- (1.) THE complainant had insured his car with the opposite party. The said car met with an accident on 19.6.1997. The car was purchased by the complainant at a cost of Rs. 2,50,000/ -. The complainant made a claim with the opposite party. The opposite party informed the complainant that he has been sanctioned an amount of Rs. 1,46,000/ - on total loss basis. The complainant was directed to keep the wreck in "as is where is" condition and surrender the R.C. Book. The Insurance Surveyor inspected the vehicle. The Surveyor intimated the liability of the opposite party in a sum of Rs. 1,60,342/ - on the basis of total loss and worked out the loss on repair basis at Rs. 96,000/ -. A second Surveyor was appointed. The opposite party Insurance Company expressed their desire to settle the matter on total loss basis and sent a letter to the complainant under Ex. A -4.
(2.) NOW , the question to be decided is whether the complainant is entitled to recover the cost of the vehicle or only under total loss basis in a sum of Rs. 1,60,342/ - treating the claim on total loss basis. The vehicle met with an accident within 19 months from the date of purchase. Therefore, the rate of depreciation should be 10%. Condition No. 3 of the insurance policy reads as follows: "3. The company may at its own option repair, reinstate or replace the motor car or part thereof and/or 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 lost less depreciation plus the reasonable cost of fitting and shall in no case exceed the insured s estimate of the value of the motor car (including accessories thereon) as specified in the schedule of the value of the motor car (including accessories thereof) at the time of the loss or damage whichever is less." Here, we find that the Surveyor has estimated the loss at Rs. 1,60,342/ - on total loss basis. The opposite party viz., the appellant has not rejected the claim. They have only expressed their willingness to settle the claim on total loss basis. The car was used by the complainant for a period of 20 months. The car was purchased by the complainant at a cost of Rs. 2,50,000/ -. The conditions of insurance under Clause 7 provide that if any dispute arises as to the quantum to be paid under the policy, such difference should independent of all other questions be referred to the decision of an Arbitrator to be appointed in writing. Here, neither parties have chosen to resort to this provision. Of course, the opposite parties have made an offer to settle it at Rs. 1,46,000/ -. If at all, it is the Insurance Company which has been aggrieved by this and should have under Clause 7, instituted to refer the matter to arbitration. That has not been done. The lower Forum has omitted to take into consideration the fact that as early as on 3.4.1998 it was about 9 months after the date of accident the opposite parties have expressed their intention to settle the claim in a sum of Rs. 1,46,000/ - on total loss basis and have requested the complainant to furnish certain particulars. Then, after this, the vehicle was inspected by two Surveyors. The complainant, for his part, produced a quotation from M/s. T.V.S. Company for a sum of Rs. 1,70,465/ -. But the Surveyor appointed by the opposite parties worked out the liability at Rs. 1,60,342/ -. The first Surveyor had assessed the value of the car at the time of the accident at Rs. 1,45,000/ -. The complainant has not produced any material to show that the car could have been sold for Rs. 2,77,500/ -. Inasmuch as the opposite parties have indicated their intention to settle the claim at Rs. 1,60,342/ -, though we do not accept the complainant s case that there is deficiency in service we are of the view that a direction should be issued to the opposite parties to pay a sum of Rs. 1,60,342/ - with interest on the same at 9% p.a. from the date of complaint, which in the circumstances would meet the ends of justice.
(3.) THEREFORE , we allow the appeal in part and modify the order of the lower Forum accordingly, directing the opposite parties to pay a sum of Rs. 1,60,342/ - with interest at 9% p.a. from the date of complaint i.e., 19.6.1998 till realisation along with a cost of Rs. 1,000/ -. Time for payment : 2 months.;