P.A.SINIK vs Oriental Insurance Co.Ltd.

THIS appeal is by the complainant in OP 965/96 on the file of the CDRF, Ernakulam. Complainant alleged before the District Forum, while he was driving his Maruthi Car KL7G-7144 from Ernakulam to Palakkadu at about 1 p.m. on 6.9.1995, a K.S.R.T.C. Superfast passenger bus which was coming from the opposite direction in a rash and negligent manner hit against the car near Mullakkara, Thrissur, by which the car got irrecoverably damaged and the two other occupants of the car Mrs. Joseph and minor Sincy sustained injuries and later succumbed to the injuries. The car had valid insurance cover. The accident was immediately reported to the opposite party who appointed Surveyor who submitted a report stating that it would not be economical to repair the vehicle. After discussion, the opposite party and Surveyor, according to the complainant, suggested to settle the matter for an amount of Rs. 1,40,000/- to which the complainant agreed; but the opposite party did not pay the amount. The car in question was sold by the complainant as scrap. The opposite party sent a letter to the complainant on 26.6.1996 stating that the car since was actually driven by Mrs. Mary Joseph and the complainant had suppressed the said fact, the complainant is not eligible for the insurance amount or any amount towards the damage to the car. Therefore, the complainant wanted a direction to the opposite party to pay Rs. 1,40,000/- with interest @ 24% and also compensation. In the version by the opposite party they admitted the policy and to there having appointed a Surveyor, but they maintained, that a second survey was also conducted. While so the opposite party had got information that the car in question at the time of occurrence was driven by a lady Rose Mary, who was killed in the accident and the said Rose Mary, was not having driving licence. A detailed investigation was conducted and the investigation revealed that it was Rose Mary who was behind the steering wheel of the car at the time of accident. The Investigator had recorded statements of the eye-witnesses and also had got the trip sheet prepared by the conductor of the bus. On the basis of the said trip sheet, and also statements of witnesses, since the car in the relevant time was driven by a person who had no licence, the repudiation of the claim under law cannot be treated as deficiency of service, they wanted dismissal of the complaint. Before the District Forum the complainant gave evidence as P.W. 1, the Investigating Officer of the Company was examined as D.W. 1. Complainant produced Exts. A1 to A20 and the opposite party produced Exts. B1 to B10. On a consideration of the said evidence the District Forum came to the conclusion that there is no deficiency of service and on that finding dismissed the complaint. The said dismissal, as indicated early, is under challenge in this appeal at the hands of the complainant.

IT is argued by the learned Counsel for the appellant that the District Forum could not have relied on the evidence of D.W. 1 or his report Ext. B5, as according to the learned Counsel the investigation itself was after over one year of the date of occurrence and the materials relied on by the Investigator to come to the conclusion are such that the same cannot have any credibility to be accepted. IT is urged by the learned Counsel, that one of the persons questioned and gave statement before D.W. 1 had sworn before the Criminal Court that he did not witness the occurrence. Apart from the same, D.W. 1 could not have made reliance on Ext. B10. IT is also urged by the learned Counsel, the very reasoning of the District Forum to hold that it is probable that Rose Mary could have been in the driving seat at the time of occurrence, cannot be accepted. But the learned Counsel for the respondent sought to support the dismissal saying that since D.W. 1 came to the conclusion after extensive investigation wherein he has recorded the statements of the witnesses who had witnessed the occurrence, the conclusion reached by D.W. 1 cannot be assailed. IT is also submitted, that the opposite party repudiated the claim after applying its mind. The fact that the vehicle belonging to the complainant met with the accident on 6.9.1995, the vehicle sustained extensive damage and that two of the three occupants in the car died in the accident are not in dispute. It is also not in dispute, that at the time of the accident the vehicle had valid insurance. The vehicle belonged to D.W. 1, whereas P.W. 1 would maintain that at the relevant time he was driving the car, D.W. 1 stated that on his investigation it was revealed at that time, Rose Mary one of the occupants of the car was driving the vehicle and she had no licence to drive. There is no case for the complainant that Rose Mary had driving licence. The very basis of the repudiation is, that at the time of accident the car was driven by a person who had no valid licence to drive the vehicle. On the other hand if the car during the relevant time was being driven by the complainant himself, the repudiation cannot be said to be valid and the repudiation by itself would constitute deficiency of service. So the crucial question is, whether at the time of occurrence as a matter of fact Rose Mary was driving the vehicle. Reliance was made by the learned Counsel for the appellant on the decision of the Kerala High Court in United India Insurance Company v. Jameela Beevi, 1991 (1) KLT 832, to say that the burden at proof is on the Insurance Company to establish that the vehicle at the time of occurrence was driven by a person who had no valid licence. Having regard to the aforesaid argument, now the question to be considered is, whether as a matter of fact, Rose Mary, the deceased was driving the vehicle at the time of the occurrence.

The main piece of evidence relied on by the respondent in this regard is the evidence of D.W. 1 alongwith his report Ext. B5. Reliance is also made on Ext. B10, the way bill prepared by the conductor of the bus wherein it is also stated that "a Maruthi Car hit against the bus and that the passengers inclusive of a lady who drove the car sustained serious injury". It need hardly be said that D.W. 1 did not have any direct information as to who drove the car. The whole source of information was from the persons whom he questioned, and the questioning was in June, 1996 whereas the occurrence was on 6.9.1995. It is pointed out by the learned Counsel, that one of the persons who gave statement before D.W. 1 has sworn before the Magistrate Court where the driver of the bus was charge-sheeted for offences punishable under Sections 279, 338 and 304A of I.P.C., that he did not see the occurrence. Ext. B10 also was relied on by the District Forum.

FIRST of all it must be observed that the very statement made by the conductor of the bus is such that it cannot generate confidence to be accepted in its face value because the said statement by the conductor says that it was the car which came and hit against the bus whereas that is not the case of even the Insurance Company. It is also necessary to note that the conductor who gave Ext. B10 was not examined. When such a vital material is sought to be used against a party''s claim, it was necessary that it ought to have been proved by calling the author of the same to prove the same so that the party affected thereby would get opportunity and occasion to cross-examine the author of the same. It is necessary in this connection to note that the District Forum relied on the evidence of D.W. 1 to the effect that the collision was near the driver''s seat. The said circumstance relied on to hold, had P.W. 1, the complainant was in the driving seat, with due regard to the magnitude of the damage caused to the vehicle, P.W. 1 should have sustained serious injuries whereas he had sustained only "comparatively minor injuries". The District Forum is seen to have taken the view, the said circumstance alongwith the statement of the conductor in Ext. B10 would probabilise the Investigating Officer''s report Ext. B5. But in this connection it is necessary to advert to the Surveyor''s report produced by the opposite party alongwith their version which the opposite party has marked as Ext. OP(d); wherein the Surveyor states, "While negotiating the car near the accident spot a K.S.R.T.C. Super fast bus bearing Registration No : KL-15/1521 all of a sudden came from the opposite direction and hit insured''s vehicle causing extensive damage to the same as well as death of all passengers and serious injuries to the insured". So the very document produced by the opposite party would show that the insured, that is P.W. 1, sustained serious injuries, it is not minor injury as is understood by the District Forum. Therefore the conclusion that since P.W. 1 had sustained only minor injuries and he could not have been in the driver''s seat stands vitiated. Though it is not conclusive, it is relevant to note that at that stage the Surveyor only qualifies the deceased as passengers, not driver. When the aforesaid features are available from the very records of the opposite party, the conclusion on the basis of statements recorded after one year of the occurrence from persons who claimed to have reached scene of occurrence, cannot persuade the conclusion that a lady drove the car unless other circumstances support the same. It is not unimportant to note that except examining the Investigator as D.W. 1, no other witness was examined; and with due regard to the importance given by the opposite party to Ext. B10 atleast the conductor of the bus who was admittedly in the bus at the time of the occurrence should have been examined. As noticed the burden was on the Insurance Company to prove the aforesaid aspect.

THE whole matter has to be viewed in the backdrop of the fact that the vehicle in question which had a valid insurance coverage was irrecoverably damaged in the accident is not in dispute, two persons have lost their lives. Ext. A11 charge sheet is the considered opinion of the Investigating Agency wherein they state that the car in question at the time of occurrence was being driven by P.W. 1, the owner of the car. In considering the probative value of Ext. B5, Ext. A11 bears importance as the investigation was conducted by an independent agency as per the provision in the Criminal Procedure Code. In the said context the evidence of P.W. 1 gains enough value. We consider that the repudiation is not valid or correct; that itself would constitute deficiency of service. In view of the said finding it is clear, that the complainant is eligible for Rs. 1,40,000/-, found by the Surveyor. Since there is no acceptable evidence as to the quantum of compensation, in the circumstance it would be enough to award interest on the insured amount and the rate of interest, we feel, in the circumstance, need be 12%. Ext. A8 is the copy of the notice issued by the complainant to pay the aforesaid amount with interest @ 24%, the notice is dated 27.9.1996. What is to be noted is even as on the date of Ext. A8 notice the claim was not settled that could amount to deficiency of service. Taking into consideration the aforesaid factors it has to be found Rs. 1,40,000/- will carry interest from the date of Ext. A8 notice that is 27.9.1996. In the result, the appeal is allowed, the opposite party is directed to pay the complainant Rs. 1,40,000/- with interest @ 12% from 27.9.1996 till payment or recovery. As the appellant is successful, the appellant is entitled to his costs, which we fix at Rs. 1,000/-. The opposite party will pay the said amount also. Appeal allowed.