Judgment:
A.N. Chaturvedi, President:
1. The case of the complainant is that his maxi taxi bearing No. B.R.B. 8962 was under the insurance cover provided by the opposite parties during the period 24.6.1987 to 23.6.1988 for Rupees 1,30,000.00. The insurance policy No. was 4362100534. In between the night of 27th and 28th June, 1987 the said vehicle was stolen away from the premises of Magadh Medical College, Gaya. F.I.R. was lodged before Magadh Medical College Police Station on 28.6.1987 on the basis of which police registered Case No. 038 of 1987 under Section 379, I.P.C. After investigation, the police submited final form on 30.12.1987 which was accepted by the Chief Judicial Magistrate and thereafter he (complainant) filed relevant documents before the opposite parties on 4.5.1988 but the opposite parties remained sitting tight over the matter thereby causing loss to him on account of interest charged by the banking agencies. All of a sudden a letter dated 11.7.1990 was received from the opposite parties directing him to submit within 15 days the final investigation paper submitted by the police. In pursuance of the said letter, he submitted copy of final report of the police on 17.8.1990 which was duly received by the opposite parties. The opposite parties deliberately neglected to settle his claim. On the aforesaid allegations the complainant has filed complaint petition on 5.7.1973 seeking the following reliefs :
(1) Rs. 1,30,000/- as the value of maxi taxi as per insurance;
(2) Rs. 1,68,000/- as interest @ 18% approximately;
(3) Rs. 2,10,000/- due to unemployment of the complainant @ Rs. 2,500/- per month;
(4) Rs. 6,00,000/- as damages pendente lite;
(5) cost and damage for mental agony and physical harassment caused to him.
2. The opposite party has filed written statement and has contested the case. The case of the opposite party is that the case is not maintainable as the same having been filed after lapse of 3½ years is barred by limitation. As per provision of the Consumer Protection Act, complaint case has to be filed within two years from the date of cause of action or from the date of rejection of the claim. Apart from that, the reliefs sought for by the complainant do not come under the purview of the Consumer Protection Act. Further case of the opposite party is that the complainant failed to furnish sufficient relevant papers for settlement of his claim and hence his claim file was closed and registered letter dated 11.7.1990 was sent to the complainant in this regard. There was no deficiency in service on the part of the opposite party and this complaint case has been filed by the complainant for wrongful gain. On the aforesaid pleas, the opposite party has prayed for dismissal of the case with cost.
3. The complainant has filed rejoinder to the written statement of the opposite party denying therein the allegations made in the written statement and specially the allegation regarding non-submission of relevant papers by the complainant for settlement of claim.
4. The opposite party has filed reply to the rejoinder of the complainant in which there is reference to Surveyors report. An affidavit has been filed on behalf of the opposite party enclosing therewith photo-copies of the reports dated 15.1.1988 and 2.6.1989 of Surveyors Kuldip Singh and P.K. Peeyush respectively.
5. The complainant has brought on record his affidavits dated 8.7.1994, 20.5.1997 and 14.6.2000 in support of his case as made out in the complaint petition and annexures thereto. He has also filed certain documents as per list about which there is mention in the affidavit dated 20.5.1997. Similarly the opposite party has filed affidavit in support of the contents of the written statement. As mentioned earlier, an affidavit with photo copies of Surveyors reports has also been filed on behalf of the opposite party. Now it has to be considered if the complainant is entitled to the reliefs as sought for by him.
6. Certain facts are not disputed. It is not disputed that the vehicle of the complainant was under insurance cover provided by the opposite party Insurance Company during the period 24.6.1987 to 23.6.1988 and the insurance amount was Rs. 1,30,000/-. The fact that the vehicle of the complainant was stolen away in between the night of 27th and 28th June, 1987 has not been specifically denied in the written statement of the opposite party. Moreover the factum of theft of the vehicle in between the night of 27th and 28th June, 1987 is apparent from the copy of the F.I.R. and final form submitted by the police and the certified copy of the order dated 22.9.1989 of the C.J.M., Gaya, whereby he accepted the final form submitted by the police. It is also not disputed that the complainant had preferred his claim before the opposite party and the opposite party had appointed Surveyors Kuldip Singh and P.K. Peeyush for assessing the loss. From the report of Surveyor Kuldip Singh it appears that he had assessed the loss at Rs. 80,298.00. On the other hand the report of Surveyor P.K. Peeyush shows that he had assessed the loss at Rs. 75,000/-. The case of the opposite party in the written statement is that the complainant did not furnish sufficient relevant papers for settlement of his claim and hence his claim filed was closed as âno claimâ and registered letter dated 11.7.1990 was sent to the complainant in this regard. The photo-copy of the said letter dated 11.7.1990 has been brought on record by both the parties. By the said letter the opposite party had asked the complainant to submit within 15 days final police investigation report failing which his claim file would be closed as âno claimâ. From Annexure 6 to the complaint petition it would appear that the complainant submitted photo-copy of the final report of the police before Gaya Branch of the Insurance Company on 17.8.1990. It may be mentioned that opposite party Nos. 1 and 2 are officials of the Insurance Company at Gaya. From Annexure-6 to the complaint petition it would further appear that the complainant by Annexure-6 also informed the opposite party that he had already submitted original copy of the final report of the police before the Divisional Office of the Insurance Company on 4.5.1988. The factum of receipt of photo-copy of the final investigation report of the police by the opposite party has been admitted in para-9 of the reply to the rejoinder of the complainant but it has been pleaded that the original final police investigation report was not submitted by the complainant and hence his claim was not settled.
7. It may be pointed out that the learned Counsel for the opposite party did not show any rule according to which original police report is to be submitted by the insured for settlement of his claim. It would not be out of place to mention here that the original police report is filed before the Magistrate and remains in the claim record and hence an insured can produce only certified copy or photo-copy thereof. As pointed out earlier, the complainant in Annexure-6 addressed to Gaya Branch of Insurance Company has asserted that he had already submitted original copy (perhaps he means certified copy) of final report in the Divisional Office of the Insurance Company on 4.5.1988. Even if this assertion of the complainant is not accepted, the same cannot justify the conduct of the opposite party in not settling his claim. In para-12 of his report, Surveyor P.K. Peeyush has stated about the final report of the police and acceptance of the same by the Magistrate. He has even given the number and date of the final report of the police. It means that he had seen the final report of the police. The said Surveyor in the last para of his report has stated that there is no solid proof to say that the case is not true and the police has also given clearance in this case. Under the circumstances, the conduct of the opposite party in not settling the claim of the complainant does not appear to be justified and certainly amounts to deficiency in service.
8. According to the opposite party the complaint is barred by limitation. It may be pointed out that the opposite party in para-7 of the reply to the rejoinder of the complainant has stated that the claim of the complainant was repudiated as âno claimâ on 11.7.1990. This complaint case was filed on 5.7.1993. It means it was filed within three years from the date of repudiation. It may be further pointed out that Section 24-A of the Consumer Protection Act which deals with limitation period is a new section and was inserted by Amendment Act No. 50 of 1993 and became effective with effect from 18.6.1993. Prior to that, residuary Article 113 of the Limitation Act, 1963 was being applied. The said Article provides three years as limitation period. Since the complaint has been filed within three years from the date of repudiation as alleged by the opposite party, there is no merit in the case of the opposite party that it is barred by limitation. Accordingly it is held that the complaint is not barred by limitation.
9. In paras 8 and 10 of the reply to the rejoinder of the complainant, the opposite party has admitted its liability to pay on the basis of Surveyors report. As pointed out earlier it is not disputed that the vehicle had been insured for Rs. 1,30,000/-. The complainant has claimed the said amount as the value of the vehicle as per insurance. The first Surveyor namely Shri Kuldip Singh has assessed the loss at Rs. 80,298/-. While doing so, he has deducted the depreciation value of the vehicle for four years. Besides this, he has also deducted Rs. 500/- under âLess excess policy clauseâ. The other Surveyor namely P.K. Peeyush has also deducted depreciation value for four years but while doing so he appears to have made some mistake. Apart from that, he has made some other deductions which do not appear to be justified. In view of what has been pointed out above, the report of Surveyor Kuldip Singh is comparatively more reliable and on the basis of his report, the complainant is held to be entitled to get Rs. 80,298/- (eighty thousand two hundred ninety eight) as his insurance claim.
10. The complainant has claimed Rs. 1,68,000/- as interest @ 18%. The date on which the complainant preferred his claim before the opposite party has not been mentioned by either party. The complainant in para-2(E) of his complaint petition has stated that he filed relevant documents before the opposite party on 4.5.1988. The first Surveyor namely Kuldip Singh submitted his report on 15.1.1988. The second Surveyor namely P.K. Peeyush submitted his report on 2.6.1989 i.e. about seventeen months after the submission of report by first Surveyor. The opposite party remained sitting tight over the reports of the Surveyors and did not settle the claim of the complainant. In United India Insurance Company Ltd. v. M.K.J. Corporation, reported in III (1996) CPJ 8 (SC)=(1996) 6 Supreme Court Cases 428, it has been held by the Apex Court that after claim made by the insured and submission of report by Surveyor, insurer should be allowed a reasonable time of two months to take a decision whether the claim required to be settled or rejected and the insurer would be liable to pay interest for a period commencing from the date of expiry of the said two months till the date of payment. In the said case interest was allowed by the Apex Court @ 12% per annum. Accordingly the opposite party is held liable to pay interest over the said amount of Rs. 80,298/- at the rate of 12% per annum with effect from August, 1989 till date of payment.
11. The complainant has claimed Rs. 2,10,000/- due to his unemployment @ Rs. 2,500/- per month. Under the terms of the insurance policy, the opposite party is liable to pay insurance claim and not any amount on account of unemployment of the complainant. So the claim of Rs. 2,10,000/- is not entertainable and hence is disallowed.
12. An amount of Rs. 6,00,000/- has been claimed as damages pendente lite. When interest on the amount found payable by the opposite party has already been allowed, there cannot be any justification for allowing Rs. 6,00,000/- as damages pendente lite and that too when there is no evidence with regard thereto. So the claim of Rs. 6,00,000/- as damages is not entertainable and it is held accordingly.
13. The last relief sought for by the complainant is cost and damages for mental agony and physical harassment caused to him. It has already been pointed out above that interest over the payable amount having been allowed, there is no question of granting further amount as damages. However the complainant is certainly entitled to cost of the case. This case is pending since the year 1993. One can imagine the expenses the complainant might have incurred since the year 1993. It would not be out of place to mention here that inspite of registered notice the opposite party appeared and filed Vakalatnama for the first time on 21.1.2000 and thus avoided to appear for sevaral years. Taking all these facts into consideration the complainant is held entitled to Rs. 8,000/- (eight thousand) as cost.
14. Having regard to the above discussion this complaint case is allowed in part as indicated above. The opposite party is directed to pay Rs. 80,298/- (Rs. eighty thousand two hundred ninety eight) to the complainant with interest thereon @ 12% per annum with effect from August, 1989 till payment. The opposite party is further directed to pay Rs. 8,000/- (eight thousand) as cost to the complainant. This order must be complied with by the opposite party within two months from the date of receipt/production of the copy of this order, failing which it will be open to the complainant to realise the said decretal dues through the process of Court/Commission.
Complaint partly allowed.