SHIV KUMARI vs NEW INDIA ASSURANCE CO.LTD

THE complainant had filed this case claiming compensation for non-settlement of the insurance claim in respect of her Maruti Van stolen away on 15.12.1990.

THE facts of the case as put in by the complainant may be briefly noticed. THE complainant had purchased a Maruti Van bearing No. 4699 and she got it insured by the opposite party under Insurance Policy No. 3154050105119 dated 17.10.1990 for Rs. 1,00,000.00 for a period of one year. THE van was stolen away on 15.12.1990 at Dehri-on-Sone and the information with regard thereto was filed at the Dehri-on-Sone P.S. on the basis of which Dehri-on-Sone P.S. Case No. 440/90 was registered. Information was given with regard thereto to the opposite party and the claim in respect thereof was also lodged. According to the complainant in spite of several reminders, the Insurance Company did not settle the claim and therefore this case has been filed for a direction to the Insurance Company-opposite party to pay rupees one lakh - the amount for which the van stood insured alongwith interest for one year amounting to Rs. 18,000.00 and Rs. 2000.00 as compensation for harassment caused to the complainant due to alleged negligence and deficiency in service on the part of the opposite party.

On being noticed the opposite party appeared and filed written statement controverting the claim of the complainant mainly on the ground that though the van had been purchased for personal use and it had been insured as such by the opposite party but the same was being plied as private taxi; that the van used to be given to the persons for their private use on hire for Rs. 250/- to 300/- per day besides Rs. 25/- as extra payment for the driver of the van. It has been further alleged that the Maruti Van was hired by one Ashwani Kumar through one Deepak Kumar through Yatri Travel, Muzaffarpur for Rs. 275/- per day besides Rs. 25/- to the driver and Sri Ashwani Kumar had taken the van to Dehri-on-Sone to attend the Saradh ceremony of his father-in-law and the van was used for going to Kudra on 12.12.1990 to Barun in the District of Aurangabad on 14.12.90 and to Indrapuri on 15.12.90. It has been further alleged that on the alleged date of theft of the van it had been parked on the road near the Jewellery shop of the father-in-law of Ashwani Kumar and on that night it remained there whole night on the road without anybody to watch the car and the driver of the car was sleeping in the Gaddi of the Ajanta Jewellary on that night when the car was stolen away. It has been further stated that as the van was used for purpose other than for which it had been insured, the complainant is not entitled to get even a single farging towards his claim.

THE complainant has filed affidavit of her husband Sri Lakmeshwar Thakur and Ashwani Kumar aforesaid and Shambhu Pandey the driver of the car in support of her case. The opposite party on the other hand had filed the investigation report of the Investigating Officer and also filed affidavit of one Ashok Kumar Singh in support of their objection to the claim of the complainant.

ON request made by the complainant this Commission directed the opposite party to produce letter dated 8.4.1992 sent by the Regional Manager, Patna Regional Office to the Head Office-Insurance Company at Bombay. It may be mentioned that earlier the Insurance Company has appointed one Sri Madan Kumar, Surveyor and Loss Assessor and he after inquiry and investigation submitted his report that though the vehicle had been insured as a private car, it was hired by Ashwani Kumar who had taken the vehicle to Delhri-on-Sone from where it was stolen away and has opined that as the vehicle was used against the terms of the insurance policy, the complainant was not entitled to get any claim. However, on complaint made by the complainant against Sri Madan Kumar to the Insurance Company Sri Keshwar Prasad, Director of M.R. Handwriting and Finger Print Examination Bureau was appointed by the Insurance Company by its letter dated 10.10.1993 to investigate on the following points: (i) To check up the Investigation Report already submitted by other Agency. (ii) To check up the genuineness of the papers submitted by the previous investigating agency. (iii) To establish any malice, prejudice or underhand dealing of the previous investigator with the insured specially taking into account the allegation, by Sri L. Thakur, husband of the insured Smt. Shiv Kumari vide his letter dated 26.9.1991. (iv) To check up the Police Diary, Final Report submitted by the Police and order of the C.J.M., Sassaram.

After investigation Sri Keshava Prasad submitted his report on 14.2.92. It may be noticed that Sri Prasad was appointed by the Insurance Company and he submitted report after the filing of the instant case. Of course the second Surveyor has reported that the investigation report submitted by Sri Madan Prasad earlier was biased and prejudiced with no supporting evidence. The Regional Manager on examination of the report of Sri Keshava Prasad wrote by his aforesaid letter dated 8.4.1992 to the M.T.D. Head Office, Bombay as follows: "Both the investigators have submitted evidences in support of their contention but none of the evidences are full proof and final and none can stand the close scrutiny of the Court either way."

In view of the above observations of the Regional Manager and the fact that Sri Keshava Prasad was appointed much after the incident and during the pendency of the case, it is not safe to take any decision on the basis of his report.

BEFORE proceeding to consider other materials and evidences produced by the parties to support their respective cases, the photostat copy of the Certificate of Insurance produced by the complainant may be noticed. It lays down limitation to use of the vehicle and reads as follows ; "Limitation as to use: Use only for social, domestic and pleasure purpose and for the Insured''s own business. The policy does not cover the use for hire or reward or for organised racing, pacemaking, reliability trials, speed testing, the carriage of goods (other than sample) in connection with any trade or business of use for any purpose in connection with Motor Trade. We hereby as well as this Certificate of Insurance are issued in accordance with the provisions of Chapter X & XI of M.V. Act, 1988."

NOW it is evident from this certificate of Insurance that the vehicle was to be used only for social, domestic and pleasure purpose and for the Insured''s own business. It does not permit the use of the vehicle for hire or reward. The opposite party has filed the affidavit of one Ashok Kumar who has stated that he happens to be an employee of M/s. Yatri Tour and Travels, Muzaffarpur and that on 11.12.90 Deepak Babu, Proprietor of Deepak Cinema came to the office of M/s. Yatri Tour & Travels and asked for a Maruti Van for his brother who was to go to Dehri-on-Sone to attend the Saradh ceremony of his father-in-law and this vehicle was arranged and hired for Rs. 275 /- per day besides Rs.25/-perdayfor the food of the driver, besides the expenses of petrol, mobil etc. and that advance of Rs. 300/- was given to the Shambhu Pandey, the driver of the van. Admittedly Deepak Kumar is brother of Ashwani Kumar. Of course the complainant has filed the affidavit of Ashwani Kumar and that Shambhu Pandey stating that the van was not given on hire rather it was given for going to Dehri-on-Sone without any reward. They have further stated in their affidavit that the van was given without any reward because Lakshmeshwar Thakur, husband of the complainant and Ashwani Kumar are friends. The opposite party wanted to cross-examination these two witnesses. But the complainant did not produce them before the Commission for cross-examination. It has been stated on behalf of the complainant that the said Shambhu Pandey was dead. On being asked by the complainant summons were issued under Dasti Cover in the name of Ashwani Kumar and handed over to the complainant. But still the complainant could not produce him for cross-examination. Under these circumstances the affidavits of Sri Ashwani Kumar and Shambhu Prasad cannot be accepted.

On consideration of the above facts and circumstances we find and hold that the complainant has failed to establish that there has been negligence and deficiency of service on the part of the opposite party-Insurance Company. Under the circumstances we are constrained to dismiss this complaint. The complainant if so advised may move Civil Court for her claim and if in the suit filed the question of limitation is raised we hope and trust that the period spent by the complainant before this Commission will be excluded while considering the question of limitation. The complainant is directed to pay Rs. 1000/- (one thousand) only as cost to the opposite party. Complaint dismissed.