Decided on May 25,2010

Satish Kumar Nirala Respondents


ARUN KUMAR GEL (RETD.), J. - (1.) THIS appeal is directed against the order passed by District Forum, Shimla in Consumer Complaint No.263/2008, decided on 16.11.2009. By means of this order, complaint filed by the respondent has been allowed thereby directing the appellant to indemnify the respondent in the sum of Rs.84,000/ - alongwith interest at the rate of 9% per annum from date of filing of the complaint, i.e. 29.07.2008 till actual payment was made. Respondent has been directed to return salvage of vehicle in question as well as RC and the key to the appellant within a period of one month after receipt of copy of order. In case salvage is not returned, then appellant has been authorized to deduct Rs.18,000/ - cost of salvage, out of Rs.84,000/ -. In addition to this, appellant has been burdened with Rs.2,500/ - as litigation cost, and it has been directed to comply with the order within 45 days of receipt of copy of said order .
(2.) VEHICLE bearing registration No.HP06 -2360 having been insured with the appellant in the sum of Rs.85,000/ - for a period 16.11.2007 to 15.11.2008. It is admitted between the parties that on 27.01.2008 it met with accident at Kufri. Annexure OP -1 filed by appellant shows that this vehicle was insured on IDV basis. First Information Report was registered vide annexure OP -3 at Police Station Theog, District Shimla. Spot survey was done by Shri Umesh Kumar Sood, Surveyor and his report is annexure OP -5. Whatever he observed on the spot has been given in detail in this report. Thereafter final surfey was done by Shri Dinesh Kumar vide annexure OP -8 and according to him he assessed the liability of appellant on net of Salvage loss basis at Rs.66,500/ -. According to him this was the amount payable on net of salvage basis. Value of salvage was assessed by this Surveyor at Rs.18,000/ - and after deducting another Rs.500/ - on account of less excess clause, appellant was held liable for payment of Rs.66,500/ -. District Forum below has accepted this report and assessed the compensation. Hence this appeal by the Insurance Company.
(3.) MR . Ratish Sharma, learned counsel for the appellant had argued in support of this appeal, that the District Forum below fell into error while directing his client to pay Rs.85,000/ - i.e. the sum for which the vehicle was insured. According to him Surveyor being an expert in the line of loss assessment, the claim has to be settled on the basis of his report. Further according to him, terms and conditions of policy having been violated in as much as, against the seating capacity of 4 persons including driver, these were 5 persons trave;ling at the time of accident. Thus according to him in the light of Section 88 (11) of Motor Vehicles Act, 1988, this claim should have been settled on non -standard basis. With a view to advance this submission, he placed reliance on a decision of this Commission in the case of National Insurance Company Limited versus Pritu Devi. All these pleas were seriously contested and resisted by Mr. Kaprate on behalf of respondent. He argued that plea of appellant to accept the report of Surveyor des not hold good in the light of direction given in the impugned order. Reason being that to the total sum of Rs.85,000/ -, his client would only be entitled to, after he had returned the salvage of the value of Rs.18,000/ -, otherwise this sum has to be deducted from the sum insured i.e. from Rs.85,000;

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