AVTAR SINGH vs NEW INDIA ASSURANCE CO. LTD.

THIS is a very unfortunate case. The complainants are Avtar Singh, father, Smt. Jagdish Kaur, widow, and two minor children aged 5 and 3 years. The deceased was Daljit Singh, 27. The case of the complainants is that Avtar Singh was the owner of 1988 model Ambassador Car No. DAQ 3057. He had employed his son Daljit Singh as a paid driver for the said car. He too a comprehensive insurance policy for the ca for the period 22.11.90 to 21.11.90, the insured value being Rs. 1 lac. On payment of additional premium, certain supplementary endorsements had also been obtained in the policy. On 20.5.91, Daljit Singh was reported to have been murdered and the car taken away by the robbers in the area of Bullandshehar in U.P. From the driving licence found in the pocket of the deceased, the police contacted the father of the deceased in Delhi. FIR was lodged by him on 23.5.91 at P.S. Jahangirabad, Uttar Pradesh. The Insurance Company was informed of the incident on 1.11.91. The complainant submitted various claim forms and furnished other details required by the Insurance Company from time to time. The widow and children of the deceased filed a claim under the Workmens Compensation Act against the employer, namely Avtar Singh. By letter dated 22.12.93, the Insurance Company repudiated the claim. The present complaint was filed on 3.6.93 claiming Rs. 2,99,397/- on account of loss of the car and the claim preferred by the widow and children against the owner of the car under the Workmens Compensation Act.

IN the written version filed by the INsurance Company it has been stated by way of preliminary objection that the widow and children of the deceased having filed the claim before the Commissioner, Workmens Compensation the present complaint to the extent of the said claim was not maintainable. It has further been stated that the insurance policy had been issued for use of the car as private car. IN fact, at the time of occurrence, it was being used as a private taxi. This was in contravention of the express terms and conditions of the insurance policy and accordingly the INsurance company was not bound to pay any amount to the complainant. The insurance Company is stated to have referred the matter to M/s. Mehra Associates to investigate the facts and circumstances. Mr. O.P. Mehra submitted report, Annexure R-1, filed with the written version dated 29.10.92. On the basis of the enquiries including the material collected by the police in the investigation of the criminal case it was reported that the police had recorded the statements of Kuldeep Singh and Gurdev Pal, taxi drivers, to the effect that on 19.5.91 three persons came and hired Daljit Singh''s black ambassador car for going to Jahangirpur, Khurja from the taxi stand at Darya Ganj. A day or two later they learnt that Daljit Singh had been murdered and the car taken away. In the rejoinder the complainant controverted the facts and pleas raised in the written version and took a firm stand that the car had not been used as a private taxi and the complaint was maintainable.

We have heard learned Counsel for both the parties. On behalf of the complainant, it has been contended that even the Investigator appointed by the opposite party had not been able to gather any tangible evidence to show that the car was being used for commercial purposes at the time of occurrence. On behalf of Insurance Company it has been contended that during the investigation the Investigator came to know about the statements made by Kuldeep and Gurdev Pal, taxi drivers, that the aforesaid car had been hired as a taxi by three persons from the taxi stand, Darya Ganj for being taken to Jahangirpur, Khurja. It has further been pointed out that it was rather unusual that the father should be employing his own son as a paid driver. Mr. Pal, learned Counsel for the opposite party also submitted that the purpose of visit to Jahangirpur had not been disclosed in the FIR or any other document which came to be committed to writing at the earliest stage of the case which may be consistent with private use of the car. For instance, it was nowhere stated that Daljit Singh was carrying some relations or friends for an innocuous visit to a named place of certain friends or relations and it was therefore, highly probable that the car was being used as a private taxi. We have given our anxious consideration to the respective submissions. In our view the fact whether the car in question was being used for private purposes only or as a taxi is highly disputed. There is prima-facie evidence and circumstances that the car was not being used for private purposes. In that sense it cannot be said that the Insurance Company was not justified in repudiating the claim.

IN the policy, Annexure A-l, Clause (b) of the terns and conditions relate to the limitations as to use - use only for social, domestic and pleasure purposes and insured''s on own business. If after a proper enquiry it is established that the car was being used for one such purpose, the complainant would be entitled to the claim. If it is found otherwise, it is highly doubtful whether the complainant would have a case. IN substance, therefore, the aforesaid question is required to be gone into in necessary detail in which elaborate evidence can be led on both sides and disputed question adjudicated one way or the other. IN our view the present case is covered by decision of the National Commission in M/s. Janta Machine Tool v. Oriental INsurance Company Ltd., I (1991) CPJ 234 (NC)=1986-94 Consumer 857. We, therefore, dispose of this complaint leaving it open to the complainant to have the matter adjudicated in the Civil Court. A copy of this order be communicated to both the parties. There will be no order as to costs in these proceedings. Complaint disposed of.