ENPEE EARTHMOVERS vs National Insurance Co. Ltd.

THIS complaint has been lodged by insurer of a wheel loader make Hindustan, against the insured for recovery of a sum of Rs. 3,41,038.53. The amount stated to have been spent for repairs of said wheel loader in respect of damages caused to the said vehicle in an incident which is stated to have taken place on 29.12.1995, alongwith interest and Rs. 2,61,000/- being damages/loss suffered by the complainant from 5.2.1996 to 10.3.1996 and for costs. The complaint has been lodged under the following circumstances:

THE wheel loader make Hindustan, Model 2021, bearing Engine No. EL/WEH/026397, Chassis No. C/2113479 was hired by M/s. Chowgule & Co. Pvt. Ltd. for the purpose of loading of iron ore into trucks at its mine situated at Bimbol, Collem, Goa and on that day at about 3.30 a.m. some unidentified mob of 25/30 persons exploded the said wheel loader. Immediately, thereafter on 30.12.1995, the complainant lodged a claim with the opposite party. It had issued a valid insurance policy to cover the said wheel loader for the period including the said date 29.12.1995. THE opposite party called upon it to produce several documents and they were duly complied with. THE complainant was informed that the cheque of Rs. 3,15,381/- would be sent and it wanted the receipt for the said cheque. It was prepared to accept it, without prejudice to recover a higher amount. THE opposite party was not ready to give that cheque subject to that condition and it wanted it to accept in full and final settlement of their claim. THE complainant was not prepared to accept the same. The wheel loader remained idle as no work order was issued by the opposite party and that it remained idle from 8.1.1996 to 22.2.1996. Therefore, it suffered loss of Rs. 8,700/- per day. Subsequently, the complainant got the wheel loader repaired at a total cost of Rs. 4,15,070.65 Giving deduction to amount that is usually deducted in case of this kind, the complainant states that he is entitled to recover a sum of Rs. 3,41,038.53 and damages of Rs. 2,61,000/- for the period from 5.2.1996 to 10.3.1996.

The opposite party has not disputed the case of the complainant in relation to insurance of vehicle for the period in question. That the vehicle was exploded by miscreantsas mentioned by the complainant is also not disputed. That the complainant is entitled to a sum of Rs. 3,41,038.53 has been disputed. That complainant is entitled to recovery of damages or that it is to the tune of Rs. 2,61,000/- has also been disputed.

THE parties have filed their affidavits and also documents relied upon by them. As noticed already, the major aspects in relation to the claim made by me complainant are not in dispute. If according to the complaint it is entitled to recover an amount of Rs. 3,41,038.53 for effecting repairs to the vehicle, it is entitled to only Rs. 3,15,381.00 as per the contention of opposite party. THErefore, the area of dispute between parties is very much narrowed down and the points that arise for consideration are : (1) Whether the complainant is entitled to recover a sum of Rs. 3,41,038.53 as contended by him or whether he is entitled only to Rs. 3,15,381/- as contended by the opposite party ? (2) Whether the complainant is entitled to any damages in not being able to put vehicle in use and whether on that account it is entitled to recover a sum of Rs. 2,61,000/-? (3) What order as to compensation by way of interest should be passed ?

The learned Advocate for complainant invited our attention to the very report of the Surveyor appointed by the opposite party which gives estimate in respect of value of articles to be used for repairs and also the labour charges. It was pointed out that as per the said assessment, total cost to be incurred including labour charges has been estimated by the Surveyor of Rs. 3,34,990/-. It was urged by him that though he made a claim for recovery of Rs. 3,41,038.53 there could be hardly any objection to adopt this sum of Rs. 3,34,990/- as mentioned by the Surveyor of the opposite party. The learned Advocate for the opposite party invited our attention to the final assessment made by the Surveyor after repairs wherein he has arrived at this figure of Rs. 3,15,381/- and urged that the said amount must be adopted. It is one thing for complainant to say mat the figure given by the Surveyor of the opposite party may be taken note of while fixing the amount payable to it towards repairs but when the opposite party wants us to accept the figure of Surveyor in his later report, there must be sufficient proof to accept the said figure. When we went through the said report, we found some amounts added and substracted and the Surveyor would have been the best person to explain how this figure of Rs. 3,15,381/- was arrived at by him. His affidavit has not been filed and therefore, we are not able to make out any basis how the Surveyor has arrived at this figure.

THOUGH the complainant has lodged the claim little to higher than the sum of Rs. 3,34,990/-, it appears to us the value in relation to repairs of vehicle given by Surveyor as Rs. 3,34,990/- could be adopted by this Commission and there could be hardly any objection for awarding this amount to the complainant. Therefore, we hold that the complainant is entitled to recover a sum of Rs. 3,34,900/- on this ground. The complainant has claimed a sum of Rs. 2,61,000/- as damages for the loss sustained by it from 5.2.1996 to 10.3.1996. It has been stated that if work order had been issued on 25.9.1996, the wheel loader would have been put to use but he had to wait till 29.12.1996 to get the work order and could not complete the repairs before 10.3.1996 and further he would have got a sum of Rs. 8,700/- per day and therefore, he should be awarded a sum of Rs. 2,61,000/-. It may be noticed that the claim is lodged against the Insurance Company. It requires some reasonable time to process the papers. Having regard to the fact, even according to the complainant he received the work order on 22.2.1996 in respect of repairs of vehicle which sustained damages in the incident which took place on 29.12.1996, we are satisfied that there is no abnormal delay on the part of the officers of opposite party in processing the papers for issue of work order.

IN the circumstances, it may be noticed that damages claimed by the complainant under this head would be too remote damages which cannot be taken note of by Consumer Forum. We feel that under such circumstances, interest at 18% would be adequate on the amount awarded by way of compensation to the complainant and it would cover all the losses sustained by the complainant. Therefore, we hold that the complainant is not entitled to recover Rs. 2,61,000/- and on the other hand he is entitled to recover interest at 18% per annum. The incident has taken place on 29.12.1995 and atleast upto end of March, 1996, the INsurance Company ought to have time to process all the papers and settle the claim. Having not done so, it has to pay interest on the awarded amount at 18% per annum from 1st April, 1996 till the date of payment. IN this context we would have a word in respect of recalcitrant attitude adopted by the officers of opposite party. When according to it the complainant was entitled to recover a sum of Rs. 3,15,381/- and it was offered on 18th March, 1997 and when the complainant was prepared to accept it without prejudice to recover higher amount, there could be hardly any justification for the officers of opposite party not to have paid that amount. It is surprising till today the said amount has not been paid and INsurance Company has to pay interest even for this period on the said amount though it was prepared to pay the said sum long back. It is for the opposite party to find out who was responsible for this amount having not been paid to the complainant so far and what action has to be taken for fixing the liability. IN the result, we pass the following order: ORDER The opposite party is directed to pay a sum of Rs. 3,34,900/- with interest thereon at 18% per annum from 1st April, 1996 till the date of payment. The rest of the claims made in the complaint are not granted. IN the circumstances of the case, we direct the parties to bear their own costs. Complaint disposed of.