NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHIREVISION PETITION NO. 1423 OF 2009
(Against the Order dated 02/02/2009 in Appeal No. 310/2006 of the State Commission Himachal Pradesh)
1. NEW INDIA ASSURANCE CO. LTD.Divisional office Hospital Road. Mandi H.P Through Regional Office No.1, Through Its Sh. V.K. Malik Regional Manager New Delhi -110001Delhi
...........Petitioner(s)
Versus
1. SUBHASH KUMARS/o.Narottam Ram,, Residint of Vill. Nalauri P.O. & Sub. Tehsil Bali Chowk Mandi H.P
...........Respondent(s)
BEFORE:
HON'BLE MR. JUSTICE R.K. BATTA ,PRESIDING MEMBER
For the Petitioner :
MR. K.L. NANDWANI
For the Respondent :
NEMO
Dated : 12 Jan 2010
ORDER
The claim filed by the complainant was rejected by the District Forum. In appeal filed by the Complainant before the State Commission, the State Commission set aside the order of the District Forum and ordered payment of compensation of Rs.3,13,500/- with 9% interest w.e.f. 16.10.2005 as also cost imposed by both the Fora at Rs.5000/-. This order has been challenged by the petitioner/Insurance Co. in revision. I have heard Counsel appearing on behalf of both the parties. Ld. Counsel for the petitioner argued that the vehicle was never produced for inspection; that the complainant had parked the vehicle unattended on the curve at the highway at a distance of about 1 km from his crusher which was in violation of the terms of insurance police; that the complainant would be at the most entitled to only loss suffered since the tractor in question could be repaired and not on the basis of total loss. According to him, the State Commission therefore erred in allowing the claim and in the alternative to the extent of total loss instead of repair basis. He has placed reliance on judgment of this Commission in United India Insurance Co. Ltd. Vs. Maya II (2008) CPJ 182 (NC). Ld. Amicus appointed for the complainant took me through the report of two surveyors and submitted that each and every part of the tractor was broken; that the tractor was beyond repairs as can be seen from the inspection of the tractor as per inspection carried out by surveyors and that according to the dealer the tractor had suffered damages to the tune of Rs.2,77,606/- After placing reliance on para 22 of the judgement of the Apex Court in New India Assurance Co. Ltd. Vs. Pradeep Kumar (2009) 7 SCC 787, it was urged that the surveyor report is not the last and final word; it is not that sacrosanct that it cannot be departed from; it is not conclusive and the approved surveyors report may be the basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured. According to her, the State Commission has therefore rightly allowed the claim on the total loss basis and the revision be rejected. The tractor in question was purchased on 30.3.3005, but the delivery of the same was taken on 13.4.2005. The tractor was parked at Chalagi curve on Bunjar Aut Highway on 15.4.2005 in the evening and on the next day it was found in the Nala at a distance of more than 250 ft. from the highway. The insurance cover had been issued by the petitioner-Company from 12.4.2005 to 11.4.2006. The contention of the Counsel for the petitioner is that the complainant did not get the tractor inspected after delivery of the same was taken. The petitioner had issued insurance cover in respect of the said tractor from 12.4.2005 to 11.4.2006 and it was the responsibility of the insurance company to have inspected the tractor either before the insurance cover was issued or immediately thereafter which was not done. It is also contended by the Counsel for the petitioner that the tractor was parked unattended on the curve at highway at a distance of about 1 km from the crusher of the complainant, which amounts to violation of the terms of the policy. In this connection, it is pointed out that as per clause 5 of the policy, the insured had to take reasonable steps to safeguard the vehicle from loss or damage. The contention of the Ld. Counsel for the petitioner is that the vehicle was parked unattended and thereby there was violation of the policy is without any merit. When a person takes insurance policy, then it is not expected that he will keep security man to safeguard the vehicle and would not leave it unattended. Be that as it may, I am of the opinion that there is no merit in the statement of the Counsel for the petitioner that terms and conditions of the policy have been violated. Ld. Counsel for the petitioner placed reliance on the judgment of this Commission in United India Insurance Co. Ltd.(Supra) but, not only the facts in the said case are different but the said case has been decided on various grounds which are not attracted in the case under consideration. The issue to be examined is whether the complainant is entitled for payment on total loss basis or on repair basis. The case of the complainant is that after the accident he had taken the tractor to the authorized dealer who had given estimate of damage to the tune of Rs.2,77,606/- and according to the complainant damage being upto 80% he was entitled to claim on total loss basis. In this respect my attention has been drawn by the Ld. Counsel for the petitioner to letter dated 21.7.2005 of the Regional Manager of the Supplier of the tractor, which is at page 82 of the record in which it has been stated that Sh. Dinesh Kumar Gupta had inspected the tractor and according to his report the tractor can be repaired. In this letter it is further stated that a total loss is caused in condition when the repairing charges are more than 75% of the cost of the tractor. Thus, whether the tractor could be repaired or not, there are two contradictory versions. The spot report was conducted by Engineer Vishal Gautam who has listed the damages to the tractor at page 59 of the record. Sh. Dinesh Kumar who conducted final survey report has reported that the complainant would be entitled to damages to the extent of Rs.1,80,326.87. He has considered the estimated loss at Rs.2,78,429/- and the assessed loss of Rs.1,85,327/-. Loss depreciation nil on metal parts and 50% on rubber parts. The approximate value of the spare parts as per price list is Rs.2,60,992/-. Depreciated value of Rs.10,161/- on rubber parts and expected salvage value Rs.5,000/- (Page 84 of record). The detailed estimate in respect of each and every part is found in his report at page 86-94 of the record of the revision. Price of each item as per price list has been estimated and the assessed loss. It is indicated that some of the items were not damaged and some of them were not covered and some were not allowed. The assessed loss was found to the extent of Rs.1,87,326.87/-. However, this figure was arrived at after 50% depreciation on the rubber parts to the extent of Rs.10,160.93. However, since the accident has taken place within few days of taking of the delivery, it will not be appropriate to allow 50% deduction on the rubber parts. The surveyor has deducted Rs.2,000/- for excess clause and Rs.5,000/- for salvage. The detailed report of the surveyor cannot be ignored and it has considerable evidential value, unless it is discredited by producing evidence to the contrary. Therefore, I accept the report of Sh. Dinesh Kumar. After deduction for excess clause and salvage the amount payable according to the surveyor is Rs.1,80,327/-. To this, I have to add Rs.10,161/- which has been deducted by the surveyor on account of 50% depreciation of the rubber part. Thus, the amount payable comes to Rs.1,80,327/- plus Rs.10,161= 1,90,488/-. Therefore, the complainant shall be entitled to compensation on repair basis and not on total loss basis, as awarded by the State Commission. For the aforesaid reasons, the revision is partly allowed. The complainant shall be entitled to a total sum of Rs. 1,90,488/- with 9% interest thereon from 16.10.2005 and total cost of Rs. 10,000/- for the litigation throughout including Rs.5000/- as awarded by the State Commission. The petitioner has deposited a sum of Rs.2.00 lakhs with the District Forum, Mandi and the said amount shall be released by the District Forum, Mandi in favour of the complainant. The complainant is entitled to execute the order in respect of balance amount due under this order.
......................JR.K. BATTAPRESIDING MEMBER
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