National Insurance Co. Ltd. vs MOHAN ANANT POTNIS (DR.)

THE present appeal is filed by original opponent against the judgment and order dated 3.12.2000 in Complaint Case No. 345/1998 passed by District Consumer Forum, Ahmednagar.

RESPONDENT/complainant''s case before the Forum is that, his Mahindra Jeep Commander model 1994 No. MH-16 C-1326 is insured with the appellant for the period from 25.10.1994 to 24.10.1995. It is contended that, when the patient Ashabai Babasaheb More with her child was coming to Shevgaon in the jeep on 8.8.1995 for sonography, one truck chassis dashed jeep. In accident child and driver died. Accident was informed to the police and also appellant. The surveyor was appointed and he visited the vehicle. The vehicle was allowed to be repaired from the dealer. It is contended that, surveyor has given approval for expenses. The claim was preferred which was repudiated by the Insurance Company. Thus, he approached the Forum. Appellant appeared before the Forum and resisted the claim. It is contended that, the vehicle in question was used for carrying fare paying passengers. Thus, there is breach of condition of policy. The jeep was not used for carrying patient to the dispensary of complainant. It is also contended that, the driver was not having valid licence.

The Forum below after going through the papers and hearing the parties allowed the complaint and directed the appellant to pay Rs. 85,000 with interest @ 12% from 8.8.1995 and also directed to pay Rs. 2000 towards compensation.

BEING aggrieved by the said judgment and order passed by the Forum, Insurance Company came in appeal. Notices were issued to the appellant as well as respondent. Learned Counsel Mr. Upadhye appeared on behalf of appellant whereas learned Counsel Mr. Shivaji Shelke appeared on behalf of respondent. We heard both the Counsel. Learned Counsel Mr. Upadhye submitted that, there is breach of condition of policy. The Forum below has not considered this aspect as the vehicle was used for carrying fare paying passengers. Learned Counsel also submitted that, the claim was repudiated on 24.10.1997 and complaint was filed on 13.1.1999 and, thus, it is barred by the disclaimer clause of the policy. Learned Counsel in that respect relied on National Insurance Co. Ltd. v. Sujir Ganesh Nayak & Co. & Anr., II (1997) CPJ 1 (SC)=I (1997) ACC 537 (SC). Learned Counsel also relied on judgment of National Commisison, Paras Textile v. New India Assurance Co. Ltd., 1993 CCJ 758. Learned Counsel for the respondent submitted that, the Forum below has rightly allowed the complaint. Learned Counsel submitted that, the appellant did not raise plea that, the complaint is not filed within a year, it is barred by disclaimer clause of the policy.

WE perused the papers and gave our anxious thought to the arguments advanced by both the parties. On perusal of papers it reveals that, the appellant did not adduce any sort of evidence before the Forum to show that passengers travelling in the jeep were fare paying passengers. So-called statements recorded by the police in the investigation cannot be read as evidence as evidence of those witnesses was not brought before the Forum. Forum has rightly observed that, there is no nexus between passengers travelling in the vehicle and cause of accident. The Forum below has rightly relied on ratio in B.V. Nagaraju v. M/s. Oriental Insurance Co. Ltd., II (1996) CPJ 28 (SC)=I (1997) ACC 123 (SC)=1996 NCJ 609. In the said judgment Hon''ble Supreme Court has observed that, misuse of the vehicle somewhat the irregular but not so fundamental as to put an end to the contract, unless it could be shown that it had contributed to the accident. In the instant case, however, we find no such contributed factor. On perusal of written statement filed by appellant before the Forum it reveals that appellant did not raise specific plea before the Forum that the claim was repudiated on 24.4.1997 and complaint is filed on 13.1.1999 and thus it is barred by disclaimer clause of the policy. As no such plea is taken by Insurance Company before the Forum, no such plea can be allowed in the appeal. It appears that the National Insurance Company has waived the clause about disclaimer in the policy. The Forum below has rightly considered all these aspects and rightly allowed the complaint. WE do not find any illegality committed by the Forum while allowing the complaint. No interference is required while exercising appellate jurisdiction. WE pass the following order. ORDER 1. Appeal is dismissed with no order as to cost. 2. Pronounced and dictated in the open Court. 3. Copies of the order be furnished to the parties.

Appeal dismissed.