NEW INDIA ASSURANCE COMPANY LIMITED vs AVAISH AHMAD

THIS is an appeal against the judgment and order dated 27.1.1994 passed by District Consumer Forum, Allahabad in Complaint Case No. 372 of 1993.

THE facts of the case stated in brief are that the complainant owns Jeep No. MP 78/4035. This vehicle was insured with New India Assurance Company with effect from 10.1.1991 to 9.1.1992. According to complainant when this vehicle was coming from Allahabad on 5.9.1991 met with an accident on account of the fault of driver of vehicle No. URG 4267. A report of this incidence was lodged on 6.9.1991 and the survey was also done. THE complainant presented a claim of Rs. 54,926.22, the amount of repair, to the Insurance Company. As the same has not been paid the present complaint has been file''. The Insurance Company in its written version has alleged that only seven passengers are allowed to travel by the jeep but at the time of accident Surveyor found that mere were 11 persons in the jeep. Hence on this account the claim was repudiated.

The parties filed evidence and after considering the case of the parties, decreed the claim of Rs. 54,926.22 along with 12% per annum interest to be paid from December, 1991 till the date of payment. A sum of Rs. 200/- was also allowed as cost.

AGGRIEVED against the order of the learned District Forum, Insurance Company has come in appeal and has challenged the correctness of the order passed by the District Forum. We have heard the learned Counsel for the parties and have perused the evidence on record.

IT has not been denied by the Insurance Company that the accident did not take place. According to learned Counsel 11 passengers were sitting in the vehicle instead of 7 allowed. Therefore, there was a breach of condition of policy. Hence the claim was repudiated on 4.8.1992. The appellant has not filed any document to show that there were 11 passengers travelling in the vehicle at the time of accident. The reports of the two Surveyors has also not been filed to show that 11 passengers were found travelling in the jeep. There is no other evidence on record to show that 11 persons were travelling in the jeep. Therefore, this contention of the Insurance Company cannot be accepted and even if more persons are travelling than permitted, it has not been shown by evidence on record that overloading of the vehicle was the cause of the accident. Unless it is shown that the accident took place on account of overloading of the vehicle and the driver lost control of the vehicle only on this account, it cannot be said that the overloading of the vehicle was the cause of accident. There is no nexus between the overloading and the accident. Learned Counsel has argued that this complaint should have been sent to the Civil Court for decision. This argument does not carry any force in view of the provisions of Section 3 of the Consumer Protection Act and many decisions of the State Commission, National Commission and the Hon''ble Supreme Court. The remedy provided under the Consumer Protection Act is a remedy in addition to other remedies which are available to the complainant. Therefore, the complainant cannot be asked to go to'' Civil Court. Learned Counsel has argued that the Surveyor has awarded loss at Rs. 40,452/-. As mentioned in the earlier part of the judgment the report of the Surveyor has not been filed. Hence the learned District Forum was not bound by the report of the Surveyor if any.

IT has also been argued before the learned District Forum that the complainant had not filed any receipt of the repair of the vehicle. The learned District Forum has mentioned in its judgment that the complainant has spent a sum of Rs. 54,926.22 in the repairing of the vehicle and has filed copies of bills before the District Forum. Thus the only evidence which was available before the District Forum was the evidence filed by the complainant for determining of the claim. IT cannot be said that the copies of the bills which have been filed by the complainant before the District Forum were forged. If it was so then the Insurance Company should have raised an objection.

THUS we find that this appeal has no force and is liable to be dismissed. ORDER The appeal is dismissed and the judgment and order of the learned District Forum are confirmed. The appellant shall also pay to the complainant/respondent a sum of Rs. 2,000/- as cost. Let compliance of the order 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 dismissed.