New India Assurance Co Ltd vs Shri Divya Prashad

MRS. Vineeta Rai, Member-The present revision petition has been filed by New India Assurance Company Ltd. (hereinafter referred to as the ''Petitioner'') against the order of the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla (in short the ''State Commission''), which ruled in favour of the Respondent Divya Prashad (hereinafter referred to as ''the Respondent).

THE brief facts of the case according to the Petitioner-Insurance Company is that it had insured the vehicle of the Respondent (financed by SBI Mehla Branch for a sum of Rs. 2.00 lakh) from 13.2.2000 to 12.2.2001. On 18.2.2000, when the vehicle was being driven by one Lovenesh Kumar and while crossing a wooden bridge meant mainly for pedestrians and not for vehicles carrying loaded goods, the wooden planks of the bridge gave way and the vehicle fell into the river and got badly damaged. The Respondent filed an insurance claim which was repudiated by the Petitioner-Insurance Company, because during the course of inquiry/survey into the incident the following facts came to their notice: 1. The vehicle was sold by the Respondent to one Raj Kumar for a consideration of Rs. 2,20,000 and the fact of transfer of ownership was not intimated to the Insurance Company which was in violation of the terms and conditions of the Insurance Company. Thus there was no insurable interest of Respondent on the date of accident and consequently no liability of the Petitioner Company; 2. The vehicle was being driven by one Lovenesh Kumar, brother of Raj Kumar, who did not have a valid driving licence; and 3. The vehicle was over loaded because of which the accident took place. In view of these facts, the claim was rightly repudiated by the Insurance Company.

THE Respondent denied the above contention including the fact that the vehicle had been sold by him to one Raj Kumar and further it was being driven by Lovenesh Kumar who did not have a valid driving licence. According to the Respondent the vehicle was being driven by one Raj Kumar who had a valid licence.

AGGRIEVED by the repudiation of the insurance claim, the Respondent, therefore, filed a complaint under Section 12 of the CP Act before the District Forum, Chamba, and sought the following reliefs from the Petitioner: Indemnification to the extent of Rs. 1,50,000; and Damages to the tune of Rs. 1,50,000 with interest at bank rates.

THE District Forum accepted the contention of the Petitioner/Complainant that he had not sold the vehicle thus disbelieving the version of the surveyor and loss assessor as well as the detective investigation agency appointed by the Petitioner to investigate the accident that the vehicle had been sold to one Raj Kumar. District Forum also did not accept the contention of the Petitioner that the vehicle was being driven by one Lovenesh Kumar. It observed that there was adequate evidence to show that the vehicle was being driven by Raj Kumar who had a valid driving licence. In fact even a criminal case had been registered against the said Raj Kumar following the accident and was pending before the Court of CJM Chamba. The District Forum after hearing the parties allowed the complaint filed and directed to pay a compensation of Rs. 1,40,000 along with interest @ 9% per annum.

AGGRIEVED by the order of the District Forum, the Petitioner filed an appeal before the State Commission. The State Commission dismissed the appeal and upheld the order of the District Forum regarding the compensation awarded to the Respondent. Hence, the present revision petition.

LEARNED Counsel for Petitioner and proxy Counsel for Respondent were present. Learned Counsel for the Petitioner submitted that there was adequate documentary evidence in the form of an affidavit of the insuree himself that he had sold his vehicle. A statement of the person who bought the vehicle as well as the Police''s First Information Report (FIR) which is a primary report of the incident, clearly indicates that the vehicle was, in the first place, sold by the insuree to one Raj Kumar who did not have any insurance cover and also that the vehicle was being driven by one Lovenesh Kumar who did not have a valid driving licence and who drove the vehicle in a negligent manner on a wooden bridge causing the accident. Since the above were clear violations of the terms and conditions of the insurance policy, the claim of the Respondent was rightly repudiated.

WE have heard the learned Counsel for the Petitioner and have gone through the relevant records. It is in evidence that the Respondent/Divya Prashad, the insuree, had given an affidavit to the Vigilance Detective Bureau (who had been appointed by the Petitioner to investigate the case in respect of the claim) that he had sold the vehicle, as also a questionnaire statement from one Raj Kumar admitting in writing that he had bought the vehicle from the Respondent. The District Forum did not accept this documentary evidence on the ground that the affidavit was a photocopy and not the original and that a photocopy cannot be admissible as evidence unless the original is lost or cannot be produced. In the instant case, we note that the official of the detective agency in his report to the Insurance Company has given clear reasons and circumstances regarding why he could not produced the original affidavit since it was taken away forcibly by Raj Kumar from his hotel room. We do not find any credible evidence filed by the Respondent to refute these facts and, therefore, are of the view that there is adequate evidence that the vehicle had been sold by the insuree to Raj Kumar.

THE second issue pertains to who was driving the vehicle at the time of the accident. The FIR which is the primary record of the incident, has stated that it was driven by one Lovenesh Kumar who did not have a valid driving licence. This was also the conclusion reached after due inquiry by the vigilance detective agency which had enquired into the incident. Later, after due investigation the police filed a criminal case against Raj Kumar before the Judicial Magistrate, Chamba stating that it was Raj Kumar who was driving the vehicle in a negligent manner. Raj Kumar has, of course, denied this fact in the case against him before the Judicial Magistrate, Chamba which is to be expected since Raj Kumar was not likely to incriminate himself by admitting that he was driving the vehicle. However, it is significant to note that Raj Kumar was present in the vehicle at the time of the accident lending some credence to the fact that he was the owner of the vehicle.

FROM the photographs and the records on file, it is clear that the bridge over which the vehicle passed was a small wooden bridge and prima facie not for the use of commercial goods carrying vehicle. The police after due investigation concluded that the vehicle was overloaded and driven in a negligent manner. This was also confirmed by affidavits filed by the Surveyor and Loss Assessor as well as the Vigilance Detective Bureau appointed by the Petitioner. We see no reason to disbelieve these statements.

TAKING into consideration all the above facts, we are of the view that there is credible evidence on record that the vehicle was sold by the Respondent to one Raj Kumar and, therefore, there was no insurable interest of the Respondent at the time of the accident and consequently there was no liability on the Petitioner company to settle the insurance claim which was rightly repudiated as per the terms and conditions of the insurance policy. This was a contractual agreement between the insurer and insuree and had to be adhered to which was not done in this case.

WE, therefore, set aside the order of the State Commission and accept the revision petition with no order as to costs.