National Insurance Co. Ltd. vs SARDAR LACHMAN SINGH

THE present appeal is filed by the original opponent against the judgment and order dated 27.1.1999 in Complaint Case No. 176/1997 passed by the District Consumer Forum, Nanded.

COMPLAINANT''s case before the Forum is that, the car bearing No. MH-26/C-2113 owned by him was insured with the appellant from 19.12.1995 to 18.12.1996. The car in question was met with an accident on 23.11.1996 at Dongargaon near Taluka Kalamnuri, Dist. Parbhani and offence was registered at police station vide Crime No. 82/96 against truck driver. COMPLAINANT preferred the claim for damages to the tune of Rs. 86,432 which was repudiated by present appellant on the grounds that, the car in question was used for carrying fare paying passengers. The present appellant was served with the notice. Advocate was also engaged but Advocate did not file written statement before the Forum. The case was proceeded without written statement against the present appellant. complainant filed affidavit. It appears that, on 15.1.1999 the present appellant had filed application allowing him to produce the evidence by way of affidavit. The said application has been rejected by the Forum below on the grounds that it was not stage to adduce evidence. The appellant relied on Brij Kishore Toshniwal v. Divisional Manager, Oriental Insurance Co. Ltd. & Ors., reported in III (1996) CPJ 297.

The Forum below after going through the papers and hearing parties allowed the complaint and directed appellant to pay Rs. 60,000 with interest @ 18% p.a. from 24.12.1997 from the date of complaint.

BEING aggrieved by the said judgment and order passed by the District Forum, original opponent came in appeal. Notices were issued to the appellant as well as respondent. Adv. Mr. V.N. Upadhye appeared on behalf of appellant whereas Adv. Mr. V.A. Mahajan appeared on behalf of respondent.

WE heard both Counsel. WE perused the papers, appeal memo and judgment of the Forum. Appellant has filed application for condonation of delay. The delay is not intentional or purposeful. The explanation given by the appellant for causing delay is satisfactory. Application for condonation of delay is allowed. Delay is condoned. It is apparent from the papers on record that, appellant had not adduced the evidence by way of affidavit before the Forum. Application filed by appellant before the Forum for permitting him to produce evidence by way of affidavit has been rejected by the Forum. It appears that, the matter was heard and was reserved for the judgment. When it was reserved for judgment the present appellant had filed application for allowing him to adduce the evidence by way of affidavit. The Forum below has rightly rejected the application in question. Even if we heard the affidavit filed by the present appellant before the Forum, it reveals that, they repudiated the claim on the grounds that the vehicle in question was carrying fare paying passengers at the time of accident in question. It is for appellant to prove that, the vehicle was carrying fare paying passengers. Appellant tried to rely on police papers in that respect. It is certain that, no affidavit of the passenger, who were said to have travelled in the vehicle by paying fare is brought on record by the appellant. When Insurance Company repudiates the claim stating that, there is breach of condition of policy by carrying fare-paying passengers the burden was on insurance to prove this fact. Insurance Company did not discharge burden before the Forum by adducing evidence that, when vehicle in question was carrying fare paying passengers at the time of accident. Even if it is assumed that the car was carrying fare paying passengers there is no connection of passengers travelling in the car with the accident in question. There is no nexus between passengers and accident in that respect. We relied on B.V. Nagaraju v. Oriental Insurance Co. Ltd., 1997 (1) BCR (CON.) 10 Supreme Court. The Forum below has rightly considered that, the appellant could not discharge burden that the vehicle was carrying fare-paying passengers at the time of accident in question. We do not find any illegality committed by the Forum while allowing the complaint.

IT appears that the Insurance Company did not appoint surveyor for assessment of damages sustained by the complainant in question. The Forum relied on original bills produced by the respondent and has rightly allowed the claim for Rs. 60,000.

THE Forum below has granted interest @ 18% p.a. from 24.12.1997. In our view, interest granted by the Forum is on higher side. We reduce interest from 18% to 10%. We modify the order accordingly. ORDER 1. THE appeal is partly allowed. 2. THE National Insurance Company is to pay Rs. 60,000 with interest @ 10% p.a. from 24.12.1997 to the respondent. 3. Order regarding cost passed by District Forum is maintained as it is. 4. No order as to cost in appeal. 5. Copies of the order be furnished to the parties.

Appeal partly allowed.