Divisional Manager, New India Assurance Co.Ltd. vs AKSHAYA KUMAR MISHRA

THIS is an appeal by the Insurance Company against the direction of the District Forum to settle the claim of the complainant under a Motor Vehicle Insurance Policy.

COMPLAINANT''s truck bearing Regn. No. OH-04-1591 insured under the policy met with an accident on 4.4.1993 on the National Highway during the validity of the policy in between the period 25.4.1992 to 24.4.1993. The Insurance Company repudiated the claim on the ground that the truck being a goods carrying vehicle was at the time of accident carrying passengers and the driving licence of the driver was a fake one. The District Forum held that there was nothing on record to indicate that the insured had permitted his truck driver to carry passengers nor there was any proof from the side of the Insurance Company that there was breach of policy condition by the complainant and further that the persons were moving in the truck paying fare. The District Forum accepting the case of the complainant directed the Insurance Company to settle the claim. Heard Mr. S.S. Rao, the learned Counsel for the appellant-Insurance Company and Mr. R.N. Jena, the learned Counsel for the complainant. Mr. Rao submitted that at the time of accident it was found that some passengers were travelling in the vehicle which was prohibited not only under the law but also under the policy. We may mention here that the District Forum has held rightly that there was no material to hold that the passengers who were moving in the truck paid any fare for being carried in the truck. That apart assuming and accepting the argument of Mr. Rao that they were passengers it could not be said that the passengers (even though made payment) contributed to the accident in any manner. The Insurance Company should satisfy the claim under the policy and the relevant factor being whether the truck met with an accident. In this case this fact being admitted question of passengers being carried in the truck either paying fare or not is not relevant for the purpose.

Mr. Rao further submitted that after receiving information about the accident, the Company carried on a thorough investigation and having been satisfied that there was violation of terms of the policy, it repudiated the claim, and once the Company in good faith applied their mind took action in the matter then it should not be held that they rendered themselves liable for any deficiency of service. To this we may say that deficiency in service could be either way, such as- (i) Deficiency in service would be if they do not at all consider or total inaction on their part in not considering the claim of the complainant when a valid insurance policy is there. (ii) Secondly deficiency could be also when after taking up the case of the insured if there is any illegal repudiation or arbitrary exercise of discretion in settling the claim. So far deficiency with regard to the first is concerned, it might be that the Company took up the case of the complainant at right earnest but if repudiation itself is arbitrary and whimsical it would also amount to deficiency in service. Under the first situation as above the Insurance Company may not be held liable for deficiency of service but it would be nothing wrong for the Forum to direct that repudiation being illegal and arbitrary, the complainant should get the assured amount under the policy for not satisfying the claim of the complainant and this would amount to deficiency of service.

MR. Rao further submitted that in the driving licence as produced by the complainant the name of the driver and number of the driving licence as per the charge-sheet and seizure list in G.R. Case No. 288/1993 are inconsistent. In this regard we accept the facts stated in the FIR as correct. But the FIR was lodged by the Gram Rakhi D.D. Mallick who only informed about the accident and injury sustained by the occupants of both the trucks and the death of one person Makar Jena at the spot. This is dated 4.4.1993. In the written version in Para 9 the Insurance Company took the stand that the driving licence as produced by the complainant differs from the number and name of the driver as per the charge-sheet and the seizure list in the connected G.R. Case No. 288/1993. We may say that this is not a specific case pleaded by the LIC that the driver Surendra Kumar Khatua was not driving the vehicle at the time of accident. Their stand is the driving licence produced by the complainant differed in the number and the name of the driver as per the charge-sheet and the seizure list. On a verification of the charge-sheet we find that one Kulamani Sahu s/o Dhaneswar Sahu the driver of truck No. DSU-7535 was sent up for trial for causing the accident. The cleaner of the truck of the complainant, namely Chagala @ Chakradhar Das was cited as a witness. He also possessed a driving licence. Therefore, we draw the conclusion that the driver of the complainant''s truck S.N. Khuntia died and two others were injured in the accident. That the said S.N. Khuntia was driving the vehicle of the complainant at the time of accident has not been disputed by the Insurance Company. Therefore, the stand taken by them that there was discrepancy of driving licence is of no assistance to them. Further in meeting the averments of the complainant in Para 3 that the driver of the complainant''s truck S.N. Khuntia died, the Insurance Company in Para 15 of the written version did not deny this fact specifically about the death of the driver of the complainant''s truck. Now we may examine to what extent the complainant''s claim for compensation should be allowed. The sum assured under the policy is Rs. 3,80,000/-. Premium was paid for Rs. 7,715.33. The complainant has claimed in the Schedule Rs. 2,34,000/- towards insurance claim. On examining the cash memos/money receipts filed by the complainant we find the total amount of expenditure towards repair of the vehicle is Rs. 1,49,330.70 say Rs. 1,49,331/-. The complainant is entitled to this amount under the policy along with interest at the rate of 10 per cent per annum from the date of repudiation i.e. 20.9.1994 till payment. We direct the Insurance Company to make the payment within two months from the date of communication of the order. The appeal is dismissed with modification. Order should be complied within two months from the date of communication of the order. Appeal dismissed.