Decided on February 04,2008

National Insurance Co Ltd And Anr Appellant
Bahu Fort Construction Co (P) Ltd Respondents


- (1.) THROUGH the medium of this appeal, order dated 19.7.2005 passed by the learned Divisional Forum, Jammu (hereinafter to be referred to as the Forum) has been challenged. The learned Forum has directed the appellants to get the loss assessed of the claim raised by the complainant after following the guidelines of Indian Motor Tariff by applying 50% depreciation on rubber parts and 15% depreciation on the other damaged parts and thereafter pay the amount to the respondent in case it exceeds the amount what has already been paid by the company within two months from the date of the said order. The appellants were also directed to pay Rs. 2,000 as cost of litigation. Having felt aggrieved by the said order, the appellants have challenged it through the medium of this appeal on the sole ground that the Surveyor had correctly assessed the loss to the tune of Rs. 4,30,700 and the said amount has been accepted by the respondent as full and final settlement. When the claim had been received as "final settlement" then it could not be reopened unless it could be proved that the assessment made is based on misrepresentation, fraud or undue influence.
(2.) THE brief facts of the case are that respondent which is a private limited company carries its business of works of construction and has its head office at Raghunath Pura, Jammu. The said company had insured excavator machine bearing No. K -0366 for a sum of Rs. 21.60 lakh from the appellants and paid in lieu thereof a premium of Rs. 28,288. The insurance policy No. was 420002/31/02/630721 and it was in currency from 3.2.2003 to 2.2.2004. That on 12.10.2003 the said insured excavator was extensively damaged after falling from a hill at Gram Morh, Tote Road near Reasi. The incident was got registered on 13.10.2003 in the Police Station, Reasi under Daily Diary Report No. 8. The parties of the case are in agreement about the quantum of insured amount as well as about the incident which took place during the operation of the said insurance policy. In para 8 of the complaint, the respondent had alleged that appellants were under a legal obligation to examine the claim minutely and in order to bring the claim within their pecuniary jurisdiction they did not apply their mind and solely accepted the report of the Surveyor and Loss Assessor who had done so far "faulty motives" to bring the assessed amount of Rs. 55,223 which falls within the pecuniary limit of their jurisdiction. It was alleged that while assessing the loss the norms laid down under Indian Motor Tariff (amended upto date) were not followed which was a mandatory requirement. Those norms have been specified in that para. Allegations have also been made in para No. 7 about their non -observance. In rebuttal, the respondent in his objections have pleaded that the respondent had failed to bring into the knowledge of the Surveyor the averments which have been made in para No. 7 and 8 as reproduced hereinbefore. That M/s. V.K. Mehta and Associates, Surveyors and loss Assessors had come from Amritsar and the respondent had participated in making the assessment. Not only that he vide Annexure 'C' had accepted the letter about the survey made by the assessor and voluntarily agreed to accept the amount of Rs. 4,54,592 in full and final settlement of their claim on repair basis. That vide Annexure 'D' they had received this whole amount from the appellants.
(3.) HEARD the arguments. Mr. Kamal Gupta, the learned Advocate appearing for the appellants has contended that the Surveyor had assessed the loss in the presence of respondent who executed the acceptance letter (Annexure 'C') in favour of the Surveyor for the acceptance of the assessed amount towards the full and final settlement of the claim. Since that assessment report was not challenged at that time, thereafter it did not lie in his mouth to resile from the admitted position. Moreover, when he had voluntarily accepted the full and final payment from the appellants. According to him, the complaint was misconceived and the direction given by the learned Forum was not warranted on the facts and in the circumstances of the case. In rebuttal Mr. Arora, Advocate has contended that vide Annexure 'D' which is a clarification letter written by the manufacturer of the insured excavator in favour of the respondent; they had clarified the components of the excavator and this letter was produced before the said loss assessor but he had not taken that document in consideration. That on mental parts the Surveyor should have applied 15% depreciation which has not been done in this case and the assessment report made by him was bad in the eye of law. That Indian Motor Tariff guidelines were exclusively in the knowledge of the appellants and the respondents was ignorant about them when the assessment was made. Both the Counsel have relied upon the law laid down by the Hon'ble Supreme Court in the case of United India Insurance v. Ajmer Singh Cotton and General Mills and Ors., 1999 6 SLT 590.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.