Keshav Ram vs Oriental Insurance Co. Ltd.

BY this complaint, the complainant has prayed that the respondents (hereinafter to be referred to as the Insurance Company) be directed to pay a sum of Rs. 1,20,000/- which the complainant has spent for getting the truck repaired along with interest @ 22% per annum, besides compensation of Rs. 50,000/- for mental agony and harassment.

THE facts set out in the complaint necessary to be mentioned for determining the point in controversy briefly are that the complainant in the year 1987 after raising loan from the Himachal Pradesh Financial Corporation, purchased one Truck T.D.V. Make, Engine No. 693, DO 186817, Chassis No. 34073851946 bearing registration No. HIS-1619. He got this Truck insured with the Insurance Company for a sum of Rs. 2,90,000/- for the period with effect from 15.11.1989 to 14.11.1990. For the purchase of the Truck, the complainant hypothecated this Truck with the H.P. Financial Corporation and raised a loan of Rs. 2,06,000/-. Unfortunately, on or about 1/ 2.6.1990, when the insurance policy was in force, the Truck, in question, while going towards Rajgarh, met with an accident and rolled down to valley side approximately 400 ft. from the road. THE matter was reported to the Police Station Rajgarh and also to the Insurance Company. THE Insurance Company deputed one Shri Satish Kaushal, Surveyor and Loss Assessor to visit the spot and submit the survey report after inspecting the vehicle, in question, and assessing the loss. THE Surveyor went to the spot and submitted his damage report (Annexure C-3). It appears that first Surveyor did not assess the damage because, according to the Insurance Company, final damage could be assessed only after the receipt of certain documents, namely; Road Permit, Registration Certificate etc. from the complainant. However, according to the complainant, these documents were supplied to the Surveyor. He had been moving pillar to post and approaching the Insurance officials to settle the claim. Unfortunately the claim of the complainant has been arbitrarily repudiated by the Insurance Company. The stand of the Insurance Company in their reply, in substance, is that the complainant did not supply the documents, namely; the Registration Certificate, Route Permit, as required by them for settling the claim with the result the claim remained unsettled. It has further been stated by the Insurance Company that at the time of accident, 12 persons were unauthorisedly travelling in the Truck which is a goods vehicle and as such, there is violation of the terms and conditions of the policy and no claim under the contract of insurance is tenable. Again, according to the Insurance Company, driving Licence No. C-3512/DD/79 of the driver, who was driving the vehicle at the time of accident, was found to be fake by the Surveyor and as such the claim could not be sanctioned. The damage suffered by the complainant for an amount of Rs. 1,20,000/- as claimed by the complainant in his complaint has also been denied.

We have heard the learned Counsel for the parties.

ACCORDING to the complainant, the documents namely; Registration Certificate (RC) and Route Permit (RP) were supplied by him to the Surveyor and that these must be lying with them, whereas the receipt of such documents either by the Surveyor or the Insurance Company, has been denied by the Insurance Company. No case has been set up by the Insurance Company as to why the Registration Certificate and Route Permit were required by them. The Registration Certificate normally is required to verify the ownership of the Truck. The Insurance Company has nowhere stated in the pleadings or otherwise in evidence that the Truck, in question, did not belong to the complainant. Therefore, even if it is assumed that the Registration Certificate was not supplied by the complainant to the Insurance Company, this itself would be hardly of any relevance in these facts and circumstances of the case for not settling the claim by the Insurance Company. Further the route permit could throw light on the question as to how many persons were authorised to travel in the Truck. No satisfactory evidence is on the record to show that 12 persons were travelling in the Truck at the time of accident. Even if it is assumed that 12 persons were travelling in the Truck at the time of accident, this itself will not disentitle the complainant to be indemnified for the loss, as has been held by the Supreme Court in B.V. Nagaraju v. Oriental Insurance Company Ltd., Divisional Office, Hassan, (1996) 4 SCC 647 that unless carrying of unauthorised passengers in the vehicle contribute to causing of the accident and has reasonable nexus with the occurrence of the accident, carrying of such passengers cannot be said to be such a fundamental breach of the terms of the policy that the owner of the vehicle should be denied indemnification. The exclusion terms of the insurance policy must be read down so as to serve the main purpose of the policy that is to indemnify the damage caused to the vehicle. We have also considered such question in Original Complaint No. HP / SCDRC / OC / 15 / 1993 Amar Singh Sainjta v. National Insurance Company Ltd. decided on 13.8.1996, whereby we have examined the scope of the third limitation of the insurance policy which is being invoked by the Insurance Company in the present case. In that case, we have held that the term ''''Limitation as to use'' was to serve the main purpose of the policy that is to indemnify the damage caused to the vehicle and such provisions must be read down so as to serve the main purpose of the policy that is to indemnify the damage caused to the vehicle. In view of these circumstances, non-supply of route permit even if we assume in favour of the Insurance Company, cannot improve the case of Insurance Company. The next question which has been vehemently argued by Mr. Mehta, Counsel for the Insurance Company, is that the driver of the vehicle Shri Chander Singh, who was driving the vehicle at the time of accident, was not having a valid driving licence, rather it was a fictitious and he had relied upon the report of Mr. Amarpreet Singh, the Surveyor, vide letter dated 8.6.1993 (Annexure R-2). According to Mr. Amarpreet Singh, the Surveyor, the Licence No. C/3512/DD/79 in the name of Shri Chander Singh S/o Surat Singh was not in fact issued by the Licensing Authority, Dehradun.

THIS contention is again unacceptable for obvious reasons that this is only a Photostat copy, not attested by any authority and compared with the original and it cannot be taken into consideration. Mr. Mehta, however, submits that on the affidavit this copy has been annexed and should be taken into consideration. We have seen the affidavit. It is nowhere stated in the affidavit that it is the true copy of the original. At any rate, even otherwise, this document cannot be taken into consideration at all. Firstly, it is only the Licensing Authority, Dehradun who could have written or demonstrated that such a licence was not issued by that Authority. Licensing Authority, Dehradun has neither filed an affidavit or written a letter to Shri Amarpreet Singh, the Surveyor, to the effect that the licence was not issued to the driver. Further it is not clear how Mr. Amarpreet Singh, the Surveyor, got access to the record of the Licensing Authority, Dehradun and whether he himself inspected the record and for what period or the officials of the Licensing Authority inspected the record. In the absence of such evidence, we have no hesitation to hold that the Insurance Company has failed to substantiate that the licence of the driver Shri Chander Singh, who was driving the vehicle at the time of accident, was fictitious. The next question that requires consideration is as to what damages the complainant has suffered on account of accident of his truck. No doubt, the complainant has stated in the complaint and also in the affidavit that with the consent of the Surveyor, he went to Manimajra and got repaired the damaged vehicle for an amount of Rs. 1,20,000/-. The extent of damage has been denied by the Insurance Company. No doubt, the complainant has not produced bills to substantiate the extent of damage, although in the affidavit he has stated that he had spent Rs. 1,20,000/-. According to the survey report dated 14.7.1990 (Annexure C-3), it has been stated that the accident had taken place and the driver of the insured vehicle and four other persons died on the spot and further the vehicle rolled down to valley side approximately 400 feet from the road side. From these facts, it cannot be denied that the vehicle must have been damaged considerably. The claim of the complainant seems to us inflated and is not supported by the bills on account of repairs. What should be just compensation, therefore, has to be decided on some guesswork having regard to the facts and circumstances of the case. As stated above, even according to the survey report (Annexure C-3), the accident has caused considerable damage to the vehicle and the driver and four persons died on the spot and the vehicle suffered considerable damage. In our opinion, it would be equitable and just to award a compensation of Rs. 80,000/- to the complainant. Since the claim has been arbitrarily repudiated by the Insurance Company the complainant is also entitled to interest @ 18% per annum on this amount. The complainant shall, however, not be entitled to Rs. 50,000/- as compensation for mental agony, harassment etc. as this neither arises under the terms of the agreement nor supported by any evidence. Mr. Rahul Mahajan, Advocate, has made an application that the loan was raised by the complainant from the Himachal Pradesh Financial Corporation and that it has not been paid. The amount awarded by this Commission should be paid to the H.P. Financial Corporation and such amount should be adjusted against the loan raised by the complainant. Mr. Bimal Gupta, learned Counsel for the complainant has no objection to the adjustment of the amount awarded against the loan borrowed by the complainant from the H.P. Financial Corporation.

IN the light of what is discussed above, the INsurance Company is directed to pay Rs. 80,000/- as damages to the complainant along with interest @ 18% per annum from the date of accident i.e. 2.6.1990 till the amount is actually paid. The amount so ordered to be paid by the INsurance Company shall be paid to the H.P. Financial Corporation and such amount shall be adjusted by the H.P. Financial Corporation against the loan borrowed by the complainant for the purchase of this Truck from the H.P. Financial Corporation. The amount shall be paid within three weeks.

THERE is no orders as to costs. Complaint allowed. ____________