State Consumer Disputes Redressal Commission
The New India Assurance Company vs Mr. Keshav Chiplunkar, on 20 November, 2012
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI GOA F.A. No. 17/12 The New India Assurance Company Limited, Santa Palagia Building, 1st Floor, Vasco Da Gama Goa, 403 802 Appellant/O.P. v/s Mr. Keshav Chiplunkar, Flat G-1, Ground Floor, Flower Queen, Miramar Panaji Goa. 403 001 Respondent/Complainant F.A. No. 19/12 Mr. Keshav Chiplunkar, Flat G-1, Ground Floor, Flower Queen, Miramar Panaji Goa. 403 001 Appellant/Complainant v/s The New India Assurance Co. Ltd., Vasco Divisional Office, Santa Palagia Building, 1st Floor, Opp. Khalap Mansion Vasco Da Gama Goa, 403 802 Respondent/O.P. Appellant/Complainant is represented by Adv. Shri. N.G. Kamat. Respondent/O.P. is represented by Adv. Shri. B.V. Sukhthanker. Coram: Shri. Justice N.A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 20/11/2012 ORDER
[Per Justice Shri. N. A. Britto, President] These appeals have been fled by both the parties in C.C. No. 78/07 and are directed against order dated 06/07/12 of the Lr. District Forum, South Goa, at Margao.
2. Some facts are required to be stated to dispose off the above appeals.
3. The parties hereto shall hereinafter be referred to in the names as they appear in the cause title of the complaint.
4. The complainant owns a Toyota Qualis having registration No. GA-01-E-3076 and had obtained a comprehensive insurance policy for the period from 19/09/2003 to 18/09/2004. The complainants family consisting of complainants son Shri. Nitin Chiplunkar, his wife Smt. Madhuri Chiplunkar and their two daughters were traveling in the said car and they were returning from Pune to Goa when the said vehicle met with an accident on 30/08/04 at about 2.00 p.m. near Sankheshwar.
According to the complainant, his daughter Mrs. Ranjana Makode and the brother of the said Madhuri Chiplunkar were also present in the said car when it met with an accident. According to the Complainant, the said Smt. Madhuri Chiplunkar suffered a head injury and others were also injured and after the accident they proceeded to KLES hospital at Belgaum in an ambulance. Complainants son Nitin Chiplunkar was suffering from Malaria. The said Nitin Chiplunkar had informed one Shrinivas Joshi to take charge of the vehicle and do necessary formalities.
5. The O.P. having been informed, the O.P. deputed Mr. Suresh S. Gull, surveyor and loss assessor, who visited the accident site on the same day, late in the afternoon, and submitted his repot dated 30/09/04. According to what is stated in the said report, Nitin K. Chiplunkar had informed him that he was driving the vehicle at the time of the accident. His licence number is also mentioned. His licence had expired and was subsequently renewed from 8/9/04.
6. The complainant filed his claim apparently on or about 16/12/04 enclosing his affidavit, inter alia, stating that at the time of accident his daughter Smt. Ranjana Makode was driving the vehicle. On 12/9/05, at the request of the O.P., the complainant faxed the driving licence of the said Nitin K. Chiplunkar, and, the claim came to be rejected by letter dated 30/09/05. The claim was rejected because according to the O.P., the vehicle was being driven at the time of the accident by Shri. Nitin K. Chiplunkar whose licence had expired. According to the complainant, the vehicle was being driven by his daughter the said Smt. Ranjana Makode and that is the main controversy between the parties.
7. The complainant in support of his case filed his own affidavit and that of Ranjana D. Makode. The O.Ps filed the affidavit of their Divisional Manager Mrs. S.E. Martins and that of Mr. M.N. Khandeparkar, another surveyor and loss assessor and also produced the report dated 30/09/04 of Suresh S. Gull as well as the report dated 12/09/04 of the said M.N. Khandeparkar. It is interesting to note that the report of Suresh S. Gull shows the name of Nitin K. Chiplunkar as the driver of the vehicle while the report of Shri. M.N. Khandeparkar shows the name of Mrs. Ranjana Makode as its driver.
8. Admittedly, the report of Suresh S. Gull was filed for the first time by the O.P. alongwith its written version filed on 13/12/07 (though Shri. Kamat contends it was filed with affidavit in evidence) A copy of the same was not given to the complainant inspite of complainants request in writing to the O.P made on or about 17/11/05.
9. The first point raised by Shri. Sukhthanker, the Lr. adv. of O.P. is that the complaint is time barred, the same having been filed on 28/09/07 beyond a period of 2 years as contemplated by Section 24A of the C.P. Act, 1986. According to Shri. Sukhthanker, the accident had taken place on 30/08/04 and the complaint ought to have been filed within 2 years therefrom. In support of his submission Shri. Sukhthanker has relied upon the case of Ganpat Rama Madhavi vs. The New India Assurance Company Ltd., (2011 (4) CPR 276) (N.C.).
9.1. On the other hand, Shri. N.G. Kamat, lr.
adv. on behalf of the complainant, would submit that the said decision in the case of Ganpat Rama Madhavi was rendered by a single member of the National commission and therefore the same would not be binding. Shri. N.G. Kamat has submitted that the period of 2 years has got to be reckoned from the day the claim was repudiated i.e 30/09/2005 and therefore the complaint which was filed on 28/09/07 is well within time. In support of his submission Shri. Kamat has placed reliance on New India Assurance Co. Ltd., vs. B.N. Sainani (AIR 1997 SC 2938), wherein the Apex Court has observed as follows:
8. It would appear that the complaint was filed on the basis that claim on the policy was denied wholly by the insurer which was by letter dated July 25, 1989 of the insurer. The cause of action, therefore, arose on the date of denial or repudiation of the policy by the insurer. The question does arise as to when the claim on the policy should have been lodged. It appears the claim on the policy should be lodged within a reasonable time. As to what is reasonable time would depend on the facts and circumstances of each case. Since on the basis of the record we are handicapped to know as to when the claim was lodged, we would, therefore, treat the date, July 25, 1989, when the time for the purpose of limitation had begun to run. As noted above this is the date when the insurer repudiated the claim on the policy. From this angle, therefore, the complaint filed by the assignee on July 23, 1992 is within the period of limitation. It is, however, a different matter when the insurer raises the defence that it had earlier informed the insured that the policy had ceased to be operative in terms of para 9 of the policy. As far as the insured is concerned he can file the complaint within three years of the date of occurrence causing loss or from the date when the claim on the policy is denied by the insurer. For him time for lodging the complaint would not start running while the goods are still in transit as he can claim the policy to be valid till he lodges the complaint.
9.2. Shri. B.V. Sukhthanker had produced the copy of the order dated 20/09/11 in the case of Ganpat Rama Madhavi downloaded from the Net and it shows that it has been passed by only one Member of the National Commission. We tried to verify the position whether the said order was delivered by a Bench of National Commission. However, the same position is reflected in 2011(4) CPR 276 (NC) though the provision of Section 20 of the C.P. Act, 1986 would indicate that the National Commission can function by Benches of one or more Members as constituted by the President. We leave the controversy at that. In the case at hand the accident had taken place on 30/08/04 and the claim appears to have been filed on or about 16/12/04 (though we are not sure of this date) and the same was vigorously followed up by the complainant by various letters till the claim was repudiated by letter dated 30/09/05. In our view, the time of two years for filing the complaint can be reckoned from the date the claim was repudiated and the complaint which has been filed within 2 years therefrom, as contemplated by Section 24A of C.P. Act, 1986 is within time. It is not barred by Section 24A of the C.P. Act. In any event, it has been filed within a reasonable time from the date of accident on 30/08/04. It is interesting to note that the plea of limitation was not taken by the O.P. in the written version nor in the memorandum of appeal. For all these reasons, the plea of limitation taken by the O.P. therefore needs to be rejected.
10. Coming to the merits of the complaint, as already stated, the claim of the complainant is repudiated because according to the O.P. at the relevant time the vehicle was being driven by complainants son Shri. Nitin K. Chiplunkar whose licence had expired. The case of the complainant is that the vehicle in question at the relevant time was being driven by his daughter Mrs. Ranjana Makode . On 27/09/12 a submission was made by Shri. Sukhthanker on behalf of O.P., that the said Ranjana Makode was a NRI, and, we had asked Lr. Adv.
Shri. N. G. Kamat whether he could produce her passport to clear our doubt, whether in fact she was an NRI or not. Lr. Adv. Shri. Kamat then filed an application dated 30/10/12 annexing copies of her old and new passport, a certificate from her employer stating that she was working as General Manager and was on leave on 30/08/04, copy of her driving licence as well as her PAN card.
Death certificate of Shri. Nitin K. Chiplunkar has also been produced to say that he expired on 16/11/07 and therefore the complainant could not file his affidavit-in-evidence in support of the case of the complainant as the stage for filing of affidavit-in-evidence came about only in February 2008 when the affidavit of the complainant was filed on 18/02/08. The said documents now produced on behalf of the complainant, would fully corroborate the facts stated by the said Ranjana Makode in her affidavit dated 5/2/08.
The affidavit of Nitin K. Chiplunkar was not filed because he had expired at the stage of production of evidence.
11. The O.P. remained satisfied by mere production of the report dated 30/09/04 of the said Suresh S. Gull without filing his affidavit-in-evidence. The O.P. have not given any explanation as to why they have not filed the affidavit of the said Suresh S. Gull. The O.P. also did not seek any explanation from Shri. Khandeparkar, the other surveyor who filed an affidavit in support of the case of the O.P., as to how his report dated 12/09/04 reflected the name of Ranjana Makode as the driver of the vehicle, in case it was the case of the O.P. that the vehicle was driven by Shri. Nitin K. Chiplunkar.
12. The only piece of evidence which the O.P. has in their favour is the said report dated 30/09/04 of Suresh S. Gull which shows the name of Nitin K. Chiplunkar as the name of the driver. The complainant has in his favour the report dated 12/09/04 of Shri. M.N. Khandeparkar which shows the name of the driver as Ranjana Makode. It is interesting to note that this is a report given at the behest of the O.P. This report corroborates the version given by the said Ranjana Makode in her affidavit.
On balance of probabilities, and in the absence of any affidavit of Shri. S.S. Gull, therefore, it has got to be concluded that vehicle in question was being driven at the time of accident not by the said Nitin K. Chiplunkar but by Smt. Ranjana Makode and therefore the O.P. was not right in repudiating the claim of the complainant.
13. The O.P. had produced the report dated 12/09/04 of Shri. M. N. Khandeparkar alongwith his affidavit dated 16/04/2008. He has assessed the loss at Rs. 2,41,790/- as against the estimated cost of Rs. 3,14,650/-. The O.P. in their affidavit-in-evidence had clearly stated that the complainant would be entitled to Rs. 2,41,790/- as per the survey report of Shri. M.N. Khandeparkar and would not be entitled to Rs. 3,01,437/-. The Lr. District Forum has awarded to the complainant the said sum of Rs. 3,01,437/- on the specious plea that the Lr. District Forum was satisfied that the complainant had spent the said sum of Rs. 3,01,437/- when in fact the complainant had not even produced the receipt for having paid the said amount except for his bald statement that he had made the payment of the said amount.
The complainant has produced no evidence to dislodge the assessment made by Shri. M.N. Khandeparkar. It is to be noted that a report of a surveyor is obtained by an insurer in terms of subsection (2) of Section 64-UM of the Insurance Act, 1938. The principle regarding the weight to be given to such reports is fairly well settled:
(a) In New India Assurance Company Ltd., vs. Shyam Umakant Naik and another, 2012 (4) CPR 22 (Goa) it has been held:
29. As stated by the National Commission in National Insurance Company Ltd., a report of a surveyor is an important document and cannot be brushed aside and the assessment made therein has to be specifically agreed or rebutted. In this case we find that there is no rebuttal to the report of the surveyors by any other report of equivalent weight.
Again, the National Commission in the case of Oriental Insurance Company Ltd., has stated that the surveyors report is an important piece of evidence and the respondent can be awarded compensation only on the basis of the surveyors report. A similar view was also taken in H.C. Saxena vs. New India Assurance Company.
(b) In H.C. Saxena vs. New India Assurance Company (2012 (1) CPR 31) the National Commission has held that the report of the surveyor appointed under the provisions of law is an important document and cannot be brushed aside without any compelling evidence to the contrary.
14. Admittedly, the complainant had produced nothing to rebut the report of the said Shri. M.N. Khandeparkar and in the absence of any rebuttal, the Lr. District Forum ought to have accepted the said report and awarded compensation to the complainant on the basis of the same. In other words the complainant would be entitled to Rs. 2,41,790/- as assessed by Shri. Khandeparkar and not to Rs. 3,01,437/- as claimed by the complainant.
15. The Lr. District Forum has awarded interest at the rate of 9% from the date of lodging the claim till payment. Shri. Kamat, the Lr. Advocate of the complainant, has placed reliance on United India Insurance Company Ltd., vs. M.K.J. Corporation (AIR 1997 SC 408) and submitted that interest ought to have been awarded after the expiry of two months of lodging the claim and it ought to have been atleast at 12%.
Shri. Kamat has submitted that the complainant is a Sr. Citizen and in case he had invested the money due by the O.P., the complainant could have secured atleast % more interest then other investors. In the case of United India Insurance Company Ltd., (supra) the Apex court observed that:
we think that a reasonable time of two months would be justified for them to take a decision whether claim requires to be settled or rejected in accordance with the policy. Therefore, two months would be computed from 30/10/1990. Accordingly, we give the benefit of the time taken to decide the claim up to 31/12/1990. The appellant-insurer is liable to pay interest from 1/1/1991 till date of payment.
We are informed that as per the directions of the Government of India, the appellant - insurance company has no option but to invest the money in the securities specified by the Government of India under which the insurance company is securing interest on investment at the rate of 11.3% per annum.
Under these circumstances, the appellant insurance company is liable to pay interest at 12% per annum from 1/1/1991 till the date of payment.
16. In the case at hand, as already noted interest at 9% has been awarded from the date of lodging the claim till the date of final payment. The Apex Court in United India Insurance Company Ltd., (supra) has observed that when the insured is deprived of the right to enjoy his money or invest the money in business, necessarily the loss has to be compensated by way of payment of interest by the insurance company. Again, in G.D.A. vs. Balbir Singh, AIR 2004 SC 2141, the Apex Court has held that the Constitution Bench has opined that a person deprived of the use of money to which he is legitimately entitled has a right to be compensated for the deprivation, call if by any name.
17. The complainant was 75 years old at the time of filing the complaint and as such he is the Sr. Citizen. As Sr. Citizen the complainant would be entitled to % more interest at current rates of interest, in case he had invested the money due to him. We are therefore inclined to modify the interest to be awarded to the complainant from 9% to 9.5%. We do not know at what rate of interest the insurance company invests their money presently though the said interest was said to be 11.3% in the year 1996 when the judgement in United India Insurance Company Ltd., (supra) was rendered. No separate compensation was granted in that case. The said interest of 9.5% shall be paid to the complainant from 1st March 2005 since prior to that the O.P. could have asked for and obtained the driving licence of Shri. Nitin K. Chiplunkar in case they so desired. As regards the compensation awarded to Rs. 1 lac neither of the Advocates have raised an issue. Even otherwise, we have held in FA/12/12 by order dated 4/10/12 in the case of M/s.
Jet Airways (India) Limited & anr. vs. Mrs. Urjita Vinayak Damle, relying on L.D.A. vs. M.K. Gupta (AIR 1994 SC 787) and Mr. Alok Tandon vs. Scandinavian Airlines System (2009 CTJ 85) that the liability to pay compensation is an additional liability arising from the charge of deficiency in service as defined by section 2(1)(g) of the Consumer Protection Act, 1986 under which compensation is awarded for harassment, emotional suffering, etc.
18. In view of the above discussion we allow both the appeals partly and modify the impugned order dated 6/7/12 as follows:
The O.P. is hereby directed to pay to the complainant the sum of Rs. 2,41,790/- with pending and future interest at the rate of 9.5% from 1st March 2005 untill payment plus compensation of Rs. 1 lac, to be paid within a period of 30 days. In case the said compensation of Rs. 1 lac is not paid the same shall also carry interest at the rate of 9.5%.
19. Considering the facts there will be no order as to costs.
[Smt. Vidhya R. Gurav] [Justice Shri N. A. Britto] Member President