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

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FIRST APPEAL NO.89/2008.

DATE OF DECISION: 9.7.2009.



In the matter of:



The New India Assurance co. Ltd., Hospital Road, Mandi, through its Senior Divisional Manager, IIIrd Floor, Block No.7, SDA Complex, Shimla-171009.

… … Appellant.



Versus



M/S Priyanka Abhusan Bhandar, Tihra, Sarkaghat, District Mandi, through its Proprietor Sh. Rajender Kumar son of Sh. Thakur Dass, R/O Village & P.O. Kujabalh, Tehsil Sarkaghat, District Mandi, H.P.

… … Respondent.

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

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekhar Sharma, Member.



Whether approved for reporting? No



For the appellant: Mr. Ratish Sharma, Advocate.

For the Respondent: Mr. Vikas Sharma, Advocate.

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O R D E R



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



1. Appellant is aggrieved from the order passed by District Forum, Mandi in Consumer Case No.1/2008. By means of impugned order, appellant has been directed to reimburse the respondent in the sum of Rs.64,750/-. This amount is not payable according to Mr. Ratish Sharma, learned Counsel for the appellant. In this behalf he submitted that a sum of Rs.67,250/- remitted by his client through post was in fact in full and final settlement of the fire claim of the respondent. Thus, according to him, complaint out of which this appeal has arisen was not maintainable and he prayed for allowing the appeal and consequently dismissing the complaint on this short ground alone. We may notice here before proceeding further that only machinery, furniture, fixtures and artificial jewellery was insured with the appellant in the sum of Rs.4,50,000/- on the date when fire incident took place.



2. Respondent had claimed Rs.1,32,000/- in this behalf towards damage caused to the insured material. At this stage Mr. Ratish Sharma submitted that even if it is assumed to be correct for the sake of argument that this was the extent of loss, even then the sum of Rs.10,000/- on account of excess clause and Rs.2,000/- on account of salvage should have been deducted out of this amount. Though he hastened to add that his client is not liable to pay any amountover and above what was assessed by the Surveyor. Again in the alternative he submitted that if this amount is payable, depreciation is to be deducted out of this amount. Thus he submitted that whatever angle the impugned order may be viewed, award of Rs.64,750/- with interest at the rate of 9% per annum from the date of complaint i.e. 1.1.2008 till payment with cost cannot be upheld.



3. All these pleas were seriously contested and resisted by Mr. Vikas Sharma, learned Counsel for the respondent. Per him, the impugned order suffers from no infirmity, therefore, while praying for dismissal of the appeal, he urged that the order passed by the District Forum below deserves to be upheld.



4. Now the question that needs determination in this appeal is as to whether award of the sum of Rs.64,750/- can be upheld or not. If the answer is in the affirmative, this appeal has to be dismissed, otherwise on examination of the matter, amount may have to be reduced.



5. So far submission of Mr. Ratish Sharma, learned Counsel for the Insurance Company that amount of excess clause of Rs.10,000/- plus Rs.2,000/- towards salvage should have been ordered to be deducted out of the sum of Rs.1,32,000/- claimed by the respondent is concerned. It is well founded keeping in view the terms and conditions of the Insurance policy subject to which the insurance has been undertaken by his client. In these circumstances, out of the total compensation awarded by the District Forum below of Rs.64,750/- after deducting this amount, Rs.52,750/- remains payable by the appellant to the respondent.



6. We do not agree with Mr. Ratish Sharma that some depreciation on the destroyed stock should have been allowed and thus further reducing the amount of compensation awarded by the District Forum below. We feel that this amount also needs to be reduced but not substantially as was forcefully urged by Mr. Ratish Sharma in support of this appeal. So far grant of interest and cost by the District Forum below is concerned, we are of the view that it calls for no interference and order in this behalf deserves to be upheld. In the totality of the facts and circumstances of the case, we are of the view that instead of Rs.52,750/-, respondent is entitled to Rs.42,000/- with interest at the rate and from the date as awarded by the District Forum below in the impugned order.



7. While assessing this amount, we have done some guess work in the absence of proper evidence produced by the respondent, with a view to put an end to this litigation, Mr. Vikas Sharma, learned Counsel for the respondent submitted that the impugned order dated 1.3.2008 passed by the District Forum blow deserves to be upheld as it calls for no interference. We do not agree with his submission. That being the position, we feel that interest of justice will be well served as well as instead of remanding the case to the District Forum below, we may put a full stop to this litigation by reducing the compensation to Rs.42,000/-. Ordered accordingly.



8. No other point was urged.



In view of the aforesaid discussion, while partly allowing this appeal order passed by the District Forum, Mandi, in Complaint Case No.1/2008 on 1.3.2008, compensation awarded is reduced to Rs.42,000/- . It is on this amount that interest will be payable at the rate and from the date as ordered by the District Forum below. Order of cost passed by the said Forum in the complaint is also upheld. Appeal is disposed of in these terms, leaving the parties to bear their own costs.



All interim orders passed in this appeal from time to time shall stand vacated forthwith.



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

Shimla,

July 9, 2009.

( Justice Arun Kumar Goel ) (Retd.)

President





(Saroj Sharma )

Member





/BS/ ( Chander Shekhar Sharma )

Member.