NEW INDIA ASSURANCE CO. LTD. Vs. NATHMAL BHAJANKA

JUDGEMENT

(1.) THIS appeal by the defendant insurance company is directed against the judgment and decree of the Assistant District Judge, Jorhat decreeing the suit of the plaintiff for recovery of compensation on account of damage to his vehicle which was covered by an insurance policy with the defendant -appellant.

(2.) THE case of the plaintiff, briefly, was that his vehicle, a truck bearing registration No. ASZ 5143, met with an accident on 28.1.1973 and was damaged. The said vehicle was insured with the defendant -appellant. The plaintiff preferred claim but despite several requests and demands the insurance company did not take any action. Under the circumstances, the plaintiff, after giving proper notice to the insurance company, got the vehicle repaired and took delivery of the same on payment of repairing charges amounting to Rs. 21,021.53. The plaintiff also approached the insurance company for arbitration but as it failed to take any effective step to settle the matter by arbitration in terms of the arbitration clause in the insurance policy, the plaintiff filed the suit for recovery of a sum of Rs. 57,995.52 comprising of a sum of Rs. 21,021.53 by way of actual damage to the vehicle, a sum of Rs. 25,500 as compensation for loss of income suffered by him on account of delay in taking delivery of the repaired vehicle by 85 days which, according to him, was caused by the inaction of the insurance company and interest pendente lite, costs etc.

(3.) THE learned trial court did not accept the aforesaid contention. On consideration of the facts and circumstances of the case, the trial court exercised its power under Section 36 of the Arbitration Act and dispensed with the arbitration clause and proceeded with the trial. On merits, the learned trial court found that the plaintiff had succeeded in proving the cost of repairs of the damaged vehicle which amounted to Rs. 21,021.53. It was observed that there was no denial by the defence that the aforesaid amount was not paid by the plaintiff to the firms mentioned in the plaint, namely, M/s. Jesraj Jiwanram Pvt. Ltd. (Rs. 16,571.53) and M/s. Viswakarma Body Builders (Rs. 4,450). So far as the compensation for loss of income on account of delay in taking delivery of the repaired vehicle is concerned, the trial court rejected the objection of the insurance company to the effect that the plaintiff was not entitled to any such compensation in view of the specific clauses in the insurance policy referred to as 'Clause M.V.C and 'Section 1, Loss or Damage'. It, however, held the claim of the plaintiff at the rate of Rs. 300 per day to be higher and allowed compensation at the rate of Rs. 150/ - per day for 85 days which amounted to Rs. 12,750/ -. The court also awarded interest at the rate of 7 per cent from the date of institution of the suit till realisation of the decretal amount. The insurance company has come up in appeal before this Court.