Om Prakash vs ORIENTAL INSURANCE COMPANY LIMITED

THIS is an appeal against the judgment and order dated 7.10.1997 passed by learned District Consumer Forum, Sultanpur in Complaint Case No. 177 of 1996.

THE facts of the case stated in brief are that the complainant filed a complaint for recovery of Rs. 2,31,000/- alongwith 18% per annum interest, as price of the car. According to the complainant, complainant got his jeep insured on 22.10.1994 for a sum of Rs. 2,31,000/-. The policy was effective till 21.10.1995. The jeep was used for personal use. The complainant''s friend Safeeq Ahmad @ Toufeeq Ahmad, r/o Toufeeq Colony, Civil Lines was also owner of a jeep which was attached with the Swatantra Bharat Press for transporting the newspaper from Lucknow to Sultanpur. On 24.3.1995 his friend told the complainant that his jeep has broken down, hence according to the contract, he has to transport the newspaper from Lucknow to Sultanpur, hence he requested to give his jeep for that purpose. The complainant on account of good relation had given his jeep without any charges.

In the night of 16/17.4.1995 the jeep was going from Lucknow to Sultanpur alongwith newspaper bundles, five persons contacted the driver and wanted to have a lift in the jeep but the driver refused to do so but on insistence of those persons and due to non-availability of any other conveyance those persons were given lift without any charges. Out of these persons, two persons in the way at Katunala near Musafir Khana took away the jeep, after the driver and the cleaner were asked to step down.

THE driver, thereafter, gave information to the Police Station Jagdishpur but vehicle could not be recovered. Station Officer of the police station got the report lodged in his own way and did not record the version told by the driver. On the next day, when the complainant came to know the incidence, he contacted the Station Officer, Police Station Jagdishpur and tried to lodge the First Information Report but he was told that report has already been lodged, therefore, no second report was lodged. THE correct instance was not written in the First Information Report. THE copy of the report was not given to the complainant even on 29.4.1995. THEreafter the complainant wrote a letter to Supdt. of Police, Sultanpur on the same day and narrated the facts. This was sent by the registered post but nothing was done by the Supdt. of Police. Final Report was accepted by the Chief Judicial Magistrate on 27.2.1996. The information of this incidence was given to the Insurance Company. One Sri Bhalla was appointed as Investigator. He did not fairly investigated the matter and wanted the complainant to pay Rs. 20,000/- for preparing the report in his favour. The complainant did not oblige the Investigator. The complainant was informed by letter dated 2.2.1996 that his claim has been repudiated. This letter was received by the complainant on 7.3.1996. The Insurance Company has alleged that the vehicle was used for commercial purpose and not for personal use hence his claim has been repudiated.

THE opposite party in its written version has alleged that there was no deficiency in service on the part of the Insurance Company. It admitted that the vehicle was insured as alleged by the complainant. It also reproduced the certain portions of the report of the Investigator. It is alleged that the jeep was carrying 12 bundles of newspaper and five persons at the time of incident. It is further alleged that the driver has mentioned in the written statement that the owner, complainant used to recover the passengers fare on day to day basis. It is alleged that the vehicle was being used for commercial purpose for taking newspapers. The taxi was being used for commercial use but the same was insured for private use on the basis of the Investigator report, the repudiation was done. The learned District Forum after considering the case of the parties came to the conclusion that intricate questions are involved for decision which cannot be determined in a just and proper manner in these summary proceedings under Section 12 of the Act. Therefore, the complaint was returned for presentation to the Civil Court.

AGGRIEVED against the order of the learned District Forum, the complainant has come in appeal and has challenged the correctness of the order passed by the learned District Forum.

WE have heard the learned Counsels for the parties. The parties have also filed the evidence before this State Commission, which was filed by them before the District Forum, therefore, we are going to decide this appeal in the interest of justice and without remanding the same to the District Forum. From the perusal of the facts and after hearing the learned Counsels of both the parties, we find that this case does not raise any complicated question of law and facts, hence the complainant could not have been directed to present his complaint before the Civil Court. The order of the learned District Forum to this effect is not correct and is set aside. The learned Counsel for the appellant has argued that the jeep were being used for personal use by the complainant but on the request of his friend the jeep was given to him for a certain period for taking the newspaper from Lucknow to Sultanpur. As a matter of fact, this vehicle is registered as a private vehicle in the R.T.O. Office. This vehicle has not been registered as a jeep. No action has been taken against the complainant for misusing the jeep by the R.T.O. Office.

In the present case, the only question involved is whether the jeep was being used for commercial purpose or not. It has already been indicated that the above jeep was registered as a private vehicle. Reliance has been placed on the so called written statement of the driver that the complainant used to collect the fare from him every day. No affidavit of the driver has been filed by the Insurance Company to show that the driver has made any such statement. The burden to prove the fact that the jeep was used for commercial purpose and the driver had stated that this fact was on the Insurance Company. Unless a statement of the driver has been made on affidavit no reliance can be placed on it. Even if the jeep carried the newspaper for one month then it does not mean that the jeep was used for commercial purposes. It has been stated that the jeep was given free of charge to the friend by the complainant. There is no affidavit or any other evidence from the side of the Insurance Company or Safeeq Ahmad that the jeep was taken by him on hire basis for transporting the newspaper from Lucknow to Sultanpur. Therefore, in absence of any such evidence, it cannot be held that the jeep was being used by the complainant for commercial basis. The affidavit filed by the complainant clearly goes to prove the fact that the jeep was being used for private purposes.

CERTAIN portions of the report of Investigating Officer policies have been relied upon by the Insurance Company but those portions cannot be relied upon as they cannot be used as evidence in other proceedings except to contradict a witness or the person who has made this investigation. The Insurance Company opposite party has also alleged that Mr. V.V. Bhalla was appointed as Investigator but there is no affidavit of the Investigator on record to show that to how he has investigated the matter and whose statement he has taken on these points. No affidavit of any person who was interrogated by the Investigator has been filed in this case. The mere report of the Investigator without any affidavit will not mean that the Insurance Company has proved this case. No reliance can be placed on the observations of the investigator. It has not been denied that the theft of the jeep was committed by the two persons as alleged by the complainant during the night of 16/17.4.1995. Thus, we find that the jeep was stolen forcibly by some unknown persons and during the continuance of the insurance policy, as such the complainant is entitled to claim the amount of policy. The complainant has claimed a sum of Rs. 2,31,000/-. The jeep was manufactured in the year 1994 as it will be apparent from the claim form. The jeep was stolen in the next year. Therefore, a deduction of 10% on account of depreciation is to be made from the amount claimed by the complainant in view of the terms of the policy. The policy terms says that the depreciation for the first year will be 10% of the total value of the vehicle. After deducting the 10% amount of Rs. 2,31,000/-, the amount comes to Rs. 2,06,900/-. Thus the complainant is entitled to recover this amount because the Surveyor has not given his estimate of the value of the jeep on the day of loss. The appeal is, therefore, liable to be allowed. Order The appeal is allowed and the judgment of the learned District Forum is set aside. The claim of Rs. 2,06,900/- is decreed with interest at the rate of 12% per annum from 1.9.1995 till the date of payment. The opposite party shall pay a cost of Rs. 2,000/- to the appellant. Let compliance of this order be made within a period of two months from the date of this order. Let copy be made available to the parties as per rules. Appeal allowed.