JUDGMENT 8.9.2010 Justice Pritam Pal, President 1. This appeal by complainant is directed against the order dated 17.7.2008 passed by District Consumer Forum-II, U.T. Chandigarh whereby his complaint bearing No.268 of 2007 was dismissed. 2. The parties hereinafter shall be referred to as per their status before the District Consumer Forum. 3. In nutshell, the facts as set out in the complaint are that the complainant owned truck No.HR37-A-9085 which was got insured by him from OP-2 for Rs.3,50,000/- vide insurance policy No.110102/31/04/2149 commencing from 21.10.2004 to 20.10.2005 under “Goods Carrying Commercial Vehicles (Open) Package Policy.” The said truck when it was carrying the goods towards its destination fell into a ditch on the way between Theog and Kotkhai, near Shaila (H.P). The complainant received information to that effect from his driver on 31.8.2005. The complainant then asked his brother Shri Suresh Pal to initiate the relevant proceedings who gave information to the Shimla office of the OP Insurance company and requested it to send the surveyor to the spot. The OPs through their surveyor took the photographs and got the vehicle retrieved from the ditch with the help of a crane and then the vehicle was brought to Zirakpur by towing. The complainant thereafter supplied all the relevant papers as demanded from time to time. The complainant was illiterate and he did not know about the procedure of the company. He had filled in claim form mentioning that Mohan Singh was the driver while Lekh Ram was the co-driver and he had intimated the police regarding the accident. Driving licences of both the drivers alongwith other documents were handed over to the OPs but the claim remained unsettled. The OPs received final surveyor’s report dated 3.12.2005 recommending the settlement on cash loss basis. The salvage was also given to the complainant by the company and the same was disposed of by him for Rs.one lac. It was alleged that this offer was accepted by him on assurance of OPs that the settlement amount of Rs.79,500/- would be paid within one week, but he had not received the payment till the filing of the complaint. It was further averred that the insured declared value accepted by OPs was Rs.3,50,000/- and as such by adjusting salvage value Ops were required to make payment of Rs.2,50,000/- which became due for payment on the day when intimation was given to the Shimla office of the OPs but non payment of the amount in question resulted in loss of his business as he lost the only truck owned by him as the means of his livelihood. Further,he had also taken loan from the friends, which he was repaying with heavy interest. Hence, alleging deficiency in service on the part of OPs, complainant filed complaint seeking directions to OPs to make payment of Rs.3 lacs alongwith 18% interest per annum w.e.f. 31.8.2005 besides costs etc. 4. On the other hand, OPs contested the complaint before the District Forum by filing written reply inter-alia stating therein that the truck in question was duly insured in the name of Maya Ram from 21.10.2004 to 20.10.2005 and he had lodged the claim with regard to the alleged loss of the truck in question upon which a duly licensed and experienced surveyor and loss assessor was deputed for final survey and assessment of the loss was got made and after getting the vehicle assessed on the spot, the surveyor submitted his survey report dated 3.12.2005. Thereafter the matter was got reinvestigated for fact finding and subsequently the competent authority after due application of mind found the claim payable to the tune of Rs.76,500/- on cash loss basis subject to terms and conditions of the policy of insurance. It was pleaded that after receiving the payment and signing the discharge voucher the complainant was not entitled to any other amount in terms of the policy of insurance. Pleading that there was neither any deficiency in service on its part nor any delay was caused in the matter of settlement of the claim the OPs prayed for dismissal of the complaint. 5. The District Consumer Forum after going through the evidence and hearing the counsel for parties came to the conclusion that there was no merit in the complaint and dismissed the same. Still dissatisfied, complainant has come up in this appeal. 6. We have heard learned counsel for the parties and gone through the file carefully. The main point of arguments raised on behalf of the appellant/ complainant is that the vehicle in question was a total loss so the complainant was required to pay compensation on total loss basis and OP was liable to pay the insured declared Value of Rs.3,50,000/-. He further argued that there was delay in settling the claim as the surveyor report was prepared on 3.12.2005 whereas the amount of Rs.76,500/- was paid on 23.4.2007 vide cheque No.792330 and on 27.4.2007 complainant had sent protest letter by registered post claiming the amount on total loss basis. It was submitted that after receiving the amount on cash loss basis, the complainant was not estopped from claiming higher amount as the vehicle was a total loss. In support of his contention he placed reliance upon the following authorities ; (i) Dharmendra Goel Vs Oriental Insurance Co. Ltd. 2008(4)PLR733 (Supreme Court) (ii) Oriental Insurance Co. Ltd. Vs Government Tool Room and Training Centre I(2008)CPJ 267(NC) (iii)Ashok Kumar Mahajan Vs National Insurance Co. Ltd. I(2002)CPJ 226 However, these points of arguments have been repelled by the learned counsel for respondents/OPs. 7. It is pertinent to mention here that both parties placed reliance upon the report of Shri Gurdeep Singh, surveyor who had mentioned four modes of settlement the detail of which is as under ; (1) “AMOUNT INVOLVED ON REPAIR BASIS | | | Cost of parts less dep. with taxes | Rs. | 59705.41 | Plus labour with towing | Rs. | 67950.00 | | Rs. | 127655.41 | Less Policy clause | Rs. | 1000.00 | | Rs. | 126655.41 | | | | | | | (2) AMOUNT INVOLVED ON TOTAL LOSS BASIS | | | | I.D.V. as per the policy | Rs. | 350000.00 | Less Policy | Rs. | 1000.00 | | Rs. | 349000.00 | | | | (3) AMOUNT INVOLVED ON NET LOSS BASIS | | | | | | I.D. Value of the vehicle as per policy | Rs. | 350000.00 | Expected salvage value of the damaged vehicle if disposed off immediately. | Rs. | 185000.00 | Liability of the Co. | Rs. | 165000.00 | Les Policy clause | Rs. | 1000.00 | | Rs. | 164000.00 | | | | (4) AMOUNT INVOLVED ON CASH LOSS BASIS | | | | Cost of parts less dep. Less taxes | Rs. | 54876.30 | Plus labour with towing | Rs. | 67950.00 | | Rs. | 122826.30 | Less cash loss benefit @30% | Rs. | 36847.89 | | Rs. | 85978.41 | Less salvage value of the damaged parts | Rs. | 5000.00 | | Rs. | 80978.41 | Less Policy clause | Rs. | 1000.00 | | Rs. | 79978.41 |
In his report Shri Gurdeep Singh, Surveyor further stated in very clear terms that the vehicle could be brought back to roadworthy conditions after spending reasonable amount. As per the report of Gurdeep Singh, the salvage value of the damaged parts was Rs.5,000/-. The complainant did not get repaired the vehicle in question and instead he disposed of the vehicle in damaged condition for Rs.one lac and pocketed that amount. 8. It is admitted by the complainant that the salvage/wreck was given to him and he himself sold the same for Rs.one lac. In case of settlement on total loss basis the salvage/wreck was to be retained by the insurance company. However, in the surveyor report the expected salvage value of the damaged vehicle had been mentioned to be Rs.1,85,000/-. In these circumstances when the damaged vehicle has been sold by the complainant after accepting the amount on cash loss basis, so he is not entitled to be indemnified on total loss basis. The facts of the cited cases are quite at variance from the facts of the case in hand and as such no benefit can be derived from the observations made therein by their lordships. 9. It is also to add here that the Surveyor Gurdeep Singh submitted his report on 3.12.2005 and OP company intimated the complainant about settlement of loss at Rs.79500/- but offered to pay Rs.76500/- vide letter dated 13.4.2007 (annexure R-9) and ultimately payment was made on 23.4.2007. The learned counsel for OPs could not explain as to how the amount once offered at Rs.79500/- was reduced to Rs.76500/-. Further the surveyor’s report is dated 3.12.2005 whereas the payment was made on 23.4.2007 so the complainant was entitled to be compensated on account of interest. Accordingly we direct OPs to pay to the complainant balance amount of Rs.3000/- alongwith interest @ 9% p.a. with effect from 3.1.2006(after one month of surveyor’s report) till payment besides interest @ 9% on Rs.76500/- w.e.f. 3.1.2006 till the date of payment i.e. 23.4.2007. The interest awarded to the complainant shall also take care of the compensation. 10. In the result, the appeal is partly accepted in the aforesaid terms. OPs shall comply with the order within thirty days of the receipt of copy thereof. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | , | | 
