PER JUSTICE J.M. MALIK

1.      Counsel for the petitioner present.  Arguments heard.  The Complainant Tarsem Lal owned a Swaraj Madza truck, which was insured with the Oriental Insurance Co. Ltd.  During the subsistence of the Insurance Policy, the vehicle met with an accident on 19.09.2004.  The surveyor was deputed and he assessed the loss at Rs. 84,028/- after giving allowance for salvage value of the damaged parts and deducting a sum of Rs. 1,000/- on account of excess clause.  However, the Insurance Company did not pay the said amount.  He filed a complaint before the District Forum. 

2.      The District Forum disposed of the complaint on 29.02.2005 with the direction to the OP to finally settle the claim of the complainant within 90 days.  However, the OP did not settle the claim of the complainant.   The complainant was asked to deposit the bills of repair and the complainant did not comply with that order despite the Insurance Company sent him two letters in this respect.

3.      The complainant filed the second complaint on 02.07.2008.  The District Forum passed the following order:-

  “In view of the findings recorded above, the complaint is partly allowed.  The opposite party is directed to make payment of Rupees 84,028/- to the complainant on his submitting the cash memo relating to purchase of replaced parts, salvage of all replaced parts, proof of repair of the vehicle in question from the authorized dealer/mechanic, final bills of repair and to produce the vehicle for re-inspection of the surveyor of the opposite party within 30 days from the receipt of certified copy of this order, failing which the complaint shall be deemed to have been dismissed as a whole.  No order as to cost.  Let certified copy of this order be sent to the parties free of cost, as per rules.  The file, after due completion, be consigned to the Records.”

4.      Aggrieved by that order, the complainant filed First Appeal before the State Commission.  The State Commission passed the following order:-

“10.  In the present case, vehicle is still in the ownership of the appellant.  Admittedly, the vehicle met with an accident and several parts were damaged.  According to appellant himself, the damage caused to the vehicle is to the extent of Rs. 1,93,888/- plus Rs. 6,700/- on account of labour charges.  Surveyor deputed by the respondents, however, assessed the loss at Rs. 84,028/- after excluding the salvage value of Rs. 7,000/- and Rs. 1,000/- on account of excess clause.  Since the ownership of the vehicle remains with the appellant, he cannot be denied the money equivalent to the loss sustained on account of damage caused to the insured vehicle, simply for the reason that proof of repair of the vehicle has not been produced or the vehicle has not been repaired.  Damage has been sustained by the appellant even according to the respondents’ own surveyor.  Vehicle is still owned by the appellant.  There is a contract of indemnification between the respondents and the appellant and, therefore, the respondents cannot escape liability at least to the extent as assessed by their own surveyor, to indemnify the insured.”

5.      Counsel for the petitioner vehemently argued that the respondent should be directed to give the bills of repairs.  I find no force in this argument.  The accident occurred on 19.09.2004.  The surveyor has already reported that the petitioner suffered the loss at Rs. 84028/-.  The purpose of Insurance Company is to delay the case unnecessarily.  The report of the surveyor reads, “the said vehicle be called for re-inspection.”.  This report is dated 02.02.2005 i.e. after seven months of the accident.  There is no record that letter was sent by the Insurance Company to reproduce the vehicle.  About one decade has elapsed when the accident had taken place.  The petitioner wants to linger on this case for some interior purposes.  I see no reason to discard the report of the surveyor.  It is not understood why did he desire to inspect the vehicle  time and again.  There is no provision that he must examine the vehicle for the second time. He should have specified the reason. Counsel for the petitioner has invited my attention towards the authority reported in the case of “Mrs. Gurinder Jit Kaur Verus The New India Assurance Co. Ltd. & Anr. In Revision Petition No. 2149 of 2007 wherein the following order was passed:-

“State Commission has reversed the order of the District Forum by observing that the contract of insurance is of indemnity.  Since the petitioner did not spend the amount to get the car repaired, she was not entitled to be indemnified of the expenditure which was not incurred by her.

We agree with the view taken by the State Commission.  Contract of insurance is a contract of indemnity.  The insurer is entitled to be indemnified of expenditure, which he incurs.  Since in the present case the petitioner did not incur any expenditure or get the car repaired, she was not entitled to be indemnified.  We do not find any infirmity in the order of the State Commission.”

6.      Counsel for the petitioner did not disclose that the damage was given to the respondent as per the surveyor report.  In this case the surveyor report is quite reliable and I do not see any reason to reject it.  The Insurance Company was sleeping.  It should have got the vehicle inspected for the second time.  There should be some reason to discard the report of the surveyor.  This view finds support from the Supreme Court authority reported in the case of  “United India Insurance Co. Ltd. & Others Versus Roshan Lal Oil Mills Ltd. & Ors. (2000) 10 Supreme Court Cases 19”, in para No. 7, it was held:-

“7.       The appellant had appointed joint surveyors in terms of Section 64-UM (2) of the Insurance Act, 1938.  Their report has been placed on the record in which a detailed account of the factors on the basis of which the joint surveyors had come to the conclusion that there was no loss or damage caused on account of fire, was given and it was on this basis that the claim was not found entertainable.  This is an important document, which was placed before the Commission but the Commission, curiously, has not considered the report.  Since the claim of the respondent was repudiated by the appellant on the basis of the joint survey report, the Commission was not justified in awarding the insurance amount to the respondent without adverting itself to the contents of the joint survey report specially the factors enumerated therein.  In our opinion, non-consideration of this important document has resulted in serious miscarriage of justice and vitiates the judgment passed by the Commission.  The case has, therefore, to be sent back to the Commission for a fresh hearing.”

7.      Again this Commission in the case of D.N. Badoni Vs. Oriental Insurance Co. Ltd. I (2012) C.P.J. 272 (NC), headed by the Bench by Hon’ble Justice Ashok Bhan was pleased to hold  that Surveyor’s report has significant evidentiary value unless it is proved otherwise -petitioner has failed to do so in the instant case.

8.      The order passed by the District Forum that the interest be paid from the date of first complaint, this appears to be a just and correct order, rather it should have been from the date of accident. 

9.      The Revision Petition has no force, therefore, the same is dismissed.