UNITED INDIA INSURANCE CO LTD vs NILAMANI PANDA

-THIS appeal has been directed against the orders dated 15. 4. 2004 in C. D. Case No. 52 of 2003 of the District Forum, Jajpur directing opposite parties, who are the appellants, to pay to the complainant/respondents Rs. 7,60,000 as insurance claim with interest @ 12% per annum from 1. 4. 2002 till payment is made and Rs. 2,000 as cost of litigation within a period of two months from the date of receipt of the order, failing which to pay interest @ 18% per annum on the awarded amount from 1. 4. 2002. Vide said orders, District Forum has also directed opposite parties to clear up the dues of the financier of the Bus in question and to give the balance amount to the complainant.

FACTS of the case stated in brief are as follows: complainants, who are the owners of Ashok Leyland bus having registration No. OR-04-A-7755 styled as "panda Coach" has been insured with United India Insurance Company Limited, At/p. O. Jajpur Road, in short U. I. C. represented by opposite party Nos. 1 and 2 for the period from 23. 5. 2000 to 22. 5. 2001. On 21. 4. 2001 at about 1 a. m. near village Badakud on N. H. No. 6 when this insured vehicle was proceeding towards Olaver from Rourkela caught with fire as its front propeller shaft was broken and ruptured the fuel tank. Due to this accident, some passengers died and some were injured. One of the passengers - Rabindra Samal lodged F. I. R. on that date at about 2. 30 p. m. at Barkota P. S. and P. S. Case No. 40 of 2001 was registered. Complainants informed in respect to accident to the Branch Manager, U. I. C, opposite party No. 1 and lodged insurance claim. Opposite party No. 1 deputed Senior Surveyor - Sri Surajit Kumar Patnaik who after necessary investigation, assessed the damage at Rs. 6,81,000 to which complainants were agreeable to accept as insurance claim. But, when one year passed away and claim amount was not given to them, complainants approached to Divisional Manager, opposite party No. 2 who told them that Second Surveyor has been deputed to reassess the damage the bus. The Second Surveyor assessed damage to the tune of Rs. 7,60,000. But opposite parties did not disburse claim amount as Second Surveyor assessed loss more than the amount assessed by the First Surveyor. According to the complainants due to deficiency in service of the opposite parties, they are being harassed and are suffering from mental agony as they have purchased the bus from Pradeep Leasing on hire purchase basis and Pradeep Leasing is charging accrued interest of about Rs. 4 lakh. Thus, they claimed a total sum of Rs. 12,15,000 fully described in the prayer of the complaint. The opposite parties have challenged the cause of action and maintainability of the case as per their joint written version while denying to have caused deficiency in service to the complainants. They have admitted that the complainants as the owners of the said bus had entered into the said insurance policy for the aforesaid period. They do not dispute about the damage of the bus being caught with fire due to mechanical defect of the bus and assessment of loss stated by complainants as aforesaid by the aforesaid First Surveyor and during second survey through the Institute of Insurance Survey and Adjusters, Bhubaneswar on their own deputation. But, the opposite parties do not agree to settle the claim of the complainants on the following rounds that- (a) the complainants have suppressed material facts in respect to cessation of their ownership over the bus prior to the accident having sold away the same to Sri Bhagabat Palei of Rourkela for Rs. 9,00,000 on 15. 11. 2000; (b) that complainants have violated Insurance policy condition by allowing driver Satrughan Lenka to drive the bus at the relevant time having no valid licence and misrepresented the I. O. that driver Purna Chandra Samal was driving the bus at the time of accident. (c) that the complainants have also violated the policy condition by carrying 80 passengers in excess of the permissible number of 65 in the bus by the time when accident took place.

As per the impugned order dated 15. 1. 2004, the District Forum vide issue No. 3 framed by it has decided that there is neither payment of consideration of sale of the bus by Bhagabat Palei to the actual owners viz. the complainants nor compliance of provision of sale as per Section 50 (a) of the Motor Vehicles Act, 1988, in short Act of 1988, which would have proved about sale of the bus. Thus, the ownership of the bus was not transferred to Bhagabat Palei before the said accident took place. As per issue No. 1 framed by the District Forum, the District Forum held that Insurance Company cannot repudiate the claim of the insured as the bus was caught with fire due to mechanical defect on the ground that the driver engaged by the insured had no valid licence. Besides this, under issue No. 2 framed by it, the District Forum arrived into a finding that opposite parties have failed to establish that the bus was carrying 80 passengers in contravention of permissible number of passengers as per the policy condition. On the other hand, as per the insurance policy condition when complainants are permitted to carry 69 passengers, the investigating Police Officer has found the bus at the time of accident was carrying 67 passengers. Apart from this, District Forum observed that accident cannot be attributed to carrying excess passengers.

WHILE deciding favourably all the aforesaid contentions urged on behalf of the opposite parties, District Forum observed that opposite parties have caused deficiency in service to the complainants by causing unnecessary delay in settling the claim in spite of reports of two independent Surveyors assessing the damage of the bus. Accordingly, the District Forum has given aforesaid direction to the opposite parties vide orders dated 15. 4. 2004. The opposite parties have challenged said orders of the District Forum filing this appeal as erroneous, illegal and against the weight of evidence on record.

WE have heard the learned Counsel appearing from both sides, perused the pleadings of the parties, reports dated 30. 12. 2001 (Annexure-3) of the Surveyor Sri Surajit Kumar Patnaik and report dated 24. 4. 2002 (Annexure-4) of the Institute of Insurance Surveyors and Adjusters (Orissa Chapter), report dated 9. 4. 2003 of the Loss Assessor S. K. Matlub Hossain. We have gone through the xerox copies of unregistered agreement for sale of the bus in question (Annexure-6), in between the complainants and one Bhagabat Palei, evidence through affidavit of so-called driver of the bus Purna Chandra Samal and other documents filed on behalf of the opposite parties. Also,we went through the xerox copies of the statement of Trilochan Swain, the conductor of said bus before the III M. A. C. T. , Jajpur in MACC Case No. 44/01, xerox copies of the driving licences of driver Purna Chandra Samal and Satrughan Lenka, insurance policy and documents relating police investigation in respect to the P. S. Case, etc. Through the appeal memo as well as before us the points urged as per the written version resisting the claim of the complainants were raised on behalf of the appellants for proper consideration with reference to the materials and evidence adduced from both sides on the ground that the District Forum has failed to appreciate the same properly. But, going through the impugned orders of the District Forum, we find that in respect to each points of dispute, the District Forum not only has framed distinct and separate issues but also have given reasoned finding taking into consideration the materials and evidence adduced by both parties and on proper application of mind. Almost each finding is supported with authorities of Higher Consumer Commission and Equivalent Consumer Forums. We find no ambiguity in the findings of the District Forum on each point of dispute.

AS a matter of fact, the opposite party/appellants do not dispute that due to sudden mechanical defect of the bus, it caught with fire and sustained damage. Both the investigators engaged by them have assessed the loss at Rs. 6,81,000 and Rs. 7,60,000 respectively. Opposite party/appellants do not raise protest to this assessment of loss by two investigators. Law is well settled and it is decided by the Hon''ble Apex Court in a case in between Jitendra Kumar v. Oriental Insurance Co. Ltd. and Another, reported in IV (2003) SLT 497=2003 (3) TAC 9 (SC) that the insurer cannot repudiate the claim of the insured on the ground that the driver who was driving the vehicle at the time of accident had no valid driving licence where the vehicle was damaged being caught with fire due to mechanical defect or failure and not due to any fault, or act or omission of the driver. In this end of the view, the insurer in the present case would have given claim amount to compensate the damage to the complainants.

FURTHER, it is evident from the unrebutted evidence of the conductor of the bus Sri Trilochan Swain that Sri Purna Chandra Samal, undisputedly who was holding a valid driving licence, was driving the bus at the fateful hour. Though Purna Chandra Samal denied about this through affidavit yet no reliance can be placed on his statement in this respect and in other respect as he has falsely deposed that at that time the bus was carrying 80 passengers as against the permissible number of 69 and the ownership of the bus at that time was not with the complainants there being no materials in support thereof. Investigation by Police discloses that Purna Chandra Samal was driving the bus when it caught with fire and the bus at that time was carrying 67 passengers. However, as the driver of said bus no way is responsible for the damage of the bus due to fire, it is immaterial whether the bus at the time of accident was being driven by Purna Chandra Samal or by Satrughna Lenka or by a driver having no valid licence to drive the bus. In view of our analysis made above, our unanimous finding is that the impugned orders of the District Forum is not erroneous, illegal or against the weight of evidence. On the other hand, the District Forum has passed a speaking order on application of mind properly. Therefore, we find no merit in the appeal. However, we reduce the rate of interest payable on the principal amount of Rs. 7,60,000 from 12% per annum to 9% per annum which is payable from 1. 4. 2002 till payment is made and from 18% per annum to 12% per annum on the awarded amount from 1. 4. 2002 as directed by the District Forum in the impugned order in modification of order passed if there is failure of payment without interfering the impugned order in all other respect.

In the result, the appeal is accordingly dismissed on contest without cost in modification of the impugned orders of the District Forum in respect to interest as aforesaid only. Records received from the District Forum may be sent back forthwith. Mr. Subash Mahtab, Member-I agree. Appeal dismissed.