1. THIS is an appeal against the judgment and order dated 8.9.1998 passed by District Consumer Forum, Bijnor in Complaint Case No. 406/1994.
2. THE facts of the case stated in brief are that the complainant owned Janga Jeep No. DL-4C-6361 which was insured with the respondent, United India Insurance Company Limited, for a sum of Rs. 1,00,000/-. THE premium was duly paid on 14.12.1990. According to the complainant the vehicle met with an accident on 22.10.1991 (the year has been wrongly mentioned in the judgment as 90). THE accident took place while the vehicle was returning from Shahkumbari Devi Mandir when the jeep was about 1 km. away from Bhagwanpur Road, the steering failed and the jeep fell in the Khud. A sum of Rs. 50,221.90 was spent for repairs of the vehicle. THE bills were submitted to the Insurance Company, but they did not rely on the bills and got the jeep inspected and sent a cheque for Rs. 8,141/- only which does not represent the cost of the repairs. THE complainant represented to the Insurance Company through an Advocate but wrong reply was given alongwith the said cheque.
The opposite party in the written version has alleged that a Surveyor was appointed soon after the accident. A final survey was got done by Sri V.P. Maheshwari who assessed the loss at Rs. 7,191/-. On this basis that much amount was sent to the complainant alongwith discharge voucher. On request of the complainant a second Surveyor was appointed who increased the claim by Rs. 950/-. Thus the claim was finally settled at Rs. 8,141/-. This amount was sent to the complainant by post which the complainant accepted but did not return the discharge voucher. It is further alleged that the complaint is not triable by the District Forum and should be tried by the Civil Court.
After hearing the learned Counsel for the parties and perusing the evidence on record, the learned District Forum directed the opposite party, Insurance Company, to analyse the survey report again correctly and payment be made within 45 days if found to be the just claim.
3. AGGRIEVED against the order of the learned District Forum, the complainant has come in appeal and has challenged the correctness of the order passed by the District Forum.
Before this Commission a notice was issued to the opposite party in August, 1999 for 15.2.2000. This registered cover was not received back unserved and hence service is presumed against the opposite party and the appeal proceeded ex-parte against the respondent. The appeal is being decided on merits.
4. IT is an admitted fact that the vehicle of the complainant was insured and the accident took place as alleged by the complainant. Now the only question which survives for determination is that as to what is the amount of damage which should be awarded to the complainant on account of the said accident for which the vehicle was duly insured with the Insurance Company. As mentioned in the earlier part of the judgment two Surveyors were appointed. The second survey was got done by Sri V.P. Maheshwari and whose report has been received which is on record as filed by the complainant. This was received by post in compliance of the order of this Commission dated 30.6.2000. A perusal of this report goes to show that extensive damage has been caused to the vehicle. This fact will be apparent from the details of damages given by the Surveyor. The Surveyor has not allowed a number of items but has not given any reason for not allowing those claims. IT may be desirable to give a list of items which have been disallowed by the Surveyor. 1. Die rod kit 2. Bonet shackle 3. Wind screen glass 4. Clutch brake assembly 5. Cam shaft 6. Fuel pump gear 7. Timing gear set
Fan blade
Clutch plate
5. RADIATOR foundation
6. DASH board foundation
Front leaf spring Main, 2nd
Front shackle
7. SHACKLE pin
Back light
8. BATTERY
Oil pump
Piston set
9. STEERING wheel
10. ENGINE foundation 8. The Surveyor has not given any reason as to why these items which have been damaged and require replacement or repair have not been allowed. The next question which arises for determination is as to what should be the amount which should be allowed on account of repairs carried on by the complainant. The Surveyor has mentioned that there should be 50% reduction on metal parts as well as rubber parts. The report of the Surveyor itself goes to show that the model of the vehicle was 1990 and the accident took place in the year 1991, only after one year. For the year 1990 there is no depreciation according to the terms and conditions of the Insurance Company. For the next year the depreciation is only 10%. When the depreciation in the value of the vehicle is only 10%, how the parts could get tear and wear to the extent of 50%. Therefore, the depreciation which has to be allowed from the total assessment will be only 10%. 9. The complainant has tendered the cash memos to the Insurance Company. The Insurance Company should have verified the value of the parts which were mentioned in the cash memos either from the dealer who issued the cash memos or from other dealers dealing in the sale of similar parts. We may take one item for example. On account of repairs at page No. 3 in the survey report it has been mentioned that there was repair to be done on body shell denting, shaping, welding, roof structure repairing, right side panel denting, shaping, welding, inner structure repairing, a sum of Rs. 4,000/- was spent by the complainant but only a sum of Rs. 1,850/- has been allowed by the Surveyor. There is no proof on record to show as to how the Surveyor has reached this figure. Whether he consulted the dentors and painters etc. about the repair of this much items and what was their estimate ? Similar is the case with other items of the report. There is one more thing which requires mention. At Item No. 7, under the repairs/damages, the Surveyor has mentioned "dash board shaping, engine shield repairing", the estimate of which has been given as Rs. 2,000/-. The amount has not been allowed and it has been written "Given in Item No. 1". In the Item No. 1 of the repairs as has been mentioned in the above portion of the judgment, this has not been mentioned. Therefore, we find that there are a number of discrepancies in this report and no justification has been given as to why no compensation for damaged articles has been allowed and why less amount than mentioned by the complainant has been allowed. Therefore, keeping in view these facts, this report of the Surveyor deserves to be rejected outrightly. The learned District Forum should have itself analysed the report of the Surveyor and should have come to a definite conclusion once the Surveyor has already given the facts disclosed to him. The learned District Forum should also have seen itself whether the estimate given by the Surveyor are reasonable or not and it can be accepted or not. From the judgment of the learned District Forum it is clear that the Surveyor has not correctly assessed the damage. Therefore, the learned District Forum should have itself rejected the survey report and should have reached its own conclusion on the evidence available on records. In the present case after rejecting the report of the Surveyor, the only evidence left with the Commission is the estimate given by the complainant for repair of the vehicle. The complainant''s estimate is of Rs. 50,221/- which he had to spend on repairs of this vehicle for which all the bills were handed over by the complainant to the Insurance Company. Thus the basis of damages shall be the amount spent by the complainant. Out of this amount 10% deduction is to be made on account of depreciation charges. 10. Before the learned District Forum, the Insurance Company has raised a plea that this case is not triable by the learned District Forum as the complaint relates only with the question of quantum of claim. This plea of the opposite party, Insurance Company, is without force. It has been held several times by the National Commission that even the question of quantum is to be decided under the Consumer Protection Act. The National Commission in the case of United India Insurance Company v. P.S. Mani, II (1992) CPJ 354 (NC)=1992 (2) CPR 91, it was held that even if there is a question of quantum only it can be decided under the Consumer Protection Act. In this case it was further held that merely because the insurer has repudiated the claim under the policy unilaterally, it is difficult to hold that the Redressal Forum will not have any jurisdiction to deal with the matter. If such a contention of the Insurance Company is conceded then in every case the Insurance Company can get a report from the Surveyors and repudiate the claim. The Redressal Forums are, therefore, bound to see whether or not the repudiation was given in good faith on valid and justifiable grounds. If the Surveyor chooses to submit a wrong report and the Insurance Company repudiates the claims without applying its minds then the repudiation cannot be said to be justified. The Commission relied upon the case of New India Assurance Company Limited v. Wipro Electronics Pvt. Ltd., I (1991) CPJ 335 (NC). Thus this case law also goes to show that the report of the Surveyor cannot be accepted blindly and has to go through the test of scrutiny. 11. It is an admitted fact that a sum of Rs. 8,141/- has been received by the complainant. This amount shall be deducted from the amount to be payable and no interest shall be payable on this amount from the date of payment to the insurer. Only interest which is liable to be paid by the Insurance Company from the expiry of three months period from the date of the claim till the date of payment of this much amount. 12. The amount of 10% depreciation comes to Rs. 5,022/-. Thus the remaining amount which should be paid by the Insurance Company to the complainant comes to Rs. 45,199/- (Rs. 50,221/- minus Rs. 5,022/-), or in round figure Rs. 45,000/- alongwith 12% per annum interest. After deducting Rs. 8,141/- the total amount payable will Rs. 37,098/-. 13. Thus the appeal is liable to be allowed and the judgment and order of the learned District Forum are liable to be set aside. Order 14. The appeal is allowed. The judgment and order of the learned District Forum are set aside. The claim of the complainant is decreed for a sum of Rs. 37,098/- alongwith 12% per annum interest from expiry of three months from submission of the claim by the complainant till the date of payment. The complainant will also get a sum of Rs. 2,000/- as appeal. 15. Let compliance of the report be made within a period of two months from the date of this order. 16. Let copy as per rules be made available to the parties. Appeal dismissed with costs.
