NATIONAL INSURANCE COMPANY LTD. Vs. NAZIR AHMAD SHAH

JUDGEMENT

(1.) Through the medium of this appeal order dated 16.2.2006 passed by the Learned Divisional Forum Jammu (hereinafter to be referred as Forum) has been challenged. The Forum has directed the appellants to pay an amount of Rs. 1,03,500 along with interest @ 6% per annum payable after three months from the date of the submission of the Surveyors report to the appellant. Litigation expenses have been granted in the sum of Rs. 2,000. The appeal was filed on 31.1.2007 which was time barred by 319 days. Application was made for the condonation of delay. .Sufficient ground was found to condone the delay and vide Order dated 23.12.2008 the delay was condoned and the appeal was registered in the concerned register on that date. The order has been challenged inter alia on the following grounds:

(2.) HEARD the arguments.

(3.) MR . Sunil Malhotra, the learned Counsel of the appellant has laid great stress on condition No.4 of the Insurance Policy which according to him mandates that the Insurance Company has the option to reimburse the actual loss to the insured either by repairing, reinstating or replacing the Motor Vehicle or part thereof and/of its accessories or may pay in cash the amount of the loss or damage whichever is less. Elucidating his arguments, he has further submitted that the Surveyor and loss assessor namely M/s. Sharma surveyors had assessed the loss at the market value basis minus the salvage value to the insured truck in question at Rs. 1,03,500 whereas, on the basis of repair basis he has assessed the liability at Rs. 56,665. The lowest loss assessed was the amount of indemnification to be paid to the respondent. In support of his contention, he has cited the case of United India Insurance Company Ltd. v. Harchand Rai Chandan Lal. Mr. Bari Abdullah the learned Counsel appearing for the respondent has rebutted the argument of Mr. Malhotra by submitting that M/s. Sharma Surveyors has assessed total loss on insured basis in the sum of Rs. 2,28,500. He has assessed the loss on market value basis at Rs. 1,03,500. He has assessed the loss on repair basis at Rs. 57,465. According to the Counsel the arguments advanced by Mr. Malhotra Advocate do not apply to the facts of the case because the Surveyor has not taken into account the expenses incurred by the respondent to bring the damaged vehicle from the site which was located in District Anantnag to the place situated at Nawabad, Jammu where the vehicle was stationed and the Surveyor inspected the same on 18.8.2000 while the accident had taken place on 13.7.2000. The respondent has incurred extra expenses for the carriage of the vehicle from the site of accident to the site of its dumping in Nawabad area of Jammu where he had to pay the rent as well. The Surveyor had also not inspected the damaged engine part of the insured vehicle. In these circumstances, the assessment of loss arrived at on repair basis is not a fair and acceptable assessment of the loss because the respondent is entitled as per the terms and conditions of the policy to the actual loss suffered by him. While concluding his assessment the best mode for proper indemnification of the damaged vehicle is total loss market value basis which was arrived at Rs. 1,03,500 and the Learned Forum had granted that sum in a just and fair manner.