National Insurance Company Ltd. vs SUNDRI DEVI

LATE Dhameshwar son of the respondents was the owner of Jeep bearing No. HP-01-8857. It was 2001 model and its month and year of manufacturer was April, 2001. It was insured with the appellant for the period 10.1.2001 to 9.5.2002.

AS per averments made in the complaint, deceased had purchased this vehicle for self-employment and with a view to generate his livelihood, he used to drive it himself. This jeep met with accident on 25.6.2001 at Nauni, within the jurisdiction of Police Station, Theog of Shimla District and Dhameshwar owner-cum-driver died in this accident. In the above circumstances, respondents informed the appellant along with necessary documents, so that the claim in respect of the jeep could be determined. Appellant closed the file as "No Claim." This was on 6.12.2001 and was because of non-application of mind, that too illegally and arbitrarily. This resulted in filing of a complaint under Section 12 of the Consumer Protection Act by the respondents.

When put to notice, stand of the appellant was that the deceased did not possess any effective and valid driving licence. According to the appellant under the driving licence held by the deceased at the time of accident he could only drive Light Motor Vehicle from 19.8.1997 onwards. It was endorsed to drive Heavy Goods Vehicle with effect from 13.9.1999. Another fact that needs to be noticed here is that the vehicle was completely damaged. For restoring the accidented Jeep estimate of a sum of Rs. 4,35,017.00 was quantified by Bittam Garages, Anari Rampur Bushehar, District Shimla. This sum was more than the sum for which the vehicle was insured. In these circumstances, Rs. 4,10,000 with interest 18% per annum from 25.6.2001 till the payment besides Rs. 10,000 as of cost on account of torture and Rs. 2,000 were claimed for litigation expenses.

WHILE contesting the claim of the respondent further stand of the appellant was that independent Surveyor had assessed the loss at Rs. 2,13,500 , subject to satisfaction of all the Insurance contract. Parties produced evidence before the District Forum below. At the conclusion of the complaint, it was held that respondent No. 1 Smt. Sundri Devi it entitled to Rs. 4,10,000.00, She was also allowed interest on this amount @ Rs. 6 % per annum from 6.12.2001 till actual payment of this amount. A sum of Rs. 3,000 on account of compensation and cost of litigation for wrong repudiation of the claim and harassment, etc. was also allowed. It is against this order that the present appeal has been filed by the Insurance Company.

FROM the above facts, it is manifestly elear that the Insurance of vehicle at the time of accident is admitted. Accident having taken place within a short span after its purchase and 1 months after its insurance is clearly established on the basis of materials on record and could not be either disputed or controverted on behalf of the appellant. At the time of hearing, learned Counsel for the appellant submitted, that an application filed by his client being M.A. No. 52/2003, deserves to be allowed. After such order is passed his client may be permitted to place and prove the copy of Surveyor''s report on record. This application was contested and resisted by the learned Counsel for the respondents. According to her, even if a very liberal view is taken for allowing this application, still no case is made out to consider the same what to talk of allowing it. Before proceeding further we may notice that we are not bound by the rigours of ordinary law while considering an application for additional evidence to be led by a litigant like the appellant in this appeal before us. At the same time, we can not allow such an application as a matter of course and or at the askance of a litigant like appellant in the present case.

IN our considered view primary consideration in the matters under Consumer Protection Act, 1986 is to do substantial justice even-handedly to both the parties, and if a case for allowing additional evidence is made out, then authorities under this Act will not hesitate to grant such a prayer. However, authorities have to be careful as well as cautious while considering such a prayer.

NOW when record of District Forum below is examined, in the light of above it is manifestly clear that Insurance Company was very well aware at that time that Surveyor has assessed the cost of repair at Rs. 2,13,500 . Copy of the report has not been attached along with the reply, what to talk of filing of affidavit of Surveyor during the course of proceedings of the complaint. Explanation given for not filing the copy shows the callous and casual manner in which the appellant, a public sector undertaking and also a limb of welfare state who is dealing with the public money, had dealt with this case. During the course of proceedings before the District Forum below, reasons given for non-production of Surveyor''s report in this application M.A. No. 52/2003 as well as to prove the same are far from satisfactory. Only fact spelt out in the application which is duly supported with affidavit of a responsible officer of the appellant, speaks of the negligence on the part of the appellant. Reason being that the reply in this case before the District Forum below is dated 10.4.2002 was filed on the same day. If what is alleged in the M.A. is factually correct, date ought to have been mentioned as to when the file was sent to Shimla in connection with Motor Accident Claims Tribunal cases, when it was received back. Whether it was before passing order by the Forum below i.e. 5.12.2002 or thereafter.

In addition to this, if what is alleged in the operative part of this application was correct again nothing prevented the appellant to have filed an application before the District Forum below for placing and proving the Surveyor''s report. Reply of the appellant before the District Forum shows that on 10.4.2002, it was well aware about the assessment made by the Surveyor. It can safely be inferred that the record was available with the appellant and on its basis reply was filed. Because the amount of Rs. 2,13,500 has been mentioned in para 5 of the reply to the complaint. From the evidence and other materials on record, we are satisfied that this is a case of clear-cut negligence on the part of appellant by not producing and proving the Surveyors, report during the course of proceedings before the District Forum below.

SO far we are concerned in the circumstances of this case as discussed hereinabove we do not require the Surveyor''s report for adjudication of this appeal. We are further satisfied that if the prayer made in this application is allowed it will tantamount to allowing negligence and remissness of a litigant like appellant to fill in the lacuna in its case. This can never with the intention of any provisions of law. If the prayer made in the application is allowed it would be defeating the ends of justice and will also result in its failure too. This is also not a case where after exercise of due diligence it was not aware of this evidence; and or the Forum below disallowed its production and proof during proceedings before. Accordingly, this application is rejected. Mr. Pathania, learned Counsel, urged that deceased was not holding a valid driving licence, whereunder he was authorized to drive the vehicle in question at the time of its accident. Photocopy of the licence is Annexure C-VII. He is authorized to drive motor cycle with gears, scooter, Light Motor Vehicle, and Heavy Goods Vehicle. We find no infirmity in this licence. He was driving Light Motor Vehicle as per plea of Mr. Pathania, which includes Transport vehicle also. No fault can be found with the driving licence of the deceased so as to allow the appellant to deny the claim on this ground. Material produced by the respondents on record before the Forum below has remained un-controverted as well as unchallenged.

IT may be appropriate to notice here in the context of the definition of Light Motor Vehicle under Section 2(21) of the Motor Vehicles Act, 1988. IT means a transport vehicle whose unladen weight does not exceed 7500 kgms. Public Service Vehicle and Transport Vehicle are defined under Sections 2(35) and 2(47) of the Act ibid. For ready reference Sections 2(21), 2(35) and 2(47) of the Motor Vehicles Act, 1988 are extracted hereinbelow: "2(21). ''Light Motor Vehicle'' means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed (7500) kilograms;

"2 (35) ''public service vehicle'' means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage;

2 (47) ''transport vehicle'' means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle."

So far registration certificate of the vehicle in question is concerned, its photostat copy is at Annexure A-l. Unladen weight of this vehicle is shown is 1615 kgs. In these circumstances, when the licence of the deceased is examined in the face of the provisions of the Motor Vehicles Act, 1988, no case is made out for interfering the impugned order.

SO far as plea to reduce the amount allowed by the Forum below based on the Surveyor''s Report is concerned, suffice it to say that there is no evidence worth the name produced by the appellant to even consider the same what to take of accepting it. As such, this plea is also rejected.

NO other plea was urged. In view of the aforesaid discussion, there is no merit in this appeal which is accordingly dismissed. Appellant shall bear the cost of the respondents in this case, quantified at Rs. 2,500. All interim orders passed from time-to-time shall stand vacated forthwith. Office will supply copy o f this order to the parties free of cost as per rules. Appeal dismissed.