H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA.



Appeal No. 566/2007.

Date of Decision 23.07.2009.

In the matter of:



Shri Kamlender Kumar R/o Vill. Lathi PO Kumarsain,

Tehsil Kumarsain, Distt. Shimla, HP.



… … Appellant.

Versus



Divisional Manager Oriental Insurance Co. Ltd.,

Mythe Estate, Kaithu, Shimla-3.

… … Respondent.



Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether approved for reporting? No.



For the Appellant: Mr. Digvijay Singh, Advocate.



For the Respondent: Mr. Jagat Singh Shyam, Advocate vice counsel

Mr. J.L. Kashyap, Advocate.



O R D E R



Justice Arun Kumar Goel (Retd.), President (Oral).



This appeal has been filed by the appellant for enhancement of compensation allowed to him by the District Forum below while passing the impugned order on 12.9.2007 in Consumer Complaint No. 85/2002.



2. Maruti Van bearing No. HP-52-0903 was insured for Rs. 80,000/- with the respondent under a valid policy of insurance. While it was parked near the house of the appellant on 23.2.2000, on the next day, i.e. on 24.2.2000 one Mr. Kamal noticed something wrong with the said vehicle, he thus called the complainant to the spot. He found that the gear box, self, fuel pump and main shaft of the van had been stolen. A complaint to this theft was lodged by him with the police and he also lodged claim with the respondent-insurance company. Surveyor was appointed by the respondent who submitted his report Annexure R-I. According to him appellant was entitled to Rs. 8,900/- only. This amount was remitted on 10.5.2001 and discharge receipt was executed by the appellant. Its copy is Annexure R-IV. Since this amount was deficient, appellant issued notice Annexure C-5 on 26.7.2001 and held out that he had received the amount of Rs. 8,900/- under protest and the respondent was liable to pay the total Rs. 20,939/- with interest. Copy of the notice as well as postal receipt is Annexure C-5. Bill of repair has also been placed on record, i.e. Annexure C-4. This was preceded by estimate Annexure C-3. In this background complaint was filed by the appellant for the grant of Rs. 12,032/- together with interest @ 18% per annum, Rs. 5,000/- as compensation and Rs. 5,000/- towards cost.

3. While contesting the complaint, stand of the respondent-insurance company was, that the sum of Rs. 8,900/- was received by the appellant in full and final settlement of his claim, therefore complaint was frivolous aimed at getting undue advantage. Thus it was submitted that the complaint may be dismissed with costs. District Forum below after hearing the parties and taking note of the evidence produced by the parties allowed a further sum of Rs. 640/- alongwith interest @ 9% per annum after expiry of 3 months of the date of accident, i.e. 25.5.2000 till the date of actual payment together with Rs. 1,000/- as cost. And respondent was directed to pay this amount within 45 days from the receipt of copy of the order.

4. Mr. Shyam learned counsel for the respondent raised a preliminary objection regarding maintainability of the appeal, as according to him after having accepted the amount and at the same time having signed the discharge voucher in full and final settlement of the claim, the complaint as well as present appeal both are nothing, but abuse of the process of law and court. In case the amount was not acceptable, appellant should not have accepted the same and returned the cheque. Instead of doing so he pocketed the money and then as an afterthought he filed the complaint. Further per him the District Forum below was in error while allowing sum of Rs. 640/- with interest and cost as noted above while partly allowing the complaint by ignoring Annexure R-IV. Alternatively and without in any manner giving up his earlier stand, Mr. Shyam submitted that vehicle was 1992 model and theft of some of its parts had taken place in the year 2000, so even if his client is held liable for payment of any additional amount, then depreciation needs to be allowed at 50%. Though he hastened to add, that by making this submission, he is neither admitting nor in any manner conceding the claim of the respondent.

5. We will deal with the stand taken up in the alternative by the learned counsel for the respondent first. In order to claim depreciation, respondent-insurance company was supposed to place on record at least copy of the insurance policy wherefrom it could be deduced that depreciation is to be allowed, and if so at what rate. No document could be pointed out from the complaint file by the appellant on behalf of the respondent-insurance company, Why complete copy of the insurance policy subject to which vehicle was insured was not produced, learned counsel had no answer. As such the alternate plea has no merit as also it is not supported from record and is therefore rejected.

6. Now looking to the report of the surveyor Annexure R-1, we find that he has reduced the amount from the estimated amount. In our opinion on what basis he has reduced the amount, there is no reasons/grounds given by him. As an expert this was his duty to have ensured that he supports his report by some reasons howsoever brief those may be. In Annexure R-1 under the heading remarks he has mentioned Sec. Hand. How he verified and whether he himself verified this or not, he is silent on this aspect. In these circumstances, the report of the surveyor cannot be accepted on its face value.

7. In addition to this, with a view to support the report of the surveyor his affidavit has also not been filed. Only affidavit of Mr. B.S. Negi, Sr. Divisional Manager of the Insurance Company has been filed alongwith the reply. Admittedly he had not assessed the loss, therefore this is a case of no evidence on behalf of the respondent to accept Annexure R-1.

8. After submission of estimate Annexure C-3, appellant had submitted the bill in the sum of Rs. 19,739.20 paise. He had already received Rs. 8,900/- vide Annexure R-IV. In addition to this, he has been allowed a sum of Rs. 640/- by the District Forum below alongwith interest. On the facts of this case we are of the view that appellant is entitled to a further sum of Rs. 11,392/- alongwith interest @ 9% per annum from the date i.e. 25.5.2005 till actual payment/deposit whichever is earlier. It is clarified that this amount will be in addition to the amount already awarded by the District Forum below. Appeal is disposed of subject to this modification in the order of the District Forum Shimla, in Consumer Complaint No. 85/2002, decided on 12.9.2007, leaving the parties to bear their own costs.

Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.



Shimla,

July 23, 2009. ( Justice Arun Kumar Goel ) (Retd.)

President.



(Saroj Sharma)

Member.



( Chander Shekher Sharma )

/Karan/ Member.