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Judgment
This revision petition has been filed by the petitioner Insurance Company against the order dated 16.12.2014 passed by the State Consumer Disputes Redressal Commission, Rajasthan, (in short 'the State Commission') in FA No.430 of 2014.
Brief facts of the case are that the respondent complainant insured his vehicle Tata 2515 having registration No. RJ 14 GD 5093 with the petitioner Insurance Company with IDV of Rs.18,00,000/- and validity period from 12.01.2011 to 11.01.2012. The vehicle was stolen on 18.03.2011 and the same was recovered on 09.08.2011 by the police. The investigator appointed by the Insurance Company submitted report on 19.08.2011 wherein he stated that as per physical verification of the vehicle and as per photographs the vehicle has been recovered in safe and sound condition. The surveyor appointed by the Insurance Company gave his report on 25.11.2011 wherein he assessed loss for Rs.1,03,650/-. Insurance Company offered to settle the claim for Rs.1,00,000/- after deducting Rs.3,650/- towards delayed intimation to the Insurance Company. However, the complainant did not accept the proposal and filed a consumer complaint before the District Consumer Disputes Redressal Forum, Jaipur, (in short 'the District Forum') which was allowed by the District Forum vide its order dated 13.3.2014 as follows:-
"Therefore, in the complaint of the complainant is allowed, OP is ordered that it will pay an amount of Rs.103,650/- (Rupees one lakh three thousand six hundred fifty only) to the complainant within two months from the date of this order along with interest at the rate of 9% per annum from the date of institution of complaint dated 5/01/2012 and pay Rs.50,000/- (Rupees fifty thousand only) as compensation for mental agony and litigation expenses Rs.5000/- (Rupees five thousand only)."
Aggrieved with the order of the District Forum, the complainant as well as the Insurance Company preferred appeals before the State Commission and the State Commission disposed off both the appeals by passing the following order:-
"Resultantly the order dated 13.03.2014 passed by the District Forum is hereby modified by allowing the appeal of complainant herein direct the insurance company to pay Rs.3,50,000/- in addition of the award of Rs.1,03,650/- made by the District Forum with interest @9% per annum from the date of complaint till the payment. The appeal of insurance Company is partly allowed and the compensation of Rs.50,000/- as awarded for mental agony by the District Forum is reduced to Rs.10,000/-. The compensation of litigation expenses of Rs.5000/- passed by District Forum is upheld."
Hence the present revision petition.
Heard the learned counsel for the petitioner as well as for the respondent and perused record. Learned counsel for the petitioner stated that the vehicle was recovered in safe and sound condition as reported by the investigator and the surveyor has considered the estimate given by the complainant to assess the loss. As per the terms of the policy, all the rubber parts are to be considered at the depreciation of 50% and items which are damaged due to normal wear and tear are not to be allowed. Accordingly, the gearbox assembly front tyres and back tyres etc. were not allowed by the surveyor. The State Commission has wrongly allowed these items against the report of the surveyor and therefore the State Commission has committed error in enhancing the compensation by Rs.3,50,000/-. In this regard, the learned counsel referred to the judgement of Hon'ble Supreme Court in Sikka Papers Limited Vs. National Insurance Company Limited & Ors., (2009) 7 SCC 777, wherein the following has been held:-
"Insurance- Terms and conditions specified in insurance policy- Binding effect- Insurance policy not covering parts of machinery which were required to be replaced due to normal wear and tear-Held, Insurance Company while assessing claim, rightly excluded those parts- "
It was further argued by the learned counsel for the petitioner that no actual bills of repairs have been filed by the complainant and therefore the surveyor's report cannot be rejected. Learned counsel mentioned that surveyors are appointed under the provisions of the Insurance Act, 1938 and their report cannot be brushed aside without any cogent reasons. Had the complainant supplied the actual bills of repairs, then obviously, surveyor's report could have been countered and the claim may have been settled on the basis of the actual bills. Without any actual bills, the State Commission has enhanced the compensation. The State Commission has relied upon the estimate submitted by the complainant. The same estimate has been considered by the surveyor also and the surveyor has not allowed these items based on the policy conditions and existing surveying practices. Thus, the State Commission has discarded the report of the surveyor without any basis which is not justified.
On the other hand, learned counsel for the respondent/ complainant stated that the State Commission has rightly enhanced the compensation because the surveyor had not considered the damage due to theft in respect of the gearbox assembly, front and pack tyres etc. In fact, the tyres were totally damaged due to rough and over use by the thieves during the period of 5 months for which the vehicle remained with them. The State Commission has only awarded a lump- sum amount in respect of those parts which were considered by the surveyor but the surveyor did not allow any amount for these parts. The surveyor also reduced the amount of most of the components and labour charges as given in the estimate. Therefore, the State Commission has considered all these aspects and has awarded Rs.3,50,000/- to the complainant in addition to the loss assessed by the surveyor and awarded by the District Forum.
I have carefully considered the arguments advanced by both the sides and have examined the record. In the present case, the District Forum relied on the report of the surveyor and awarded only the amount of loss assessed by the surveyor. However the State Commission has allowed certain other components which were not allowed by the surveyor. In fact, the State Commission has observed the following:-
"The surveyor assessed the damages in his survey report regarding above damages, but no amount is awarded to these damages. The surveyor discussed about the Front Kamani Aux Assy 4 pes, Kamani Clip Set, Battery Set 2 pes, Wheel Rim 4 pes, Gear Box Assy, Propellor Shaft, Front Tyres, Back Tyres, Cabin, Cabin Body hardware, etc. in his report but not awarded any amount in this regard. In these circumstances, the assessment made by the surveyor is not correct, therefore the amount awarded by the District Forum on the basis of survey report is not justifiable. The surveyor assessed the damages sustained to the Front Tyre and Back Tyre but no amount is allowed in this regard. We allow the appeal of complainant and find it justified to award further amount of Rs.3,50,000/- in addition to Rs.1,03,650/- as awarded by District Forum."
It is seen from the above, that though the State Commission has mentioned certain items which were not allowed by the surveyor but the State Commission has not analysed as to which items can be allowed or should have been allowed by the surveyor and the State Commission has granted a lump sum amount of Rs.3.50 lakh as additional compensation over and above the loss assessed by the surveyor. It is seen from the surveyor's report that the following items have not been allowed by the surveyor:-
Kamani Clip Set
Battery Set 2pes
Pressure Jack Assy
Jack Rod Assy
Tool kit
Diesel Pipe Line
Gear Box Assy
Propellor Shaft
9.Front Tyre MRF 2ng
Back Tyre 9ng
Rassa All Vehicle 20kg
Tirpal
An analysis of the above items will reveal that only two items can be considered as necessary which may have been allowed by the surveyor and these items are gearbox assembly and the propeller shaft costing Rs.1,65,000/- and Rs.13,800/- respectively as per the estimate. All other items like battery sets, front and back tyres are covered under the normal wear and tear and as per the decision of the Hon'ble Supreme Court in Sikka Papers Limited Vs. National Insurance Company Limited & Ors. (supra) the Insurance Company is right in not paying claim in respect of the items which are covered under normal wear and tear. Similarly, the items like rassa and tripal as well as tool kit etc. are not part of the vehicle as such and therefore, cannot be allowed. Though, it is true that report of the surveyor cannot be discarded without any cogent reasons, it is seen that in the present case, the surveyor has not given in his report sound reasons for totally disallowing some of the essential items like gearbox assembly and propeller shaft or for that matter, other items so disallowed. Hence, the report of the surveyor cannot be accepted as it is, and requires justifiable modification as above.
Based on the above discussion, the revision petition No.598 of 2015 is partly allowed and the order of the State Commission dated 16.12.2014 passed in FA No.430 of 2014 is modified to the extent that the figure of Rs.3.5 lacs will stand substituted with figure of Rs.1.788 lacs. Rest of the order of the State commission remains unchanged.