the case of the complainant, is that the complainant had purchased a JCB on 29.09.2009 and purchased policy for such excavator and loader for IDV of Rs.21,50,000/- covering the period from 07.02.2014 to 06.02.2015. It is alleged inter-alia that after purchase, the excavator met accident for which it was damaged. Thereafter the matter was informed to the OP-Insurer and the surveyor was deputed. Thereafter the surveyor computed the loss but the complainant got the excavator repaired for payment of Rs.16,55,937/-. The surveyor has computed loss at Rs. 6.00 lakhs. As the amount was not paid by the OP, the complainant filed the present complaint.
4. The OP filed written version stating that they have received the information and accordingly deputed the surveyor who computed the loss and they have no deficiency in service on their part.
5. After hearing both the parties, learned District Forum passed the following order:-
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“The dispute is allowed against the O.Ps on contest. The petitioner though is entitled to insurance claim of Rs.14,55,937/- but out of the above cited amount the insurer is directed to deduct salvage and depreciation amount out of Rs.14,55,937/- as per law. The rest amount alongwith interest from the date of repudiation @ 9 % per annum shall be paid by the insurer till its realization without applying the extra cover i.e. inclusion and exclusion clause and without any deductions in other items.
The order shall be complied within one month from the date of receipt of the order, failing which the awarded amount will carry 18 % interest per annum from the date of repudiation till its realization.
In case of non compliance of the order or any deviation, the petitioner is at liberty to file 2nd dispute within the period of the limitation as per law if he so likes. “
6. Learned counsel for the appellant submitted that learned District Forum has committed error in law by not following the reason of accident. According to him the accident took place due to over turning of the vehicle. Since, the fault lies with the manner of driving they have repudiated the claim. He submitted that the vehicle was damaged due to submerge in the water. Therefore, the Op relying upon the report of the surveyor repudiated claim. Learned District Forum could not follow the submission and passed illegal order. On the otherhand he submitted to set-aside the impugned order by allowing the appeal.
7. Learned counsel for the respondent submitted that the computation of loss by surveyor is not correct. The complainant is entitled to Rs.14,55,937/- but the surveyor computed the loss of Rs.6.00 lakhs. However, they have got the money receipt to justify their expenditure. So, he supports the impugned order.
8. Considered the submission of learned counsel for respective counsels, perused the DFR and impugned order.
9. It is admitted fact that during currency of the policy the JCB machine went out of order. We have gone through the record and found that the vehicle while working got damaged due to accident. The complaint petition with affidavit clearly describes that the excavator while working met with accident. On the otherhand OP denied about accident and it was submitted by the complainant that the vehicle was submerged by water and over turned. Be that as it may, the vehicle got damaged while working. It is reported in Hon’ble Supreme Court of India in Civil Appeal No.4910 of 2022 Sharda Associates-Vrs- United India Insurance Co.Ltd. Their Lordship observed at para-11 which is as follows:-
“ The damage or loss was not as a result of the overturning of the vehicle, but was plainly due to the collapsing of the road, which resulted in the vehicle falling into a deep ditch in a hilly terrain of the State of Uttarakhand.”
10. The picture given by the surveyor coupled with the statement of the complainant clearly proved that the accident was not due to over turning but it was caused due to working in mud water. So, the insured vehicle was damaged due to accident and hence the insurer is bound to pay the claim but sitting over the matter for settlement of claim is deficiency in service on the part of the OP.
11. With regard to the computation of loss, we have gone through the surveyor’s report and the bills submitted by the complainant. We have observed that the complainant has not proved the bills or the Invoices. Money receipts for payment of Rs.14,58,000/- has not been filed. However, it is settled in law that the surveyor’s report should be accepted unless it is found inherently improbable. While going through the surveyor’s report of Harbinder singh Paul we are of the view that the depreciation has been deducted twice on the parts of the vehicle. There is no reason to show such assessment. Therefore, after proper scrutiny all above material, we are of the view that the complainant is entitled to Rs.11,00,238/-.
12. In view of aforesaid discussion, while confirming the impugned order we hereby modified the impugned order and direct the OP to pay Rs.11,00,238/- with 7 % interest from the date of impugned order till date of payment. The entire payment be made within a period of 45 days from the date of this order, failing which it will carry 9 % per annum from the date of impugned order till date of payment. Rest of the impugned order will remain unaltered.
Appeal is disposed of accordingly. No cost.
Free copy of the order be supplied to the respective parties or they may download same from the confonet or webtsite of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith.
