Faquir Chand vs LIMITED

THIS is an appeal filed against order dated 3.12.2001 passed by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh [for short hereinafter referred to as the District Forum-I) in Complaint Case No. 876 of 1998, Faquir Chand v. National Insurance Company Limited & Ors. The District Forum-I ordered for filing of the complaint and held that the vehicle in question was being plied as a taxi in violation of the terms and conditions of the policy and as such no relief can be granted by this Forum to the complainant.

THE appellant who was the complainant, filed the complaint case against the respondents-National Insurance Company Limited through Regional Manager, Regional Office, Sector 35, Chandigarh; Divisional Manager of the said Insurance Company located at Ambala (Haryana) and Branch Manager of the said Insurance Company located at Kurukshetra and claimed a compensation of a sum of Rs. 30,000/- on account of deficiency on the part of the respondents-Insurance Company, payment of repair bill in respect of the vehicle involved in the accident and covered by the insurance policy to the tune of Rs. 1,71,699.36 with interest @ 18% per annum. A sum of Rs. 2 lacs was claimed as compensation for harassment and mental agony and litigation expenses of Rs. 15,000/- have been claimed. THE total claim of the appellant/complainant was of a sum of Rs. 2,61,696.36. THE complainant Shri Faquir Chand owned a vehicle make Bajaj Trax Model, 1995 bearing Registration No. DL-ICE-1878. THE said vehicle was insured by the National Insurance Co. Ltd., Regional Office at Chandigarh for a sum of Rs. 2,50,000/- on 25.7.1996 at 4 a.m. through the Branch Office of the Insurance Company, Railway Road, Kurukshetra. THE insurance policy was to expire on 24.7.1997. On 30.8.1996, Shri Ravi Kant, son of the complainant went to Bharatpur along with his friends, Shri Arun Kumar, son of Chela Ram resident of H. No. 1355, Sector 10, Panchkula to attend ceremony of the mother of Shri Arun Kumar alongwith family members and relatives of said Arun Kumar. On 3.9.1996, Shri Ravi Kant aforesaid was returning from Bharatpur to Panchkula when the said vehicle met with an accident near Palwal. The complainant informed the Kurukshetra Branch of the National Insurance Company Ltd. about the accident of the vehicle and also about the said vehicle being insured by the National Insurance Co. Ltd. under the policy referred to above. The National Insurance Co. Ltd., branch at Faridabad appointed a Surveyor Mr. Saxena who reached the spot and inspected the vehicle at the place of accident. It is alleged that after completion of the formalities of the survey, the complainant sent the vehicle damaged in the accident for repairs to Delhi Automobiles Limited at Ambala Cantt. and this fact was duly intimated to the Divisional Manager of National Insurance Co. Ltd. at Ambala Divisional Office which sent a message to the Regional Office at Chandigarh from where a Surveyor named Mr. Pal was sent to Ambala to inspect the vehicle and prepared the estimate of repair of the accidented vehicle. Instructions were also issued to the Delhi Automobiles Company to repair the accidented vehicle on estimated costs which were to be paid by the Insurance Company. The aforesaid vehicle which was insured under the policy issued by the National Insurance Company Limited was repaired by Delhi Automobiles Company but the National Insurance Co. Limited did not make the payment of the bill/repairs.

The complainant took up the matter with the respondents by sending letters dated 25.9.1996 and 6.1.1998. The letter dated 6.1.1998 was sent to the Branch Manager, Regional Manager and the Head Office of National Insurance Company Limited. It is alleged that subsequently the National Insurance Company Limited appointed an Investigator named Shri R.L. Vashishta who demanded some documents which were supplied to him. The Branch Manager of the National Insurance Co. Ltd. also wrote letter dated 26.9.1997 to the complainant who supplied all the documents demanded by the Branch Manager. The complainant, it was alleged, also sent duly attested affidavit demanded by the Branch Manager of National Insurance Co. Ltd. on 9.10.1997. It was further alleged that the aforesaid vehicle involved in the accident was driven by Shri Ravi Kant son of the complainant Shri Faquir Chand and he was having a valid driving licence. The vehicle in question was used only for social and domestic purpose for which it was insured by the National Insurance Co. Ltd. and an affidavit in this regard was submitted by the complainant Shri Faquir Chand before the Branch Manager of National Insurance Co. Ltd. The complainant alleged that it was a clear case of deficiency in service on the part of the respondent - National Insurance Co. Ltd. and as such he claimed the reliefs mentioned in the earlier part of this order.

THE respondents received notice of the complaint and filed their written statement wherein the introductory facts were not disputed. It was, however, mentioned that the aforesaid vehicle covered by the insurance policy had been used as a taxi which was in breach of the terms and conditions of the insurance policy and as such the respondent National Insurance Co. Ltd. was not liable to pay any amount of claim. In para 3 of the written statement filed by the Divisional Manager of National Insurance Co. Ltd., it was mentioned that at the time of the accident eleven persons were travelling by the vehicle in question which was registered as LMV (Light Motor Vehicle). THE details of the occupants of the vehicle were given as under : (1) Shri Ravi Kant, Driver. (2) Shri Khazan Chand son of Shri Haveli Ram resident of H. No. 1149, Sector 10, Panchkula. (3) Smt. Swarna wife of Shri Amar Nath Gandhi, resident of H. No. 506, Sector 10, Panchkula. (4) Smt. Mohe Ranik wife of Shri Kimati Lal Gandhi resident of N.A.C. 129, Manimajra. (5) Shri Sewa Ram of late Shri Nand, resident of Mubarakpur, District Patiala. (6) Smt. Summitra Rani wife of late Shri Krishan Lal, resident of Mubarakpur. (7) Smt. Bhushan Kumar son of Shri Des Raj, resident of Mubarakpur. (8) Smt. Krishna Wanti wife of Shri Des Raj, resident of Mubarakpur. (9) Shri Girdhari Lal, resident of Rasoolpur, District Yamuna Nagar. (10) Smt. Veena Rani wife Shri Ashok Kumar, resident of Panchkula. (11) Infant daughter of Smt. Veena Rani.

It was, however, mentioned that no person of the name of Shri Arun Kumar was travelling in the aforesaid vehicle. THE respondents further contended that Shri Ravi Kant did not possess licence for driving LMV and since he was driving the vehicle at the time of the accident, the terms and conditions of the insurance policy were violated and breach was committed in respect of the same and as such the respondents were liable to make any payment for the repair charges. Reference was made to the report of the Investigator wherein he had reported that the Trax Jeep was being used as a taxi. The complainant filed his own affidavit wherein he corroborated the averments made in the complaint case on oath. The complainant filed various documents in support of his case. On behalf of the respondents, evidence was led in the shape of affidavit of Shri Rakesh Mohan, Divisional Manager, National Insurance Co. Ltd., Divisional Office-II, SCO 57, Sector 26-D, Chandigarh. Alongwith the affidavit, annexures were attached which are R-1 to R-9.

THE District Forum-I upheld the contention of the respondents and recorded a findings that the vehicle was being plied as a taxi whereas the same was insured as a private use and as such District Forum-I did not find any deficiency in service on the part of OP-Insurance Company in not accepting the claim of the complainant. Resultantly, the complaint was ordered to be filed without prejudice to the right of the complainant to seek remedy before any Competent Authority/Civil Court, if permitted by law. The complainant felt aggrieved against the order of the District Forum-I and has filed this appeal. Notice of the appeal was served on the respondents who put in appearance through Ms. Vandana Malhotra, Advocate. Record of the complaint case was summoned from the District Forum-I. We have heard Mr. S.P. Singh, Advocate, learned Counsel for the appellant and Ms. Vandana Malhotra, Advocate for the respondents. We have carefully gone through the impugned order and the record of the complaint case.

THE sole controversy involved in this appeal is whether the vehicle involved in the accident and insured under the policy issued by the respondents was used as taxi on the date when the accident took place. THE appellant/complainant filed his own affidavit in which he deposed in para 14, inter alia, as under : "14. That the vehicle of the deponent was used only for the purpose of social and domestic purpose and for these purposes the vehicle was insured by the Company..."

As against this categorical averment made by the complainant, the respondents-National Insurance Co. Ltd. filed affidavit of Shri Rakesh Mohan, Divisional Manager who deposed in para 2, inter alia, as under : "...Five certified copies of the claim petitions pertaining to the said accident are exhibited as Annexures R-2 to R-6 to this affidavit. THE claim petitions clearly show that they had hired the Trax Jeep as a Taxi and was being used for hire and reward. THErefore, the vehicle was being plied against the insurance policy, which provided that the vehicle could be used only for social, domestic and pleasure purposes and for insured''s own business. A copy of the insurance policy is exhibited as Annexure R-7 to this affidavit."

In para 3 of the affidavit, it was deposed as under : "3. That the vehicle in question is registered as a L.M.V. whereas Shri Ravi Kant, who was driving the vehicle at the time of accident did not possess the licence for driving a Light Motor Vehicle. In view of this also the Insurance Company is not liable for the payment of the repair charges of the damages etc. A copy of the Registration Certificate is exhibited as Annexure R-8 and a copy of the licence is exhibited as Annexure P-9 to this affidavit."

THE claim petitions and award filed before the M.A.C.T. are not relevant pieces of evidence in the complaint case. THE award of the M.A.C.T. is only relevant to show that the same was filed and was decided by the M.A.C.T. on a particular date and the relief was either refused or granted to the claimant. In nutshell, it is the ultimate result of the award which is relevant and not the evidence led in that case and also the reasons mentioned in the award by the M.A.C.T. Sections 40 to 44 of the Indian Evidence Act, 1872 deal with the judgments of the Courts of Justice, when relevant. Section 40 provides that previous judgments are relevant to bar a second suit or trial which is not the case here. Section 41 deals with the relevancy of certain judgments in probate, etc., which again is not relevant in the instant case. Section 42 provides that judgments, orders or decrees other than those mentioned in Section 41, are relevant if they relate to matter of public nature relevant to the inquiry; but such judgments, orders or decrees are not conclusive proof of that which they state. Section 43 of the Evidence Act provides that judgments, orders or decrees other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant, under some other provision of this Act.

It is a question of fact to be decided in the claim case as to whether the vehicle in question was used or not on the date of the accident as a taxi. Any averment about a fact made in the claim petitions or the award before the M.A.C.T., cannot be taken to be the proof regarding the said fact. The affidavit of Shri Rakesh Mohan, Divisional Manager is based on the claim petitions filed before the M.A.C.T. and it is on the basis of averments made in the claim petitions that the Divisional Manager has deposed that the vehicle in question was being plied as taxi and was being used for hire and reward and it is contrary to the terms and conditions of the insurance policy (copy Annexure R-7).

SO far as the averments made in the claim petitions filed before the Motor Accident Claims Tribunal, Chandigarh [for short hereinafter referred to as M.A.C.T.] are concerned, any averment made therein is only a pleading of the claim which requires proof in case the same is denied or disputed by the other side. Therefore, the fact pleaded in the claim petition cannot be accepted as its proof. The Divisional Manager of National Insurance Co. Ltd. is, legally speaking, not right in saying that the averment made in the claim petitions should be treated as the proof of the fact that the vehicle in question was alleged to have been hired as taxi. There is no other evidence led in this case to show that the vehicle in question was being used as a taxi at the time of the accident and thus the vehicle being used for hire and reward purposed. On the other hand, there is a specific averment made by the complainant that the vehicle was being driven by his son Ravi Kant who held a valid driving licence and the vehicle was being used for domestic and social purposes.

IN our considered view, the District Forum-I went wrong in accepting the version of the respondents - National INsurance Co. Ltd. as there was no creditworthy evidence led in the complaint case to show that the vehicle in question was being used and plied as a taxi. Since this was the main contention raised by the INsurance Company in this case to support their plea that they are not liable to pay any amount to the claimant regarding the accidented vehicle, the stand taken by the respondents-INsurance Company is not correct on facts and the INsurance Company is liable to settle the claim of the complainant in respect of the accidented vehicle in question about which he had taken the insurance policy. So far as the plea that Shri Ravi Kant was not authorised to drive the vehicle in question which is L.M.V., is concerned, the same is of no consequence as Shri Ravi Kant held a driving licence to drive the Trax Jeep, which is also covered under the definition of LMV. Resultantly, the appeal has considerable merit and is allowed. The impugned order of the District Forum-I, U.T., Chandigarh is set aside. The claim petition is allowed to the extent that the respondents-National Insurance Co. Ltd. are held deficient in rendering service to the complainant and in not settling the claim of the appellant. According to us, a sum of Rs. 10,000/- would be just, proper and adequate amount of compensation for deficiency in service and for physical harassment and mental agony. The respondents-National Insurance Co. Ltd. are further directed to settle the claim filed by the complainant under the terms and conditions of the policy within a period of two months from the date of receipt of copy of this order and duly communicate the decision taken by the Insurance Company to the appellant/complainant. In case the appellant feels dis-satisfied with the settlement of his claim, he would be at liberty to initiate appropriate proceedings in respect of the same. The appellant shall be entitled to get the costs of litigation, which we quantify at Rs. 2,000/-. Copies of this judgment be supplied to the parties free of charges. Appeal allowed.