H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA

Appeal No. 250/2008.

Date of Decision 23.04.2009.

1. Sh. Sita Ram son of ;



2. Smt Konla Devi wife of ;



3. Smt. Meera Devi daughter of late Shri Jagat Ram



4. Smt. Khako wife of Matha Ram All R/o Vill. Dansar,

PO Mohri, Tehsil Theog, Distt. Shimla, HP.

……..Appellants.

Versus



National Insurance Company Ltd., through its Divisional Manager,

Division Office at Himland Hotel, Circular Road Shimla, HP.



…….Respondent.



Hon’ble Mr. Justice Arun Kumar Goel, President.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether Approved for reporting? No.



For the Appellants. Mr. Ramesh Sharma, Advocate.



For the Respondent. Mr. Jagdish Thakur, Advocate.





O R D E R:



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



When hearing in this case commenced, learned counsel for the appellants submitted that his clients are entitled to Rs. 2,43,974/- as assessed by the surveyor on repair basis, therefore net on cash loss basis in the sum of Rs. 1,35,327/- awarded by District Forum below while allowing Complaint No. 94/2007 on 3.12.2007 is bad in law. This stand of the appellants was seriously contested and resisted by Mr. Thakur, learned counsel for the respondent. Per him question of allowing compensation on repair basis as recommended by the surveyor in his report Annexure A and as claimed by the appellants in this appeal could only be considered, if the vehicle had been got actually repaired, and thereafter the same having been got inspected after repairs from his client.

2. While buttressing his submission Mr. Thakur pointed out, that appellants are estopped from filing/maintaining muchless claiming compensation on repair basis, because they sold the vehicle without getting it repaired, therefore they are precluded from claiming anything over and above the amount awarded by the District Forum below. Mr. Thakur in this behalf further argued that interest and cost should not have been levied against his client because there was no deficiency in service on its part. We will not go into this question, as no appeal has been filed by the client of Mr. Thakur.

3. Before considering the respective submissions urged on behalf of the parties, it may be appropriate to notice here, that vehicle being insured on the date of accident under valid policy of insurance when it met with accident is not in dispute between the parties. In these circumstances submission urged by Mr. Thakur, that the appellants are only entitled for the grant of compensation on repair basis when the vehicle had not been got repaired by the appellants and thereafter having not been got inspected is well founded.

4. In this view of the matter claim of the appellants to allow Rs. 2,43,974/- recommended by the surveyor in his report and claimed by the appellants in this appeal is hereby rejected. Reason being that the contract of insurance is for indemnification of the loss sustained by insured, like appellants before us. Payment of claim does not have to come either as a bounty or a means of undue enrichment of litigants like appellants.

5. In this behalf it may be appropriate to observe here, that it was not disputed on behalf of the appellants that the insured vehicle was sold after accident without getting it repaired, therefore the compensation as awarded by the District Forum below is upheld.

6. Faced with this situation, Mr. Sharma submitted that his clients are entitled to enhancement of compensation even on the basis of Annexure A, the surveyor’s report relied upon by the Insurance Company. According to him while assessing compensation on cash loss basis, on metal parts 10% deduction has been allowed. This according to Mr. Sharma is unwarranted. Though Mr. Thakur made an attempt to justify this depreciation, but he could not satisfy us to reject the plea of Mr. Sharma urged in this behalf when parts are not used, in our opinion there is no question of deduction on such parts. Thus in the circumstances of this case, we are of the view that compensation allowed by the District Forum below needs to be modified thereby enhancing it only by Rs. 20,784/-. Ordered accordingly.

7. No other point is urged.

In view of the aforesaid discussion while partly allowing this appeal, it is ordered that in addition to what has been awarded by the District Forum below vide its order dated 3.12.2007, in Consumer Complaint No. 94/2007, appellant is further held entitled to Rs. 20,784/- only. Appeal is allowed subject to this modification, 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.

23rd April, 2009. (Justice Arun Kumar Goel) Retd.

/K/ President.





(Chander Shekher Sharma)

Member.