JAIGIRI GOSWAMI vs Oriental Insurance Co. Ltd.

THIS appeal under Section 15 of the is directed against the order dated 7.3.2006 in Complaint No. 28/2004, passed by District Consumer Disputes Redressal Forum, Jagdalpur (hereinafter called the "District Forum" for short) whereby the complaint was dismissed.

BRIEF facts necessary for the disposal of this appeal are that the complainant had obtained insurance for his vehicle Sumo bearing registration No. CG-17-D-0313 for the period from 1.10.2003 to 30.9.2004 and during the subsistence of insurance the vehicle met with an accident on 17.12.2003. It was averred in the complaint that the said vehicle met with an accident when some acquaintances of the complainant were carrying dead body in the vehicle. It was further averred that the persons sitting in the vehicle were injured and the complainant had given intimation of accident to Bhanpuri Police Station and had went to Jagdalpur and got the vehicle repaired. The cost of repair was Rs. 2,81,735. The complainant laid claim before the insurer. The insurer had appointed Surveyor but had subsequently repudiated the claim on 13.8.2004 on the ground that at the time of accident the vehicle was being plied as taxi in violation of terms of policy. Hence, the complainant filed the complaint with a prayer for payment of Rs. 2,81,735 towards cost of repairs and Rs. 25,000 towards mental shock together with interest calculated @ 18% p.a. It was averred in the complaint that the repudiation of the claim by the insurer amounts to deficiency in service. The respondent resisted the complainant and denied various allegation in the written version filed on their behalf. It was averred that the insurer had appointed Surveyor who found during investigation that the persons carrying the dead body in the vehicle at the time of accident had paid Rs. 18,000 towards fare for the vehicle. It was further averred that the vehicle was registered as private vehicle but at the relevant time it was being used for hire and reward. In the circumstances repudiation of the claim by the insurer did not amount to deficiency in service. It was further averred that the complainant had filed exaggerated claim. The Surveyor has assessed the loss at Rs. 2,24,479 but in view of the facts and circumstances of the case even the sum assessed by the Surveyor was not payable.

Learned District Forum came to the conclusion that since the vehicle was registered as a private vehicle but was being plied as taxi at the relevant point of time there was violation of terms of policy. The repudiation did not amount to deficiency in service, hence the complaint was dismissed.

FINAL arguments heard and record perused. Learned Counsel for complainant/appellant submitted that learned District Forum has failed to appreciate the material on record in its proper perspective. He further submitted that learned District Forum dismissed the complaint though the opposite party had failed to prove its allegation. He further submitted that the vehicle was not being used as taxi but on humanitarian ground it was lent to some acquaintances for carrying dead body of their relative. Hence, the order of the District Forum is liable to be dismissed. He further submitted that total repudiation of claim by the insurer amounted to deficiency in service and submitted that even if the vehicle in question was being run as taxi in breach of terms of policy, the said breach would not amount fundamental breach and hence the insurer was obliged to treat the claim as non-standard and make the payment. Failing to do so the insured has rendered himself liable for deficiency in service. He prayed that the appeal and the complaint be allowed and the order of the District Forum be set aside. Learned Counsel for appellant also relied on Vishwanath Sultania v. New India Assurance Co. Ltd., I (2005) CPJ 323=2004 (2) CPR 369 and also the decision in I (2006) CPJ 389, Arvind Lal v. Regional Manager, The Oriental Insurance Company Ltd., in Appeal No. 11/2004 decided by this Commission on 20.4.2005.

LEARNED Counsel for respondent reiterated the stand taken before the District Forum and submitted that the order of the District Forum is just and proper in the circumstance of the case and there is no need for interference with the same. He submitted that the record of the criminal case has been filed and the statement of the persons who were travelling in the vehicle at the time of the accident have been recorded by the police and the same are placed on record and it clearly appears from the said statement that vehicle was being run on payment. He further submitted that from Surveyor''s report also it clearly appears that the vehicle was hired. Hence there was clear breach of terms of policy and the order of the District Forum does not call for any interference. LEARNED Counsel for respondent relied on the decision of National Commission in Hemant Lal Chhabra v. The Oriental Insurance Co. Ltd., I (2004) CPJ 22 (NC)=2002 (1) CPR 8 (NC). On perusal of record it appears that besides filing his own affidavit the complainant had filed the affidavit of Saif-ul-Hussain, who was the driver, Smt. Swati, Mohan Lal and Shanti Lal. In all these affidavits the deponents have stated on oath that no amount was paid towards fare. The vehicle was lent to the persons on humanitarian ground for taking dead body of their relative. It goes without saying that the affidavits have been sworn on oath before a Notary and have precedence over the statement recorded by the police. Otherwise also the record of criminal case cannot be made sole basis for passing the order. It clearly appears that learned District Forum has failed to appreciate the various affidavits filed by the complainant. Hence, the finding of District Forum based solely on the statement recorded by the police cannot be sustained. On perusal of record it appears that the respondent/insurer has failed to prove that fare paying passengers were travelling in the vehicle and as such Hemant Lal Chhabra''s case relied by the respondent would have no bearing in the matter.

THE insurer has failed to prove any breach of the terms of policy. THE Surveyor has assessed the loss of Rs. 2,24,479 though the complainant had claimed Rs. 2,81,735 towards cost of repairs. We think it proper to allow the amount as assessed by the Surveyor to be paid to the complainant as compensation.

THE order of the District Forum is set aside. This appeal is allowed and it is directed that the respondent/insurer shall pay as sum of Rs. 2,24,479 (two lacs twenty-four thousand four hundred seventy-nine) towards cost of repairs and shall pay interest on the aforesaid amount calculated @ 9% p.a. from the date of the complaint. THE respondent/insurer shall also pay Rs. 2,000 (two thousand) only to the complainant towards cost of proceedings throughout. Appeal allowed.