H.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA-9

Appeal No. 436 of 2007

Reserved on 31.12.2008

Decided on 2.3.2009



National Insurance Company Limited,

Divisional Office, Himland Hotel,

Circular Road, Shimla through

its Assistant Manager.

.....Appellant.

Versus



Sh. Jai Singh son of Sadh Ram,

Resident of Village and Post Office Deothi,

Tehsil Theog, District Shimla, H.P.

….Respondent.

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

Hon’ble Mrs. Saroj Sharma, Member.



Whether approved for reporting ?



For the Appellants. Mr. Jagdish Thakur, Advocate

For the Respondent. Mr. Peeyush Verma, Advocate

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ORDER



Justice Arun Kumar Goel (Retd.) President.



1. In support of this appeal Mr. Thakur, learned counsel for the appellant submitted that the seating capacity of the vehicle was 3 persons including driver, as per Registration Certificate. Whereas at the time of accident besides driver, 2 unauthorized persons were travelling in the vehicle. Thus there was clear cut violation of the policy conditions, and per him the District Forum below fell into error by ignoring this vital fact while passing the impugned order. Other ground urged by Sh. Thakur was that even if any compensation is payable, it could not have been more than Rs. 2,50,000/- less salvage value. With a view to support this submission he placed reliance on Annexure R-6, the consent letter given by the respondent, as well as on Annexure A-7. In this document the respondent had further agreed that after deducting the salvage value Rs. 65,000/-, he may be given Rs. 1,83,500/-.



2. Another fact that needs to be noted in the context of the present appeal is, that vehicle which is subject matter of this appeal bearing registrarion No. HP-09A-0181, was a Mahindra & Mahindra King Cab, 2001 Model, and it was insured in the sum of Rs. 3,53,000/- with the appellant. It was registered on 4.5.2001 as is evident from Annexure C-1.



3. After accident surveyor was appointed by the appellant who carried preliminary survey. His report is Annexure R-2. Amongst other facts, it is admitted by the respondent that there were 3 persons including driver in the vehicle at the time of accident. After accident, FIR No. 198/2001 was registered at Police Station, Theog. Police mechanic during the course of investigation had found that this is a case of total loss, as none of its system was found in order due to the accident. Final survey was carried out by Mr. M.L.Mehta & Co. and his report is Annexure R-4. He had recommended the compensation on net of salvage basis at Rs. 1,83,500/-.



4. Instead of claim being settled, it was repudiated by the appellant. This resulted in filing of the complaint. We shall deal with the submissions of Mr. Thakur, learned counsel for the appellant first based on consent letter and the respondent having agreed to accept for Rs. 1,83,500/- (for settlement of his claim as per Annexures R-6 & R-7 respectively), after deducting the salvage value, assessed at Rs. 65,000/- by the surveyor in Annexure R-4.



5. In this behalf it may be appropriate to notice that both these documents are undated. However reference has been made to these documents in Annexure R-4, final survey report of M.L.Mehta & Co., dated 29.4.2002. Thus it can safely be inferred that both, i.e. Annexures A-6 and A-7 were given by the respondent to the surveyor before this date i.e. 29.4.2002.



6. Suffice it to say in this behalf, that consent is not to be used as a trap either by the appellant or by surveyor appointed by it to assess the loss caused due to the accident. We are further of the view that in a case where consent is obtained by the surveyor as is now being pleaded on behalf of the appellant, it is obtained after being fully satisfied regarding its liability for payment of compensation. Because in a given case, the insured may like to buy peace and avoid litigation and give consent. We are of the view that the appellant cannot be permitted to say that it is not liable for payment of any compensation, due to breach of policy conditions, and if it is held liable for any payment, then a litigant like respondent should be bound down to the consent given by him, as is the situation in the appeal before us by relying on Annexures R-6 and R-7. Reason being that the report of surveyor is of dated 29.4.2002, and till 16.6.2003, the appellant did not act upon these documents. Why, learned counsel for the appellant had no answer.

7. In case the appellant wanted to take benefit of Annexures R-6 and R-7, then immediately on receipt of report 29.4.2002, respondent should have been called upon to execute the discharge voucher on the basis of both these documents. Why this was not done, Sh. Thakur had no explanation. Similarly at any point of time till the filing of the reply to the complaint, whether any offer was made by the appellant to the respondent on the basis of Annexures R-6 and R-7, again there is nothing on record placed by the appellant. That being the position no benefit can be derived at Annexure R-6 & Annexure-7. Plea based on these documents urged by Mr. Thakur is hereby rejected.



8. Admittedly this is a case of total loss which is established from the documents relied upon by the appellant. Vehicle met with accident within one year of its purchase is not again in dispute. To our query as to what is the extent of the depreciation, in such a situation Mr. Thakur stated that for the first 6 months, there is no depreciation and for next 6 months, it is 5% of the sum insured. He further hastened to add that surveyor had verified from market, the value of the vehicle on the date of accident, it was found to be not more than Rs. 2,50,000/- and after deducting franchise clause, the total loss comes to Rs. 2,48,500/-. We cannot accept this value as arrived at by the surveyor. On what basis, and from which authorised dealer this market value was verified, there is nothing on record and nothing could be pointed out from the complaint file by Sh. Thakur. Similarly, whether those who gave the market value of the vehicle on the date of accident at Rs. 2,50,000/- had inspected the vehicle or not, again there is no material. Therefore, no benefit can be derived from Annexures R-4, 6 and 7, relied upon by Sh. Thakur on behalf of the appellant .

9. Impugned order shows that District Forum below had allowed Rs. 3,35,350/- after allowing 5% depreciation in accordance with policy conditions, as such no exception can be taken to it. Similarly after accident i.e the respondent is still languishing in courts, except litigation he has not got anything. Thus interest and cost as ordered by the District Forum below, also need to be upheld. Ordered accordingly.



10. Now we would deal with the submission of Mr. Thakur, that 3 persons were sitting in the vehicle including driver at the time of accident. Number of persons in the vehicle were 3 then on what basis it was being said that 2 persons were unauthorised, no evidence, muchless acceptable evidence is produced by the appellant to uphold this plea. We will go a step further, that even if we accept it for the sake of argument that 2 unauthorized persons were there in the vehicle at the time of accident, then it had also to be established further that their being the occupants in the vehicle was the sole and or contributory cause of accident, there is no evidence to this effect. Therefore if this submission of Mr. Thakur is accepted, even then at best it can be said to be a case of violation of Motor Vehicles Act, 1988. In order to succeed on this plea, appellant in law is to establish all exclusions. There is again no evidence to even remotely suggest that 2 occupants were unauthorized.



11. No other point was urged.





12. In view of the aforesaid discussion we find no substance in this appeal. Thus while upholding the decision of District Forum below in Complaint No. 193/2003, dated 12.3.2007, this appeal is dismissed with cost of Rs. 2,500/-.




13. All interim orders passed from time to time shall stand vacated forthwith.



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