PREM CHAND SADANA vs NEW INDIA ASSURANCE CO LTD

-BOTH these appeals, one by the insured and another by the insurer, assail the propriety of the order dated 24. 4. 2007 passed by the District Forum, Dehradun in Consumer Complaint No. 57 of 1997, Prem Chand Sadana v. The New India Assurance Co. Ltd. The dispute centres around the quantum of the compensation or damages payable to the insured by reason of the accident of the insured vehicle. By the impugned order, compensation of Rs. 1,30,000 was awarded and the insured was directed to produce the vehicle for inspection by the insurer and also to return the salvage, if any, retained by him. Insured in his appeal urged that the District Forum fell in error in not awarding the interest and further amount of the compensation for mental agony and harassment for not settling the claim. He also challenged the propriety of the conditions attached with the grant of compensation. The insurer, however, by way of its appeal, claimed that the compensation awarded is exorbitant and contrary to the assessment of the damage made by the Surveyor and, therefore, prayed for reduction of the compensation payable to the insured.

WE have heard the learned attorney for the complainant and the learned Counsel for the insurer and carefully considered the material on record in the light of the facts and legal aspects of the case. A bare reading of the impugned order would support the contention of the insurer that the finding in regard to the quantum of compensation of Rs. 1,30,000 payable to the insured, is itself contrary to the observation and opinion formed by the District, Forum and, as such, the quantum of compensation awarded can safely be held to be unjust and improper. The reason being that the District Forum observed that although the insured claimed that sum of Rs. 1,30,000 had been spent in getting the accidental vehicle repaired, but the insured had neither submitted estimate of the repairs, nor any bills/cash memos of the amount paid towards the repair, etc. of the vehicle. It does not stand to reason as to how despite such a blatant observation about the lack of sufficient evidence to justify the claim for compensation of Rs. 1,30,000, the District Forum later on went on to observe that in the peculiar circumstances of the case, when there is deficiency in service of the insurer, the insured is entitled to compensation of Rs. 1,30,000.

Learned attorney for the insured urged that the estimates of the repairs of the vehicle were submitted to the Surveyor, who has in his report dated 5. 11. 1996 (Paper Nos. 20 to 25 on the record of the complainant''s appeal), given the details of the papers submitted including the estimate of M/s. Neema Motor Workshop, Dehradun. Mere submission of the estimates of the repairs would not prove that the amount as per estimate had in fact been spent in the repairs of the vehicle. The insured was asked by the insurer vide letter dated 16. 11. 1996, 16. 1. 1997, 5. 3. 1997, 30. 4. 1997 and 20. 5. 1997 (Paper Nos. 46, 48 to 51 on the record of the insurer''s appeal) to submit final bills/receipts/cash memos among other papers in order to settle the claim, but no such documents were submitted by the insured. The averment of the complaint is to the effect that the complainant could not have the vehicle repaired for about three months for want of any decision at the end of the insurer. This mean that the repair of the vehicle had been undertaken by the complainant and that being so, he was legally obliged to submit the final bills/cash memos and receipts as called for in order to have the claim settled. Considering the material on record, we are not inclined to accept the submission of the learned attorney for the insured that the quantum of compensation was required to be assessed on the basis of the estimates of the repairs submitted to the insurer. In turn, we could not agree with the quantum of compensation assessed by the District Forum at Rs. 1,30,000 merely on the basis of the estimates submitted by the insured.

THE question, which now arose, is as to what would have been the just and proper compensation in this case? Insurer obtained spot survey report from Sh. Subodh Chandra Gupta (Paper Nos. 43 to 45 of the record of the insurer''s appeal), apart from the final survey report of Engineer B. B. Garg, referred above. These survey reports clearly indicate that the insured vehicle did not suffer major damages and the engine assembly and other vital parts of the vehicle were not at all affected in the accident. After the accident, the repairs undertaken to make the vehicle motorable mainly relate to body denting work besides cambering of the rear right leaf springs and other damages caused to the body of the vehicle. Therefore, the assessment of the loss on repair basis, as has been made in the final survey report, appear just and proper and there was absolutely no occasion to sustain the allegation that amount as assessed under the estimates of the repairs was in fact required to make the vehicle motorable. Since the insurer''s Surveyor has given the detail of parts and labour work in the report, the assessment of loss at Rs. 50,030. 03 can safely be said to be just and proper, particularly when there is no reliable material and documents to record any finding to the contrary. In this connection, learned Counsel for the insurer rightly argued that report of Surveyor in an insurance claim is an important document and should not be ignored without sufficient reasons and further that the loss as assessed by the Surveyor is liable to be paid by the insurer. The assessment of loss at Rs. 50,030. 03 made by the Surveyor was the best criterion in the case for granting relief to the insured. For the reasons aforesaid and the findings recorded above, we come to the conclusion that the insurer was liable to reimburse the loss of Rs. 50,030 on account of accident of the insured vehicle. Besides this, claim was laid by the insured for grant of compensation for harassment and mental agony due to delay in settlement of the claim and also for loss of earning for about three months, during which period the vehicle could not be repaired, to make it motorable. Various letters, as mentioned above, were sent to the insured to submit necessary papers and the insured failed to make compliance thereof to have his claim settled at the earliest. The delay in settling the claim was not on account of any fault on the part of the insurer, who had by final reminder dated 20. 5. 1997 (Paper No. 51) also volunteered to pay the loss assessed by the Surveyor in case the consent letter was submitted by the insured. This was not done and the amount could not be paid and the complainant preferred to file consumer complaint before the District Forum. Further, we donot think that the complainant has suffered any substantial loss by entering into an agreement of sale of vehicle at a price of Rs. 90,000 on 10. 5. 2000 (Paper Nos. 18 to 19 on the record of the complainant''s appeal) after plying the taxi right upto the said date of agreement. Insured has not come with clean hands in alleging in his application dated 10. 2. 2005 (Paper No. 17 on the record of the complainant''s appeal) that he had to suffer loss in selling the vehicle (accidented and unusable) for a sum of Rs. 90,000. The agreement relied upon by the insured itself reveal that the vehicle, a taxi, was in motorable condition and the purchaser had started plying the same under the taxi permit endorsed to him under the terms of the agreement. The allegation of the application dated 10. 2. 2005 that the vehicle in accidented and unusable condition was sold, run counter to the averment made in the complaint that the complainant could not have the vehicle repaired for about three months for want of any decision at insurer''s end. In fact, the insured had his accidented vehicle repaired and have it plied as a taxi regularly right upto the date when it was sold on 10. 5. 2000. Therefore, the material on record prove beyond doubt that the delay in settling the claim was not due to any fault on the part of the insurer and in our opinion, the insured was not entitled to any amount of additional compensation for harassment and mental agony. However, taking into account mainly the bodily damage to the vehicle and the final survey report, we do not think that the insured would have retained any valuable salvage making him liable to return the same to the insurer. Therefore, the direction in that regard given by the District Forum was not justified. Likewise, the vehicle was got repaired to make it motorable by the insured and had later on been sold and in a situation like this, there was no point in directing the insured to produce the vehicle for inspection by the insurer.

IN view of above, the impugned order awarding compensation of Rs. 1,30,000 need to be modified so as to fix the quantum of loss at Rs. 50,030, to be payable to the insured. The insured shall be entitled to interest on the said amount @ 7% p. a. w. e. f. 21. 6. 2007 till the date of the payment for the reason that by an order dated 30. 5. 2007, the insurer was directed to pay Rs. 50,000 to the insured within 20 days, which the insured failed to pay till date. Both the appeals are hereby disposed of and the order of the District Forum dated 24. 4. 2007 is modified. The insurer is directed to pay a sum of Rs. 50,030 to the complainant together with interest @ 7% p. a. w. e. f. 21. 6. 2007 till the date of payment. No order as to cost. Let the copy of the judgment be kept on the record of First Appeal No. 153/2007. Appeals disposed of.