Mr. Justice S.A. Shah, President—The bare facts of this case are practically admitted by both the parties which run as under:

2. That the complainant had insured the Ashok Leyland Truck No.GJ-l-U-3607 with the opposite party, the United India Insurance Company Limited. According to the complainant the new truck was purchased by him on 26.11.90 but for the safety he took insurance effective 26.11.90 to 25.11.91. The truck’ was put to actual use only after a month.

3. The truck while going from Ahmedabad to Madhya Pradesh met with an accident near Bhilai on the night of 6.3.91.

4. The F.I.R. was lodged on 7.3.91. The complainant was here in Ahmedabad who was informed of the accident. In the meantime the spot survey was made on 11.3.91 by one Mr. A.K. Sen, a qualified automobile consultant and surveyor at the instance of the opposite party. The spot survey report has not been produced by the Insurance Company but at our request the same is shown to us. Kum. S.S. Shah, Advocate for the opposite party states that she will produce the xerox copy tomorrow.

5. The spot survey report clearly shows the condition of the vehicle and going through the said report it appears to us that every major part of the truck has been affected and some of the parts have been actually separated. The surveyor has taken photographs also. The cleaner and the labourer who were in the truck died and the driver was injured and admitted to hospital. It appears that the complainant reached the spot on 13.3.91 and he was asked to take the vehicle to Ahmedabad since it was not possible to keep it on road on account of theft and other damages.

6. The vehicle was brought to Ahmedabad by another truck. As the complainant stated he had to take out certain parts so that the damaged vehicle can move behind another truck. In para 5 of the complaint the complainant has alleged that on March 15, 1991 they had informed the Insurance Company of the total loss, and in the claim form submitted on 25.3.91 in column 6 thereon they have demanded the amount on the basis of total loss.

7. The truck was placed in the garage of Mr. Dosodia, motor body builders who had given the quotation dated 19.3.91 for labour work and an estimate by Automotive Manufacturers Limited regarding parts that might be necessary to be replaced. The cost of the parts appears to be Rs.1,23,283/-. However, on making further enquiry the complainant alleges that the truck was shown to one Dr. D.A. Desai, who was Chartered Engineer and Registered Valuer for Machineries, Plants, Land and Buildings etc. who was of the opinion that the estimate of repairs might increase the original cost of Rs.4,00,000/- and, therefore, has given the opinion that “considering all the above sighted facts, none of the factor goes in favour of repairs, as the vehicle in question is damaged more than 85 to 90% and as such in my opinion it will be more economical to dispose of this broken vehicle with its broken parts to some scrap dealer and go for a new vehicle than to take 100% risk and attempt to repair the vehicle as the existing extent of damages are so extensive which goes beyond scope of repairs and should be discarded. As against this opinion the Insurance Company relies upon the survey report of Mr. A.G. Shah who has conducted a survey and submitted his report and according to his opinion the truck was repairable and total estimates of repairs approved by him is Rs.1,31,292/-.

8. Both the surveyors’ opinion are diagonically opposite. The complainant is not accepting the report of Mr. A.G. Shah whereas the Insurance Company is not accepting the report of Dr. D. A. Desai and in these circumstances the Insurance Company is not prepared to pay an amount exceeding Rs.1,30,100/- provided the said expense is actually made by the complainant and approved by them after scrutiny.

9. Mr. Gohel, learned Advocate appearing on behalf of the complainant states that his client is not prepared for the reparation because according to him even i