State Consumer Disputes Redressal Commission
The New India Assurance Co. Ltd. vs Rakesh Kumar on 11 October, 2007
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA Appeal No. 122/2007. Date of Decision 11.10.2007. The New India Assurance Co. Ltd. Division Office No.1, 36 Govind Niwas J.T. Road, Jallandhar 144 001 through its Senior Divisional Manager IIIrd Floor, Block No. 7, SDA Complex Kasumpti Shimla 171 009. . Appellant. Versus Sh. Rakesh Kumar S/o Sh. Jagat Ram House No. 99, Block No. 52, Vill. Badoli Tehsil & Distt. Una, H.P. . Respondent. Honble Mr. Justice Arun Kumar Goel, President. Honble Mrs. Saroj Sharma, Member. Whether Approved for reporting ? Yes. For the Appellant. Mr. Ratish Sharma, Advocate. For the Respondent. Mr. Arun Kumar, Advocate vice Mr. Ajay Sharma, Advocate. O R D E R:
Justice Arun Kumar Goel (Retd.) President (Oral) This appeal is directed against the order of District Forum Una, in Consumer Complaint No. 6/2005, dated 5.3.2007. By means of impugned order, while allowing the complaint, appellant has been directed to pay a sum of Rs. 1,66,092/- to the respondent alongwith interest @ 9% per annum from the date of complaint i.e. 24.1.2005 till realization, besides cost of litigation assessed at Rs. 1000/-
2. Vehicle being insured with the appellant as a private vehicle is not in dispute as also Rakesh Kumar being its owner is admitted between the parties. Premium charged by the appellant of the vehicle which met with accident on 25.8.2004 was as applicable in case of a private vehicle. Other facts we are not repeating other facts which have been noted in detail in the impugned order.
3. Mr. Sharma learned counsel for the appellant raised following contentions:
(a) that the vehicle was being plied in complete violation of the terms and conditions of the policy subject to which it was insured for hire and reward;
(b) at the time of accident vehicle had been hired for Rs. 1500/- by the passengers who were travelling in it for to and fro journey from Una to Ludhiana;
(c) that since vehicle was being plied as a commercial vehicle, the driver who also died in the accident was having a licence to drive LMV without endorsement of his being licensed to drive a transport vehicle;
(d) Mr. Sharma by referring to the terms and conditions of the policy urged that the Courts/Foras have to go by strictly in terms of the policy condition and cannot travel beyond those; and
(e) lastly he pointed out that finding of the MACT is against his client, but the matter is sub-judice in appeal before the Honble High Court of Himachal Pradesh;
thus on all these grounds, this appeal deserves to be allowed and impugned order needs to be set aside. All these pleas have been resisted by Mr. Arun Kumar on behalf of the respondent who submitted that the impugned order is in accordance with law and calls for no interference in this appeal. We shall take up the first plea (a),(b) &(c) regarding vehicle being plied in violation of the policy conditions for hire and reward. Because if we agree with submission
(a) &(b) of Mr. Sharma on behalf of the appellant, then the findings regarding licence have also returned in its favour.
4. With a view to support these submission Mr. Sharma placed great emphasis on the report of the investigator Mr. B.S. Sharma, Superintendent of Police, (Retired) of National Detective and Consultative, Private Detective and Investigator of Jallandhar. His report starts from page 82 to 113 and his affidavit is at page 64 of the complaint file. A perusal of the report submitted by Mr. B.S. Sharma shows that he went to the parents/family members of the deceased numbering 5 who had died as a result of the accident in question. All of them unequivocally stated that the vehicle was hired for Rs. 1500/- for to and fro journey from Una to Ludhiana. There is nothing on record to suggest who had hired the vehicle and or anyone of the persons whose statements were relied upon by the investigator was present at the time of alleged hiring of the vehicle. In these circumstances, neither statements of the persons recorded by the said investigator, nor his report can advance the case of the appellant regarding hiring of the vehicle and or its being plied for hire and reward, although it was registered as a private vehicle.
5. With a view to support the case of the appellant based on the investigators report, Mr. Sharma pointed out that why should anyone come forward to make a false statement. This submission is being noted to be rejected because in the absence of even minimum evidence to suggest that who had hired the vehicle and from whom as well as at what point of time muchless on the statements recorded which we have read during the course of hearing. That being the position submission of Mr. Sharma that the vehicle was being plied in breach of the policy conditions for hire and reward is hereby rejected.
6. In view of the conclusion arrived in the preceding paras, we further hold that the plea regarding that a driver not holding a valid driving licence to drive a transport vehicle, also does not hold good. Ordered accordingly.
7. So far next submission of Mr. Sharma that the Court/different Forum/Foras have to construe the policy strictly as it is in the nature of a concluded contract between the parties, there can hardly be any dispute on this legal proposition. We have held while rejecting the first submission of Mr. Sharma that there was no breach of policy condition because the vehicle was not being plied for hire and reward at the time of accident, as such we need not go into this question. Here we may point out that even if we had accepted the plea of Mr. Sharma that there was breach of policy condition, therefore, his client was not liable, in order to succeed on such a plea it was incumbent upon the appellant to have also placed material on record to suggest that all the pros and cons, including warranty, exception and conditions of Insurance cover were clearly stated alongwith there scope in an explicit manner under Regulation 3 of the Insurance Regulatory and Development Authority (Protection of Policy Holder Interests) Regulation 2002. With the assistance of learned counsel for the parties we have thoroughly gone through the entire complaint file, no evidence could be pointed out on behalf of the appellant showing compliance with this provision having been placed on record. (emphasis supplied)
8. Again faced with this situation Mr. Sharma submitted that with the delivery of cover note followed by the Insurance Policy, it is presumed that the insured was aware of all the terms and conditions as such it was not necessary to explicitly comply what is required under Regulation 3 of the Regulations of 2002, (supra). And both the parties have placed reliance on the Insurance policy. We are noting this plea simply to be rejected. Reason being that when law requires a particular thing to be done in particular manner, it was incumbent upon the party concerned i.e. the appellant to show that needful had been done if it wants to take benefit thereof. At the risk of repetition we may notice that Regulation 3, (supra) requires in no uncertain terms that it is the duty of the insurer to explicitly explain what is envisaged in the said regulation. As such mere handing over of the cover note followed by Insurance policy does not tantamount to complying with regulation
3.
9. So far plea of Mr. Sharma that findings of the MACT have been challenged in the appeal is concerned, as we have not touched that aspect of the case based on the certified copy of the order of the Tribunal below, so we say nothing in this behalf.
10 No other point is urged.
In view of the aforesaid discussion, there is no merit in this appeal, which is hereby dismissed, leaving the parties to bear their own costs.
All interim orders passed from time to time in this appeal shall stand vacated forthwith.
Office is directed to supply a copy of this order free of costs to the parties as per rules. Appeal stands disposed of.
Shimla 11th October, 2007. (Justice Arun Kumar Goel) Retd.
President.
(Saroj Sharma), Karan* Member.