Arvind Lal vs Oriental Insurance Co. Ltd.

THIS appeal is directed against the order dated 13.12.2003 passed by the District Consumer Disputes Redressal Forum, Rajnandgaon (hereinafter referred to as ''District Forum'' for short) in Complaint Case No. 67/2003 whereby the complaint was dismissed.

BRIEF facts as narrated in the complaint are that the complainant had purchased a Marshal Jeep mainly for the purpose of taking his disabled wife to the hospital and for other domestic use. The complainant had got his aforesaid jeep bearing No. M.P. 13/C-4735 (New No. C.G. 07/Z.D-6314 comprehensively insured from the opposite party/respondent for the period from 29.11.2001 to 28.11.2002. It is averred in the complaint that the complainant was acquainted with some of the Commercial Tax Inspectors posted at Potekohra, near Chichola and one of them Sri Teekam Das Verma, Inspector, Commercial Tax borrowed the jeep on 27.11.2002 for attending the marriage of the daughter with his colleagues. Due to personal relations with Sri Verma, the complainant had lent the said vehicle (without charging any fare) on the condition that Mr. Verma would bear the expenses for fuel (diesel). While the aforesaid Sri Verma was returning from Raipur to Chichola, after attending the marriage, the jeep met with an accident near village Tendunala at about 1.00 a.m. on 28.11.2002. It is further averred that the aforesaid accident took place during subsistence of the insurance and all the persons aboard the car, except the driver, had died, FIR was loged and criminal case was registered against the driver. It is also averred that the jeep was totally damaged and the complainant had duly intimated the insurer regarding the accident and had also filed a claim for Rs. 3,38,000 on the basis of estimate given by National Motor Works, Chichola, Distt. Rajnandgaon. The insurer got the matter investigated through Surveyor. However, the insured repudiated the claim on flimsy ground that the vehicle was being used for commercial purpose. Hence the complainant had filed the complaint before the District Forum for deficiency in service on part of the insurer and had claimed a sum of Rs. 3,38,000. The complainant, besides filing his own affidavit, had also filed affidavits of various independent witnesses. In the written version the opposite party admitted the insurance of the jeep, denied various averments made in the complaint especially that of deficiency in service and specifically averred that the jeep was being used for commercial purpose, hence the claim was repudiated. The opposite party had submitted affidavit of Mr. P.C. Kuldeep, Branch Manager, Rajnandgaon.

The learned District Forum had come to the conclusion that the complainant had violated the terms and conditions of the policy by using the jeep for commercial purpose, hence the insurer had not committed deficiency in service by repudiating the claim. Consequently, the complaint was dismissed.

FINAL arguments heard and record perused. Learned Counsel for the appellant submitted that the learned District Forum had erred in dismissing the complaint and failed to properly appraise the material on record. He further submitted that the District Forum totally relied on the FIR filed by Tej Pratap Singh for arriving at the conclusion that the vehicle was being run for commercial purpose, though the fact remains that the said Tej Pratap Singh was on duty and he had no knowledge about the conversations between late Teekam Das Verma and the complainant, regarding taking the jeep. He further submitted that on the other hand, the learned District Forum has failed to consider the affidavits of Sri Surendra Guruji and Pitambar Sinha who were present and has full knowledge of facts relating to lending the jeep to late Teekam Das Verma. Further that the respondent has failed to cross-examine the deponents. Learned Counsel further submitted that the duty to prove that the jeep was being run as a taxi was on the insurer but the insurer has not filed any document to prove the same still the Forum below has wrongly held that the jeep was being used for commercial purpose in violation of the terms of the policy. It was further submitted that the learned District Forum ought not to have relied on the record of the criminal case for arriving at any conclusion. He further submitted that the Insurance Company arranged the spot survey and final survey and had informed the appellant through its Surveyor that the complainant may finalise the claim on ''Total Loss Basis'' by accepting, towards full and final settlement, a sum of Rs. 2,70,000 if the appellant hands over the scrap, and for Rs. 2,20,000 in case the appellant did not wish to hand over the scrap. The insurer had obtained consent letter from the complainant/appellant for the aforesaid proposal through Surveyor Mr. S.P. Nanda but the insurer failed to make any payment to the appellant. The respondent has not filed the investigator and/or Surveyor''s report. The learned Counsel further submitted that there was unreasonable delay on part of the insurer in deciding (repudiating) the claim, this by itself amounts to deficiency in service.

LEARNED Counsel for the respondent submitted that the order of the District Forum is just and proper and no interference therein is called for. He submitted that it is stated in the FIR and the Dehati Nalishi and also in the police statement of Tej Pratap Singh filed at page 63 of the record of the District Forum that the Commercial Tax Inspectors had hired the jeep for going to Raipur for attending the marriage of the daughter of Sri Otty, Additional Commissioner, Raiur and the accident took place while they were returning after attending the marriage. He further submitted that there was fundamental breach of the terms of policy as the jeep was being run for commercial purpose. The learned Counsel prayed for dismissal of this appeal. On perusal of record we find that the complainant/appellant has filed copy of sanction letter under Rule 19(2) of the M.P. Civil Sewa Acharan Adhinayam, 1965, whereby the complainant/appellant was, in view of disability of his wife accorded permission for purchasing a Marshal Jeep for personal use. This document corroborates the version of the complainant/appellant regarding purchase of jeep of personal use. On perusal of affidavits of Sri Surendra Kumar Sinha and Pitambar Sinha it appears that the deponents were present with the complainant when late Teekam Das Verma asked the appellant to lend his vehicle for attending the marriage at Raipur on the condition of filling the fuel. It is specifically stated in the affidavits that the complainant has agreed to the proposition and permitted late Teekam Das Verma to take the vehicle, without charging any fare. It is further stated in the affidavits that the appellant had purchased the jeep because his wife Smt. Nivedita Lal had become disabled due to an accident. It is yet further stated that the appellant always made personal use of the vehicle and never gave the said vehicle on hire to anyone.

BESIDES the aforesaid two affidavits, the appellant has also filed affidavit of Punaram Patel the owner of the tea stall where the complainant and the aforesaid deponents were taking tea when late Teekam Das Verma approached the appellant for requesting to lend the vehicle. His affidavit also corroborates the version of the appellant as well as the aforesaid deponents that the jeep was given on the condition of filling the requisite fuel by Teekam Das Verma.

BESIDES this the driver Khem Lal Sahu who was working with the appellant for nearly two years has also stated in his affidavit that the appellant used the vehicle for personal and domestic purposes. The deponent further stated that he had never taken the vehicle for being used on hire. It is also stated that on the relevant day late Teekam Das Verma had got the diesel filled in the jeep. The certificate signed by the Sarpanch and other is also on record to demostrate that wife of the complainant had met with an accident and due to her disability the complainant had purchased the jeep for use by the family. It is further mentioned in the certificate that the complainant never gave the vehicle on hire. However, in case of need by near and dear once and/or acquaintances having good relations the complainant used to give the vehicle but he never charged the fare.

The complainant has also filed affidavit of Tej Pratap Singh, who had lodged the FIR with the police. It is stated therein that Teekam Das Verma had taken the vehicle from the complainant, for attending the marriage at Raipur, on the condition of filling requisite diesel. It is further stated that he had reported the accident to the police and was very much disturbed and nervous due to police has recorded that the vehicle was taken on hire.

IN view of the aforesaid affidavits, of the persons who had first hand knowledge of the facts, filed in support of the complaint and especially when the insurer has failed to cross-examine the deponents, and further failed to file the INvestigator and or Surveyor''s report supported by affidavit we are of the opinion that the insurer has failed to prove that the vehicle was being run for commercial purpose i.e., as a taxi. The reference in this regard in the FIR, Dehati Nalishi and statements recorded by the police are not sufficient for arriving at any conclusion especially in view of the fact that Tej Pratap Singh i.e., the person who had given intimation of accident to the police was admittedly on duty and had no first hand knowledge about the terms on which the vehicle was lent by the complainant to Teekam Das Verma. Further the said Tej Pratap Singh has, in his affidavit, denied any such information being given to the police. On the other hand it is noticed that police statements of Pitamber Sinha and Surendra Kumar Sinha were also recorded and the same are solely in consonance with the statements made in the affidavits sworn by them. Hence there is no reason to disbelieve them. It appears from the repudiation letter dated 3-2003 that the claim was repudiated for the reason "The vehicle was used for hire as per the statement given by the driver before police authorities and as per legal opinion obtained by us". However, no such statement of Khem Lal, the driver is placed on record.

IN view of the observations made here-in above we are of the opinion that in view of the facts of the case the FIR, Dehati Nalishi and police statements of some of the persons, (ignoring those of the others) cannot have precedence over the statements made on oath, in the form of affidavits, of the persons having first hand knowledge of the facts deposed. We are of the opinion that the insurer has failed to prove that the ill-fated vehicle was being driven for hire at the time of accident in breach of policy conditions. We are of the considered opinion that even in case the vehicle was being driven for hire, the said breach would not have been a fundamental breach as the accident could not be attributed or said to have resulted on account of the said breach. IN the circumstances the insurer should at least have treated the claim as non-standard. Total repudiation of claim definitely amounts to deficiency in service on part of the insurer. We are of the view that the District Forum has erred in dismissing the complaint solely of the basis of record of the criminal case on the ground that the affidavits were filed by way of after-thought especially when the police statement of complainant, Pitambar Sinha and Surendra Kumar Sinha disclose the same facts as they have stated on oath in the form of affidavit. The learned District Forum has also lost sight of the fact that even if it was proved that there was breach of policy condition and the vehicle was being run for hire, the same would not amount to fundamental breach as has been held by this Commission in Viswanath Sultania v. New India Assurance Co. Ltd., I (2005) CPJ 323=2004 (2) CPR 369. Hence the order of the District Forum cannot be sustained. This appeal is allowed. The order of the District Forum is set aside. In the complaint the complainant had filed an estimate of Rs. 3,38,000 from National Motor Works, Chichola, Distt. Rajnandagaon and had claimed the same sum towards compensation. The insurer has failed to file Surveyor report or any other document to show as to how much damage was assessed by them.

CONSIDERING the facts and circumstances of the case and that the complainant had not produced bills etc. for the actual expenses incurred by him in the repairs and possibility of inflated estimate prepared as well as depreciation on account of normal wear and tear to the parts of the vehicle, it appears just and proper to award Rs. 2,25,000 with interest.

ACCORDINGLY, the appeal is allowed. Impugned order dismissing the complaint is set aside. It is directed that respondent/insurer shall pay to the complainant/appellant Rs. 2,25,000 (Rupees two lacs, twenty-five thousand). This amount shall be payable with interest @ 9% p.a. from the date of complaint. The respondent/insurer shall also pay to the complainant/appellant cost of this litigation and that of the complaint, which is quantified at Rs. 5,000 (Rupees five thousand) only. Appeal allowed.