SURESH CHANDRA AGARWALLA vs BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD.

THIS is an original case. 1. Complainant''s truck TATA 2213 was duly insured with the O.Ps. for a sum of Rs. 7,00,000/-. Period of insurance was valid from 23.9.2000 to 22.9.2001. On 31.10.2000 around 9.30 p.m. when the truck loaded with cement was on the road in between Balasore to Rasgobindpur, it accidentally caught fire. There was total damage to the truck rendering the same useless. The claim of the complainant on the basis of total loss was negatived by the Insurance Company with an offer to accept Rs. 3,15,000/- vide letter dated 28.8.2001. THIS was not acceptable to the complainant, and hence the case.

IN the written version the INsurance Company pleaded that there was no delay on their part to process the claim. INfact the first preliminary Surveyor was appointed on 24.11.2000 and, thereafter, one D.K. Mohanty, Surveyor was deputed on 28.11.2000 for final survey. The said Surveyor requested the complainant for dismentling the truck for assessment but the complainant did not co-operate. Since the complainant did not accept the report of D.K. Mohanty, the Company engaged M/s. Jit Consultancy as the 3rd Surveyor who assessed the loss at Rs. 3,15,000/-. This the complainant accepted in full and final satisfaction of the claim and gave in writing for which he is not competent to raise the matter again. So far as the fact of accident is concerned, they took the plea that the damage to the truck could have been mitigated if the helper of the truck would have taken necessary steps at that time to extinguish the fire which he did not do deliberately. We have heard Mr. Lalitendu Misra, the learned Counsel for the complainant and Mr. A.K. Rath, the learned Counsel for the Insurance Company. Annexure-1 is the policy indicating the truck to have been insured for Rs. 7,00,000/-. The xerox copy of the Station Diary Entry at the Rasgobindpur Police Station dated 1.11.2000 indicates that the vehicle No. OR-05E-2286 accidentally got fire while on road on 31.10.2000. A certificate to that effect is also found on record to have been given by the officer-in-charge of the Fire Station, Betnati that the fire was extinguished. This conclusively prove that the complainant''s truck was got fire and damaged.

So far as the extent of damage is concerned, the correspondences between the Insurance Company and the complainant does indicate that the Surveyor asked the complainant to get the truck dismentled at the authorised Service Station of Telco. The complainant seems to have replied that the costs of transporting the truck and getting the same dismentled would itself amount to Rs. 50,000/- and he would not like to go for this unless assurance was given by the Insurance Company that they would supply the claim for nothing less than costs of repair after such dismentling. This was however not done but then the estimate of Telco the authorised Service Station at Jamshedpur indicates that the cost of repair to be more than Rs. 10,00,000/- vide Annexures 8 and 9 dated 12.4.2001 and 22.6.2001 respectively. This was assessed by a visual inspection without dismentling the truck. The correspondences from the side of the complainant vide his letter dated 16.8.2001 indicates that there was perhaps a discussion between the two parties after which the complainant gave in writing that he was agreeable for settlement of the claim on total loss basis "to avoid complication". It seems the estimate for repair was much more than the sum assured and, therefore, the Insurance Company thought it prudent to satisfy the claim amount on total loss basis. The letter dated 16.8.2001 of the complainant also indicates that he was forced under financial hardship to agree for settlement at Rs. 3,15,000/-. Thereafter in his letter dated 11.1.2002 and his grievance cell complaint dated 25.1.2002 and his subsequent letter dated 10.4.2002 addressed to the Chairman-cum-Managing Director of the Company at Mumbai he expressed his anxiety for the Company not settling the claim.

ON perusal of the photographs of the damaged truck and the affidavit of the complainant copy of which has been served on the Counsel for the Insurance Company (who have filed a counter to that affidavit), we are satisfied that the vehicle has not been repaired nor it is plying on the road and the same has been rendered useless. Therefore, we are inclined to accept the claim of the complainant that he is entitled to the whole of the amount assured under the Insurance. Mr. Rath was critical about the complainant admitting the final settlement of the claim at Rs. 3,15,000/-. Our attention is drawn to Annexure-12 dated 3.9.2001 the letter addressed to the Branch Manager, which indicates that a discussion was made at the Surveyors Chamber at Bhubaneswar on 9.8.2001 where the Surveyor assessed the loss on total loss basis for Rs. 3,15,000/-. The complainant mentioned that considering the delay of being unable to bear the financial loss any more he was accepting Rs. 3,15,000/- on retaining the salvage by him. It was pressed before us that this was binding on the complainant. We do not simply agree with this, the reason being as follows : The fact of insurance coverage is admitted. The fact of accident has been duly proved with official documents. Damage caused to the vehicle has been assessed by the Telco people. This is at more than Rs. 10,00,000/-. Complainant was pressing hard for early settlement of the claim so much so he had to move the grievances cell of the Company on 25.1.2002. Therefore, his letter dated 3.9.2001 to accept the total claim from Rs. 3,15,000/- was certainly under compelling circumstances which could be well-imagined in the facts and circumstances of the case. That apart it was agreed also that he was to retain the salvage. But however nothing progressed thereafter. Therefore, we would hold that the complainant was not bound by any such writing but was rather forced to give in writing being faced with a financial distress. Accordingly, we allow his case for total loss. In the result, the complaint petition is allowed. We direct the Insurance Company to satisfy the claim to the extent of Rs. 7,00,000/- with costs of litigation of Rs. 5,000/-. The complainant shall hand over the salvages immediately on receipt of the amount. The order be complied within a period of two months from the date of communication of the order. Complaint allowed.