IMPORTANT POINT
When complainant was claiming loss on total loss basis, State Commission could not have allowed loss on repair basis.

K.S. Chaudhari, Presiding Member—This appeal has been filed by the appellant against the order dated 9.7.2008 passed by the State Consumer Disputes Redressal Commission, UT, Chandigarh (in short, ‘the State Commission’) in Consumer Complaint No. 926/2008 – M/s. G.D. Mishardhatu Ltd. Vs. National Insurance Co. Ltd. & Ors. by which, complaint was partly allowed.

2. Brief facts of the case are that complainant/respondent is a limited Company engaged in manufacture of stainless steel ingots. Complainant purchased engine No. 25222504 D.G. set vide bill dated 6.10.2003 for Rs.40,44,060/- and D.G. set with aforesaid engine was insured with OP appellant for a period of one year from 20.6.2004 to 19.6.2005. On 3.1.2005, D.G. set stopped working after emitting an abnormal sound and broke down. OP was intimated and intimation was also given to authorized service dealer of the manufacturer, M/s. OVN Trading Engineers Pvt. Ltd. Manufacturer’s officials visited the factory and checked the engine, but could not repair engine and asked complainant to send to their workshop. OP appointed Protocol Surveyors & engineers Pvt. Ltd. as Surveyor on 12.1.2005 to assess loss, who inspected site on the same day and on 14.1.2005 at the premises of M/s. OVN Trading engineers Pvt. Ltd. and information called by surveyor was supplied to him. It was further submitted that lower portion of engine with crankshaft was sent to M/s. Cummins Diesel Sales & Service (India) Ltd., who submitted their report on 5.2.2005. On 1.3.2005, complainant submitted their estimate of repair for Rs.32,80,371/- along with Failure Investigation Report. Surveyor and OP again demanded documents, but did not decide claim. On 8.11.2005, surveyor was intimated that repair of engine is not economically feasible and requested him to assess loss on total loss basis, but OP vide letter dated 11.9.2006 repudiated the claim on account of non-maintenance of log book. Alleging deficiency on the part of OP, complainant filed complaint before learned State Commission. OP resisted complaint and submitted that complainant does not fall within purview of consumer. It was further submitted that surveyor assessed loss to the extent of Rs.8,72,274/-, but at the same time recommended to close the case as ‘no claim’ on account of violation of policy conditions by not keeping log book, etc. It was further submitted that D.G. set has not been repaired so far; so, there was no question of making payment. Denying any deficiency on their part, prayed for dismissal of complaint. Complainant also filed rejoinder. Learned State commission after hearing both the parties allowed complaint and directed OP to pay Rs.29,02,790/- with 12% p.a. interest along with cost of Rs.20,000/- against which, this appeal has been filed.

3. Heard learned Counsel for the parties and perused record.

4. Learned Counsel for the appellant submitted that OP rightly repudiated claim on account of violation of terms and conditions of policy, but learned State Commission committed error in allowing complaint on the basis of report of surveyor, D.K. Taneja which was given after 3 years, who did not consider even depreciation; hence, appeal be allowed and impugned order be set aside or at the most, claim may be allowed to the extent of loss assessed by their surveyor. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law except to the extent that Rs.26,78,552/- should have been awarded against Rs.29,02,790/- and prayed for dismissal of appeal except to the aforesaid extent.

5. It is not disputed that complainant obtained insurance coverage from OP and during subsistence of insurance policy; D.G. set stopped working after emitting an abnormal sound on 3.1.2005.

6. Surveyor appointed by OP has assessed loss to the tune of Rs.8,72,274/- after deducting 75% depreciation on various parts and on account of under insurance. No reason has been given by surveyor for al