Tripura

StateCommission

A/16/2015

Shri Ramabrata Sen - Complainant(s)

Versus

The Divisional Manager National Insurance Company Ltd. - Opp.Party(s)

Mr. S.Chowdhuri

25 Jun 2015

ORDER

 

 

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

 

 

APPEAL CASE No.A-16/2015

 

Shri Ramabrata Sen,

Son of Late Hiren Sen of

Madha Para, Agartala, West Tripura,

                    ….    ….    ….    ….    Appellant.

                   Vs

He Divisional Manager,

National Insurance Co.Ltd.,

Agartala Division, Agartala,

42 Akhaura Road, P.O-Agartala,

Pin-799001.

             ….    ….    ….    ….    Respondent.

 

 

PRESENT :

       

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                          

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

 

                 MR.NARAYAN CH. SHARMA,

            MEMBER

             STATE COMMISSION.

               

 

For the Appellant    :      Mr.S.Choudhury,Adv.

          For the respondent   :      Mr.P.S.Chakraborty,Adv.

                                      

Date of Hearing         :     25.06.2015.

Date of delivery of Judgment  :

             

J U D G M E N T

 

S.Baidya,J,

            This appeal filed on 06.05.2014 by the appellant-Ramabrata Sen under Section 15 of the Consumer Protection Act., 1986 is directed against the judgment dated 06.04.201 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in case No.C.C-62 of 2014 whereby the Ld. District Forum allowed the complaint filed under Section 12 of the C.P.Act, 1986 and directed the O.P.-Insurance Company to pay Rs.28,532/- (IDV of Rs.40,760/- minus Rs.12,228/- being 30% of applicable depreciation) to the complainant with 9% interest p.a. from the date of presentation of the complainant before the Forum on 23.08.2014 till the payment is made in full and also directed the O.P. to pay Rs.3,000/- to the complainant towards mental agony and harassment with Rs.2,000/- as cost of litigation.        

2. The case of the appellant as narrated in the memo of appeal, in brief, is that the complainant-appellant took an insurance of his motorbike bearing registration No.TR-01-N-8928 with Engine No.JA06EFBGJ06088, Frame No.MBLIA06EUBGJ05990 of Hero Motor Corp (formerly Hero Honda) under Model Glamour-K Cast (DRS) year of manufacture being 2011 with Cubic Capacity 125 under certificate of insurance No.3510071126201579700 with validity from 24.09.2012 to midnight of 23.09.2013.                                                
3. It has also been alleged that the said motorbike was stolen from outside the house of the complainant-appellant on 23.08.2013 within the period of insurance and an F.I.R. was lodged being registered West Agartala Police Station case No.249 of 2013 dated 23.08.2013 and the charge sheet was submitted on 30.11.2013. It has also been alleged that at the time of theft of the motorbike for the complainant some other goods were also theft in the premises of the complainant later to some other tenants.
4. It has also been alleged that the complainant submitted all the relevant papers that the respondent-O.P. claiming for reimbursement of the insured value of the said motorbike amounting to Rs.40,760/- as declared in the insurance policy, but unfortunately the Insurance Company did not make the payment of the said insured value of the bike. It has also been stated that the complainant purchased that motorbike for his daily personal use including taking his daughter to the teachers for imparting tuitions as well as for attending his office and due to the non-payment of the said insured value of the bike, the complainant had to suffer daily expenses @ Rs.200/- and till the filing of the complainant he suffered a total loss of Rs.30,000/-.
5. It has also been alleged that on service of notice the respondent contested the claim by filing written statement wherein it has been disputed regarding the alleged entitlement of the complainant to the tune of Rs.30,000/- as claimed by the complainant in the complaint. It has also been alleged that the Ld. District Forum considering the evidences and the facts and circumstances of the case passed the impugned judgment on 06.04.2015.               
6.  That being aggrieved by and dissatisfied with the impugned judgment passed on 06.04.2015, the complainant being the appellant has preferred the instant appeal praying for enhancement of the amount of compensation on the grounds that the Ld. Forum ought not to have deducted the 30% of the IDV inasmuch as the respondent accepted the IDV at Rs.40,760/- for the entire period of coverage by insurance policy beginning from 24.09.2012 to 23.09.2013, that there was no justification for deducting the said 30% of IDV on the ground that the motorbike was stolen after a period of more than two years, but less than three years from the date of purchase, that the Ld. Forum acted absolutely illegally in not granting the compensation @ Rs.200/- per day for the period of default on the side of the respondent and hence, the appellant has preferred the instant appeal praying for enhancing the quantum of compensation.           

Points for consideration.

7.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in awarding compensation in the manner by the impugned judgment and (2) whether the judgment under challenge is liable to be modified as prayed for.      

                         Decision with Reasons.

8.       Both the points are taken up together for the sake of convenience and brevity.

9.       At the outset, it is found necessary to mention that the respondent-National Insurance Co.Ltd. did not prefer any appeal against the impugned judgment dated 06.04.2015. It means the respondent-Insurance Company is not agreed in any manner by the impugned judgment and accordingly, the learned counsel for the respondent-Insurance Company only submitted that the Ld. District Forum rightly deducted 30% of the IDV amount for awarding compensation being the same as legally applicable depreciation. He also submitted that the Ld. District Forum considering all aspects of the case passed the impugned judgment which being proper and justified should be affirmed, but the appeal should be dismissed as there is no ground to enhance the quantum of compensation already awarded by the Ld. District Forum by the impugned judgment.

10. The learned counsel for the appellant submitted that the Ld. District Forum arbitrarily and whimsically deducted 30% of the IDV amount as applicable depreciation. He also submitted that the Ld. Forum did not assign any reason as to why this IDV amount would be submitted to any such depreciation in spite of the fact that the IDV has been declared and the said amount has been accepted by the respondent-Insurance Company while granting certificate of insurance concerning the motorbike of the complainant covering the relevant period. He also submitted that the Ld. District Forum did not consider at all that due to the non-making of payment to the complainant as compensation, the complainant suffered a loss of Rs.200/- per day for taking his daughter to the private tuitions and also for attending his office. He also submitted that the Ld. District Forum only granted a meager amount of Rs.2,000/- as cost of litigation although, the complainant had to bear a large amount as litigation expenses being compelled to lodge the complaint before the Ld. District Forum on account of non-payment of the compensation by the Insurance Company. He also submitted that in view of the above position, the quantum of compensation so granted by the Ld. District Forum in the impugned judgment should be enhanced to the tune of a reasonable and justifiable amount by way of allowing the appeal.  
11. We have gone through the pleadings of the parties, the evidences, the impugned judgment, the memo of appeal and the submissions made by the learned counsels of both sides. Going through the same, we are of the view that this Commission has to see as to whether the deduction of 30% as depreciation from the amount of IDV of the motorbike by the impugned judgment can be sustained in the eye of law. This Commission also has to see as to whether the awarding of a alleged meager amount of Rs.2,000/- as cost of litigation disregarding the total loss suffered by the complainant due to the non-fulfilment of the claim by the Insurance Company whimsically can be enhanced as submitted by the learned counsel for the appellant-complainant.  
12. Admittedly, theft of the motorbike of the complainant was admitted. It appears from the written objection of the O.P.-respondent filed in the District Forum that as the complainant did not submit final order of the criminal case instituted for the theft of the motorbike of the complainant, they did not make payment of compensation to the complainant. In this regard, we are in agreement with the finding of the Ld. District Forum that the pendency of the criminal case cannot be a legal and justifiable ground for non-payment of the compensation to the complainant for the theft of his motorbike as alleged by the Insurance Company.
13. Now, question is as to what is IDV. IDV means manufacture’s listed selling price are excluded from IDV. The IDV of the accessories which are not factory fitted, are calculated separately at extra cost if insurance is required for them. Insured Declared Value (IDV) is the maximum sum assured fixed by the insurer which is provided on theft or total loss of vehicle. Basically, IDV is the current market value of the vehicle. If the vehicle suffers total loss, IDV is the compensation that the insurer will provide to the policyholder. IDV shall be treated as the market value throughout the policy period with any further depreciation for the purpose of Total Loss (TL)/Constructive Total Loss (CTL) claims.  
14. Admittedly, theft of the motorbike of the complainant was covered by the insurance policy issued by the O.P.-respondent. It is also admitted fact that the theft of motorbike of the complainant has not been recovered. It means that it means to a Total Loss (TL). It is also a settled principle of law that the amount of IDV is ascertained after allowing depreciation over manufacturing price of the vehicle and after determination of the amount of IDV any further depreciation cannot be made. In the instant case for the relevant year as it appears from the certificate of insurance (Ext.2) the amount of IDV was at Rs.40,760/- for the entire coverage period of insurance policy from 24.09.2012 to 23.09.2013. That being the position as mentioned above the deduction of 30% in the name of applicable depreciation from the amount of IDV made by the Ld. District Forum is not legally permissible and as such, the deduction of the said 30% depreciation from the amount of IDV to the tune of Rs.40,760/- is found erroneous. As the complainant suffered total loss concerning his motorbike, so, the complainant is entitled to get the said amount of IDV to the tune of Rs.40,760/- as compensation for the theft of his motorbike from the Insurance Company. So, it is palpable that the impugned judgment passed by the Ld. District Forum on this point is liable to be modified and as such, the complainant is entitled to get Rs.40,760/- (being the amount of IDV instead of Rs.28,532/- allowed by the Ld. District Forum from the respondent-Insurance Company).
15. The appellant has made out no case for enhancing the amount awarded to the complainant towards mental agony and harassment. The appellant has made out the case concerning the award of Rs.2,000/- as cost of litigation. But the appellant as complainant produced nothing to show that the complainant incurred any larger amount than the amount awarded as cost of litigation. However, considering all, we are of the view that the awarding of a compensation of Rs.3,000/- towards mental agony and harassment and also an amount of Rs.2,000/- as cost of litigation cannot be said to be an unreasonable and justified one. In view of the above, we find nothing to interfere to the finding of the Ld. District Forum as regards, the quantum of compensation allowed towards mental agony and harassment and also the amount allowed as cost of litigation.
16. In view of the above, we are of the view that the complainant is entitled to get Rs.40,760/- being the amount of IDV instead of Rs. 28,532/- from the O.P.-Insurance Company and the impugned judgment should be modified only to that extant. We are also of the view that there is no cogent and acceptable ground to interfere any other matter of the impugned judgment.   
17. In the result, the appeal is allowed in part with cost.
18. The O.P.-respondent-National Insurance Co.Ltd. is directed to pay Rs.40,760/- being the amount of IDV to the complainant-appellant instead of Rs.28,532/- as mentioned in the order in portion of the impugned judgment. The impugned judgment passed by the Ld. District Forum is modified accordingly.
19. Barring this matter the judgment of the Ld. District Forum as mentioned in the order portion of the impugned judgment remains unaltered.
20. The respondent-O.P.-national Insurance Co.Ltd. is directed to deposit an amount of Rs.5,000/- in the Legal Aid Account of this Commission as cost of appeal within 30 days from the date of delivery of the judgment, failing which the above mentioned shall carry interest @ 9% p.a. after the expiry of 30 days till the payment is made.

 

     

          MEMBER                            MEMBER                           PRESIDENT

                 State Commission                State Commission               State Commission

                        Tripura                                  Tripura                                 Tripura