Branch Manager, The Oriental Insurance Co. Ltd vs L.PADMALAYAN

THESE appeals arise out of an order passed by the District Forum, Thiruvananthapuram in O.P. 202/1995.

THE opposite parties are the appellants in Appeal 985/1997 and the complainant is the appellant in Appeal 1062/1997. Shortly stated the allegations in the complaint are as follows. The complainant had purchased a brand new DCM Toyota 15.5 tons public carrier paying an amount of Rs. 4,50,000/-. It was insured with the opposite party M/s. Industrial Credit and Development Syndicate Limited, Trivandrum. The vehicle met with an accident on 27.12.1994. There was extensive damage to the vehicle including to the chassis. The accident was reported and the vehicle was inspected by the Surveyor deputed by the opposite party. Initially the 1st opposite party agreed for replacement of a new chassis but after a few days it was suggested that instead of replacement of the chassis complainant should be satisfied with the repair of the chassis. As the vehicle is brand new vehicle and the damage of the chassis is of such a nature which cannot be repaired, the complainant did not accept that suggestion. Thereafter the opposite parties adopted delaying tactics in issuing the work order. On 31.1.1995 another notice was issued to No. 3 opposite parties and on 13.2.1995, they received these notices, to which a reply was sent stating that the complainant was not co-operating with the opposite party in settling the claim. But even after the receipt of the 2nd notice the opposite parties did not care to issue the work order for the repair of the vehicle. On 6.3.1995 the company sent a letter to the complainant stating that the opposite parties are not liable to settle the claim as the vehicle was overloaded at the material time of the accident. It is in those circumstances the complaint was filed seeking a direction to the complainant to pay Rs. 2,42,011/- towards repairing charges and replacement of chassis and Rs. 36,000/- towards the revenue loss sustained by the complainant from 5.2.1995 at the rate of Rs. 1,000/- per day together with interest.

Opposite party filed a version. It was averred that investigation was made regarding claim and the vehicle got surveyed. It was revealed that the vehicle was overloaded at the material time of the accident which was the proximate cause of occurrence and it is further averred that the complainant has filed the complaint in collusion with the repairers M/s. Popular Vehicle & Services (P) Ltd., who had given inflated cost of the spare-parts and labour charges. It was further averred that they deputed two Surveyors to assess the loss and an Investigator to investigate the claim and the Investigator''s report revealed that in addition to the driver there are two passengers in the cabin and 4 persons were travelling along with the load as loading workers. The overloading was the cause of the accident. On 3.1.1995 the Surveyor visited M/s. Popular Vehicles & Services (P) Ltd., for inspecting the vehicle and assessing the loss. But the survey could not be done since the concerned Supervisor was not available. Subsequently with prior intimation both the Surveyors jointly visited the garage on 7.1.1995 and inspected the vehicle. The chassis frame had a bent and so a detailed inspection after stripping cabin assembly and load body from the chassis frame was necessary. So on 11.1.1995 the Surveyors visited the garage, but the repairers M/s. Popular Vehicles & Services (P) Ltd., did not care to remove the cabin and the load body. Again on prior intimation the Surveyors visited the garage on 17.1.1995 and inspected the stripped chassis frame and other components. On 20.1.1995 they along with the Branch Manager and the Engineer of the Oriental Insurance Company, Regional Office, Cochin inspected the vehicle and the stripped components in detail and held discussions with the repairer and the insured. During the deliberation the insured and the repairer insisted that the replacement of chassis is necessary. As the impact due to the accident was observed the first cross number was considered for replacement, whereas the longitudinal beam ''RH'' had sustained very low bulging near to the 3rd cross number and it could be easily repaired and realigned. Further the Surveyor contacted various established concerns possessing appropriate facilities and adequate know how to correct similar and grave damages to such chassis frames and they also offered to give reasonable warranty clause to the entire chassis. In the circumstances there is no deficieny and the complaint is liable to be dismissed.

ON behalf of the complainant PWs 1 to 3 were examined and PI to P4 were marked. ON behalf of the opposite party Dl to D4 were examined and Ext. Dl to D3 were marked. Cl and C3 are the reports of Commissioners who were appointed by the District Forum to inspect the vehicle and file report. The District Forum took the view that replacement of chassis was necessary and it passed an order directing the opposite party to pay to the complainant Rs. 1,37,569/- towards repairing charges and cost of parts including the chassis replaced for the said vehicle on production of the salvage parts which were replaced as per Ext. P11 bill by the complainant and also cost of Rs. 500/-. Interest at the rate of 12% was also allowed. In Appeal No. 985/1997 the Insurance Company has challenged the order passed by the District Forum contending that the finding that chassis has to be replaced is not supported by any evidence. It was also contended that there was overloading and consequent violation of policy condition and therefore the repudiation is valid. The complainant who is not satisfied with the compensation awarded has filed Appeal No. 1062/1997 seeking enhanced compensation.

THE District Forum appointed two Commissioners to inspect the vehicle and they have submitted two reports. Ex. Cl is the report submitted by the Commissioner who was examined as PW 3 and C 2 is the report submitted by other Commissioner who was examined DW 4. We may at the outset mention that the practice of appointing Commissioner from the side of the complainant and the other from the side of opposite party is not at all a healthy and desirable practice. In this case the reports submitted by PW 3 and D4 are conflicting on the question whether chassis is required to be replaced. PW 3 stated that the chassis need to be replaced. In the cross-examination he admitted that he does not know what is CRCA. DW 4 filed C2 report which stated that chassis is seriously damaged and therefore replacement is necessary. The District Forum considered both the reports and acted upon the report C2 filed by DW 4. It held that the opposite party committed deficiency in not permitting the complainant to replace the chassis. Regarding overloading the District Forum found there is no acceptable evidence to show that there was any overloading. Further in view of the decision of the Supreme Court in II (1996) CPJ 18 (SC), the contention relating to overloading cannot be accepted as there was no nexus between the accident and the overloading. As we have mentioned earlier appointment of different Commissioners one from the side of the complainant and the other from the side of the opposite party is not healthy practice as they are likely to file conflicting reports which would complicate matters. Of course in a case where an Advocate Commissioner is appointed to inspect a building to find the condition of building or assess its value or damage it may be desirable to appoint a technical hand to assist the Advocate Commissioner. But that is not the case here. However we do not think that one should disturb the finding of the District Forum. Having regard to serious damage sustained by the chassis, we feel that the District Forum is justified in accepting Ext. C2 report on the question whether chassis has to be replaced. That being the position the order passed by the District Forum directing to pay compensation at Rs. 1,37,569/-, is correct as there is no dispute as regards the quantum arrived at by the District Forum on the basis that the chassis has to be replaced.

THE complainant has contended that the District Forum erred in not awarding interest and reasonable cost and revenue loss. We see force in the contention that District Forum erred in not granting interest. We feel that two months'' time is reasonable to settle the claim. We therefore direct the opposite party to pay interest at the rate of 12% from 11.11.1995 on the above to the complainant. THE complainant will also be entitled to cost awarded by the District Forum. We do not find any justification to award any further amount to the complainant. Appeal 1062 is allowed to this limited extent and the order passed by the District Forum is modified accordingly. A. No. 1062 allowed & A. No. 985 dismissed.