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2002 DIGILAW 307 (JK)

New India Assurance Co. Ltd. v. Neelam Kumari

2002-09-30

B.L.BHAT, V.K.JHANJI

body2002
Per : B.L. Bhat, J. This Letters Patent Appeal is directed against the judgement dated 26.02.2002 recorded by the learned Single Judge in OWP No. 1091/2001 titled as New India Assurance Co. Ltd. v. Smt. Neelam Kumari and others. 2. The facts leading upto this appeal are that a petition in terms of Section 10 of the J&K Consumer Protection Act, 1987 came to be filed by the respondent No. 1/complainant before the Divisional Forum constituted under the said Act (hereinafter referred to as Divisional Forum) alleging therein that her husband, namely, Surinder Kumar Sehgal was an Auto Rikshaw Driver, he had obtained Janta Personal Accident Policy in the Sum of Rs 2.00 lac from the appellant/opposite party-New India Assurance Co.Ltd., Branch Shalamar Road, Jammu which was valid from 06.12.1996 to 05.12.1999. That on 09.07.1997, Surinder Kumar Sehgal-husband of the respondent No. 1 /complainant was repairing his Auto Rikshaw on the road side at Prem Nagar, Jogi Gate, Jammu when he was knocked down by another Auto Rikshaw which was coming from the opposite direction as a result of which said deceased- insured sustained head injury, medical treatment was given to him by taking him to Dr. Satish Mehta Clinic and Research Centre Private Ltd. Shalamar Road, Jammu but he died on 22.10.1997 on account of the said head injury. That the respondent No. l./complainant being the nominee and legal heir of the deceased-insured raised insurance claim with respect to the death of the deceased-insured on account of accident with the appellant/opposite party who refused to give the same. That the appellant-Insurance Company resisted the petition by filing its objections wherein, it admitted the insurance of the deceased-insured and resisted to give the insurance claim inter-alia on the ground that an independent investigator was appointed to investigate the claim of the respondent No. 1/complainant who had opined that the deceased - insured had not died due to the alleged accident and that the respondent No. 1/ complainant failed to furnish the documentary proof in support of the death of her husband. That the respondent No. 1/complainant had failed to establish her claim and therefore, the insurance claim is not payable. That the respondent No. 1/complainant had failed to establish her claim and therefore, the insurance claim is not payable. In support of her petition, the respondent No. 1/complainant before the Divisional Forum filed her own affidavit and that of one Bhajan Kumar and Dr.Satish Mehta, she has also produced certificate issued by the said Doctor dated 10.03.1998 and also a copy of the Report No. 11 of the Police Daily Diary dated 10.01.1997. On the other hand, appellant filed the affidavit of the Administrative officer, namely, J.L. Koul and also a report of the Investigator, namely, S.B. Bakshi. The Divisional Forum below after discussion of the affidavits produced by the parties in support of their respective claims, came to dismiss the complaint by virtue of its order dated 29.09.2000. This order of the Divisional Forum came to be challenged before the J&K State Consumer Protection Commission, Jammu (hereinafter referred to as State Commission), who on re-appraisal of the evidence of the parties came to accept the appeal after setting aside the order recorded by the Divisional Forum and accordingly came to award Rs, 2.00 lac as insurance claim to the respondent No. 1 /complainant together with Interest @ 9% against the appellant -company. The appellant-company came to assail this judgement and order by invoking the writ jurisdiction of this court. The learned single judge of this court by virtue of his judgment dated 26.02.2002 came to dismiss the petition after holding that :--- "I am of the opinion, that this is a finding of fact which can not be re-appreciated in the exercise of writ jurisdiction. These findings are even otherwise based on sound reasoning. This petition as such is found to be without merit and is dismissed." 3. The stand of Mr. R.K. Gupta learned counsel for the appellant-Insurance Company is that the report with respect to the alleged accident made by the deceased-insured was not immediately lodged before the concerned police and the same came to be lodged after the death of the deceased. That the deceased after sustained head injury was removed to private clinic instead of Government Hospital and that no post-mortem of the dead body of the deceased was conducted and not to speak of furnishing the report before the appellant- company for the settlement of the insurance claims. 4. That the deceased after sustained head injury was removed to private clinic instead of Government Hospital and that no post-mortem of the dead body of the deceased was conducted and not to speak of furnishing the report before the appellant- company for the settlement of the insurance claims. 4. On the other hand the stand of Mr.Bali, learned counsel for the respondents is that report filed by the private Investigator appointed by the appellant in the case fully establish the fact that there is nexus between the vehicular accident and the death of the insured, therefore, under all circumstances, appellant is liable to pay the insurance claim to the respondent No. 1/complainant she being the nominee of the insurance policy in question and legal representative of the deceased-insured who lost his life in the vehicular accident in question. 5. Considered the rival contention of the learned counsel for the parties. The contention of the appellant in that on receipt of intimation from the respondent No. 1/complainant with respect of the death of her husband- insured, who had expired on 10.09.1997, one Mr.S.B.Bakshi, lnvestigator and Private Deductive came to be appointed by the appellant-company to investigate the matter, he has submitted his report which is on the record of this case. In this report, the Investigator Mr.S.B. Bakshi while giving factual position of the case has inter-alia stated that he made inquiries with respect to this episode and found that insured Surinder Kumar Sehgal had family relations with Bharat Bhushan another Auto Driver who knocked him down while driving his Auto Rikshaw No. 6755-JK02D enroute to City of Jammu from Gujjar Nagar where he had gone to drop a passenger, as a result of which blood started oozing from his nose. He was removed by another Auto Rickshaw bearing No. 9476-JK02E to Janipur, where one Dr. R.K. Raina advised for his treatment with further advice to take deceased to Medical College Hospital, Jammu because of head injury. But the deceased- insured with the intention to save Bharat Bhushan from a criminal action refused to remove to the Medical College Hospital, Jammu, therefore, he was taken to the Clinic of Dr.Satish Mehta at Shalamar Road, Jammu where his treatment was started but due to the head injury he was unable to drive his vehicle for the whole day. But the deceased- insured with the intention to save Bharat Bhushan from a criminal action refused to remove to the Medical College Hospital, Jammu, therefore, he was taken to the Clinic of Dr.Satish Mehta at Shalamar Road, Jammu where his treatment was started but due to the head injury he was unable to drive his vehicle for the whole day. This report further reveals that on the inquiries from Dr.Mehta about `Subdural Haemotoma the Doctor opined that this `Subdural Haemotoma due to the head injury might remain silent and can prove fatal lateron by causing death. This report of the Investigator is binding upon the appellant because it is the appellant who has produced it. From this report, it is proved that the insured Surinder Kumar Sehgal died because of the head injury on 22.10.1997 which he sustained in a vehicular accident on 10.09.1997 at Prem Nagar, Jogi Gate, Jammu. The reason for lodging delayed report about the accident before the Police also stands explained in the report of the said Investigator who as indicated has stated in the said report that due to close family relations the insured did not want to get his friend Bharat Bhushan involved for a criminal action by whose act he was knocked down by an Auto and sustained the head injury. Dr. Mehta has admittedly issued a medical certificate of the deceased where- in he has found `Subdural Haemotoma on the head of the insured, the most vital part of a human body. Besides lodging of delayed report with the Police concerned with respect to the accident can by no stretch of imagination through the case of the petitioner out, because FIR does not carry the same importance in a civil case as it carries with respect to a criminal case. Rule of law is that the civil cases are always decided on preponderance of evidence. Besides this, there is nothing in the evidence of Dr. Mehta that the insured-deceased died a natural death when he as per the report of the Investigator has stated before him that the insured had sustained `Subdural Haemotoma due to head injury which might remain silent and prove fatal lateron by causing death. Learned State Commission has appreciated this report of the Investigator and opinion of Dr. Mehta in right prospective and same cannot be said perverse or erroneous. Learned State Commission has appreciated this report of the Investigator and opinion of Dr. Mehta in right prospective and same cannot be said perverse or erroneous. It is well settled that High Court while acting in its writ Jurisdiction cannot exercise its power as an appellate court or substitute its own judgement in place of that of the subordinate court or tribunal to correct an error which is not apparent on the face of record. This is also settled that High Court can set-aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possible come to such a conclusion to which court or tribunal has come. The learned Single Judge has rightly observed that this is a finding of fact which cannot be re-appreciated in the exercise of the writ jurisdiction when these finding are even otherwise based on sound reasoning. 6. Viewed thus, appeal in hand does not suffer from any infirmity or error of law, the same is liable to be dismissed. Therefore, appeal is dis-allowed. The amount of compensation which stands deposited in this court be released forthwith in favour of the respondent No. 1/complainant.