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UTTAR PRADESH STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, LUCKNOW
Hon’ble Mr. Justice Palok Basu, President
& Mr. Vinod Shankar Chaubey, Member
MAHENDRA KUMAR SINGH—Complainant
versus
NEW INDIA ASSURANCE COMPANY LTD. & ORS.—Opposite Parties
Complaint No. 306 of 1992—Decided on 22.9.2005
Counsel for the Parties :
For the Complainant :Mr. Rajesh Chadha, Advocate.
For the Opposite Parties :Mr. M.S. Kotwal, Advocate.
The court relied on the Surveyor's report to determine the extent of loss suffered in the accident and held the insurance company liable to pay the awarded amount.
Headnote:
Insurance - Vehicle Accident - The court accepted the Surveyor's report about the loss suffered in the accident and awarded the complainant Rs. 58,128.66.
Fact of the Case:
The complainant alleged that their vehicle met with an accident, causing damage to the engine and outer parts. The insurance cover was valid at the time of the accident.
Finding of the Court:
The court accepted the Surveyor's report and concluded that the complainant was entitled to Rs. 58,128.66 from the insurance company.
Issues: The issues included the genuineness of the accident, liability of the insurance company, and the payability of interest.
Ratio Decidendi: The court relied on the Surveyor's report to determine the extent of loss suffered in the accident and held the insurance company liable to pay the awarded amount.
Final Decision: The complaint was partly allowed, and the insurance company was ordered to pay Rs. 58,128.66 with 6% interest from the date of filing of the complaint.
Mr. Justice Palok Basu, President—Mr. Mahendra Kumar Singh has filed the instant complaint on 30.9.1992 alleging that Canter vehicle bearing registration No. DDL 6767 met with an accident on 12.8.1991 when it had suddenly fallen into a ditch having water in it. Due to the accident the water entered into the running engine and broken many parts inside and also damaged the outer parts. FIR about this was lodged on 12.8.1991 and report to the New India Assurance Company was also sent the same day.
2. Admittedly the vehicle was purchased on 15.11.1989. The insurance cover was for the period 31.10.1990 to 30.10.1991. Since the accident had occurred during the period of insurance cover the opposite party appointed Surveyor on 23.8.1991. The complainant submitted an estimate of Rs. 80,637.
3. Two Surveyors were asked to inspect the vehicle and submit report of loss, etc. Mr. S.K. Wahal and Major Sant Kumar submitted their joint report. The estimate of loss by both of them is for Rs. 58,128.66 but in their report they had expressed doubt about the genuineness of the case of the complainant that the vehicle had fallen in water so as to damage the parts. In the detailed report the Surveyors concluded that there was possibility of hydro static lock because of the accident and other possibility that damaged the engine was mechanical failure. Having compared both the aspects of the accident the loss has been assessed as above for Rs. 58,128.66.
4. Mr. Rajesh Chadha, learned Counsel for the complainant has argued that the accident was a fact. The Surveyors’ doubts are meaningless inasmuch as FIR was lodged immediately after the accident. He further argued that even if assuming that the engine went on working and was continued to be in start position and the ignition could not be put off even then this damage could have been caused.
5. Mr. M.S. Kotwal, learned Counsel for the Insurance Company has argued that as per Surveyor’s report there is less likelihood of the manner of the accident having really happened. Therefore, he said that recommendation of the Surveyor that the company has no liability should be accepted. Strenuous consideration has been extended to this issue. It is not possible to conclude that accident had not taken place. Conjecture and surmises in such matter may not be permitted to be led as evidence. The actual damage and loss has been estimated by the Surveyors themselves which is much less than what was estimated by the complainant and much more less than the insured amount. Therefore, there is no hesitation in accepting the Surveyor’s report about the loss suffered in the accident. The complainant is thus entitled for Rs. 58,128.66.
6. A preliminary objection has been raised by Mr. M.S. Kotwal on behalf of the Insurance Company. He says that the complaint was dismissed in default by the judgment dated 10.10.1996 but it was a reasoned order, therefore, restoration application did not lie. He relied upon the decision of the Hon’ble Supreme Court in the case of Jyotsna Arvind Kumar Shah and Others v. Bombay Hospital Trust, III (1999) CPJ 1 (SC)=(1999) 4 SCC 325, and argued that the very order of restoration dated 19.11.1999 is without jurisdiction and cannot be enforced for permitting hearing of this complaint in view of the fact that the original order dated 10.10.1996 should be taken up as final.
7. Mr. Chadha on the other hand replied that once the matter was considered and the ruling upon which Mr. M.S. Kotwal relied was examined thoroughly and then an order of restoration has been passed on 19.11.1999, the only scope was to challenge the same through appeal or revision before Hon’ble N.C.D.R.C. It is a judgment between the parties which has to be challenged and unless it is challenged, it becomes final. He is right there. The order restoring the matter passed on 19.11.1999 has not been challenged and that it has been passed after hearing both the parties. Both parties, therefore, are bound by it. On the fact and circu
