Oriental Insurance Company Ltd. vs TARSEM KUMAR

THE appellant-Oriental Insurance Company Limited seeks to challenge the order of the District Forum, Ambala directing payment of Rs. 60,993/- against the insured respondent claim of Rs. 95,000/- for loss and damage to his vehicle by accident

IN the complaint preferred by the respondent, it was averred that he was the registered owner of the truck No. HYX 4970, which was fully insured with the appellant company. This vehicle met with a road accident near Deoban in Uttar Pradesh on 24/25th of November, 1989. The First INformation Report with regard thereto was promptly lodged at the Police Station and the insurers were also immediately informed for necessary action. The appellants appointed a surveyor, who after enquiry tenderd his survey report to the appellant. However, the appellants nevertheless, failed to settle the claim and thus compelled the complainant to knock at the door of the District Forum on 7th of June, 1991. In the written statement preferred by the appellants, a preliminary objection was strenuously pressed that because the insured''s claim stood repudiated by the Company, therefore, the District Forum had no jurisdiction to try the complaint. On merits however, the factum of the truck having been insured and the accident thereto was admitted. The stand taken was that from the surveyor''s report, it appears that at the time of the accident the driver of the truck was under influence of liquor and also there were some passengers in the same who allegedly had paid some fare, therefor. On these somewhat tenuous grounds, the liability was sought to be totally repudiated and the stand was also taken that the damage was highly exaggerated and the surveyor had assessed it only at Rs. 32,075/-.

In support of his complaint, the respondent stopped into the witness-box himself and also examined PW-2 Jarnail Singh, PW-3 Joginder Singh, PW-4 Karam Tej Singh, PW-5 Om Parkash and PW-6 Rulda Ram alongwith the documentary evidence, the authenticity of which was not questioned.

THE appellants however, seems to have rested content with simply placing on record a copy of the First Information Report and Exhibits R-2 to R-6 without examining any person as witness or even averring as to the nature and content of some of the documents relied upon. The District Forum in a detailed and considered order adverted to each piece of the evidence placed on the file. Thereafter, it rejected the preliminary objection as to jurisdiction and on merits held in favour of the respondent and assessed the damage to the tune of Rs. 60,993/- only.

MR. D.P. Gupta, appearing for the appellant was unable to seriously press the ground of lack of jurisdiction of the District Forum merely because of the repudiation of the claim by the appellant. Since the issue is concluded against the appellant by the binding precedent of the National Commission in I (1992) CPJ 121 (NC) ''M/s. Raj Kamal & Co. v. M/s. United India Insurance Company Ltd. & Ors.'', it is unnecessary to examine the matter afresh. The District Forum firmly relied upon the said judgment for rejecting the preliminary objection and we are even on independent appraisal inclined wholly to agree with that view, which is affirmed. Mr. Gupta had then attempted to argue that the driver of the vehicle at the time of the accident was under the influence of liquor and on that score the Company was entitled to repudiate all liability. The submission has only to be noticed and rejected. There is no evidence worth the name to conclusively establish this allegation. It has to be noticed that under the general exceptions of the insurance policy, it has to be shown that either the insured or any person driving with the general knowledge and consent of the insured is under the influence of intoxicating liquor and drugs. This obviously has not been done. What is more is the fact that Jarnail Singh, the driver of the truck at the time of accident himself stepped into the witness box as PW-2 & categorically asserted that he was not in the least under the influence of liquor at the material time. Nothing worth the name could be elicited in the cross-examination directed against him. There was no medical examination of the driver or any other meaningful testimony to hold otherwise. The District Forum was thus right in its conclusion arrived at against the appellants on this score. We would affirm that finding. The only other plea for evading liability raised on behalf of the appellant was that at the time of accident there were a few persons in the truck who according to appellant were alleged as paid passengers. This allegation was strongly rebutted on behalf of the complainant and what is more is the fact that there is no evidence worth the name that these persons had actually hired their fare on the said truck. The District Forum had adverted in some detail to this aspect and it is unnecessary to tread the same ground again. It suffices to say that we agree and affirm that view. We may also record that on behalf of the appellants, the quantum of the loss calculated and assessed by the District Forum was not at all challenged before us.

APART from the above, the inherent and almost fatal weakness in the appellant''s case is that, they seem to have treated the matter cavalierly in defending the complaint before the District Forum. It bears repetition that not even a single affidavit of any person was placed on the record. No witness on behalf of the appellant was examined either. What is of the utmost significance is the fact that the report of the surveyor which was the sheet-anchor of the appellant''s defence was not at all placed on the record. Even in the pleadings the name of the surveyor concerned was not disclosed far from calling him as a witness to testify with regard to the alleged report. It can, therefore, be rightly said that the appellant''s plea suffers from a total lack of evidence whatsoever. This Commission in I (1991) CPJ 653 ''Executive Engineer, Operation, H.S.E.B. Hissar v. Dr. Chander Bhan'' has firmly taken the view that a consumer dispute ''under the Act can only be decided on the basis of evidence and not de-hors thereof. It is thus plain that the appellant''s case has no legs whatsoever, to stand upon on the existing record.

FOR the fore going reasons, this appeal is dismissed with costs which are assessed at a sum of Rs. 300/- only. Appeal dismissed with costs.