J U D G M E N T

The Complainant has filed the instant complaint against the Opposite Party Under Section 12 of the Consumer Protection Act, 1986 praying therein that this Forum may direct the Opposite Party to make payment/compensation for damages to the tune of ₹17,44,000/- (Rupees seventeen lakhs forty-four thousand) only, along with interest of ₹2,00,000/- (Rupees two lakhs) only, for mental tension and harassment.

2.           The case of the Complainant, in a nutshell, is that the Complainant is the registered owner of Tata Motors SE 1613 vehicle (Carrier vehicle) Truck bearing registration No. SK-04-D-0239 (hereinafter referred to as the 'said vehicle'). That the said vehicle of the Complainant was insured with Shriram General Insurance Company Limited (Opposite Party) vide Policy No. 10003/31/16/096180. The said Policy was valid and effective from 14.06.2015 to midnight of 13.06.2016 (hereinafter referred to as the 'said insurance policy'). The driver of the said vehicle was possessing valid and effective driving licence at the time of accident. It is further stated that all other documents of the said vehicle were valid and effective at the time of accident.

3.           It is further stated that on 21.05.2016, the said vehicle of the Complainant met with an accident near Phungla Bermiok Road, Changey, approximately 25 km towards east direction from Namchi Police Station. The said vehicle fell approximately 500 feet below the road. As a result of the said accident, the driver of the said vehicle also died on the spot. Immediately after the said accident, an FIR was lodged at Namchi Police Station by H/C Tek Bahadur Gurung, son of H. M. Gurung of Namthang Out Post upon which Namchi Police Station Case No. 30/2016 dated 21.05.2016 under Sections 279, 338 & 304 A of Indian Penal Code was registered and taken up for investigation. The said vehicle of the Complainant is a commercial vehicle and that all the documents pertaining to the vehicle including the Insurance Policy were valid and effective at the time of the accident. That the vehicle in question was severely damaged in the said accident.

4.           Consequently, the Complainant intimated the Opposite Party about the said accident and of lodging of the FIR. The Complainant registered his claim in toll free number of the Opposite Party and his claim was duly registered. The Complainant has also requested Opposite Party for timely assessment of his damaged vehicle so that he could be paid suitable compensation for such repair of his damaged vehicle in time. A surveyor from the Opposite Party namely Rajesh Somani came to inspect the vehicle at the spot and also collected the relevant documents including the statements of insured assuring the Complainant that the claim shall be processed soon.

5.           That the Complainant submitted all the documents of the said vehicle to the surveyor of the Opposite Party. The surveyor also admitted the fact that as the said vehicle (truck) has fallen 500 feet below the road and has been extensively damaged, it was not possible to remove the same from the spot and  to take it to a nearest garage/workshop without dismantling all its parts. As such the complainant has not removed the said vehicle from the place of accident.  

6.           That the Complainant waited for the response of the Opposite Party thinking that his claim would be accepted and that he would be compensated for the said vehicle by the Opposite Party. But on 13.09.2016 and 20.12.2016, the Complainant received the letters issued by the Opposite Party to the Complainant, wherein it was stated that the claim has been finalized at ₹ 2,92,000/- which was on much lower side than the IDV (Insured Declared Value) of the said vehicle mentioned in the policy.

7.           It is stated that the amount of settlement as per letters from Opposite Party was unacceptable as it was on much lower side. As the said vehicle was having package policy and the IDV (Insured Declared Value) mentioned in it is ₹ 7,18,909/- (Rupees Seven Lakhs Eighteen Thousand Nine Hundred and Nine) only. The amount offered by the Opposite Party was against the terms and conditions of the policy.

8.           It is also the case of the Complainant that all the documents of the said vehicle were valid and effective at the time of accident and the vehicle was insured with the Opposite Party covering the period of accident. There was no violation of the terms and conditions of the policy.

9.           It is further stated that the vehicle is totally damaged which cannot be repaired. The Complainant has suffered loss of income from the said vehicle. It is further stated that the said vehicle of the Complainant is a commercial vehicle. At the relevant time the said vehicle was earning ₹ 3,300/- per day. As such the Opposite Party is liable to pay ₹3,300/- per day towards the daily income from the date of the accident till the final disposal of the complaint. It is stated that if the claim had been settled timely, the Complainant could have purchased a new vehicle. Due to deficiency on part of the Opposite Party, the Complainant has faced huge financial loss, hence, the instant complaint.

10.                  The Opposite Party filed the written version, inter alia, denying and disputing the claims put forth by the Complainant. It is submitted that the complaint on account of alleged deficiency in services, is not sustainable but a misconceived one and is legally not maintainable. It was further submitted that there is no deficiency in service on the part of the Opposite Party and that the Complainant is not entitled to any relief or reliefs from the Opposite Party. It is contended that the Complainant has not approached this Forum with clean hands.

11.         The Opposite Party  further stated that the said vehicle was insured with their company and when the Complainant informed the company about the ill-fated accident, the company immediately deployed Shri Rajesh Somani, Surveyor/Loss Assessor/Valuer who surveyed the alleged accident vehicle on spot. Surveyor after considering the all aspect of the claim submitted a report assessing the loss of ₹ 2,92,000/-. It is further stated that the vehicle was about 6 years old from the date of it’s first hand purchase and also considered the price of the new vehicle on the date of accident. The surveyor submitted a report assessing the loss. On receipt of the said report Opposite Party on the basis of the record and photographs and the report of surveyor the claim assesses to loss at ₹2,92,000/- as per the policy condition. 

12.         It is stated that the Opposite Party  also disputes the quantum of compensation claimed under various heads by the Complainant and submits that the said claim is nothing but a desperate attempt for illegal gains on the part of the Complainant. It is further contended that according to the principle of indemnity, an insurance contract is signed only for getting protection against unpredicted financial losses arising due to future uncertainties and that an insurance contract is not made for making profit. The sole purpose of an insurance contract is to give compensation in case of any damage or loss. Therefore, the Opposite Party prays for rejection of the prayers of the Complainant.

13.         On the basis of the pleadings and after hearing Ld. Counsel for the parties, this Forum framed following issues :

              “(i)    Whether the Complainant is entitled to the compensation claimed?

              (ii)    To what relief or reliefs the Complainant is entitled to?”

14.         Ld. Counsel Shri Tarun Choudhary appearing for the Complainant reiterated the contentions made in the pleadings and it was urged that the Complainant is the owner of the vehicle bearing Registration No. SK 04-D-0239 (Truck), which was insured with the Opposite Party Company on 14.06.2015 vide Policy No. 10003/31/16/096180 (Annexure-I). It is further argued that on 21.05.2016, the said vehicle of the Complainant met with an accident near Phungla Bermiok Road, Changey, South Sikkim. That the information about the accident was reported at Namchi Police Station on the same day by H/C Tek Bahadur Gurung pursuant to which, Namchi P.S. Case No. 30/2016, dated 21.05.2016 was registered against the driver.  Annexure-I, Annexure-II, Annexure-III, Annexure-IV, Annexure-V, Annexure-VI, Annexure-VII, Annexure-VIII, Annexure-IX, Annexure-X and Annexure-XI are the Insurance Policy, copy of Driving License of driver Roshan Rai, Certification of Registration of the vehicle, Goods Carrier Permit of the vehicle, Authorization Letter, copy of the FIR, Letter dated 13.09.2016 and 20.09.2016 sent by the Respondent Company, Legal Notice sent by Complainant and Registered AD Card respectively. It is argued that the evidence of the Complainant and the documents clearly establish the case of the Complainant. Hence, the Complainant prays that the compensation may be granted as prayed for.

15.         Per contra, Ld. Counsel for the Opposite Party, while putting forth his arguments, submitted that a new vehicle as claimed by the Complainant cannot be given and while calculating damages depreciation on the vehicle has to be considered. It is submitted that the accident occurred due to the negligence of the driver of the said truck and the present complaint has been filed for illegal gains. While arguing this, Ld. Counsel Shri Bhupendra Giri for the Opposite Party reiterated the entire facts mentioned in the written version and submits that the Complainant is not entitled to any relief from the Opposite Party. It is argued that the Complainant has not filed any book of accounts and documents to show that the said truck was earning ₹ 3,300/- per day.  Ld. Counsel, therefore, prays for dismissal of the complaint on this ground.

16.         Ld. Counsel further argued that the claim of the Complainant has been finalized for ₹ 2,92,000/- on the basis of final survey report. As such, the Opposite Party is ready to pay the above finalized amount to the Complainant. It is submitted that the claim of the Complainant is excessive, unwarranted and too high in comparison to the assessment conducted and submitted by Mr. Rajesh Somani, the Surveyor & Loss Assessor which come to ₹ 2,92,000/-(Rupees two lakhs, ninety-two thousand) only. Hence, Ld. Counsel for the Opposite Party prays for rejection of the instant complaint.

17.         In order to decide this issue, the pleadings as well as the documents and the submissions made by the Ld. Counsel for the parties were considered. Annexure-I, Annexure-II, Annexure-III, Annexure-IV, Annexure-V, Annexure-VI, Annexure-VII, Annexure-VIII, Annexure-IX, Annexure-X and Annexure-XI are the documents relied on by the Complainant. 

              The complainant has clearly pleaded that his truck bearing Registration No. SK-04-D-0239 met with an accident on 21.05.2016. The copy of the FIR (Annexure-VI) dated 21.05.2016 lodged by H/C Tek Bahadur Gurung before Namthang Out Post informing about the accident clearly establish that there occurred an accident involving the truck bearing Registration No.  SK-04-D-0239. The  Certificate of Registration (Annexure-III) of the said truck produced before this Forum clearly proves that the said truck was registered in the name of the Complainant and he is the registered owner of the said truck. The authorization Letter (Annexure-V) was given by the Complainant to Roshan Rai, his driver, duly authorizing him to drive the said vehicle bearing Registration No. SK-04D-0239. The authorization letter clearly establishes that Mr. Roshan Rai was the authorized driver of the said truck and his Driving Licence (Annexure-II) issued by Licensing Authority, Government of Sikkim was valid and effective at the relevant time. The vehicle in question  was insured with Shriram General Insurance Company Limited (Opposite Party) vide Insurance Policy No. 10003/31/16/096180 (Annexure-I). On perusal of Insurance Policy it is seen that the same was valid and effective from 14.06.2015 to the midnight of 13.06.2016 and it was a package policy. Therefore, it is clear that the said truck was insured with Opposite Party and the Insurance Policy was valid and effective covering the accident. The Goods Carrier Permit (Annexure-IV) issued by the office of Motor Vehicles Division,  Transport Department, Gangtok proves that the said truck was authorized to ply in the State of Sikkim. The entire documents produced before this Forum clearly establish that the said truck was having valid documents at the time of the accident.

18.         The Opposite Party has not disputed  the accident and that the said vehicle was duly insured with the Opposite Party when the alleged accident had occurred. The Opposite Party also admitted the said fact. However, the Opposite Party took the plea that the vehicle was about 6 years old from the date of it’s first hand purchase.  Finally, Ld. Counsel for the Opposite Party contended that the claim of the Claimant is excessive, unwarranted and too high in comparison to the assessment conducted and submitted by Mr. Rajesh Somani, the Surveyor & Loss Assessor which come to ₹ 2,92,000/-(Rupees two lakhs, ninety-two thousand) only.      As per the Insurance Policy Annexure-I, the vehicle bearing Registration No. SK-04D-0239 was having package policy and the Insured Declared Value mentioned in Annexure-I is ₹ 7,18,909/- (Rupees Seven Lakhs Eighteen Thousand Nine Hundred and Nine) only.  The assessment conducted and submitted by Mr. Rajesh Somani, the Surveyor & Loss Assessor which comes to ₹ 2,92,000/- is much lower than the Insured Declared value.  The pleadings as well as the documents on records establish that the vehicle in question was totally damaged during the accident and the Complainant claim for total loss and damage of the said vehicle.

19.         On perusal of the documents relied on by the Complainant, it is seen that Annexure-I is the Insurance Policy of the vehicle bearing Registration No. SK-04-D-0239. The policy indicates that it was issued on 14.06.2015 and was valid up to the midnight of 13.06.2016. It is evident from the document that the Insurance Policy Annexure-I was valid on the date of the accident. Annexure-III is the  Registration Certificate of the vehicle bearing Registration No. SK-04-D-0239 which was valid on the date of the accident. Hence, the registration of the vehicle was valid on the date of the accident which occurred on 21.05.2016. Annexure-II is the copy of the Driving Licence of the driver Roshan Rai. The said Driving Licence was issued on 18.06.2013 and valid up to 17.06.2016.  Annexure-VI is the  copy of the FIR, which establishes the accident. The contents of Complaint, documents on records and the written version of the Opposite Party establish that the Complainant is the owner of the  said vehicle bearing Registration No. SK-04-D-0239 and the said vehicle met with an accident. The pleadings and the documents produced before this Forum also establishes the damages of the vehicle. 

20.         The claim of the Complainant is that the vehicle in question met with an accident and is totally damaged which cannot be repaired. The said fact has been admitted by Opposite Party. It is not disputed that the vehicle in question bearing Registration No. SK-04-D-0239 (Tata) was duly insured with the Opposite Party when the accident had occurred. The Opposite Party also admitted the said fact. The Opposite Party only took the plea that the assessment of the vehicle was excessive, unwarranted and too high in comparison to the assessment conducted and submitted by Mr. Rajesh Somani, the Surveyor & Loss Assessor which come to ₹ 2,92,000/-(Rupees two lakhs, ninety-two thousand) only. However, we have already discussed about the same in paragraph18 supra.

21.         In view of the pleadings and the exhibited documents on record, this Forum is of the opinion that the Complainant was the 'consumer' of the Opposite Party. All the documents filed by the Complainant were perused and considered by the Forum and found to be valid when the accident occurred. Hence, the Opposite Party is liable to pay compensation to the Complainant.

22.         As submitted by Ld. Counsel Shri Bhupendra Giri, the vehicle is an old vehicle. The Registration documents of the vehicle clearly proves that the date of manufacture of the said vehicle was the year 2010 and on the date of the accident the vehicle was about 6 years old. The vehicle would depreciate and its value would go down over the period.

23.         In the judgment of Hon’ble National Consumer Disputes Redressal Commission in L & T Finance Ltd. & another vs. Vithal @ Vithoba, (2010)4 CPJ 402 the Hon’ble Commission has appreciated the fact of deduction on account of the depreciation at the rate of 5% per year on the cost of the vehicle. The Complainant has not mentioned the actual cost of the truck at the time of its purchase in the complaint. The insurance declared the value of the said truck as ₹ 7,18,909/- therefore, in the absence of information with regard to actual cost of the truck and as the truck is 6 years old, the value of the truck can safely be taken as above for calculating the depreciation. Therefore, the rate of depreciation of a 6 years old vehicle would be 30% (5% X 6 years=30%) which shall be deducted from the cost of the said vehicle.

24.         In consideration of the entire evidence and documents on record, both the issue No. (i) and (ii) are decided in favour of the Complainant and against the Opposite Party. In consequence of the issues decided in favour of the Complainant, it is found that the Complainant is entitled as under:

i.  Total cost of the vehicle bearing

           Registration No. SK-04-D-0239

           (truck) after deducting

           the Depreciation:          ₹ 7,18,909/-                                                                     -30%= ₹ 5,03,236.3

ii.  Pecuniary loss:                      ₹ 1,00,000/-

iii. Mental tension and

            Harassment:                                    ₹ 25,000/-

      iv. Cost of the legal proceeding          ₹ 30,000/-           ____________________________________________________   

                   Total                       ₹ 6,58,236.3              

25.     In the result, this Forum directs that the Opposite Party, shall pay the compensation of ₹ 6,58,236/-  (Rupees Six lakhs fifty eight thousand two hundred and thirty six) only, to the Complainant, within a period of two months from the date of this Judgment. Failing which, the Opposite Party, shall pay the interest @ 10% per annum on the said sum, to the Complainant, from the date of filing of the Complaint i.e., 25.05.2017, till full and final payment.

           Pronounced in open Forum.