REGIONAL MANAGER, NEW INDIA ASSURANCE CO. LTD. vs STARLIN RYNJAH

HEARD Mr. V.K. Jindal, learned Senior Counsel assisted by Mr. S. Jindal, learned Counsel for the appellants and also Mr. S.T. Laso, learned Counsel assisted by Mr. B.K. Deb Roy, learned Counsel for the respondent.

THE judgment and order dated 30.3.2001 passed by the learned District Consumer Disputes Redressal Forum, Shillong in C.P. Case No. 27(S) of 1997 is the subject-matter under challenge in this appeal. THE facts of the case in a short compass are as follows. The respondent herein lodged a complaint before the District Forum for payment of compensation to the tune of Rs. 96,525/- along with interest @ 18% per annum on the claim amount from the date of filing of the claim/complaint till the date of payment of the damage caused and other reliefs entitled to him by contending inter alia, that he is the absolute owner of the vehicle/truck bearing Registration No. ML-05A-5458 which is being used by him for the purpose of transportation of coal and other goods from the State of Meghalaya, in other words, for the purpose of business and more so, for his livelihood and the said truck/vehicle is the main source of his income. However, due to ill luck, the said truck/vehicle met with an accident on 12.7.1994 at about 2.30 p.m. at 12 miles, Mylliem due to brake failure and the driver of the vehicle was not guilty of rash and negligent driving as he was driving the vehicle/truck properly thus, causing damage to the tune of Rs. 96,525/- and the said truck was duly insured under comprehensive policy by and between the parties under contractual obligation vide Policy No. 530402/253/89475. As the appellants-Insurance Company failed to make the payment of the claim about, the respondent filed the complaint before the learned District Forum. The learned District Forum upon hearing the parties awarded compensation with the following order : "(i) O.Ps. will pay the complainant Rs. 96,525/- as cost of labour and parts needed for the repair of the truck. (ii) O.Ps. will also pay Rs. 4,000/- as costs of the proceedings. (iii) Interest at the rate of 18 percent on (i) and (ii) above from 16.7.1997 (the date of filing of the instant consumer case) until the date of payment shall be paid. (iv) Rs. 2,000/- as compensation shall further be paid. (v) The opposite parties shall make the payment as fixed at (i), (ii), (iii) and (iv) above within forty-five days from the date of this judgment and order failing which interest on (iv) shall also be paid at 18 percent until the date of payment."

Being dissatisfied with the impugned judgment and order, the Insurance Company-appellants herein filed this appeal. Mr. V.K. Jindal, learned Senior Counsel appearing for the appellants at the very outset contended that the respondent made a false complaint before the learned District Forum inasmuch as, in fact there was no motor accident on 12.7.1994 involving the said truck at the said place of occurrence. Supporting his submission, he has drawn our attention to the documents marked as Annexures II, III and IV to the memo of appeal and further contended that in terms of the investigation report of the Investigator of the Insurance Co. Ltd., there was/is no entry in any register of the said vehicle running from Guwahati on 11.7.1994 and 12.7.1994. The investigating report of the Bureau of Investigation Agency shows that the said motor accident took place prior to the cover note was taken and the insured may be given a chance to produce the Tax Receipt and Sl. No. of Entry of Sale Tax Gate, Byrnihat on 12.7.1994 to justify the genuinity of claim and office letter dated 6.6.1997 issued by the Superintendent of Taxes concerned shows that the said vehicle did not pass through the check-gate on the 11th and 12th July, 1994 but it passed through the said check-gate from Shillong towards Guwahati on 9th July, 1994. Mr. Jindal, learned Senior Counsel also made a reference to the letter dated 22.11.1995 issued by the respondent addressed to the Divisional Manager of the Insurance Company and submitted that the said vehicle had gone to Guwahati with load of coal on 11th July, 1994 but there is no record for establishing the fact that the said vehicle had gone to Guwahati on 11.7.1994. This argument so far advanced by Mr. Jindal, learned Senior Counsel on the above contention and issue, was examined by the District Forum and the learned District Forum opined that if for one reason or another the passage of the truck through the check-gate at Byrnihat was not noted, that by itself could not have been the cause to have prevented any accident taking place and in any case the appellants-Insurance Company admitted that the accident took place but not on 12th July, 1994 though, on any other date prior to that. The appellants-Insurance Company were not able to be sure of the other date except stating that the truck had gone to Guwahati on 9.7.1994 with coal thus, suggesting that the accident might have taken place on that day or the following day prior to 12.7.1994. The District Forum further examined to the probability of the accident and opined that there are two certificates, one is dated 14.7.1994 and another dated 13.9.1994, from the Shillong Civil Hospital authorities stating that the injured driver of the truck was admitted for treatment of soft multiple tissue injuries on 12.7.1994 and he was discharged on 14.7.1994 and the police officer of Laban Police Station on 30.7.1994 also reported that information about the occurrence, was received at the Police Station at 7.10 p.m. on 12.7.1994 about the accident at Mylliem village where the truck of the respondent-claimant involved. Apart from that, Motor Vehicle Inspector also reported that the cause of accident of the vehicle on 12.7.1994 was due to the sudden failure of flexible brake pipe. Now let we refer to letter dated 22.11.1995 of the respondent wherein the respondent specifically informed the Divisional Manager of the Insurance Company that his vehicle had gone to Guwahati with load of coal on 11.7.1994 and there is no record with him to prove the passage of the vehicle through Byrnihat check-gate since the Sales Tax Receipt had been produced at the check-gate itself on that particular date (emphasis given). There are sufficient materials on record for establishing the fact that the accident took place on 12.7.1994 inasmuch as, the FIR speaks about the occurrence of 12.7.1994 which was recorded by the police and the police made investigation; the M.V. Inspector concerned submitted the report that accident on 12.7.1994 was because of sudden failure of the brake of the vehicle and certificate issued by the hospital concerned also established the factum of the treatment of the injured driver at hospital on 12.7.1994. Had the occurrence took place prior to 12.7.1994, certainly the injured driver ought to have got the medication or treatment before 12.7.1994 and, apart from that, the Insurance Company did not even whisper about the probable date on which the occurrence or accident took place and, therefore, the pleading of the Insurance Company with regard to the occurrence as pleaded by them, is a vague pleading which was also not proved by them.

SO far the quantum of compensation is concerned, the argument advanced by Mr. Jindal, learned Senior Counsel that the learned District Forum had not considered the final Survey Report of the Surveyor and the Loss Assessor which holds little water inasmuch as, the learned District Forum awarded compensation on the basis of the final Survey Report of the Surveyor and the Loss Assessor. The Surveyor in his report said about the cost of vehicle parts, labour cost etc. etc. and on the basis of that, the learned District Forum made proper assessment of the damage and loss caused to the respondent herein. The relevant findings of the learned District Forum on the issues find its place at paragraphs 7, 8, 9 and 10 of the impugned judgment and order. The contention of Mr. Jindal, learned Senior Counsel that the rate of interest so far awarded by the District Forum is in the higher rate. Relying upon a decision of the Apex Court rendered in S.K. Begum & Ors. v. New India Assurance Co. Ltd., reported in AIR 2001 SC 485, we are of the view that the case of S.K. Begum v. New India Assurance Company Ltd. (supra), related to a claim under Motor Vehicles Act and, as such, it does not help the case of the present appellants. However, keeping in view the change of economic policy of the Reserve Bank of India lowering the rate of interest, we are of the view that the rate of interest so far awarded by the learned District Forum at the rate of 18% should be reduced and lowered to 15% per annum and in that view of the matter, we are modifying the rate of interest from 18% to 15% keeping in view the change of economic policy of the Reserve Bank of India. We may also note that it is not the claim under Motor Vehicles Act, it is a claim under the Consumer Protection Act. The last contention of Mr. Jindal, learned Senior Counsel with regard to the findings of the learned District Forum under Section 14 of the Consumer Protection Act, 1986, we are of the opinion that the learned District Forum had rightly invoked the provisions of Section 14 and awarded reasonable compensation to the respondent herein.

KEEPING in view of the existing facts and circumstances of the case particularly, another compensation to the tune of Rs. 2,000/- (Rupees two thousand) i.e. under relief (iv) given to the respondent in addition to other award and interest as discussed above, we are of the view that awarding of Rs. 2,000/- as compensation virtually amounts to double compensation which is not tenable under the law and, accordingly, such further award of Rs. 2,000/- as compensation under relief (iv) is set aside. So far other findings of the learned District Forum do not suffer from any infirmity or illegality except those irregular findings which we set aside and modified. For the reasons, observations and discussions made above, this present appeal is disposed of with modification and alteration of the impugned award/judgment and order to the extent indicated above. No costs. Appeal disposed of.