published in http://164.100.72.12/ncdrcrep/judgement/00130923110701918RP132008.htm
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1320 OF 2008
(From the order dated 02.11.2007 in Appeal No. 863/2001 of the State Consumer Disputes Redressal Commission, Mumbai, Circuit Bench at Aurangabad)
Mrs. Laxmi Ramesh Sarda
Partner in M/s. Zumberlal Sitaram Sarda,
Sarda Lane, Ahmednagar …Petitioner/Complainant
Versus
The Manager
United India Insurance Co. Ltd.
Divisional Office, Kisan Kranti Bldg.,
Market Yard, Ahmednagar …Respondent/Opp. Party (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner : Mr. Jitendra Kumar, Advocate
For the Respondent : Mr. S.K. Ray, Advocate
PRONOUNCED ON 23rd September, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/Complainant against the order dated 02.11.2007 passed by the State Consumer Disputes RedressalCommission, Mumbai, Circuit Bench at Aurangabad (in short, ‘the State Commission’) in Appeal No. 863/2001 – Mrs. Laxmi Ramesh Sarda Vs. The Manager, United India Ins. Co. Ltd. by which, while dismissing appeal, order of District Forum dismissing complaint was upheld.
2. Brief facts of the case are that complainant/petitioner purchased CIELO passenger car for Rs.5,47,000/- on 15.6.1996. Car was insured with the OP/respondent for a sum of Rs.5,00,000/- for a period of one year commencing from 21.7.98 to 20.7.99. On 15.7.1999, car met with an accident and car was totally smashed and damaged and was a case of total loss. Claim was submitted to the OP and OP finally paid Rs.2,36,500/- by cheque dated 15.11.1999 which was accepted by complainant under protest as Rs.2,36,500/- has been paid less. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP contested complaint and submitted that amount of Rs.2,36,500/- was accepted by the complainant as full and final satisfaction; hence, complaint is not maintainable. It was further submitted that vehicle was purchased in the year 1996 and its value could not have been Rs.5,00,000/- at the time of issuance of policy. It was further submitted that market price of the vehicle as per surveyor’s report was Rs.2,35,000/- and Rs.2,36,500/- has already been paid; hence, no deficiency on the part of OP and prayed for dismissal of complaint. Learned District Forum after hearing both the parties dismissed complaint against which, appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which this revision petition has been filed.
3. Heard learned Counsel for the parties and perused record.
4. Learned Counsel for the petitioner submitted that as it was a case of total loss, petitioner was entitled to receive full value of the vehicle for which it was insured and learned State Commission has committed error in dismissing appeal and leaned District Forum committed error in dismissing complaint on the basis of payment as full and final satisfaction; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.
5. It is admitted case of the parties that vehicle was purchased on 15.6.1996 for Rs.5,47,000/- and was insured for Rs.5,00,000/- on 21.7.1998. It is also admitted case that on account of accident on 15.7.1999, car was totally smashed and damaged and it was the case of total loss.
Now, the question is
whether; petitioner was entitled to receive Rs.5,00,000/- the amount for which vehicle was insured, or to get market price.
6. As far as payment of Rs.2,36,500/- as full and final settlement, perusal of record clearly reveals that amount was accepted by the petitioner under protest without prejudice.
In such circumstances, it cannot be said that petitioner received this amount as full and final satisfaction and in such circumstances, complaint was maintainable.
7. As far as amount payable is concerned, as per insurance policy, vehicle was insured for Rs.5,00,000/-, but as per Surveyor, G.S. Advani & Co. total repair cost was Rs.3,05,000/- and market value of the vehicle was Rs.2,35,000/- including salvage of Rs.65,000/-. As per The Institute of Insurance Surveyors & Adjusters (Mumbai), Pune Unit, the market value of the insured vehicle was around Rs.2,35,000/-. This opinion was given by 3-Member Committee after inspecting the vehicle and enquiring market value of the vehicle from various sources and in such circumstances, we assume that market value of the vehicle on the date of accident was around Rs.2,35,000/-.
8. The short question to be decided is
whether petitioner is entitled to receive insured value or market value.
9. Learned Counsel for the petitioner placed reliance on judgement dated 3.9.2013 in R.P. No. 4279 of 2012 – Dr. Vir Singh Malik Vs. The Oriental Insurance Co. Ltd. in which it was held that insured is entitled to receive compensation on the basis of value shown in insurance policy after deducting some depreciation. On the other hand, learned Counsel for the respondent placed reliance on II (1992) CPJ 484 (NC) – Oriental Insurance Co. Ltd. Vs. SureshArjun Karande in which it was held that as per Condition No. 4 of the insurance policy, insured is entitled to receive value specified in the policy or value of the vehicle at the time of damage, whichever is less. Condition No. 4 of the insurance policy runs as under:
“4. The company may at its own option repair, reinstate or replace the motor vehicle or part thereof and / or its accessories or may pay in cash the amount of the loss or damage and the liability of the company shall not exceed the actual value of the parts damaged or loss less depreciation for the reasonable cost of fitting and shall in no case exceed the insured estimate of the value of the motor vehicle (including accessories thereon) specified in the schedule or value of the motor vehicle (including accessories thereon) at the time of the loss or damage whichever is less.
This condition makes it clear that in case of total damage to the insured vehicle, insured is entitled to receive insured value of the vehicle or value of the motor vehicle at the time of loss whichever is less.
10. This Commission in II (1992) CPJ 484 (NC) – Oriental Insurance Co. Ltd. Vs. Suresh Arjun Karande has
held that the State Commission was not right in awarding to the complainant the full amount mentioned in the policy and further held that surveyors should submit their separate and independent reports to the General Insurance Corporation and ascertain market value of the vehicle.
In the present case, as per surveyor G.S. Advani & Co. report, total cost of the repairs of the vehicle was Rs.3,05,000/- and market value of the vehicle was Rs.2,35,000/-.
As per report of The Institute of Insurance Surveyors & Adjusters (Mumbai), Pune Unit, market value of damaged vehicle was Rs.2,35,000/- and salvage value of the vehicle was Rs.65,000/-.
This report was given by the Committee of 3-independent surveyors after inspecting the vehicle and inquiry from market.
In such circumstances, it can be presumed that value of the vehicle was around Rs.2,35,000/- and as per Condition No.4 of the insurance policy, petitioner was entitled only to receive Rs.2,35,000/-.
In our judgment inDr. Vir Singh Malik Vs. The Oriental Insurance Co. Ltd. (Supra) case insured amount was allowed after depreciation because neither such condition was brought to our notice, nor report of independent surveyor regarding value of vehicle was placed.
11. In such circumstances, petitioner is not entitled to receive remaining Rs.2,63,500/-.
Learned State Commission has not committed any error in dismissing appeal and upholding order of District forum dismissing complaint, though on other grounds.
12. Consequently, revision petition filed by the petitioner is dismissed with no order as to costs.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
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