NARESH KUMAR SHANTILAL RADIA vs New India Assurance Co. Ltd

THE complainant who is Development Officer with the National Insurance Company Limited has made this complaint against the opponent New India Assurance Company Limited claiming compensation of Rs. 250,000/- together with 18% interest for the damage to his car which was insured with the opponent.

THE complainant was owning Maruti car bearing No. GUJ 9789 which was insured with the opponent under policy number 31/ 211304/15417 which was valid for the period from June 23, 1988 to June 22, 1989. THE complainant with his friend one Kaushik Patel had gone to Vapi and when he was returning from Vapi to Ahmedabad on June 14, 1989, there was an accident between Bulsar and Navsari in which his car was damaged. According to the complainant, the car dashed against a tree and as a result whereof, the car was seriously damaged. THE complainant also sustained injuries which were not serious. THEre was no injury to Kaushik Patel. THE complainant gave information about the accident to the opponent on June 16, 1989 i.e. two days after the accident. THE complainant filled in the necessary claim from demanding indemnification for damage to the car. Survey of the damage to the car was made and the Surveyor found that there was total loss. THE opponent by letter dated November 20, 1990 addressed to the complainant informed the complainant that they had decided to settle the claim on total loss basis for a sum of Rs. 85,000/- subject to completion of necessary formalities stated in the letter. According to the complainant, he complied with the requirements of the letter and submitted necessary information to the opponent. However, thereafter as the complainant did not receive any compensation from the opponent for the damage to his car he approached the Consumer Disputes Redressal Forum, Junagadh by way of complaint No. 28/90 claiming compensation from the opponent. This complaint was later on transferred to this Commission on account of enhancement of compensation claimed in the complaint. THE complainant has claimed total compensation of Rs. 250,000/- together with 18% interest and cost. The opponent has resisted this complaint on several grounds stated in the reply to the complaint. However, at the time of hearing of this complaint, the learned Advocate Mr. S.S. Shah for the opponent resisted the claim made by the complainant only on the following grounds viz. (1) the complainant was not entitled to any compensation because at the time of the accident the car was being driven by the complainant''s friend Kaushik Patel who was not holding a valid driving licence. (2) the opponent had thoroughly investigated the claim made by the complainant and, therefore, the only remedy available to the complainant was to approach the Civil Court and (3) the complainant having failed to hand over the salvage of the car to the opponent, he is not entitled to claim any compensation. In any case, the value of the salvage is liable to be deducted from the compensation, if any, payable to the complainant.

As pointed out above, the main contention of the opponent is that since the car was being driven by the complainant''s friend Kaushik Patel who was not holding a valid driving licence, the complainant was not entitled to claim any compensation. The learned Advocate for the complainant does not dispute that if the car was being driven by the person not holding valid driving licence at the time of the accident, the complainant would not be entitled to any compensation. Therefore, the question which we are called upon to decide is whether there is any substance in, the opponent''s allegation that the car was being driven by Kaushik Patel who was not holding valid driving licence. It appears from the documents produced before us that Kaushik is holding a valid driving licence from March 6, 1990 and this licence expires in 2000. There is no evidence to prove that Kaushik Patel was holding a valid driving licence prior to March 6, 1990. We will, therefore proceed on the basis that Kaushik Patil was not holding a valid; driving licence on the date of accident which took place on June, 14, 1989. However, the question is whether it was Kaushik Patel who was driving the car when it met with the accident. According to the complainant it was he who was driving the car at the time of the accident. The learned Advocate for the opponent solely relied on the fact that the complainant sustained injuries on the left side of his body to support his contention that he was not driving the car at the time of the accident. There is no dispute that when the car dashed against the tree on the side of the highway only left side of the car was damaged. The injuries which the complainant sustained in the accident were as follows: - "(a) C.L.W. over left eye brow; (b) C.L.W. over left little finger; (c) contusion over left forehead; (d) contusion over left side of the chest."

It is submitted that these injuries to the complainant could have been caused only if he were sitting on the left side of the car since the impact of the accident was only on the left side. Therefore, according to the learned Advocate for the opponent the only inference which could be drawn is that the complainant was sitting on the left side of the car and he was not driving the car. It is argued that since there were only two occupants in the car viz. the complainant and Kaushik Patel, it is obvious that it was Kaushik Patel who was driving the car. It is not disputed that Kaushik Patel had not sustained any injury. We do not see any substance in this argument. We are not inclined to conclude that it was Kaushik Patel and not the complainant who was driving the car at the time of accident merely from the facts that the complainant had sustained injuries on the left side of his body and that Kaushik Patel had not sustained any injury. It appears that so far as the car is concerned, left front door and front portion of the car on left side were extensively damaged. There was no damage to the front left seat of the car. The windshield also remained intact. It is quite probable that due to the impact of the accident, the complainant, assuming that he was driving the car, dashed against the dash board or steering wheel or part of the car in front of driver''s seat and sustained injuries which are described above. The injuries sustained by the complainant are not serious and such injuries could have been caused to the complainant by falling on the steering wheel or dash board as a result of the accident. Kaushik Patel who was sitting on the left side was fortunate enough to sustain any injury. It is a fortuitous circumstance that it was the complainant alone who sustained injuries in the accident and that too not serious. We are, therefore, not inclined to accept the opponent''s contention that it was Kaushik Patel and not the complainant who was driving the car. There is no dispute that the complainant was holding a valid driving licence. We may also point out that in the report of the Surveyor Mr. Hitendra Barot appointed by the opponent, the Surveyor has stated to the effect that as per the claim form insured/driver was injured in the accident. It is significant to note that this statement is not found to be untrue by the Surveyor. It may incidentally be mentioned that this report of Shri Hitendra Barot which is shown to us now has not been produced on record. We are, therefore, not inclined to reject the claim of the complainant on the ground that the car which was damaged in the accident was being driven by the person who was not holding a valid driving licence at the time of accident.

THIS brings us to the next contention raised on behalf of the opponent that since the opponent had thoroughly investigated the claim made by the complainant, this Commission should not entertain the complaint and the complainant should be asked to approach the Civil Court. It is pertinent to note that the investigation report on which strong reliance is placed by the learned Advocate for the opponent is dated July 18, 1991 whereas the complainant had already approached the District Consumer Disputes Redressal Forum, Junagadh in 1990. The complaint was transferred to this Commission because the complainant had enhanced the compensation. It would thus appear that the investigation report on which reliance is placed by the opponent was submitted after the complainant approached the District Forum at Junagadh, But apart from that we are not inclined to place any reliance on this investigation report dated July, 18 1991 submitted by the Surveyor called Claims Minimization Bureau. The investigation made by the Surveyor is not satisfactory and the conclusions adverse to the complainant reached by him are not based on any evidence. In our opinion, therefore, this investigation could not be said to be thorough or reliable. In our view the decision of the State Consumer Disputes Redressal Commission, Delhi in Gayatri Devi Singhania v. National Insurance Co. Ltd., I (1993) CPJ 314 on which much reliance is sought to be placed by the learned Advocate for the opponent has no application to facts of the present case. For the reason, the decision of the Honourable National Commission in Janta Machine Tools v. Oriental Insurance Company Ltd. I (1991) CPJ 234 (NC) which has been referred to in the aforesaid decision of Gayatri Devi Singhania also has no application to the facts of the present case. This brings us to the question of compensation which should be awarded to the complainant. There is no dispute that the Maruti car which was insured with the opponent was a total loss. This is also evident from the survey report and the letter dated November 20, 1990 of the opponent adverted to above. Therefore, we will proceed to decide the question of compensation on the basis that there was total loss of the car in question. In the above letter dated November 20, 1990, the opponent had offered to settle the complainant''s claim for Rs. 85,000/- on the basis of total loss. It is not disputed that the complainant had complied with the formalities as requested in the said letter. The learned Advocate for the opponent however submitted that the offer of Rs. 85,000/- was liable to be reduced by the value of the salvage which according to him is estimated at Rs. 40,000/-. It is further submitted that in any case the complainant has not handed over the salvage to the opponent and, therefore, also the compensation which may be held payable to the complainant is liable to be reduced to the extent of the value of the salvage. No contention has been raised in the reply to the complaint that the complainant had failed to hand over the salvage of the car though demanded and that compensation, if any, payable to the complainant is liable to be reduced to the extent of the value of the salvage. It is only at the time of arguments that the question of salvage and value thereof has been raised. We are not inclined to permit the opposite to back out from the offer of Rs. 85,000/- which they have voluntarily made by their letter dated November 20, 1990 referred to above. There is also no reason or justification for making any modification in the offer. The opposite Insurance Company would not have made this offer of Rs. 85,000/- without considering all the relevant factors including the salvage and value thereof. In our opinion, therefore, considering all the fads and circumstances of the case, the compensation payable to the complainant cannot be for any amount less than Rs. 85,000/-. Mr. M.C. Desai, learned Counsel appearing for the complainant submits that he would be satisfied if the complainant is awarded Rs. 85,000/- together with interest at reasonable rate that may be determined by this Commission by way of compensation, mother words he does not press rest of the claim made in the complaint. Mr. Shah, learned Counsel for the opponent however insisted that even if this compensation of Rs. 85,000/- is awarded, the complainant should be directed to handover the salvage or reduce the compensation of Rs. 85,000/- by Rs. 40,000/-, which according to him, is the value of the salvage. Mr. Desai appearing for the complainant has no objection if the salvage of the car is taken by the opponent from the place/garage where it is lying at their own cost. Mr. Desai submits that the complainant authorises the opponent to take away the salvage from the garage where it is lying.

THE car is total loss. It was purchased by the complainant for Rs. 85,000/- in the year 1986. According to the complainant when he insured the car its value was estimated at Rs. 105,000/-. If the depreciated value of the car is to be taken into account, the value of the car on the date of accident would not be less than Rs. 85,000/-. Since the car was total loss, according to us, the complainant is entitled to the compensation of Rs. 85,000/-. It would , however, be open to the opponent to remove the salvage from the garage where it is lying since the complainant has no objection to that. We are not inclined to accept the contention raised on behalf of the opponent that Rs. 85,000/- should be reduced by sum of Rs. 40,000/- which is stated to be the value of the salvage. THEre is no evidence to prove that the value of the salvage is Rs. 40,000/-. In any case, as already pointed out above, the opponent itself had offered Rs. 85,000/- taking into consideration all the relevant factors including the salvage value of the car. THErefore, mere is no reason to award any amount less than Rs. 85,000/- to the complainant. Since Mr. Desai is not pressing for any amount higher than Rs. 85,000/- by way of compensation, it is not necessary for us to consider whether the complainant would be entitled to any higher amount. In the result, the complaint is partly allowed. The opponent is directed to pay to the complainant a sum of Rs. 85,000/- together with interest @ 15% p.a. from January 1, 1991 to the date of payment of the amount made to the complainant and cost on or before August 31, 1994. The opponent will be entitled to take away or remove the salvage of the car from the garage where it is lying. This judgment shall be treated as authority to the opponent for removal of the salvage of the car. The opponent to pay Rs. 1000/- by way of cost to the complainant. Complaint allowed.