Sobha vs National Insurance Co Ltd

-THE order passed in OP 418/2002 on the file of the CDRF, Kollam whereby and whereunder that Forum directed the opposite party/insurer to pay to the complainant Rs. 33,000 "recommended by the Surveyor" together with interest @ 9% per annum from the date of order "as replacement amount of the vehicle after receiving documents produced before the Forum" is assailed before us by the complainant who has come up in appeal. The lower Forum declined to award cost to the complainant.

THE facts not in dispute are that the auto-rickshaw which was stolen on the night of 2/11/2001 was insured with the opposite party/national Insurance Company and Ext. P5 is the certificate of insurance. The auto-rickshaw was insured for the period from 15/5/2001 to 14/5/2002 for Rs. 50,000. The liability of the Insurance Company is not in dispute (Insurance Company has not chosen to file any appeal against the order passed by the lower Forum ). The complainant is not satisfied with the order passed by the lower Forum. The learned Counsel for the appellant contended before us that the auto-rickshaw which was stolen on the night of 2/11/2001 was originally insured in the year of purchase for Rs. 1,00,000 (Rs. one lakh) and in that year no claim was made under the policy. In the second year the auto-rickshaw was insured for Rs. 90,000 and in that year also no claim was made and bonus was given. In the 3rd year the auto-rickshaw was insured for Rs. 50,000 under Ext. P5 policy. Though in the complaint the claim made is that she (complainant) is entitled to the value of the auto-rickshaw as Rs. 1 lakh, the learned Counsel submitted before us that the complainant is only entitled to the amount covered by Ext. P5 policy and she also submitted before us that the lower Forum was not justified in awarding Rs. 33,000 under the policy relying on the Surveyor''s report which was not produced before it.

So the question that is to be answered by us is as to whether the complainant/appellant is entitled to Rs. 50,000, the sum covered by the policy for the total loss (theft) of auto-rickshaw.

IN view of the well settled legal position laid down by the Supreme Court in Vania Silk Mills (P) Ltd. v. CIT, 1991 (4) SCC 28. We have to hold that the insured cannot recover more than what he establishes to be his actual loss whatever may be his estimate of the loss that he was likely to bear and whatever the premium he may have paid calculated on the basis of the said estimate. Supreme Court observed thus: "under an insurance contract, the assured cannot claim more amount than the sum insured. The sum insured is the maximum liability of the insurer and the assured secures it by paying his premium which is accordingly fixed. Even within the maximum limit, the insured cannot recover more than what he establishes to be his actual loss. Whatever may be his estimates of the loss that he was likely to bear and whatever the premium he may have paid calculated on the basis of the said estimate. The fact that while paying for the total loss of or damage to the property, the Insurance Company takes over such property or whatever is left of it, does not change the nature of the insurance claim which is indemnity or compensation for the loss. The payment of insurance claim is not in consideration of the property taken over by the Insurance Company, for one is not consideration for the other. It is incorrect to argue that the insurance claim is the value of the damaged property. The claim is assessed on the basis of the damage sustained by the property or the amount necessary to restore it to its original condition. "

SO we have to find out whether there is any material to determine the actual loss. We have to point out here that no attempt has been made by the complainant to prove the actual loss (market value of the stolen auto-rickshaw as on the date of commission of theft ). Though it is contended in the written version filed by the Insurance Company that the Surveyor deputed assessed market value of the stolen auto-rickshaw as at Rs. 33,000 apart from asserting such a fact in the written version the Surveyor''s report was not produced before the lower Forum (it is true that Insurance Company offered Rs. 33,000 under Ext. P5 to the complainant) to prove that Surveyor assessed the actual loss as at Rs. 33,000. Here is a case of lower Forum accepting the Surveyor''s report without producing the report before it by the insurer. Perhaps due to the sheer ignorance of the fundamental legal principles Forum below accepted the contention of the insurer that surveyor assessed the loss as at Rs. 33,000 (why the Forum below assumed that there is such a report when no such report is produced before it is a mystery and only a fact best known to it ). We have to point out here that Supreme Court in Anil Rishi v. Gurbaksh Singh, III (2006) SLT 642=ii (2006) CLT 198 (SC)=air 2006 SCW 2394, laid down clearly that pleading is not evidence for less proof. So we have to hold that there is no evidence before the lower Forum to prove the fact that Surveyor assessed the actual loss at Rs. 33,000. We may also point out here that lower Forum is also not aware of the legal position laid down by the Apex Court in National Insurance Company Ltd. , New Delhi v. Jugal Kishore and Others, (1988) 1 SCC 626. Apex Court stated the law thus: "this Court has consistently emphazised that it is the duty of the party which is in possession of in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof". We can hold without any hesitation that it is for the insurer to produce Surveyor''s report and it withheld that report from the Forum below. It may be for the first time an authority discharging judicial functions acted on a document which was not produced before it (withheld from it) to base its finalling and passed an order accepting the case of the party which withheld the document from it. Legally the course open to the Forum below was not to accept the contention of the insurer regarding the market value of the auto-rickshaw and it could have even drawn an adverse inference against the insurer. Thanks to the blissful ignorance of the Forum below regarding the well settled legal position. We have to also state here that the legal position stated by Apex Court recently in State Inspector of Police, Visakhapatnam v. Surya Sankaram Karri, VI (2006) SLT 167=iii (2006) CCR 249 (SC)=air 2006 SCW 4578. "it is well settled that when a document being in possession of a public functionary, who is under a statutory obligation to produce the same before the Court of law, fails and/or neglects to produce the same, and adverse inference may be drawn. "

SO the finding of the lower Forum that the market value of the auto-rickshaw stolen is Rs. 33,000 is not based on any material proof not sustainable.

APPLYING the law laid down by the Supreme Court we have to hold that by merely setting up a case in the written version that the Surveyor assessed the actual loss suffered as at Rs. 33,000 we cannot hold that Surveyor assessed the actual loss as at Rs. 33,000. The best evidence is the Surveyor''s report which is withheld. Merely because the insurer offered Rs. 33,000 as the market value it cannot be assumed that market value was Rs. 33,000. Both sides adduced no evidence to prove the actual loss (the market value of the auto-rickshaw stolen as on the date of commission of theft ). Therefore, the only course open to us is to set aside the impugned order and remit the matter to the lower Forum to enable the parties to adduce evidence to prove the market value of such an auto-rickshaw manufactured by the same company in the year 1999 which was used as a passenger vehicle as on 2/11/2001. In the result the appeal is allowed setting aside the order assailed and the matter is remitted to the lower Forum to decide the question of actual loss. Parties are directed to appear before the lower Forum on 12/2/2007. Matter remanded.