Rajasthan

StateCommission

A/874/2017

Oriental Insurance Company - Complainant(s)

Versus

Shri Krishna Mines and Minerals - Opp.Party(s)

Sandeep Saxena

09 Oct 2018

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

FIRST APPEAL NO: 874/2017

 

Oriental Insurance Co.td. Through local Br.Manager, Yash Tower, Bajaj Road, Sikar & ors.

Vs.

Sri Krishna Mines and Minerals (Dokan) Tehsl Neem ka Thana Distt. Sikar Head off. Veen Colony, Shahpura Road, Neem ka Thana Distt. Sikar.

 

Date of Order 9.10.2018

 

Before:

Hon'ble Mrs. Justice Nisha Gupta- President

 

Mr. Sandeep Saxena counsel for the appellants

Mr.A.R.Tantia counsel for the respondent

 

BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):

 

This appeal is filed against the order passed by the

2

 

District Forum, Sikar dated 15.6.2017 whereby the claim is allowed against the appellants

 

The contention of the appellant is that machine part counter weight metal sheet was only broken which was repairable and the surveyor has assessed the loss accordingly and as per excess clause no amount was payable.

 

Per contra the contention of the respondent is that the part counter weight was not repairable and it has to be replaced. Hence, the claim has rightly been allowed.

 

Heard the counsel for the parties and perused the impugned judgment as well as original record of the case.

 

There is no dispute about the fact that the vehicle was insured and metal sheet of counter weight was damaged. In the survey report it has been specifically mentioned that it is repairable. Only sheet has been damaged which is routine damage and could be repairable and loss assessed to the amount of Rs. 5618/- whereas the contention of the complainant was that manufacturing of the machine Tata

3

 

Hitachi has clearly communicated vide letter dated 25.5.2015 that part is not repairable and it has to be replaced and price of the part is quoted as Rs. 2,50,800/- plus taxes.

 

The survey report never been disputed by the respondent before the Forum below. The finding of the Forum below was that surveyor is not a competent person to assess the loss which is perverse. The surveyor is an authorized person to assess the loss. Further more he is also engineer and even his associate is B.E. Mechanical and surveyor report could not be brushed aside lightly as it carries weight. The surveyor is an independent assessor and reliance could rightly been placed on (2000) 10 Supreme Court Cases 19 United India Insurance Co. Vs. Roshanlal Oil Mills, judgment passed by the apex court in Civil Appeal No. 4487/2004 Sri Venkateswara Syndicate Vs. Oriental Insurance Co. , judgment passed by the National Commission in First Appeal No. 579/2014 M/s.Ishrose Industries Vs. New India Assurance Co. , I (2011) CPJ 222 (NC) Nikon Systems Vs. National Insurance Co. , III (2002) CPJ 225 (NC) S.P.Kumarappan Vs. National Insurance Co., judgments passed by this Commission in First Appeal No. 187/2016 Maliram Vs. Oriental Insurance Co., First Appeal

4

 

No. 732/2015 Jetharam Vs.Sriram General Insurance, First Appeal No. 16/2015 National Insurance Co. Vs.Jahul Haq and First Appeal No. 1402/2017 Smt.Jaya Agarwal Vs. National Insurance Co. where due importance is given to the surveyor report. Hence, the surveyor report should have been relied by the Forum below.

 

The contention of the respondent complainant is that the manufacturing of the machine company has specifically mentioned that part is not repairable and it has to be replaced. The letter dated 25.5.2015 clearly mentioned that on inspection at site it was found that metal sheet of counter weight has got damaged/cut completely but no such inspection report is submitted and further more the person who made the inspection at the site has not sworn before the Forum below. Per contra the surveyor has submitted his affidavit stating therein that part is repairable which cannot be disbelieved.

 

It may also be noted that date of loss is 8.9.2013 whereas the letter of the company Tata Hitachi is dated 25.5.2015 and date of inspection has not been disclosed in it. No reason has been assigned that why after about 20 months the inspection

5

or communication has been made. It may also be noted that under the Indian Motor Tariff the insurance company is at liberty to get the vehicle repaired but the complainant has not gave option to insurance company to get the part repaired. The counsel for the appellant has rightly submitted that indemnity is rule of insurance law and the insured should only get reimbursement of the loss suffered by him. He cannot get benefit out of it.

 

The appellant has rightly placed reliance on I (2011) CPJ 220 (NC) Anil Kumar Vs. United India Insurance Co. where surveyor report was given preference over the report of the complainant. Here in the present case the report of the independent surveyor should get precedence over the letter of Tata Hitachi company.

 

The appellant has rightly relied upon 2010 NCJ 634 (NC) Jain Invest Vs. Oriental Insurance Co. where the National Commission has held that mere receipt from private spare parts dealer cannot support insurance claim as it is not difficult to obtain them. Here in the present case the complainant has submitted only a letter to the effect that part is not repairable without any supporting document. The Commission is not

6

 

oblivious of the fact that Tata Hitachi company may be interested in selling the part and to facilitate the sale, letter dated 25.5.2015 is issued in favour of the complainant.

 

The respondent has relied upon (2009) 7 Supreme Court Cases 787 New India Assurance Vs. Pradeep Kumar where the supreme court has held that the surveyor report is not final and binding on the parties. There is no dispute about this preposition but here in the present case no objection has been raised as regard to the surveyor report. No infirmity could be shown in the report of surveyor. Hence, the insurance company was right in repudiating the claim after having recourse to the excess clause.

 

In view of the above, the appeal is allowed and the order of the Forum below dated 15.6.2017 is set aside.

 

(Nisha Gupta)

President

 

 

nm