NEW INDIA ASSURANCE CO LTD Vs. KAILASH RAI

JUDGEMENT

(1.) This is a first appeal filed by appellants, the New India Assurance Co Ltd. against order dated 22.1.1995 in Complaint No. 81 of 1993 directing appellants to pay Rs. 1,00,000/- as compensation and interest at the rate of 10% p.a. from 1.7.1993 till the date of payment to the respondent/complainant, Mr. Kailash Rai.

(2.) Brief facts of the case are : Respondent insured his truck No. BEA 4251 with the appellants for a sum of Rs. 2,98,000/- for the period from 29.1.1993 to 29.1.1994. On 3.2.1993 the truck met with an accident and total loss was claimed by the respondent. Surveyor, Sri Hari Mohan Walia was appointed on 18.2.1993. He assessed the loss to the extent of Rs. 55,815/- on repair basis without opening the assemblies. The Surveyors have also calculated the net liability of the insurers on total loss basis at Rs. 1,21,500/- after deducting the salvage value from the total loss assessment of Rs. 2,31,500/-. The Surveyors in their letter dated 16.3.1993 to the respondent that no dismantling work was done on the truck to assess the actual loss because the respondent is interest in claiming on total loss basis. "I have no alternative but to submit my independent survey report on repair basis assessment as per usual inspection without dismantling any part".

(3.) The appellants pleaded that the onus of proof to produce material evidence to prove the loss of the vehicle, whether it was totally damaged to get the compensation on the basis of total loss basis, is on the respondent which he has not brought. On the basis of survey report, the loss estimation of the insured vehicle should be taken on repair loss or total loss basis whichever is less. This has to be done accordingly and without delay. The respondent is not entitled to get more than what was offered by the appellants.