RAGHBIR DASS vs United India Insurance Co. Ltd.

THIS appeal is directed against the order of the District Forum, Kangra at Dharamshala dated 30.3.1998 whereby the complaint of the appellant/ complainant (hereinafter to be referred to as the complainant) has been dismissed.

THE relevant undisputed facts of the case in brief are that the complainant who is the owner of an open Truck No. HP-39-3]12, go this vehicle insured with the respondent/opposite party (hereinafter to be referred to as the Insurance Company) for a sum of Rs. 4,25,000/- for the period from 7.2.1995 to 6.2.1996. During the period when the insurance policy was in force, on 18.7.1995, the vehicle met with an accident while it was on its way to Delhi at Village Chhabra, District Shimla. THE occupants of the vehicle received injuries and the vehicle was damaged. THE FIR was lodged by one Shri Narayan Sharma, one of the occupants of the truck who had also sustained injuries, in the Police Station, Dhalli (Shimla). According to the complainant, the vehicle was taken to Pathankot for repairs and the mechanic assessed the damage to the vehicle at Rs. 2,50,000/- and as such the claim for Rs. 2,50,000/- was preferred by the complainant with the Insurance Company. THE Insurance Company consequently appointed one Surveyor Shri H.S. Bawa who has assessed the damage to vehicle at Rs. 80,000/- on Cash Loss Basis. However, the claim of the complainant has been repudiated on the ground that the driving licence to the driver Shri Sunil Kumar who was driving the vehicle at the time of accident was not produced and presumably it was not valid, or he had no licence. The complaint has been resisted by the Insurance Company on the ground that 9 persons in addition to driver and the conductor were sitting, in the truck as passengers while it met with an accident and carrying of such unauthorised passengers is in violation of the contract of insurance and that one Shri Sunil Kumar who was driving the truck at the time of accident, had no valid licence.

The complaint earlier was dismissed by the District Forum and an appeal was filed before this Commission and in the State Commission, an application was filed by me complainant that he should be allowed to produce additional evidence to substantiate that Pritam Singh is alias name of Shri Sunil Kumar and Pritam Singh and Sunil Kumar is the one and the same person who was actually driving the vehicle and admittedly he had a valid driving licence. The State Commission allowed misapplication in tine interest of justice and for substantial cause and directed the District Forum to reconsider the matter in the light of evidence produced by the parties on such question. In pursuance of this order, the District Forum allowed both the parties to produce evidence on the question whether or not Sunil Kumar and Pritam Singh is one and the same person. After considering the evidence of both the parties, the District Forum has come to the conclusion that on the basis of the evidence available on the record, it will not be appropriate to decide the matter in summary proceedings before the Consumer Forum, as complicated question of facts arise in this case and the complaint consequently was dismissed.

WE have heard Mr. A.S. Chopra, learned Counsel for the complainant and Mr. Vivek Guleri, learned Counsel for the Insurance Company who have assisted the Court in depth and drawn our attention to relevant evidence. There is no dispute that the vehicle met with an accident and the occupants of the truck had sustained injuries and for some of them it proved to be fatal. There is further no dispute that FIR in respect of mis accident was lodged with the Police Station, Dhalli by one Shri Narayan Sharma, one of the occupants of the truck and the driver one Shri Pritam Singh alias Sunil Kumar is facing trial for rash and negligent driving causing death of 4 persons/occupants of the truck. There is also no dispute that the driver Pritam Singh alias Sunil Kumar has been challaned for an act of rash and negligent driving in respect of the accident of this very vehicle. There is again no dispute that one Shri Pritam Singh had a valid driving licence to drive the heavy transport vehicle, but the only question, however, involved is whether Shri Pritam Singh is also known by the name of Shri Sunil Kumar and that he had a valid driving licence and was actually driving the vehicle at the time of accident.

MR. A.S. Chopra, Counsel for the complainant has tried to assail the judgment of the District Forum and argued that on the basis of the evidence produced by the complainant, the District Forum should have held that Pritam Singh and Sunil Kumar is the one and the same person and infact, was driving the vehicle at the time of accident and he was having a valid driving licence for running heavy transport vehicle. In this context we may refer to the file of the Court of JM1C, Shimla which has been summoned to the Court and the documents of that file have been placed on record and one of the documents is Ex. P.I which is an amended challan put up against Shri Pritam Singh alias Sunil Kumar before the Court of CJM, Shimla. In the Challan, the name of the driver who was driving the truck at the time of accident has been shown as Pritam Singh alias Sunil, s/o Shri Bheem Singh, resident of Tikka Andrar (Narwana), P.O. Tang Nehan, Police Station, Dharamshala, District Kangra, H.P. and the Truck No. has also been given as HP-39-3112. The Investigating Officer Shri Rakesh Kumar, Head Constable, Police Station, Phalli (Shimla) who has put up the Challan, was also summoned as a witness by the complainant as CW-3, who has stated that he has investigated the case FIR No. 199/1995, dated 19.7.1995 State v. Pritam Singh, under Sections 279, 337, 338 and 304A, IPC. He has very clearly stated that Shri Pritam Singh was also known by name of Sunil Kumar which he has mentioned in the report, Ex. P.1. The father of Pritam Singh alias Sunil Kumar is Bheem Singh and he belongs to Village Andrar, Post Office Tung. He has again stated that from the statement of the injured Narayan Sharma, it was noticed that Sunil Kumar, son of Hari Ram of Village Dhaloon was driving the vehicle, in question, but on further investigation, it was found that no such person was living in Village Dhaloon. Therefore, itwas noticed that the driver of the vehicle was said Pritam Singh, who was also known by the name of Sunil Kumar and this was noticed from the statement of Subedar Raghbir Dass recorded on 10.9.1995. He has further denied this suggestion and categorically said that it is incorrect to suggest that Pritam Singh and Sunil Kumar are two different persons and not the same person. The Criminal Analmd, Court of JMIC, Shimla who had brought the challan file has been examined as CW-2 and Ex. P.1 has been produced as certified copy of the challan in which the name of Pritam Singh alias Sunil s/o Shri Bheem Singh Caste Gaddi (Kapoor), resident of Tikka Andrar (Narwana), O.P. Tang Nehan, Police Station, District Kangra, has been written. Ex. R-l - Medical Certificate No. 7370/ 1995 of Sunil Kumar son of Hari Singh, aged 24 years, r/o Village and P.O. Dalun, Tehsil and District Kangra is also produced by him which will be discussed later. The driver Shri Pritam Singh alias Sunil, aged 49 years has himself appeared as witness as CW-1 and he has tendered evidence by way of affidavit which is Ex. R.2. In the affidavit it is clearly stated by him that in the childhood he was called by both the names as Mr. Pritam Singh and Sunil and the same has been recorded in the Revenue Records as Pritam Singh alias Sunil. Pritam Singh and Sunil is one and the same person and he is facing trial in Shimla. The evidence produced by the complainant leaves no manner of doubt that the driver who was driving the vehicle at the time of accident was Pritam Singh who is also known by the name of Sunil and his father''s name is Shri Bheem Singh and he belongs to Tikka Andrar, Village Narwana, P.O. Tung, Tehsil Dharamshala, District Kangra. However, Mr. Vivek Guleri, Counsel for the Insurance Company has very strongly contended that me name of Sunil Kumar was not Pritam Singh and they were not the same persons, as the name of me father of Sunil Kumar, infact, is Hari Singh, r/o Village and P.O. Dhaloon -a different village and not of Village Narwana Tikka Andrar, who was driving the vehicle, in question, and admittedly had no valid driving licence which is quite evident from the FIR lodged by Shri Narayan Sharma who was one of the injured persons in the accident of the truck.

HE has drawn our attention to FIR wherein the name of the driver who was driving the vehicle at the rime of accident has been mentioned as Sunil Kumar s/o Hari Ram, resident of Vill. Dhaloon. Both parentage and village of Sunil Kumar who was driving the vehicle has been mentioned in the FIR. According to him, the FIRistheearlierversionand more particularly when the FIR has been lodged by one Shri Narayan Sharma, one of the injured occu pan ts of the ill-fated truck at the time of accident. No doubt, the FIR is the earliest version and the name of the driver has been described as Sunil Kumar s/o Hari Ram of Village Dhaloon, but this itself cannot help the Insurance Company, as neither Shri Narayan Sharma has filed any affidavit or produced as witness by the Insurance Company who could have thrown light on the question whether he had a special means of knowledge about the name of the driver, his parentage and the village to which he belonged to. His affidavit or evidence may become all the more imperative, as the complainant has not only given his own affidavit to demonstrate that his other native name is not only Sunil Kumar but also Pritam Singh and his father''s name is Bheem Singh and they belonged to village Andrar. The Investigating Officer, who was brought to witness box and filed a challan, was also very emphatical in his statement that on further investigation from the statement of one Subedar Raghbir Dass, he has come to the conciusion that Sunil Kumar''s other name is Pritam Singh and that Sunil Kumar alias Pritam Singh is the son of Shri Bheem Singh of Tikka Andrar. Since Shri Narayan Sharma, one of the injured occupants has not been produced, adverse inference can be drawn against the Insurance Company. Much capital has been made out of the M.L.C. Report dated 19.7.1995 (Ex. R-I) given by the Doctor, wherein the name of driver has been written as Sunil son of Hari Singh, resident of Village & P.O. Dalun, District Kangra aged 24 years. It is not clear whether this M.L.C. Report is in respect of the same driver who was driving the vehicle at the time of accident or about a different driver, as no mention of the truck or the FIR has been made therein. Even if it is assumed that the M.L.C. Report is in regard to the same truck and the same accident, in dispute, no reliance can be placed upon this document, as neither any affidavit has been filed by the Doctor who has given the M.L.C. Report nor his evidence has been produced in the Court. Furthermore, this document exhibited as Ex. R-I is the copy of the M.L.C. produced from the challan file put up before the CJM, Shimla and not from the record of the Doctor of the hospital. Therefore, this document cannot inspire any confidence.

MUCH reliance has been placed on the report of the Surveyor dated 25.7.1995 where again the name of the driver Sunil Kumar who was driving the vehicle at the time of accident has been shown and no name of Pritam Singh, and their parentage and village to which they belong do, has been written. We have seen the Surveyor''s report. He has not verified from any quarter whether Shri Sunil Kumar driver had another name also and what was his father''s name and to which village he belonged to and no affidavit supporting his report has been filed. Since no such affidavit has been filed, it would not be unreasonable if adverse inference is drawn in the facts and circumstances against the Insurance Company. Another circumstance brought out by Mr. Guleri, Counsel for the Insurance Company is that the M.L.C. was issued by the Indira Gandhi Medical College & Associate Hospitals, Shimla, whereas he has been treated in Military Hospital at Yol and as per his statement as CW- 1, he was treated at Military Hospital, Yol. It is not disputed by the parties that the driver Pri tarn Singh alias Sunil Kumar is an ex-serviceman pensioner. Having regard to his antecedents, it can be simply inferred that he was a military man and by nature and temperament he had some confidence in the Military Hospital, Yol situated in the same Tehsil to which he belonged to. This arguments is, therefore, of not much relevance.

The next contention of Mr. Guleri is that in the Surveyor''s report there were 11 persons alleged to have suffered injuries and some of them i.e. 4 were dead, whereas according to the statement of Shri Pritam Singh alias Sunil only 6 persons including himself were travelling in the truck at the time of accident. From such statement it is tried to be shown that intact, Shri Pritam Singh son of Bheem Singh was not driving the vehicle who had a valid licence, but some other person was driving the vehicle. Such discrepancy even if it is found out to be true, in our opinion, cannot be of decisive importance in view of the evidence discussed above.

IT is settled principle of law that the burden lies upon the Insurance Company to substantiate that the driver was having a fake licence. Having regard to evidence discussed above, we have no hesitation to hold that the Insurance Company has failed to establish that the driver who was driving the vehicle at the time of accident was having a fake or no licence.

MR. Guleri, Counsel for the Insurance Company has referred to the judgment of the National Commission in Gurbhed Singh v. Oriental Insurance Co. Ltd. & Ors., II (1997) CPJ 124 (NC)=1998 NCJ 43, whereby it was held that the matter should be investigated by the Civil Court where the elaborate trial of the case is needed. According to him, this case is almost similar to the one in hand. Whether or not the Consumer Fora should decide the matter or leave the parties to go to the Civil Court depends on the facts and circumstances of each case. We may notice, in this context, that the case was remanded earlier and the parties were allowed opportunities to produce evidence and all the evidence whatever could be produced, had been produced before the District Forum by the parties. Since the evidence is already on the record which, in our opinion, is sufficient to decide the matter, no further purpose would be served to refer the matter to the Civil Court. Moreover, this is the second round of litigation between the parties before the Consumer Fora. Further litigation before the Civil Court will consume more time and result in lot of further expense and harassment of parties. In these facts and circumstances it would not be advisable/ appropriate to leave the parties to go to Civil Court. The next question arises for consideration is as to what compensation the complainant is entitled to. The Surveyor one Shri H.S. Bawa vide his report dated 22.11.1995 has assessed the loss at Rs. 80,000/- on cash loss basis. There is no satisfactory evidence in rebuttal as regards the assessment of loss. No doubt, the complainant has produced certain bills for repairs etc. of some mechanic amounting to Rs. 2,50,000/- available on the case from page 47 to 63. These bills are not supported by any affidavit or evidence nor such bills have been signed, rather they are photo copies. These cannot be acted upon as evidence. In these circumstances, we have to accept the Survey Report as correct whereby the damage to the extent of Rs. 80,000/- has been assessed by the Surveyor.

WE are informed that due to lack of resources, the complainant has not been able to repair the truck which is still lying unrepaired at Pathankot. Obviously, the complainant has suffered huge losses because of non-settlement of the claim within time. In such circumstances, it is a fit case where 18% interest should be awarded from the date of accident on the amount of compensation. No other points were urged. In the light of what is discussed above, the appeal is allowed and order of the District Forum is set aside. The Insurance Company is directed to pay to the complainant an amount of Rs. 80,000/- as compensation on account of damage caused to his truck in this accident alongwith interest @ 18% per annum from the date of accident i.e. with effect from 18.7,1995 till the amount is actually paid. The complainant shall also be entitled to costs of Rs. 1,000/- in the appeal. Appeal allowed.