State Consumer Disputes Redressal Commission
Avinash Singhania vs The New India Assurance Co.Ltd. on 2 February, 2015
Daily Order Chhattisgarh State Consumer Disputes Redressal Commission Raipur Final Order First Appeal No. FA/14/548 (Arisen out of Order Dated 16/07/2014 in Case No. CC/11/163 of District Raipur) 1. Avinash Singhania Jai Jagdish Logistics IInd Floor,Milleniu Plaza Raipur Raipur Chhattisgarh ...........Appellant(s) Versus 1. The New India Assurance Co.Ltd. Divisional Office no.1, Madina Manzil, Jail Road, Raipur Raipur Chhattisgarh ...........Respondent(s) BEFORE: HONABLE MR. JUSTICE R.S.Sharma PRESIDENT HONABLE MS. Heena Thakkar MEMBER HONABLE MR. Dharmendra Kumar Poddar MEMBER For the Appellant: Shri Sudipto Gupta , Advocate For the Respondent: Shri Shishir Bhandarkar, Advocate ORDER CHHATTISGARH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANDRI, RAIPUR (C.G). Appeal No.FA/14/548 Instituted on : 14.08.2014 Avinash Singhania, S/o Shri Ashok Singhania, Address : Jai Jagdish Logistics, IInd Floor, Millenium Plaza, Raipur (C.G.) ... Appellant Vs. The New India Assurance Company Limited, Divisional Office No.1, Madina Manjil, Jail Road, Raipur (C.G.) .... Respondent PRESENT : HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT HON'BLE SHRI D.K. PODDAR,MEMBER HON'BLE MISS HEENA THAKKAR, MEMBER COUNSEL FOR THE PARTIES : Shri Sudipto Gupta, for appellant. Shri Shishir Bhandarkar, for respondent. ORDER
DATED : 02/02/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 16.07.2014, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum") in Complaint Case No.163/2011. By the impugned order, the complaint of the appellant (complainant), has been partly allowed and the respondent (O.P.) has been directed to pay a sum of Rs.10,86,160/- along with interest @ 12% p.a. from the date of filing of the complaint i.e. 20.04.2011 till realisation. The District Forum has further directed the respondent (O.P.) to pay a sum of Rs.50,000/- towards compensation for mental agony and a sum of Rs.5,000/- as cost of litigation to the appellant (complainant).
2. Briefly stated, facts of the case are : that the appellant (complainant) is registered owner of the Truck bearing registration No.C.G.04-JA-2932 which was comprehensively insured vide Policy No.450300/31/08/01/00001478 for the period from 23.05.2008 to 22.05.2009 with the respondent (O.P.) On 14.01.2009 at about 5 to 6 P.M., the above truck was stolen near Sonu-Monu Dhaba at Siltara, Raipur. First Information Report was lodged at Police Station, Dharsiwa, District Raipur (C.G.), where offence under Section 379 IPC was registered against unknown person. The vehicle in question and accused were not traced then, the Police submitted Khatma No.27/09 dated 29.05.2009 before concerned Judicial Magistrate. The appellant (complainant) submitted his claim before the respondent (O.P.) but the respondent (O.P.) did not decide his claim, a complaint was filed under Section 12 of the Consumer Protection Act, 1986 before the District Forum claiming thereby the Insured Declared Value of the vehicle along with interest and costs.
3. The respondent (O.P.) filed its written statement before the District Forum and averred that the appellant (complainant) has not filed Khatma Report, which was accepted by the competent Judicial Magistrate. In the sale certificate and tax invoice issued by Jaika Automobile, the value of the vehicle was mentioned as Rs.13,57,700, therefore, actually the Insured Declared Value of the vehicle is Rs.1357,700/-. The respondent (O.P.) resisted the claim of the appellant (complainant), interalia relying on the base of a tax invoice issued by the dealer at the time of sale of the vehicle and also contended that appropriate depreciation should have been deducted from the sale value of the vehicle for arriving at the Insured Declared Value.
4. After having considered the material placed before it by both the parties, learned District Forum has partly allowed the complaint and directed the respondent (O.P.) to pay compensation to the appellant (complainant) as mentioned in para 1 of this judgment.
5. The appellant (complainant) filed documents. Document C-1 is Certificate of Registration of vehicle bearing registration No.C.G.-04-JA-2932, C-2 is Policy Schedule of Miscellaneous and Special Type of Vehicles Policy B Package Policy No.450300/31/08/01/00001478, C-2 is Lincence of Goods Vehicle, C-4 is Certificate of Fitness, C-5 is First Information Report, C-6 is Final Report, C-7 is antim prativedan ki suchna, C-8 is khatma report dated 03.11.2009, C-9 is letter dated 04.07.2010 sent by Shri N.K. Thakur, Advocate to The New India Assurance Company Limited, Do.O.-1, Raipur, acknowledgement, copy of order sheet dated 03.06.2011 recorded by Judicial Magistrate First Class, Raipur in Ex. No.7693/11.
6. The respondent (O.P.) has also filed documents. Document Annexure OP-1 is policy schedule - Policy No.45300/31/08/01/0001478, Annexure OP-2 is Claim Intimation Letter dated 17.01.2009, Annexure OP-3 is letter dated 15.10.2009 sent by the respondent (O.P.) to the appellant (complainant), Annexure OP-4 is letter dated 29.07.2010 sent by the respondent (O.P.) to the appellant (complainant), Annexure OP-5 is Tax Invoice Dated 03.05.2007 issued by Jaika Automobiles & Finance (P) Ltd. Raipur, Annexure OP-6 is Sales Certificate dated 09.05.2007, Form 22, OP-7 is Certificate of Registration of vehicle bearing registration No.C.G.04-JA-2932, Terms and Conditions of ''A" Policy - Act Liability Miscellaneous Type Vehicle.
7. Shri Sudipto Gupta, learned counsel appearing for the appellant (complainant) has argued that the impugned order passed by the District Forum is patently perverse, devoid of merits and is unsustainable in law and facts both. The District Forum failed to comprehend the true import of IDV, as have been expressly contained in the standard policy wordings, which very clearly mentions that "IDV will be treated as the market value throughout the policy period without any further depreciation for the purpose of Total Loss / Constructive total loss claims". The above clearly shows that the IDV fixed at the commencement of the policy period shall not be subject to any further depreciation during the subsistence of the said period. The insurer cannot grouse back and deny the IDV once fixed. The acquiescence of the contracting parties is a sine qua non for arriving at the IDV and is not amenable to change. The District Forum have not adverted to the true intent and content of the policy wordings which happens to be an inviolable charter for any insurance agreement and simply reproduced the calculations as suggested by the insurer without application of mind. He placed reliance on judgment of Hon'ble National Commission in National Insurance Co. Ltd. vs. N.K. Financers & Others, III (2013) CPJ 402 (NC).
8. Shri Shishir Bhandarkar, learned counsel appearing for the respondent (O.P.) has supported the impugned order passed by the District Forum and submitted that it is just and proper and does not call for any interference by this Commission.
9. We have heard learned counsel for both the parties and have also perused the record of the District Forum.
10. In National Insurance Co. Ltd. vs. N.K. Financers & Anr. (Supra), Hon'ble National Commission has observed thus :-
"7. We are of the opinion, that insofar as the first issue is concerned, it is no more rev integra. In Dharmendra Goel v. Oriental Insurance Company Limited., IV (2008) ACC 750 (SC) = (2008) 8 SCC 279, the Supreme Court has held that an Insurance Company, after having accepted the value of a particular vehicle at the time of issuing the insurance policy, could not disown that very value on one pretext or the other when they are called upon to pay compensation. The Hon'ble Court has deprecated the attitude "take it or leave it", as being ethically indefensible. The Supreme Court observed as under :
"It must be borne in mind that Section 146 of the Motor Vehicles Act, 1988 casts an obligation on the owner of a vehicle to take out an insurance policy as provided under Chapter 11 of the Act and any vehicle driven without taking such a policy invites a punishment under Section 196 thereof. It is therefore, obvious that in the light of this stringent provision and being in a dominant position the insurance companies often act in an unreasonable manner and after having accepted the value of a particular insured good disown that very figure on one pretext or the other when they are called upon to other when they are called upon to pay compensation. This 'take it or leave it' attitude is clearly unwarranted not only as being bad in law but ethically indefensible."
8. In the light of the said authoritative pronouncement, the loss on account of theft of the vehicle had to be assessed by the Surveyor by taking the vase value of the vehicle at Rs.6,00,000/-, i.e. the value of the vehicle declared at the time of renewing the policy and not the market value of the vehicle at the time of theft."
11. In Dharmendra Goel v. Oriental Insurance Company Limited (2008) 8 Supreme Court Cases 279, Hon'ble Supreme Court has observed thus :-
"7. It must be borne in mind that Section 146 of the Motor Vehicles Act, 1988 casts an obligation on the owner of a vehicle to take out an insurance policy as provided under Chapter XI of the Act and any vehicle driven without taking such a policy invites a punishment under Section 196 thereof. It is therefore, obvious that in the light of this stringent provision and being in a dominant position the insurance companies often act in an unreasonable manner and after having accepted the value of a particular insured good disown that very figure on one pretext or the other when they are called upon to other when they are called upon to pay compensation. This 'take it or leave it' attitude is clearly unwarranted not only as being bad in law but ethically indefensible. We are also unable to accept the submission that it was for the appellant to produce evidence to prove that the surveyor's report was on the lower side in the light of the fact that a price had already been put on the vehicle by the Company itself at the time of renewal of the policy. We accordingly hold that in these circumstances, the Company was bound by the value put on the vehicle while renewing the policy on 13.3.2002.
12. Learned District has observed in para 12 of the impugned order that it is not disputed that the vehicle in question was a new one but it was purchased in the year 2007, therefore, the deduction made by the respondent (O.P.) towards depreciation, is not erroneous, therefore, we agree with the contention of the respondent (O.P.) that the Insured Declared Value of the vehicle is Rs.10,86,160/- and the Insured Declared Value of the vehicle is accepted as Rs.10,86,160/-.
13. In the instant case, the appellant (complainant) as well as the respondent (O.P.) both have filed copy of the insurance policy. In the insurance policy the Insured Declared Value of the vehicle has been mentioned as Rs.14,00,000/-. In the light of above authorities, the respondent (O.P.) itself has declared the Insured Declared Value of the vehicle as Rs.14,00,000/- and accepted the I.D.V. while issuing policy, therefore, the Insurance Company after having accepted the I.D.V. of the vehicle as Rs.14,00,000/- at the time of issuing insurance policy at a later stage cannot disown that value on the pretext that the vehicle was purchased in the year 2007 and its market value was Rs.10,86,160/- at the time of theft of the vehicle. The appellant (complainant) is entitled to get the amount equivalent to I.D.V. of the vehicle which was declared at the time of renewing policy and not the market value of the vehicle at the time of theft of vehicle. Therefore, the impugned order passed by the learned District Forum is liable to be modified to the extent that the at place of Rs.10,86,160/- the respondent (O.P.) will pay a sum of Rs.14,00,000/- which is IDV of the vehicle.
14. Learned District Forum has awarded a sum of Rs.50,000/- to the appellant (complainant) as compensation for mental agony, but the respondent (O.P.) has not filed any appeal before us against the impugned order, therefore, the direction of the District Forum to pay a sum of Rs.50,000/- towards compensation for mental agony, does not call for any interference of this Commission.
15. Therefore, the appeal filed by the appellant (complainant) is allowed and the respondent (O.P.) is directed to pay a sum of Rs.14,00,000/- (Rs. Fourteen Lakhs Only) instead of Rs.10,86,160/- to the appellant (complainant), as directed by the District Forum in the impugned order. The remaining part of the impugned order will remain unaltered and is affirmed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) President Member Member /02/2015 /02/2015 /02/2015 [HONABLE MR. JUSTICE R.S.Sharma] PRESIDENT [HONABLE MS. Heena Thakkar] MEMBER [HONABLE MR. Dharmendra Kumar Poddar] MEMBER