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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION |
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FIRST APPEAL NO.
118 OF 2005 |
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(Against
the order dated |
in Complaint No. 21/1998 |
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of the State Commission |
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SANJEEV KUMAR & ANR. |
........ Appellant(s) |
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Vs. |
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THE NEW INDIA ASSURANCE CO. LTD. & ANR. |
........ Respondent(s) |
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BEFORE: |
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HON'BLE MR. JUSTICE S.N. KAPOOR, PRESIDING MEMBER |
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MR.
B.K. TAIMNI, MEMBER |
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For the Appellant : Mr. Biswajeet Swain, Advocate |
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For the Respondent No.1 : Mr. S.K. Ray, Advocate |
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Dated the 16th day of May,2007 |
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ORDER |
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Heard the learned counsel for the parties.
In this appeal there are two short
questions, which need our consideration. Firstly, whether the value of the
tyres etc. which has taken at Rs.1,25,000/- could be deducted by the Insurance
Co. on the basis of Clause 2 of Section 1 ‘Loss and Damage’ read with IMT-74. Secondly, whether the appellant is entitled to get interest for
delay in settling the claim.
There is no dispute in between the parties
that the vehicle was purchased on 31.1.1996, which was stolen on 8.10.1996 just
after few months from the date of purchase. The claim was lodged on 11.9.1997
and ultimately when that claim was not settled to the satisfaction of the
complainant, the complainant filed the complaint on 11.9.1998. The surveyor
assessed the loss on the basis of market value to the tune of Rs.6,00,000/- only while the vehicle was purchase for a sum of
Rs.9,00,000/- and it was insured for Rs.9,00,000/-.
The surveyor gave the report on 27.9.1997
and according to the respondent, the amount of Rs.6,00,000/- was offered on
27.9.1997. It is submitted by the learned counsel that the there was no delay
in offering a sum of Rs.6,00,000/- as full and final settlement of the claim.
This offer was not acceptable to the
complainant. Thereafter another offer was made on 4.12.1997 for a sum of
Rs.6,23,500/-.this was also not acceptable to the complainant. Consequently,
the complainant filed a complaint in 1997 after giving the legal notice.
The Insurance Co. contested the matter
interalia on the ground that there was no deficiency in view of the offers made
were based on the surveyor’s report and the appellant was not entitled to claim
any enhanced amount. Since the offer was made and the complainant failed to
accept it, the complainant was not entitled to get any interest.
We have heard the learned counsel for the
parties and gone through the record.
In so far as the first point
is concerned Clause 2 of Section 1 ‘Loss and Damage’ of the Insurance Policy,
reads as under:-
2.
“The
Company shall not be liable to make any payment in respect of:
(a)
Consequential
loss depreciation wear
and tear mechanical or electrical breakdowns failures or breakages nor for
damage caused by overloading or strain of the Motor Vehicle not for loss of
or damage to accessories by burglary housebreaking of theft unless such Motor
Vehicle is stolen at the same time.
(b)
damage to tyres unless such Motor Vehicle is damaged at the
same time when the liability of the Company is limited to 50% (fifty per cent)
of the cost of replacement.
(c) any accidental loss or damage suffered whilst
the insured or any person driving with the knowledge and consent of the insured
is under the influence of intoxicating liquor or drugs.”
(Emphasis
supplied)
In a case of theft, neither the question of damage to the tyre would arise nor question of replacement would arise and therefore Clause (b) mentioned hereinabove would not be applicable. It may further be mentioned that there is another provision relating to indemnification.
According to Clause 1, “the company will indemnify the insured against loss of or damage to the Motor Vehicle and/or its accessories whilst thereon:-
(a)
by
fire explosion, self ignition or lightning;
(b)
by
burglary housebreaking or theft;
(c)
by
riot and strike;
(d)
by
earthquake (Fire and shock damage);
(e)
by
flood, typhoon, tempest hurricane, storm inundation, cyclone hailstorm frost;
(f)
by
accidental external means;
(g)
by
malicious act;
(h)
by
terrorism;
(i)
whilst
in transit by road, rail, inland waterway, lift elevator or air;
(j)
by
land slide/rock slide
Subject to a deduction for depreciation at
the rates mentioned below only in respect of parts replaced;
1.
For
all rubber nylon, plastic parts, tyres and battery – 50%”.
This clause shall also not be applicable
for it is not a question of replacement but theft.
In so far as IMT 74 is concerned, this
clause is not attracted in absence of any indication about additional provision
for in that case also the tyres depreciation is calculated @ 15%. As such,
depreciation more than 5% cannot be calculated by any stretch of imagination.
The complainant is entitled to at least
90,000/- more taking in view of the ordinary depreciation of more than 20%.
As regards the interest there is no
dispute about the fact that Rs.6,00,000/- initially and Rs.6,23,500/- later on
were offered but that was a conditional offer which could not be accepted
particularly in view of the facts and circumstances. Besides, the amount
remained with the Insurance Co. till by interim order. A sum of Rs.6,23,500/- has been paid on 7.11.2000. Consequently, the
appellant is entitled to claim interest @ 9% on this amount of Rs.6,23,500/-
w.e.f. expiry of period of two moths from the date of report of the surveyor
i.e. 1.12.1997 and on the rest of the amount from the date of surveyor report
till the date of payment.
The respondent is granted 6 weeks’ time to
make the payment.
First appeal stands disposed of
accordingly.
………….………………..J
(S.N.
KAPOOR)
………….………………..
(B.K.
TAIMNI)
SS/18