New India Assurance Company Ltd. vs HARISH CHANDRA RAI

INSURANCE Company is aggrieved by the Judgment and order dated 25.7.1998 passed by District Consumer Forum, Jaunpur in Complaint Case No. 320/97 Instituted by Harish Chandra Rai.

ACCORDING to the complainant''s version he was the owner of a motor vehicle bearing registration No. MP-19A/4618 which was of 1994 model Mahendra Jeep. It was insured for Rs. 2.00 lacs which was valid upto 14.10.97. It is said that when the said vehicle was sent for servicing on 27.2.97 along with driver Chandrika Prasad and his cleaner namely Rajan some persons met them and asked that their father had met with an accident near Mirzapur and they should be taken on the said vehicle. Upon the said request Chandrika Prasad took those persons to Mirzapur. However from Mirzapur the driver had gone to Allahabad and from Allahabad to Pratapgarh but when the vehicle had reached to Soraon in District Allahabad the dirver went to take food and cleaner Rajan also went for easing himself. When they came back the vehicle was missing along with persons who were boarded on it. Chandrika Prasad searched the vehicle for 3/4 days but it could not be traced out and ultimately F.I.R. was lodged and criminal case No. 232/97 was registered at the relevant police station. Since the complainant had gone out of town he came to know about the said theft on 3.3.97 when he came back. He also came to know about the F.I.R. having been lodged upon which he himself reported the matter to the Police Station Kotwali, Jaunpur and on 4.3.97 he also intimated the insurance company about the theft of the vehicle.

It is not disputed that in between a final report from the police had come to the Court which was accepted by it. Therefore, the theft of the vehicle stood established. A claim was registered by the complainant with the appellant insurance company who got it investigated through surveyor and during surveyor''s inspection it was doubted whether the vehicle was put to self-use in terms of the insurance policy or it was used as a public vehicle (taxi).

THE District Forum after examining the evidence of the parties came to the conclusion that there was no reliable evidence on the record to indicate that the vehicle was used as taxi. Consequently the District Forum decreed the claim and directed the appellant insurance company to pay Rs. 1,80,000/- along with interest @ 12% to the complainant. Rs. 5000/- were also awarded as compensation. Aggrieved the appeal has been filed.

MR. M.S. Kotwal, learned Counsel for the appellant has argued that the finding of the District Forum that the vehicle was not being used as taxi erroneous. In this connection he drew the attention to the report of the surveyor. As stated above on this point except the appallant''s guesswork, nothing further is available on record to suggest even that the vehicle was being used as taxi. Insofar as the report of the surveyor is concerned, it is based only upon the statement of the driver Chandrika Prasad. Obviously he extended help to the persons who alleged that their father was ill and they wanted to meet their father. Such action even if it is true will not render the use of the vehicle as taxi. Thus this argument of MR. Kotwal has no force. Mr. Kotwal further argued that the amount of Rs. 1,80,000/- along with interest @ 12% awarded by the District Forum is excessive and contrary to the decision of the Hon''ble Apex Court. Mr. A.K. Rai, Counsel for the complainant has replied on the said argument that once finding of the District Forum that the vehicle was not used as taxi is accepted the valuation fixed at Rs. 1,80,000/- should also be maintained. He, however, said that interest payability must be determined in accordance with the decision of the Hon''ble Apex Court. The only issue now remaining is what price of the vehicle should be assessed. Admittedly the vehicle was 94 model. Theft took place in 1997 i.e. three complete years had already elapsed when the alleged incident took place. Insured value was Rs. 2,00 lacs. Giving necessary deductions of three years the value of the vehicle comes down to Rs. 1,50,000/-. Upon the said value the use and occupation reduce its value to Rs. 1,10,000/-. It will be justified to take note of the surveyor report about the value of the vehicle and fix the amount payable at Rs. 1,10,000/-.

COMING now to the question of interest 9% is the rate which has been approved by the Hon''ble Supreme Court. This is the rate which has to be applied to the facts of the present case.

IN view of what has been stated above the appeal succeeds in part. While the decree of the District Forum is upheld on merits, the amount payable by the apppellant is reduced from Rs. 1,80,000/- to Rs. 1,10,000/- with 9% interest from the date of rejection of the claim till the date of payment. The payment of Rs. 5,000/- as compensation is set aside instead Rs. 1,000/- will be payable as cost. It may be pointed out that so far the complainant has neither furnised any letter of indemnity or subrogation for filed affidavit to this effect. If the complainant furnishes the above documents along with certified copy of this judgment the Insurance Company shall pay the aforesaid amount of Rs. 1,10,000/- plus 9% interest thereon w.e.f. the date of rejecting the claim till the date of payment and Rs. 1000/- within one month of the date of production of the copy of the judgment. Appeal partly allowed.