KANHAIYA LAL TOSHNIWAL vs New India Assurance Company Ltd.

THE appellant had got his Tata Truck model 1982 RJE 8883 insured for Rs. 1,80,000/- with the respondent Company for the period from 17.12.1993 to 16.12.1994 for loss and damage by, including fire and other calamities. While the said vehicle was on its way from Javra (M.P.) to Bhilwara and onward to village Alada via Gangapur City on 21.5.1994 and had reached on Gangapur-Raipur Road, the fodder with which the vehicle was loaded, caught fire from electric wires which finally led to the total destruction of the vehicle. THE appellant lodged his claim for the assured amount but the respondent Company repudiated such claim on the ground that it did not fall within the purview of the terms and conditions of the insurance. On a complaint filed by the appellant before the District Forum, the District Forum dismissed the complaint on the ground that the appellant had not fulfilled the conditions laid down in the policy relating to care and caution on the part of the complainant. Aggrieved by such order of dismissing his complaint, the appellant has filed this appeal.

THE respondent did not appear despite repeated calls given to their Counsel. None appeared for and on behalf of the respondent. We, therefore, heard the learned Counsel for the appellant and perused the material available on the record of the Forum. THE learned Counsel for the appellant took us through the report of Surveyor and Loss Assessor of fire, motors, marine etc., the FIR lodged by the driver of the vehicle after incident and the report of Sh. K.K. Sharma, Investigator, appointed by the respondent Company and highlighted the fact that the driver and khalasi of the vehicle had taken all care and caution to protect the vehicle from destruction by fire and, therefore, the condition of the policy which was stated to have been violated by the appellant, did not stand attracted to the facts of the present case. Mr. Yogi submitted in particular that the vehicle was loaded with Khakhla upto a height of 14 feet from the ground and that what was noted by the Investigator Sh. K.K. Sharma was that the earth wire on both poles whereunder the vehicle had passed, was having sag and the height of the wire was 11 feet from the ground and that another two phase wires were 14 feet high from the ground and third phase which was on top of the pole was 15.5 feet high from the ground whereas the truck load with Khakhla was having average height of 14 feet and required minimum 14 feet clearance to pass underneath any wire hanging over. Mr. Yogi further pointed out that while making the vehicle pass underneath the hanging wire, the khalasi on the truck and the owner of the Khakhla had lifted the hanging wire much above the height of the Khakhla in the truck but since the wires had frictioned and sparked, some spark accidently dropped on the loaded vehicle which caught fire. It was submitted that the driver and Khalasi on the vehicle as also the owner of Khakhla had tried to extinguish the fire as soon as of it came to notice but they could not be successful in their efforts despite risk to their lives. It was submitted that the condition relating to care and caution to be taken by the insured for protecting the vehicle from any fire or other like calamity was fulfilled by them in the present case and, therefore, dismissal of the complaint was not in order. On going through the material available on the record of the Forum we find that one of the conditions of the policy was that the owner of the vehicle would take all reasonable steps to safeguard the motor vehicle from loss or damage and would maintain the same in serviceable condition. This condition is contained as Condition No. 5 of the policy. It is not in dispute that the vehicle was loaded with Khakhla upto a height of 14 feet at the time of its passing underneath the hanging wires of the two poles. It was found by Sh. K.K. Sharma, Investigator that the earth wire on both poles was hanging at the height of 11 feet. This wire was not going to cause any damage to the vehicle or the contents therein. The two phase wires were at the height of 14 feet from the ground and the third phase was at the height of 15.5 feet. It is in evidence that the khalasi of the vehicle and other persons who were present in the truck had lifted the hanging wires much above the height of the Khakhla. On such evidence, which was gathered by the Surveyor and Loss Assessor as also the Investigator appointed by the respondent Company, it is possible to hold that the appellant had taken due care for protecting the vehicle and the contents therein from possible catch by fire likely to be caused due to the friction of the two wires. In the way the khalasi and other persons present on the vehicle had acted, it cannot be said that they were negligent or did not exercise reasonable care and caution while making the vehicle pass beneath the hanging wires. It may be observed that the two persons who were appointed as Surveyor and Investigator in the case by the respondent Company had not attributed any carelessness or negligence to the employees of the appellant. In fact the appellant himself had lodged the FIR in the present case and in the course of investigation had got himself examined also.

Sh. K.K. Sharma had also recorded the statement of the appellant as also many others who had witnessed the vehicle in the state of burning. Since spark created by the friction of the wires had fallen on the husk with which the vehicle was loaded at that time, it might have not been noticed by the persons present on the vehicle at the relevant time. As soon as a fire was noticed by them after the vehicle had already run for about 1 km. from the place of catching fire by it, they spontaneously acted in the direction of not only saving themselves but also saving the vehicle too. The glass pans on the windows, the wind sheet in front of the vehicle were broken and the driver was taken out of the burning vehicle. Such conduct of the men of the appellant did not indicate negligence or carelessness on their part. In view of such evidence available on the record of the Forum Condition No. 5 cannot be said to have stood attracted to the facts of the present case. The claim of the appellant was required to be accepted.

THE vehicle was of 1982 model. Sh. K.K. Sharma, Investigator had reported that it was a case of total loss of the vehicle. THE policy provided that the depreciated value of the vehicle of over 10 years would be taken at 50%. THE vehicle had been insured for Rs. 1,80,000/-. Already 10 years had passed to the purchase of the vehicle. It was being used for transportation of goods. In our opinion the condition of depreciated value of the vehicle at 50% stands attracted to the present case. We would, therefore, allow the claim of the appellant to the extent of Rs. 90,000/- only towards full and final settlement of his claim against the respondent Company. In the result, the impugned order is set aside and the appeal is allowed. Consequently the claim of the appellant is decreed for Rs. 90,000/- against the respondent. The decretal amount shall carry interest @ 12% p.a. from 1.10.1994 till full and final payment. The costs of the litigation shall remain on parties throughout. Appeal allowed.