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J&K High Court · body

2009 DIGILAW 692 (JK)

National Insurance Co. Ltd. v. Sham Lal

2009-12-29

B.L.Saraf, G.D.Sharma

body2009
G.D. Sharma, J. (ORAL) 1. Order dated 10.11.2006 passed by the learned Divisional Consumer Protection Forum Jammu, (hereinafter to be referred to as the `Forum'), has been challenged through the medium of this appeal whereby the complaint of the respondent was allowed and the appellant was directed to make payment of Rs. 2,23,500/- alongwith interest @ 6% P.A. from April 2004 till realisation. The facts of the case, in brief, are that respondent on 24.6.2003 got his bus bearing registration No. JK02E-4669 insured for covering a risk of Rs. 3.00 lacs and the Divisional Manager Sh. Vinod Kumar had collected premium of Rs. 10401/- in cash from the respondent at Reasi and had told him that his bus stood insured w.e.f. 24.6.2003 to 23.6.2004. It is alleged that unfortunately on the next day i.e. 25.6.2003 the said bus was set ablaze by some people of the area on account of personal enmity with its driver, namely, Sh. Bir Singh. It was a case of total loss. The incident was registered under FIR No. 7/2003 on 25.6.2003 in the concerned police station. Claim was raised with the appellant but instead of settling the loss, letter dated 27.6.2003 was sent by the appellant accompanied by a bank draft dated 25.6.2003 in the sum of Rs.10401/- directing respondent to produce the vehicle for inspection. On 31.7.2003, representative of the respondent namely, Raj Kumar, brought into the notice of the appellant that the claim may be settled as the bank draft had been returned uncashed. It was also told that the Development Officer of the appellant, Sh. Vinod Kumar, had inspected the vehicle on 24.6.2003 and there was no need for the inspection of the vehicle which had been totally damaged on 25.6.2003. The defence taken by the appellant was that the complaint had been filed on false and concocted grounds because there was no privity of contract between the parties. The vehicle had not been insured; that complicated questions of facts and law were involved and there was no deficiency in rendering service. It was also pleaded that the respondent had approached the concerned Development Officer on 25.6.2003 and at, his request draft was prepared in the sum or Rs. 10401/- and he was directed to produce the vehicle for inspection. It was also pleaded that the respondent had approached the concerned Development Officer on 25.6.2003 and at, his request draft was prepared in the sum or Rs. 10401/- and he was directed to produce the vehicle for inspection. Earlier insurance policy of the bus in question which had been obtained by the respondent had expired on 9.5.2003 and he had approached for the issuance of a new insurance policy after a gap of one and half month. As respondent had failed to produce the bus in question for inspection so the amount of the bank draft was returned to him. It was vehemently denied that Sh. Vinod Kumar had accepted Rs. 10401/- in cash on 24.6.2003. Learned Forum, after making appraisal of the record and the evidence has held that no cover note had been placed on the record but premium had been accepted on 24.6.2003 by Sh. Vinod Kumar, Development Officer of the appellant. He had calculated the premium regarding the bus in question as the previous insurance policy had expired on 9.5.2003. It has further been held that receipt/collection of premium by the said Development Officer amounts to collection by the OP. Reliance was placed in the ratio decidendi of the case titled Oriental Insurance Co. V. Ghulam Mohd Siraj (1999 SLJ 235). Learned counsel for the respondent has produced a photostat copy of the said judgment and placed on the record of the case. 2. We have considered the contentions of learned counsel appearing for the respondent. Nobody is appearing on behalf of the appellant. We propose to decide the appeal under Rule 10 of Consumer Protection Rules on merits. 3. After scanning the record we find that the defence put up by the appellant is not tenable. Copy of the FIR placed on the record (annexure C) shows that the incident regarding burning of the insured bus was reported in the concerned police station on 25.6.2003 at 12.10 hours for commission of offences U/S 435/141,149/341 and 307 RPC. The incident had taken place at a distance of 46 K.Ms from Police Station Reasi, at a place known as "Thanpal." From the perusal of affidavit of Sh. Vinod Kumar Pandita, Dev. Officer (Adm) Branch office Udhampur, it is found that he denies to have received Rs. The incident had taken place at a distance of 46 K.Ms from Police Station Reasi, at a place known as "Thanpal." From the perusal of affidavit of Sh. Vinod Kumar Pandita, Dev. Officer (Adm) Branch office Udhampur, it is found that he denies to have received Rs. 10401/- in cash from the respondent but admits that he had issued him a bill after calculating the premium for the same. No receipt was given to him regarding acceptance of premium as well as no cover note of the policy was issued in his favour. That he had requested the respondent to deposit the premium for insurance of the policy on 25.6.2003 he tendered the amount of Rs. 10401/- and at is request the bank draft was prepared. He had also requested respondent to produce the vehicle/or inspection in the Branch Office as there was already break in continuity of his earlier insurance policy. At the request of the respondent he (the witness) purchased the draft and forwarded the same to Branch office Udhampur, subject to production of vehicle for inspection at the branch office. Respondent had failed to produce the bus for inspection before the witness as well as before the branch office Udhampur. The survey report of Sh. Sham Sunder of K. Manchanda Surveyors also supports the incident to have taken place at Thanpal near Dhiangarh Reasi on 25.6.2003 and confirms the loss. He had assessed the loss to the tune of Rs. 223500/-. The facts and circumstances of the case are speaking for themselves. The Dev. Officer Sh. Vinod Kumar admits his presence in Reasi on 24.6.2003 when he admittedly calculated the amount of premium, why he should have then received the cash on 25.6.2003 instead of 24.6.2003 and prepare the draft at the request of the respondent with a direction to produce the vehicle for inspection before him on the same day or at branch office Udhampur. The bus in question had been set ablaze, as per the police report on 25.6.2003 at 12.10 hours. Learned forum has placed reliance on the circumstantial and documentary evidence, as fully discussed in the impugned order and the only possible conclusion which can be drawn, in the facts and circumstances of the case, is that Mr. The bus in question had been set ablaze, as per the police report on 25.6.2003 at 12.10 hours. Learned forum has placed reliance on the circumstantial and documentary evidence, as fully discussed in the impugned order and the only possible conclusion which can be drawn, in the facts and circumstances of the case, is that Mr. Vinod Kumar Development Officer of the appellant had accepted the amount of premium at Reasi on 24.6.2003 for issuance of insurance policy to be effective from that date till 23.6.2004. We do not find even an iota of evidence to over set the finding of the learned forum, which is factually and legally correct. 4. In this view of the matter, the appeal is found not maintainable, which is dismissed, but without any order as to costs.