New India Assurance Co. Ltd. vs CHUHA RAM

WHEN this appeal was taken up today for hearing, appellant challenged the legality and correctness of the impugned order passed by the District Forum below, in C.C. No. 174/2002 on 19.11.2003, wherein while allowing the complaint it was ordered as under: "7. Keepig in view our above observations, we hold that the opposite party has been deficient in rendering service to the complainant. We, therefore, order and direct the opposite party to pay to the complainant an amount of Rs. 25,000 as insurance amount with interest at the rate of 9 per cent per annum from the date of filing the complaint till the final payment of amount. The opposite party is further directed to pay Rs 1,000 as compensation for harassment and mental agony and Rs. 500 as cost of litigation to the complainant. Certified copy of this order, be supplied to the parties, free of cost. The file after its due completion, be consigned to record room."

FIRST submission urged was, that at the time of accident tractor was being plied for hire and reward, as well as 9 passengers were travelling in it. This was incomplete violation of the provisions of the Motor Vehicles Act, 1988 and the Rules framed thereunder and policy of insurance. As such on both these counts this appeal deserves to be allowed. Learned Counsel further submitted that the Forum below had fallen into error, in ignoring both these aspects while granting compensation. Thus, he prayed for setting aside the impugned order by allowing this appeal. We may mention in this behalf, that if on the materials on the record produced by the parties if these facts are established, appeal has to be allowed, otherwise consequence is obvious. When hearing commenced Ms. Kaplas raised a preliminary objection regarding new pleas set out in the grounds of appeal from those pleaded before the Forum below. We will deal this objection at a later stage in this order.

Respondent had stated that he had purchased the tractor and had got it financed from State Bank of Patiala at its Mandi Branch. This was insured by the respondent and prermium in the sum of Rs. 3,809 was paid to the appellant. As per cover note, tractor was insured between 15.9.2000 and 14.9.2001. Admittedly, tractor met with an accident during this period. He intimated the appellant with necessary documents regarding this accident. Spot was got surveyed by the appellant, thereafter, Surveyor advised the respondent to remove damaged vehicle. Because of non-settlement of his claim complaint had to be filed. Before referring to the appellant''s reply to the complaint, we may point out that legal notice was also served by the complainant upon the appellant. This was not replied to. No reason whatsoever has been given why reply was not sent by the appellant.

IN the aforesaid back ground, Mr. Ratish Sharma submitted that the vehicle was being plied for hire and reward as it was carrying building material besides 9 passengers in the tractor at the time of accident. IN this context when a reference is made to the reply filed by the appellant before the Forum below, it is clear that no such defence is set out to negative the claim set out by the respondent. A perusal of the reply shows, that the stand of appellant is that the respondent did not produce copy of the FIR, driving licence as well as its registration certificate. At the same time, he also did not visit the office of the appellant for settlement of his claim. Other ground urged for rejection of the complaint was that damage was negligible and only axle, tyres and rim of the vehicle in question were found damaged. No plea of either vehicle being plied for hire and reward, un-authorised passengers travelling in it was set up by appellant. IN this view of the matter we are of the confirmed view, that the plea of the tractor being plied for hire and reward while carrying building material and unauthorised passengers numbering 9, is nothing but purely an after thought, with a view to defeat the legitimate claim of the respondent. Reason being that if it was the factual position nothing prevented the appellant to have firstly pleaded these facts in its reply, and then to have placed some material on record to establish those. Mr. Ratish Sharma, learned Counsel placed reliance on the Surveyor''s report i.e., of Mr. H.P. Singh. We have gone through it. It speaks of tractor being loaded with building material, who was its owner, other than the owner of the tractor has not been ruled out in this report. Regarding persons travelling they could be labourers for loading and unloading the building material in the tractor. IN order to succeed it was for the appellant to prove the negative and nothing prevented it to have taken adequate steps to bring on record cogent, reliable and legally acceptable evidence on such pleas. No other point is urged. In view of the aforesaid discussion, there is no merit in this appeal which is accordingly dismissed with cost quantified at Rs. 2,000. All interim orders passed from time-to-time shall stand vacated forthwith. Office will supply a copy of this order free of cost to the parties as per rules. Appeal dismissed.