NEW INDIA ASSURANCE COMPANY vs MASTER AJIT PAL SINGH

THIS is an appeal against the judgment and order dated 14.1.1994 passed by District Consumer Forum, Agra in Complaint Case No. 145/1992.

THE facts of the case stated in brief are that the complainants are owners of a new Maruti Van No. HNQ 3777. THE insurance of this vehicle was got done with M/s. New India Assurance Company Ltd. on 12.2.1988 for a duration of one year ending on 11.2.1989. THE insurance was got done for a sum of Rs. 82,200/-. This Maruti Van had an accident on 29.1.1989 with a truck and got damaged. Sri Shishupal Singh who was driving the vehicle died on the spot. A report of this incident was lodged on the same day. The claim was preferred with the Insurance Company by the next friend of the complainants. A succession certificate was also obtained from the Court of Civil Judge, Agra and it was also produced before the Insurance Company. The vehicle was inspected by the Insurance Company through the Surveyor who assessed the damages at Rs. 65,000/-. The Surveyor also reported that at the time of accident, there were 26 LPG gas stoves and six persons were sitting in the vehicle. They were being carried on hire. Hence the Insurance Company repudiated the claim on 4.1.1991 and thereafter the complaint was lodged. The complainant has prayed for damages of Rs. 82,200/- alongwith interest, and Rs. 10,000/- as compensation. The claim has been repudiated on the ground that the illegal demand of money was made by the officers of the Insurance Company from the complainant which he did not pay.

In the written version the Insurance Company has alleged that no illegal demand was made by any of the officers of the Company. It is further alleged that at the time of accident the vehicle was being used for commercial purpose and persons on hire were being carried in the vehicle. This amounts to violation of terms of the policy and hence the claim was repudiated. The Surveyor has assessed the damages at Rs. 65,000/-. It is further alleged that the suit is barred by time.

THE learned District Forum, after considering the case of the parties, directed the Insurance Company to pay a sum of Rs. 92,200/- within a period of 60 days and to pay 18% per annum interest with effect from 15.2.1992. A perusal of judgment goes to show that a sum of Rs. 10,000/- as damages is included in the amount decreed. Aggrieved against this order of the learned District Forum, the Insurance Company has come in appeal and has (sic.) by the District Forum.

WE have heard the learned Counsel for the parties. Learned Counsel for the appellant has argued that at the time of accident, the vehicle was being used for commercial purpose as 26 LPG stoves were being transported through this vehicle, besides six passengers were travelling after paying charges. It may be mentioned that there is no evidence worth the name to show that the persons who were travelling in the vehicle had paid any consideration for being taken in the vehicle. It was the duty of the Insurance Company to have proved the same but it utterly failed to prove the same. It is an admitted fact that 26 LPG stoves were in the vehicle. There is no evidence to show whether Shishupal Singh who was the owner of the vehicle was doing business of selling LPG stoves or not. If he was the owner of a shop and was dealing with selling of LPG stoves then this fact should have been proved by the opposite party/appellant. Mere allegation in the written version will not take the place of proof. The Insurance Company has to prove that these stoves were being carried for sale by Shishupal Singh. Even if on one occasion LPG stoves were taken through this vehicle, then it would not mean that the vehicle was being used for commercial purpose. It has not been shown that the vehicle was registered as a commercial van. The opposite party, Insurance Company, should have proved that this vehicle was being continuously used for commercial purpose. Thus the evidence is lacking. Similarly there is no evidence that the persons travelling in the vehicle were taken on consideration. There is no evidence from the side of the Insurance Company of proof, the burden of which lay on the Insurance Company that the persons had paid consideration for being taken in the vehicle. Thus this argument of the learned Counsel for the opposite party/appellant cannot be accepted. It has further been argued that the complaint is barred by limitation. According to the learned Counsel the repudiation of the claim was made on 4.1.1991. According to the Insurance Company this letter was received by complainant on 10.1.1991 while according to the complainant this letter was received on 22.4.1991. The claim petition was filed on 14.2.1992. If the repudiation letter was served on the complainants on 10.1.1992, then the complaint is barred by limitation as it was filed after one year of the repudiation of the claim. According to the complainant this repudiation letter was received by him on 16.2.1991 for which an affidavit has been filed. The evidence on behalf of the Insurance Company consists of an acknowledgement due. This acknowledgement due was filed by the Insurance Company before the learned District Forum, on which Sri Nathu Ram has signed on the acknowledgement due, but no date has been put under his signature. A postal stamp dated 10.1.1991 has been affixed on acknowledgement due form. Thus it goes to show that on 10.1.1991 this letter had reached the post office and its delivery was made to the complainant. However, the question is as to when this repudiation letter was delivered to the complainant. When there is no date below the signature of the receiver, Sri Nathu Ram, it cannot be said that this registered letter containing the repudiation letter was delivered on 10.1.1991. The Insurance Company should have obtained a certificate from the post office about the date on which the registered letter was actually delivered to the complainant. That would have settled at rest the controversy between the parties. Unless a specific date on which the letter was received is proved on record by the Insurance Company, it cannot be said that the letter was received by Nathu Ram on 10.1.1991. It is common knowledge that the letters are not delivered by the post office in time and are delivered with delays. Therefore, the Insurance Company has failed to prove that this letter has reached the complainant on 10.1.1991. On the other hand there is an affidavit from the complainant''s side that this letter was received by Nathu Ram on 16.2.1991. Therefore, on the basis of evidence it is held that the registered letter containing the repudiation letter was received on 16.2.1991 by the complainant and hence the complaint which was filed on 14.2.1992 is within the period of one year from the date of receipt of repudiation letter. Thus we find that the findings of the learned District Forum is perfectly correct and requires no interference, as far as the amount of claim is concerned.

LEARNED Counsel for the appellant has argued that the compensation of Rs. 10,000/- has been awarded on the higher side. Keeping in view the facts of the case, we do find that the compensation of Rs. 10,000/- is slightly on the higher side. In our opinion a sum of Rs. 5,000/- will suffice on account of compensation. The complainants are minors and the Insurance Company repudiated the claim on untenable grounds on account of which the minors were put to inconvenience.

THE learned District Forum has awarded interest at the rate of 18% per annum and in default of payment of amount within 60 days, the interest has been increased to 24% per annum. In accordance with the judgment of the Hon''ble Supreme Court the interest is reduced to 12% per annum. With these modifications the rest of the judgment and order of the learned District Forum are confirmed. THE appeal is, therefore, liable to be allowed in part. Order THE appeal is partly allowed and the claim for a sum of Rs. 87,200/- is decreed alongwith 12% per annum interest payable from 15.2.1992 till the date of payment. THE appellant shall pay a sum of Rs. 2,000/- as cost of the appeal to the complainant. Let compliance be made within a period of two months from the date of this order. Let copy as per rules be made available to the parties. Appeal partly allowed.