National Consumer Disputes Redressal
Manikant vs New India Assurance Co.Ltd. on 6 September, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.1513 OF 2007 (Against the order dated 06.11.2006 in Appeal No.1001/05 of the State Commission, M.P.) Manikant ..Petitioner Versus New India Assurance Co.Ltd. Respondent BEFORE: HONBLE MR.JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS.VINEETA RAI, MEMBER For Petitioners : Mr.Suryanarayana Singh, Advocate Ms.Pragati Neekhra, Advocate For Respondent : Mr.Ajay Majithia, Advocate Pronounced on 6th September, 2011 ORDER
PER VINEETA RAI, MEMBER The Petitioner in this case, one Manikant, has filed the present revision petition being aggrieved by the order of the State Consumer Disputes Redressal Commission, Madhya Pradesh (hereinafter referred to as the State Commission) in Appeal No.1091 of 2005 wherein the New India Assurance Co. Ltd. was the Respondent.
The facts of the case according to the Petitioner who was the original complainant before the District Forum are that he had insured his farm Tractor and trolley with the Respondent/Insurance Company for the period from 20.12.1997 to 19.12.1998 for a sum of Rs.2,85,000/-. The insured vehicle i.e. Tractor along with trolley met with an accident on 07.12.1998 causing extensive damage. Petitioner immediately informed the Respondent/Insurance Company on telephone about the incident who in turn appointed a Surveyor to assess the damage.
Petitioner thereafter frequented the office of the Respondent wherein he was assured that his claim would be settled. After about 1 years, Petitioner was informed that his file was missing. Petitioner again submitted all the papers relating to his case and in response to a letter dated 24.06.2003 from the Respondent, Petitioner provided all records to the Surveyor. However, vide letter dated 04.12.2003, Respondent informed the Petitioner that his claim was not being accepted because he had violated the terms and conditions of the policy. Being aggrieved by the repudiation of his genuine claim, Petitioner filed a complaint before the District Forum requesting that Respondent be directed to pay the Petitioner Rs.44,500/- towards loss/damage along with interest @ 24% per annum and litigation costs.
Respondent/Insurance Company on the other hand while admitting that the insured vehicle met with an accident, stated that the claim was rightly repudiated because it was proved by the Report of the Surveyor appointed by the Respondent/Insurance Company after a thorough investigation that there was clear violation of terms and conditions of the insurance policy since the insured vehicle was being used not for agricultural purposes for which it was insured but to carry/transport building materials for a Government construction which is a commercial activity. Further, the driver of the vehicle was driving this transport vehicle in violation of his licence by which he could only drive non-transport vehicles. Since, the conditions of insurance policy as well as the driving licence were breached by the Petitioner, his claim was rightly repudiated.
The District Forum after hearing both parties and considering the evidence on record allowed the complaint on the grounds that even as per the Surveyors Report, it was clear that the tractor was not being used for any commercial/business work but used by the Petitioner for his personal use and, therefore, a driver in possession of a non-transport licence could have validly driven the tractor trolley for this purpose. The District Forum further stated that the loss worked out by the Surveyor was not correct and had not taken into account bills paid by the Respondent which indicated that the total amount spent on the repair of the damaged trolley and tractor was Rs.44,265/- out of which Rs.21,265/- was the cost of parts and Rs.23,000/- as labour charges. The District Forum therefore, directed the Respondent to pay the Petitioner Rs.44,265/- as insurance claim for the trolley along with interest @ 6% from the date of complaint till the final payment and Rs.500/- as costs.
Aggrieved by this order, Respondent filed an appeal before the State Commission which allowed the appeal by observing as follows:
There is crying documentary evidence available on record to show that the tractor was being used for carrying building material to be delivered on some construction site of the Government/Gram Panchayat. Three persons who were also being carried in the trolley, received injuries in the said accident.
One such injured person lodged report with the police, disclosing all the facts, as aforesaid. There can be, thus, no manner of doubt that the tractor which was registered and insured for agricultural purpose was on the relevant date used for commercial purpose.
Driver Amar Singh, though had a driving license for driving tractor but the same was not endorsed for driving a transport vehicle. In the instant case, the tractor at the relevant time was used as a transport vehicle. It was a clear case of violation of terms and conditions of the policy. In fact, the respondent/Insured had handed-over the tractor to a driver who did not have valid driving license. The repudiation of respondents claim was, therefore, fully justified. The Forum below, in our opinion erred in awarding compensation to respondent that too, much more than one assessed by the Surveyor.
Hence the present revision petition.
Counsel for both parties made oral submissions. Counsel for Petitioner stated that the State Commission has erroneously concluded that the driver of the vehicle did not have a valid licence since it is in evidence that the licence issued to him on 22.02.1997 by the Regional Transport Office, Dhar was for driving a tractor. Further, it is not correct that the tractor was carrying building material at the time of the accident. The accident took place when in order to avoid colliding with a bullock cart which was coming from the opposite direction, the vehicle lost the control and overturned. The finding of the Surveyor which was submitted in evidence by the Respondent and relied upon by the State Commission is not supported by any credible independent evidence or an affidavit of the Surveyor to prove the facts stated in the Survey Report. The State Commission, therefore, erred in not taking note of these important facts and erroneously allowed the appeal of the Respondent.
Learned Counsel for Respondent on the other hand strenuously argued at length that the State Commission had rightly allowed the appeal by taking cognizance on the basis of the evidence filed before the Fora below that there was a breach by both the Petitioner and the driver, of the terms and conditions of the insurance policy and driving licence respectively.
For example, while it is a fact that the driver of the insured vehicle did have a valid licence for driving a tractor, the Petitioner conveniently chose to ignore the fact that in Column 11 of the same licence, it was also stated that the licensee could only drive the vehicle for non-transport purposes.
From the Report of the Surveyor which has significant evidentiary value, it is clear that at the time of the accident the vehicle was loaded with bricks, stones, cement and this material was carted for Government works which clearly shows that the vehicle at the time of the accident was being used for transportation purposes in violation of the terms and conditions of the driving licence as well as insurance policy. Further, the details of the damage to the vehicles which was recorded in great detail by the Surveyor in respect of each item and clearly assessed at Rs.8,186/- was also ignored by the District Forum but appreciated and understood by the State Commission which rightly allowed the appeal of the Respondent. Therefore, the repudiation of the claim was fully justified.
We have heard the learned Counsel for both parties and have carefully considered the evidence on record.
The facts regarding the insurance of the vehicle and the date and place of the accident of the tractor trolley are not in dispute. Regarding the terms and conditions of the driving licence, we note that while it is a fact that the driver had a licence valid for driving a tractor but as pointed out by Counsel for Respondent, it is also a fact that this licence was valid only for driving a vehicle for non-transport purposes.
Therefore, the key issue in this case is whether there is enough evidence to prove that the vehicle in question at the time of the accident was actually being driven for transport purposes as contended in the Surveyors Report. To prove his case, Respondent has relied on the Surveyors report which states that the vehicle was carrying bricks, stones, cement etc. for constructions purposes in respect of some Government works and not for agricultural use for which it was insured thus violating the terms of the insurance policy as well as driving licence. While the Surveyors Report does state these facts, we find that no evidence has been lead to prove these facts; the Surveyor, for example, did not appear in court and subject himself to cross-examination nor was any affidavit filed by him to prove his Report. Producing a document in court does not by itself constitute proving the document. It has to be backed by credible evidence. In the instant case, no evidence was led to prove the Surveyors Report in the absence of which the Surveyors Report has little evidentiary value. In view of these facts, we are unable to accept the contention of the Respondent that he has been able to show substantial and credible evidence that the Tractor was being used for transporting goods and thus violating the terms and conditions of the insurance policy and the driving licence. The State Commission by solely relying on this document erroneously concluded that there is violation of terms and conditions of the policy and that the claim was rightly repudiated.
We, therefore, have no option but to set aside the order of the State Commission and restore the order of the District Forum. The Respondent is directed to pay the Petitioner Rs.44,265/- as insurance claim along with interest @ 6% from the date of complaint till the final payment and Rs.500/- as costs.
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(ASHOK BHAN J.) PRESIDENT Sd/-
(VINEETA RAI) MEMBER /sks/