In the instant case Complainant was the Registered Owner of Tata Truck No. ML-05-A-0483, Model 1991 which was purchased with the financial assistance of the Profoma Respondent No.3 who advanced the money to the complainant for purchase of the said truck at the commercial rate of Bank Interest at the rate of 20.4% interest per annum. The Complainant bought the said vehicle and insured with the Branch, Office, Shillong of the Respondent’s Insurance Co. since 1991 and the Insurance was effected from 12.3.92 to 11.3.93 vide Insurance Policy NO. 322406/1/0/31/92/0839 against all risks in consideration of the payment of the premium of Rs. 6370.25p and promised to render services as per the terms and conditions of policy. The total sum insured under the said policy was Rs.3,20,000/-.

 

The vehicle No. ML-05-A-0483 of the Complainant met with an accident on 13.1.93 at about 10.30 P.M. to 11 P.M. at Mawkdok about 38 kilometres from Shylla to Cherrapunjee. The vehicle was driven by the qualified driver holding a valid driving licence. After the accident the matter was reported to the office of the Opposite Parties No.1 and No.2 and they appointed M/S I.Sharma and Associates to do the preliminary survey and the same was conducted by him in presence of the Complainant and Shri.R.P.Blah, Divisional Manager. The said Surveyor recommended the compensation on total loss basis. Later on 18.1.93 the Complainant wrote to the Divisional Manager that the accidental vehicle in question was still lying on the spot and has to be brought up and also informed that if the approval is not given, the vehicle will be left unattended and the complainant shall not be held responsible for any damage. Accordingly, Assistant Divisional Manager-in charge of the Op No.2 accorded the approval and advised the complainant to arrange necessary action regarding lifting. Thereafter, many correspondence were issued by complainant to Ops and also drawn the attention of none settlement of the claim and also of accrual of Bank Interest from which the vehicle was taken on loan.

 

The Complainant also avvered that the Regional Office of the Ops who have appointed the Surveyor to assess the loss have finally appointed one Shri.T.K. Mukherjee of Gauhati to do final survey and assessment in regard to the loss pertaining to the vehicle pertaining to the vehicle and accordingly Mr.T.K.Mukherjee surveyed the loss and recommended for the settlement of the claim on total loss basis after deducting the salvage value and submitted the report to the regional Office  of the OP Insurance at Gauhati but unfortunately the OP Insurance did not take any action on the report of the surveyor and there is a failure on the part of the OP Insurance to settle the claim as early as possible. Later-on on 11.7.94, the complainant visited the office of the Divisional Manager of the OP Insurance who made an oral offer to settle the claim of the complainant on total loss basis to the extend of the sum insured, loss of salvage, in addition to the lifting charges incurred by the complainant. The Complainant vide letter dated 12.7.94 accepted the oral offer of settlement of the claim in writing and requested for necessary payment within 15 days. Instead of making payment as promised the OP Insurance on 11.7.94 issued discharge voucher of Rs.2,40,752.00p as full and final settlement of the claim as against total loss of the vehicle of which is not acceptable to the complainant  who requested to make the settlement on total loss basis and pay the amount at the rate of 22% per annum. Further the complainant offered to accept the amount under protest without prejudice but even this amount was not paid to the complainant. Hence the instant complaint with reliefs as detailed in the complaint petition against the deficiency caused by the Ops on the complainant.

 

The Ops in their showcase asserted that the complaint petition is not maintainable and that if any difference which arose to the quantum to be paid under the policy (liability being otherwise admitted) such difference shall be independently of other questions be referred to the decision of the Arbitrator to be appointed by the parties and if they do not agree on the decision of a single Arbitrator the same may be referred to the 2(two) disinterested persons as arbitrators of whom shall be appointed in writing of each of the parties in accordance to the provision of the Arbitration Act. 1940. It was also stated by the Ops that the accident occurred due to the failure of the insured who failed to take reasonable steps to safeguard the vehicle from loss or damage and as such loss was caused due to the fault of the Complainant. It was also alleged that the complainant without observing and in violation of the terms of the contract has approached the Hon’ble Forum for undue gains. It was further stated that the OPs have taken all steps for the settlement of the claim at Rs.3,20,000/- on total loss basis after taking into account the depreciation and salvage value of the materials and as such there is no deficiency on the part of the OPs and the complaint petition along with the reliefs claimed by the complainant bare not admissible as per the terms of the policy and also the interim relief claimed is not admissible as per Section 14 of the Consumer Protection Act.

 

The complainant in her re-joinder to the show caused cum affidavit refuted the averment of the OPs and stated that the OPs have neither submitted the report of the preliminary surveyor of one M/S I.Sharma and Associates nor did they filed the copy of the final surveyor report of Shri.T.K.Mukherjee and that they have also not stated the amount which was allegedly towards the depreciation and salbage value. The complainant stated that the cost of the Chasis was Rs.4,15,360.00p. and the cost of the body of the vehicle was Rs.71,000/- and lifting charges of the accidental as approved by the OP Insurance was Rs.38,000/- hence the settlement of the claim on total loss basis as stated by the OP Insurance to the extent of Rs. 2,40,752.00p. is absolutely incorrect and was not based upon any legal or equitable basis and the Divisional Manager of the OP Insurance Company vide his letter dated 30.11.94 intimated to the complainant that according to the survey report, the settlement on cash loss basis is the most economical for insurance company so they prefer to such settlement. But in the show cause the Insurance Company stated that the claim was settled on total loss basis after taking into account the depreciation and salvage of the materials which are contradictory and there is no question of depreciation in the case of settlement on total loss basis.

 

We have heard the argument from Mr.V.K.Jindal, Claimant’s counsel and perused the relevant records therewith. One of the points raised by the OPs is that the interim relief claimed by the complainant is not admissible as per section 14 of the Consumer Protection Act as well as under the terms of the policy and District Forum has no jurisdiction in this case. In this connection we may refer to an order of this Forum dated 23.12.94 where the interim relief as to the amount already offered by the OP Insurance for a settlement on total loss basis to the extent of Rs.2,40,752.00p. was ordered to be paid to the complainant for which the OPs preferred a revision against the said order before the Hon’ble State Commission. The Hon’ble State Commission in their order upheld the order passed by this Forum and confirmed that since the complainant has put at Rs.5,00,000/- it is with in the jurisdiction of the District Forum to admit the complain.

 

The next point as contended by the OPs is that as per the terms and conditions of the policy, if any difference which arised as to the quantum, such difference shall independently of all other questions be referred to the decision of the arbitrator. We have perused the condition 8 of the conditions of the policy which deal with appointment of the arbitrator in case any difference arised as to the quantum to be paid under the policy. However, surprisingly when the OPs have raised such a point, yet nothing is forthcoming from their side to show that any steps or action was made for referring the matter to an arbitrator rather the OP proceeded with the settlement which they have admitted to be on total loss basis and settled the claim to the extent of Rs.2,40,752.00p. which is not acceptable to the complainant. The contention of the OPs that in the view of the provision of the Arbitration Clause in the policy the complainant cannot resort to settle the grievance before the District Forum is totally untenable. In Orissa Lift Irrigation Corporation Ltd. And Others- Appellants Vs. Vira Kishore and Others-Respondents reported in 1991(2) CPR Page 125 the Hon’ble National Commission vide para 24 helds “ the Consumer Protection Act is in addition to the other laws in force and therefore it was not necessary for the complainant to seek redress through arbitration by the collector.”

 

It was contended by Mr.Purkayastha that the claim is liable to repudiation as the accident occurred due to the negligence of the Owner of the vehicle and breech of the terms of the policy but this extreme step was not taken by the Insurance Company, considering the total damage of the vehicle. When the OPs have not adopted the extreme step for repudiation and since they have chosen to settle the claim of the complainant such argument is not required to be advanced at this stage and admittedly the OPs have made the settlement on total loss basis for an amount which is not acceptable to the complainant. The OPs have also stated and contended that the settlement was arrived at on the basis of the surveyor report and after deducting depreciation and salvage of the materials. However the OPs have not filed any of the surveyor report nor stated in their show cause what was the amount proposed by the surveyor for settlement. It was only on 21.8.95 that OPs counsel filed the list mentioning the documents filed therein of which date was not fixed for filing of documents and when the matter was already proceeded for hearing. Further the copies of the documents are not supplied to the claimant and till the argument stage no copy supplied as such to the claimant. Though the documents as filed by OPs would not form any basis as they were not mentioned in show cause or copies supplied to claimant, however a bare perusal of the surveyor’s report of T.C. Hazarika, he has given the opinion for final settlement of the claim on cash loss basis for net liability of Rs.2,40,752.00p. of which amount was settled by OPs but shown in show cause to be on total loss basis which is conflecting and contradictory. Whereas, another Surveyor, Sri. T.K.Mukherjee has given his opinion for settlement on total loss basis and accordance tom him, net liability of the under writer will be Rs.3,08,298.00p.

 

Mr.Jindal contended that when the surveyor was appointed by the OPs, the complainant submitted the estimate vide annexure 12 showing the expenditure to be Rs.4,46,215.81p. and vide annexure 13 the cost of the Tata Diesal Chasis is Rs.4,15,360.00p. and vide annexure 14 the cost for making body was Rs.71,000/- on the date of the accident. However, when the surveyor’s report in March 1993 recommending the claim of the complainant, the OPs did not forward the copy to the complainant and not settlement made. Thereafter, the complainant wrote a letter dated 9.12.93 another letter was written to the Regional Manager and no reply was sent to the complainant. The complainant again took up the matter with the Divisional Manager of the OPs Insurance vide annexure 19 and 20, again no reply. Then vide annexure 21 dated 12.7.94 the complainant informed the Divisional Manager about the verbal discussion she had with him on 11.7.94 and requested to consider the amount of interest and to deduct on salvage only to the extent to the extent of Rs. 20,000/- and that she accepted an offer given by the Divisional Manager at his office for the total loss of the sum insured less the amount of salvage and lifting charges etc. as incurred and as for making an arrangement to make the payment within 15 days from the date of receipt of the said letter, annexure 21. It was vide annexure 22 dated 7^th November, 1994 that the OPs issued the discharge voucher to the tune of Rs.2,40,752.00p only for final settlement of the claim and for which fact the complainant did not accept the offer, Vide annexure 23, the complainant informed that the amount as settled by the OPs is not acceptable to her and raising to settle the claim for the total sum insured of Rs.3,20,000/- to be paid along with interest at the rate of 22% within a period of 10 days and she is willing to accept the amount of Rs.2,40,752.00p under protest. Interestingly even the amount which was settled by the OPs which the complainant accept to take the same under protest was not paid to her till the matter was ordered to be paid by this Forum.

 

As per annexure 5 it i9ndicated that the Manager of the OP Insurance was informed of the accident since 15.01.93 whereas the settlement from the OP Insurance was made only on 7.11.94 vide annexure 22. There was no explanation as to why the settlement was effected upto such a period and why the OPs failed to reply to the letters of the complainant vide annexure 16,17,19 and 20. Though the OPs have contended that there was no deficiency from from their side and the complainant does not fall under the terms of the complaint as define in Section 2(c) of the Consumer Protection Act as Services mentioned in the complaint do not suffer any deficiency however we are not in a position to accept the contention of Mr.Purkayastha on that line, since the settlement of the amount which was not acceptable to the complainant was effected only 7.11.94 for which the complainant has already reported of the accident since 15.1.93 undoubtedly there is a long delay in settling the claim in this instant case and such long settlement of the claim is also deficiency in service as per the decision of the Hon’ble State Consumer Disputes Redressal Commission in a case of M/S Gupta and Gupta – Complainant Vs. New India Assurance – Opposite Party reported in 1994 (2) CPR 557. In M/S Shadi Ram Raghubir Sharan – Petitioner Vs. National Insurance Co. Ltd – Respondent the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, reported in 1993(2) CPR 111 in para 4 thereof   have allowed a period of 4(four) months as reasonable time within which the claim should have been settled by the Insurance Company.

 

Considering the case in question the OPs should have been able to settle the claim within a period of 6(six) months taking the date from 15.1.93 on which the Manager of the OPs was informed and received the said information on the said date, thereby the claim should have been settled on 15.7.93 but for which fact the OPs have failed to do so but arrived at a settlement of Rs.2,40,752.00p only on 7^th November 1994 which was not acceptable to complainant. The long delay in settlement of the claimant’s claim considering the nature and circumstances of the case has been done at a very long stageby the OPs hence constitute deficiency.

 

From what we have discussed above and after thoroughly going into the merit of the case we are of the view that the OPs have miserably failed in settling the case within a shortest possible period and the long delay of arriving at the settlement not acceptable though, to the complainant constitute deficiency in service. And even when the complainant offered to accept the amount which was settled by the OPs under protest, The same was not paid till the complainant had to moved before this Forum for necessary order. We accordingly ordered the OPs to pay the full amount of Rs.3,20,000/- being the total sum insured under the policy together with a sum of Rs.30,000/- being the expenses incurred by the complainant for lifting the damaged scattered salvage and Commercial Bank of Interest at the rate of 20.4% on the total awarded sum with effect from 15.7.93 till its full realization. The interest is inclusive of the amount already paid and to be calculated till payment of the same and rest of the amount till final payment.

 

The instant case is finally disposed off. Prepared decree accordingly.