Tek Chand vs NEW INDIA ASSURANCE COMPANY LIMITED

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THIS is an appeal against the judgment and order dated 20.10.1992 passed by District Consumer Forum, Dehradun in Complaint Case No. 408/1992. The facts of the case stated in brief are that the complainant filed this complaint for recovery of Rs. 1,50,000/- alongwith interest from the date of filing of the complaint. It has been told by the complainant that Vinod Kumar Aggarwal is the Power of Attorney Holder of Sri Tek Chand, the complainant and as such authorised to verify the complaint. The complainant is the owner of truck No. URL 895. This truck was insured with the New India Assurance Company which was effective from 13.3.1988 to 12.3.1989. The risk of theft, house breaking, burglary, etc. were covered. It was further alleged by the complainant that the same struck was stolen on 12.4.1988 for which an FIR was lodged in the Police Station, Fatehpur, Distt. Saharanpur on the same day. The information was also sent to the Insurance Company on the same day. Despite efforts by the police the truck could not be recovered and a final report was submitted on 23.2.1990. The claimant lodged a claim with the Insurance Company on 13.4.1990 for Rs. 1,50,000/- but even after reminders no action was taken for a period of three years. Finally by letter dated 24.5.1991 the claim was repudiated on the ground that at the time of theft the vehicle was not in the employment of the complainant. It was alleged in the repudiation letter that the truck was carrying passengers at the time of incident. A copy of this letter has been filed as Annexure 5 of the complaint. According to the complainant at the time of incident the truck was driven by Jagat Singh who was the driver of the vehicle and had authority and directions of the complainant to do so. The vehicle was passed to carry passengers and even premium was paid for no fare paying passengers. Copy of the letter which was sent by the complainant in reply to the repudiation letter is dated 6.7.1991, which is Annexure 5 to the complaint. When nothing was done by the opposite party, the complainant had to file this complaint because the repudiation was totally illegal and arbitrary. It is further alleged that the complainant limited his claim to Rs. 1,00,000/- even though he is entitled to get a sum of Rs.1,50,000/-.

In the written version filed by the opposite party, it was not admitted the Vinod Kumar Aggarwal is the power of attorney holder of Sri Tek Chand, complainant. It has also been denied that the claim of Rs. 1,50,000/- was lodged with the Insurance Company on 13.4.1988. The delay in repudiation took place on account of non-cooperative attitude of the complainant. As the unauthorised passengers were being carried in the vehicle which caused the loss of the vehicle, hence the Company is not liable. It was further alleged that the Insurance Company is not liable to pay any amount nor 75% of the alleged claim as the violation does not give any right to the complainant to recover this amount.

IT is further alleged that the vehicle was lost on 13.4.1988 and the cause of action, if any arose on 13.4.1988 and hence the complaint which was filed after more than three years is barred by limitation. IT is further alleged that non-fare persons are those who are someway or the other connected with the loading and unloading of the vehicle and not the paid passengers. Under the Motor Vehicle Act, the passengers cannot be carried in a goods vehicle. IT is further alleged that the claim is barred as the same was repudiated on 24.4.1992 and the present complaint has been filed after more than one year of repudiation of the claim. It is further alleged that in the investigation it was found that the vehicle was sold to Vinod Kumar Aggarwal and as such the driver and cleaner of the vehicle were employees of Sri Vinod Kumar Aggarwal and as such the claim should be dismissed.

LEARNED District Forum, after considering the claim of the parties, held that the vehicle had already been sold. Therefore, the complainant is not entitled to any relief. Hence it dismissed the complaint. Aggrieved against the order of the learned District Forum the complainant has come in appeal and has challenged the correctness of the order passed by the District Forum. We have heard the learned Counsel for the parties.

ACCORDING to the learned Counsel for the appellant, the vehicle was stolen during the continuance of the insurance policy and the vehicle was in the custody of the complainant when the theft was committed. On the other hand the learned Counsel for the opposite party has alleged that the vehicle was sold to Vinod Kumar Aggarwal by the complainant and Jagat Singh was driving the vehicle at the time of the incident. Therefore, the complainant has no right to claim the amount for the loss of the vehicle.

IT is an admitted fact that the transfer of vehicle was not recorded in the records of the Regional Transport Office. Even according to the case of the Insurance Company the vehicle had been transferred but according to the complainant only a portion of sale consideration was received by the complainant. Hence sales transaction was not completed but its possession was given to Vinod Kumar Aggarwal for plying the same. As a matter of fact it is of academic importance as to whether possession of the vehicle was transferred to Vinod Kumar Aggarwal or not because the real owner was the complainant himself unless the vehicle was transferred in the documents of the Regional Transport Officer. Unless this is done the vehicle will be deemed under the provisions of the Motor Vehicles Act as belonging to the complainant and the complainant is the rightful person to get compensation on account of the loss of the vehicle. The complainant has lead evidence to the fact that Jagat Singh was the driver. This statement was given on oath and no satisfactory evidence from the side of the Insurance Company has been produced to show that Jagat Singh was not driving the vehicle of the complainant as Jagat Singh was the driver of the vehicle, and he had a valid driving licence for driving the vehicle as this fact is not disputed by the Insurance Company. Moreover, this fact is also not of much importance because the theft of the vehicle has no concern with the driving of the vehicle by a driver. The driver has no role to play in commission of the theft of the vehicle. IT is not alleged by the Insurance Company that the vehicle was stolen by Jagat Singh, the driver of the vehicle. Thus in any view of the matter the complainant is the owner of the vehicle and he is entitled to get the damages for loss of the vehicle on account of theft of the vehicle. The next question which crops up for consideration is whether the carrying of excess passengers in the vehicle has anything to do with the damages which the complainant is entitled to get. In the present case it has been seen that even if the passengers were there it is not the cause of the theft. It has not been argued by the learned Counsel for the Insurance Company that these persons had caused loss of the vehicle. The incident did not happen on account of these persons being in the vehicle. The theft could have been committed of the vehicle even if these persons were not in the vehicle. Had the accident of the vehicle taken place on account of excessive passengers in the vehicle, then this fact would have been relevant for fixing the damages or awarding compensation. Therefore, this argument of the learned Counsel for the Insurance Company is also not correct.

The next argument of the learned Counsel for the opposite party, Insurance Company, is that the claim is barred by limitation. According to the allegations in the written statement, the repudiation of the claim was made on 24.4.1992 and the claim petition has been moved after more than an year. Hence the petition is barred by limitation. This argument is misleading. No doubt there is a condition in the policy that if the claim is not lodged within one year from the date of incident then the complainant cannot claim that amount from the Insurance Company. This condition only applies when after the incident had taken place no claim is lodged with the Insurance Company for a period of one year. In the present case the theft was committed on 12.4.1988 and the claim was lodged by the complainant on 13.4.1988, i.e. on the next date. Therefore, when the claim has been lodged within one year of the incident of theft, the same is certainly within the period of limitation. It has also been argued and alleged that the incident had taken place in 1988 while the complaint has been filed in the year 1992, after a lapse of four years and thus the claim is barred as the period of limitation is only three years. This argument is also falacious. The period of limitation for filing of complaint will start only from the date of repudiation of the claim. The claim in the present case was repudiated as alleged by the complainant on 24.5.1991. The period of limitation was three years in the year 1992, when the complaint was filed. However, the complaint has been filed within the period of about one year from the date of repudiation of the claim by the Insurance Company. Therefore, this plea also does not hold good.

THUS we find that the complainant is entitled to claim damages for the loss of his truck. In the present case the complainant has claimed a sum of Rs. 1,00,000/- only as damages to bring the case within the jurisdiction of the District Forum. The Insurance Company has not lead any evidence to show that the loss which occasioned to the complainant was less than Rs. 1,00,000/- on the date of incident. If the value of the truck and the amount of compensation which was liable to be paid by the Insurance Company was less than Rs. 1,00,000/- then this fact would have been alleged and proved by the Insurance Company. In absence of any evidence on behalf of the Insurance Company, the value given by the complainant is to be taken into consideration and has to be accepted. THUS we find that the complainant is entitled to claim Rs. 1,00,000/- as damages on account of the theft of his truck in the year 1988. Now the question of interest arises. The claimant has claimed interest at the rate of 12% per annum which is reasonable and is also supported by the Supreme Court in the case of United India Insurance Company Ltd. v. M.K.J. Corporation, III (1996) CPJ 8 (SC). The complainant had lodged the claim on the next day, i.e. 13.4.1988. A reasonable period of three months can be allowed for settlement of the claim but the claim was repudiated on 24.4.1991 after lapse of three years. Therefore, the complainant is entitled to claim interest with effect from 1st August, 1988 till the date of payment of the amount alongwith 12% per annum interest.

THE appeal is liable to be allowed. Order The appeal is allowed. The judgment and order of the learned District Forum are set aside. The complaint is decreed for recovery of Rs. 1,00,000/- as damages against the opposite party, Insurance Company, alongwith interest at the rate of 12% per annum to be paid from 1st August, 1988 till the date of payment. Let compliance of the order be made within a period of two months from the date of this order.

LET copy as per rules be made available to the parties. Appeal allowed.