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2008 DIGILAW 306 (CHH)

SHRI ARJUN SINGH v. ORIENTAL INSURANCE CO. LTD.

2008-10-22

V.K.PATIL, VEENA MISRA

body2008
ORDER Hon'ble Smt. Veena Misra, Member:- 1. This appeal under section 15 of the Consumer Protection Act, 1986 is directed against the order dated 28.09.07 passed in complaint case No.08/07 by District Consumer Disputes Redressal Forum, Dantewada (hereinafter called the "District Forum" for short) whereby the complaint was dismissed. 2. Brief facts necessary for disposal of this appeal are that the complainant was the owner of Bolero vehicle bearing registration No. CG/18/D-0487 and the said vehicle was insured with the OP under insurance policy No.153601/2006/5065 for the period from 16.01.06 to 15.01.07 as a private vehicle. As per averments of the complaint on 25.06.06 while grandson of the complainant was returning from picnic from Chitrakote the vehicle met with an accident. It was further averred in the complaint that Avinash Karma had gone for picnic together with his various friends, as named in the complaint. Several persons were injured in the accident and one Sujita had died. It was averred in the complaint that the complainant used the vehicle for personal purpose and not as taxi and the .vehicle was always used as per terms of the policy. There was no breach of terms of policy by the complainant hence, the complainant was entitled to be indemnified for loss from the OP/insurer. As per averments of the complaint Rs.2,84,000- were spent for repairs, but the insurance company has repudiated the claim; hence the complaint was filed, wherein it was prayed that a sum of Rs.2,84,000/- may be directed to be paid towards the expenses incurred by the complainant, Rs. 10,000/- for mental harassment and Rs.60,000/- for carrying the accidented vehicle to the garage by loading the same in a truck. The complainant had also claimed Rs. 1,00,000/- for visiting the office of the insurer several times and a sum of Rs.50,000/- towards installment of the vehicle. 3. OP resisted the claim. It was averred in the written version that the vehicle was registered and insured as private vehicle, whereas at the relevant point of time the vehicle was being run as taxi under breach of conditions of the policy, hence, the insurer was not at all liable for the damages caused to the vehicle. 3. OP resisted the claim. It was averred in the written version that the vehicle was registered and insured as private vehicle, whereas at the relevant point of time the vehicle was being run as taxi under breach of conditions of the policy, hence, the insurer was not at all liable for the damages caused to the vehicle. It was further averred that the insurer had conducted investigation and it was found that on 25.06.06 the vehicle was given on 'Special Kiraya' and in the circumstances the insurer was not liable and the complaint was liable to be dismissed. 4. As noted earlier the District Forum found the complaint to be devoid of merits and dismissed the same. Aggrieved by the dismissal, complainant has preferred this appeal. 5. Final arguments heard, record perused. 6. Learned counsel for the appellant submitted that the District Forum has failed to appreciate various documents and affidavits placed on record. He further submitted that the District Forum erred in coming to the conclusion that vehicle in question was being used as taxi. Learned counsel further submitted that the District Forum has failed to appreciate the fact that the vehicle was being used by Avinash Karma who is grandson of the complainant and had gone on picnic to Chitrakote with his friends. In the circumstances there was no question that vehicle was being used for hire. He further submitted that various persons who were traveling on the vehicle had filed their affidavits that they had gone with their friends on picnic and had not paid any fare, but the District Forum has ignored said affidavits and has come to the conclusion that the vehicle was being used as taxi. He further submitted that the District Forum based the impugned order on report of the Bhupendra Mandavi, that the vehicle was given on hire. But the District Forum has failed to appreciate that the sarne Bhupendra Mandavi had given his affidavit and his affidavit remained unrebutted by the OP. He was not even cross-examined by the OP. In the circumstances, the District Forum has erred in dismissing the complaint. He further submitted that the complainant had placed sufficient evidence to prove that the vehicle was not being used against the terms of the policy, but the sarne was not properly considered by the District Forum, hence, the impugned order deserves to be set aside. In the circumstances, the District Forum has erred in dismissing the complaint. He further submitted that the complainant had placed sufficient evidence to prove that the vehicle was not being used against the terms of the policy, but the sarne was not properly considered by the District Forum, hence, the impugned order deserves to be set aside. Appellant's counsel prayed that the order may be set aside and appeal as well as the complaint may be allowed. 7. Learned counsel for the respondent submitted that the finding given by the District Forum is based on sound footing. In the F.I.R. lodged by Bhupendra Mandavi, it was stated that the vehicle was taken on hire, if subsequently the same person filed affidavit to some other effect it cannot be considered or relied. Learned counsel for the respondent further submitted that the order passed by the District Forum is just and proper and there is no need for interference with the same. 8. On careful perusal of record it clearly appears that Bhupendra Mandavi had given intimation to the police regarding the accident and he had stated that the Bolero vehicle No. C.G./18/D-0487 was taken on 'Special Kiraya'. On the basis of these words the claim of the complainant was repudiated by the insurer and the complaint was dismissed by the District Forum. In the circumstances proper interpretation of these words appears to be necessary. Bhupendra Mandavi had also made similar statements as recorded by the police. Subsequently, investigator appointed by the insurer also investigated the matter and recorded statements of various persons who were traveling in Bolero vehicle in question. The investigator Shri R.K. Bhattacharya filed his report on 28.11.06 and has also filed copy of statements of various persons recorded by him. On the basis of statements recorded by him the investigator came to the conclusion that the Bolero vehicle No.CG/18/D-0487 was taken on 'Special Kiraya' for going on picnic to Chitrakote and when the said vehicle was returning from Chitrakote to Kirandul the accident took place on 25.06.06 at about 15:30 near Agrawal Cement Brick Factory at National Highway No. 16. We have also perused the statements recorded by the aforesaid investigator, on the basis of which he had come to the conclusion that the vehicle was taken on 'Special Kiraya'. We have also perused the statements recorded by the aforesaid investigator, on the basis of which he had come to the conclusion that the vehicle was taken on 'Special Kiraya'. In his statement Bhupendra Mandavi stated in very clear and unambiguous terms that the persons traveling on the vehicle had got 30 liters diesel filled in the vehicle but had not paid any fare or price for the vehicle. It is also stated in his statement that Bhupendra Mandavi had asked his mend A vinash Karma to take the vehicle of his grandfather for going on picnic to Chitrakote and after that he had gone with Avinash Karma to his grandfather and sought his permission for going on picnic. 9. In statement of the complainant recorded by the surveyor, the complainant had stated that his grandson together with his friend Bhupendra Mandavi and others had come and requested him to lend the vehicle for going on picnic, on this the complainant had said that he does not have a driver. Sanjay Markam said. that he knows driving and at the request of the boys he had lent his vehicle for going on picnic. The complainant subsequently stated in the 'aforesaid statement that he does not run his vehicle on hire. 10. Avinash Karma had also stated in the statement recorded by the investigator that he had gone with his friends to his grandfather and requested for lending the vehicle and they got 30 liters of diesel filled in the vehicle and no charges were paid for the vehicle. 11. In their statement Ku. Renu Dhruw and Ku. Bharti Dhruw stated that they were not aware whether the vehicle was taken on hire or not. These two aforesaid statements. recorded by the investigator were got signed by the 'persons giving the statements as also a witness. 12. On consideration of aforesaid statement. we find nothing to suggest that any tare was paid to the complainant for lending the vehicle. However, it is mentioned that Avinash Karma and his friends got 30 liters diesel filled in the vehicle. Probably it is the reason why Bhupendra Mandavi stated in the report given to the police that the vehicle was taken on 'Special Kiraya'. 13. we find nothing to suggest that any tare was paid to the complainant for lending the vehicle. However, it is mentioned that Avinash Karma and his friends got 30 liters diesel filled in the vehicle. Probably it is the reason why Bhupendra Mandavi stated in the report given to the police that the vehicle was taken on 'Special Kiraya'. 13. Before the District Forum affidavit of various persons, traveling on the ill-fated vehicle have also been filed by the complainant and, in all these affidavits it is not stated that the persons traveling on the vehicle had paid any fare or the vehicle was taken on hire. Affidavit of Bhupendra Mandavi has also been placed on record and it is stated in very clear terms in the aforesaid affidavit that the vehicle was not taken on hire but the grandson of the complainant was their mend and they had taken the vehicle as friend of A vinash Karma and not booked as a taxi. In view of the aforesaid observations we are of the opinion that the vehicle was not being run at the time of accident on hire. Confusion was created only due to use of words 'Special Kiraya' by Bhupendra Mandavi. In view of observation made hereinabove we are of the opinion that the aforesaid words were probably used to signify that instead of telling in detail that they had got the diesel filled vehicle, the aforesaid words were used by Bhupendra Mandavi. In the circumstances it is further noted that the surveyor has also used the very same words in his report and has stated on the basis of statement recorded by him as well as in his conclusion it appears that the vehicle was taken on 'Special Kiraya'. 14. There appears to be no clear-cut evidence that the vehicle was being nm on hire, hence we are of the opinion that the order passed by the District Forum is erroneous. The claim was repudiated on the ground that the vehicle was being run on hire, since before the District Forum OP failed to prove that the vehicle was being run on hire, the repudiation appears to be not justified. In the circumstances the order passed by the District Forum, dismissing the complaint is also not sustainable, hence it is set aside and this appeal is allowed. 15. In the circumstances the order passed by the District Forum, dismissing the complaint is also not sustainable, hence it is set aside and this appeal is allowed. 15. Now we come to the question of compensation; it is noted that OP had appointed surveyor and got the loss assessed. Report of the surveyor Shri Prakash Jain is placed on record. The surveyor had assessed the loss at Rs.2,17,053/- and salvage value at Rs. 12,500/-, hence the complainant appears to be entitled to the aforesaid sum after deduction of the amount assessed towards salvage. In the circumstances, it is directed that OP 1 respondent shall pay, within a period of 45 days from the date of this order a sum of Rs.2,04,553/- (Rs. Two Lacs Four Thousand Five Hundred Fifty Three) only to the complainant towards own damage suffered by the complainant in connection with Bolero vehicle No. CG/18/D0487. The aforesaid amount shall be payable with interest @ 9% p.a. from 17.12.06 i.e. after one month from the date of report dated 17.11.06 given by surveyor Shri Prakash Jain. It is also directed that a sum of Rs.2,000/- towards cost of proceedings shall also be payable. Appeal Allowed.