ORIENTAL INSURANCE CO. LTD.-/ vs G.IRUSAPPA PILLAI

THIS appeal is directed against the order dated 15.9.1998 in O.P. No. 218/1994 on the file of the District Consumer Disputes Redressal Forum, Cuddalore. The appellant is the opposite party while the respondent is the complainant.

SHORT facts may be related in order to understand the crux of the issue arising for consideration in this action. The complainant is the owner of a mini lorry No. TN-31/3798. The said vehicle was insured with the opposite party. During the coverture of the insurance, the vehicle met with an accident on 23.9.1993 at Kandarakottai within the jurisdictional limits of Puthupettai Police Station. As a consequence of the accident, it is said the vehicle resulted in its total wreckage, that is to say, total loss.

On intimation to the opposite party Insurance Company, a Surveyor had been deputed to inspect the vehicle and it appears he had submitted the report after the inspection of the vehicle. It was somehow or other agreed between the parties that the complainant was ready and willing to accept a sum of Rs. 1,30,000/- for the total wreckage of the vehicle on surrendering the salvage parts of the vehicle and the RC Book to the Insurance Company. To that effect, the complainant gave a consent letter on 11.1.1994. According to him, the opposite party Insurance Company agreed to pay the agreed amount of Rs. 1,30,000/- within 10 days from the date of the consent letter which event happened on 11.1.1994. Anticipating the amount of Rs. 1,30,000/- to be given to him within a period of 10 days from the date of the consent letter he entered into an agreement with the third party for the purchase of a mini lorry after parting with a sizeable sum of Rs. 25,000/- by way of advance. Since the amount of Rs. 1,30,000/- was not paid by the opposite party Insurance Company he was unable to fulfil the agreement he had entered into with the third party for the purchase of the mini lorry and the consequence was the advance he had paid he would say to the third party quantified in a sum of Rs. 25,000/- had been forfeited. That apart, he was unable to purchase the lorry. As a consequence, he would say that if the lorry had been put into use on the road, he would have earned a sum of Rs. 400/- per day. Since the opposite party Insurance Company settled the claim by paying Rs. 1,28,000/- less by Rs. 2,000/- of the agreed amount of Rs. 1,30,000/- on 18.8.1994 he sustained heavy loss by way of income per day of Rs. 400/- till upto 18.8.1994.

ACCORDING to the complainant the act of the opposite party in effecting the payment of the amount in a belated way on 18.8.1994 would tantamount to deficiency in service on their part. In such a backdrop and setting, the complainant knocked at the doors of the Forum below for certain reliefs as prayed for in the complaint.

THE opposite party in pith and substance would contend that there was no deficiency in service on their part. True it is that the opposite party agreed to pay an amount of Rs. 1,30,000/- for the total loss of the vehicle. It is equally true that the complainant gave a consent letter for the receipt of the said amount on 11.1.1994. But it is not correct to say that the opposite party Insurance Company agreed to pay the amount within a period of 10 days from the date of the consent letter. Since the claim is a total loss, the opposite party Insurance Company was forced to depute a second Surveyor once again on 18.4.1994 and the Surveyor submitted his report only on 16.5.1994. This apart, the transfer in the RC Book was effected by the Regional Transport Office and the RC Book was issued to the opposite party only on 4.8.1994. Within a period of 14 days from the date of receipt of the RC Book, that is to say, on 18.8.1994 the opposite party Insurance Company paid the amount of Rs. 1,28,000/- to the complainant. THE reason that the opposite party Insurance Company paid Rs. 1,28,000/- was that the complainant did not surrender the battery and one stepney wheel type assembly of the vehicle involved in the accident. In such circumstances, it cannot at all be stated that there is any sort of a delay on the part of the opposite party Insurance Company in settling the amount. What is further contended by them was that they are completely unaware of any transaction of the purchase of mini lorry by the complainant by entering into a contract with the third party. THE complaint as such is liable to be dismissed. The Forum below after taking into consideration the materials placed on record, recorded the findings as below : (1) The Forum below recorded a finding that no material evidence worth the name had been placed on record by the complainant to point out that as a matter of fact the opposite party Insurance Company agreed to pay the amount of Rs. 1,30,000/- within 10 days from the date of the consent letter dated 11.1.1994.

(2) The case as projected by the complainant that he entered into a contract for the purchase of a mini lorry with the third party hoping that the amount to be paid by the opposite party Insurance Company will be realised within a short time by paying an advance of Rs. 25,000/- and the amount so paid was forfeited was rejected by the Forum below. The consequence of which was the Forum below did not believe the payment of a sum of Rs. 25,000/- as advance to the third party. The further finding recorded therein was that there could not have been any loss sustained by the complainant to the extent of Rs. 25,000/- on account of his non-payment to the third party for the purchase of a mini lorry.

(3) The Forum below did not accept the case as projected by the complainant as respects the earning of Rs. 400/- per day by putting the lorry on road after its purchase. However, it affixed a seal of approval that it is plausible for the complainant to earn at least Rs. 100/- per day by putting the lorry on road and so saying the delay caused in effecting the payment after 210 days by the opposite party Insurance Company, the opposite party has to be mulcted with the liability for payment of compensation calculated @ Rs. 100/- per day for 210 days amounting to Rs. 21,000/-. It is on those findings, the Forum below partly allowed the complaint directing the opposite party to pay to the complainant a sum of Rs. 21,000/- with cost of Rs. 500/- and issued a further direction for compliance of the order within two months from the date of its order.

Aggrieved by the order as above, the opposite party Insurance Company resorted to the present action by engaging a Counsel of their choice namely, learned Counsel M/s. M.B. Gopalan, N. Vijayaraghavan and M.B. Raghavan.

ON service of process, the respondent/complainant entered appearance through a Counsel of his choice namely, learned Counsel M/s. R. Doraiswamy, D. Malarvizhi and Saikumar.

WHEN this matter came up for hearing before us today learned Counsel appearing for the respondent/complainant were called absent and no representation was made on their behalf. We are however inclined to dispose of the appeal on merits of course after hearing learned Counsel Mr. M.K. Srinivasan representing learned Counsel M/s. M.B. Gopalan, N. Vijayaraghavan and M.B. Raghavan appearing for the appellant/opposite party and on perusal of the materials placed on record. From the pith and submission of the said learned Counsel the one and only question that arises for consideration is as to whether the order of the Forum below is sustainable in law on the facts and in the circumstances of the case.

Even at the outset, we may point out that the order of the Forum below cannot at all be allowed to stand as it is inasmuch as the same suffers from serious infirmity of giving a correct legal fitment to the case as a consequence of the misappreciation of the factual matrix of the case. The Forum below having disbelieved the case of the complainant as respects the purchase of a mini lorry from a third party ought to have disbelieved the case of the complainant that as respects his earning a sum of Rs. 100/- per day by putting the lorry on road for a period of 210 days. The finding so given is not backed up by any reason. Such being the case, we are of the view that the finding so given cannot be captioned as anyone other than an Utopian finding which deserves to be set aside. Accordingly we do so. This apart, the materials placed on record do indicate in no uncertain terms that there was no delay at all in settling the agreed amount to the complainant. After the giving of the consent letter by the complainant on 11.1.1994 there arose the necessity for the opposite party Insurance Company to appoint a second Surveyor. It appears, it is the usual practice to depute a second Surveyor when there is a total loss. The second Surveyor appointed took some time and gave his report on 16.5.1994. This apart, the complainant was bound to hand over the salvage of the wrecked vehicle besides giving the RC Book. The RC Book given by the complainant for transfer of ownership in the name of the Insurance Company got fructified by the issuance of the certificate from the R.T.O. with the transfer of name in favour of the Insurance Company only 4.8.1994. Within 14 days therefrom the opposite party Insurance Company of course settled the claim by paying a sum of Rs. 1,28,000/- less by Rs. 2,000/- of the agreed amount of Rs. 1,30,000/-. The deduction of Rs. 2,000/- is for the reason of surrendering the salvage. The complainant did not hand over the battery and one stepney wheel assembly. In such circumstances, it cannot at all be stated that there was any delay in settling the claim on the part of the opposite party Insurance Company. This apart, we want to reiterate that there was no agreement or contract at all entered into between the parties in and by which the opposite party Insurance Company agreed to pay the settled amount of Rs. 1,30,000/- within a period of 10 days from the date of the consent letter dated 11.1.1994 given by the complainant. Taking all these factors into consideration, we are of the view that the order of the Forum below is suffering from serious infirmity of appreciation of materials placed on record and the order, therefore, deserves to be set aside.

IN fine, the appeal is allowed; the order of the Forum below is set aside and the complaint itself is dismissed. We however make no order as to costs on the facts and in the circumstances of the case. Appeal allowed.