State Consumer Disputes Redressal Commission
Nic Ltd vs Shyam Lal on 20 September, 2010
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA, CAMP AT SOLAN. ---- FIRST APPEAL NO.551/2007. DATE OF DECISION: 20.9.2010. In the matter of: National Insurance Company Limited, Divisional Office, Himland Hotel, Circular Road, Shimla through its Assistant Manager. Appellant. Versus Shri Shyam Lal son of Shri Rattan Lal, resident of Village Taker, Post Office, Sour, Tehsil Nalagarh, District Solan, H.P. Respondent. ----------------------------------------------------------------------------------------------------------------- Honble Mr. Justice Arun Kumar Goel (Retd.), President. Honble Mrs. Saroj Sharma, Member. Honble Mr. Chander Shekhar Sharma, Member. Whether approved for reporting? No For the Appellant: Mr. Jagdish Thakur , Advocate. For the Respondent: Mr. J.S. Parmar, Advocate. O R D E R
Justice Arun Kumar Goel (Retd.), President (Oral).
1. Admitted facts giving rise to this appeal are, that vehicle bearing Registration No.HP-12-8723 was insured under a valid policy of insurance when it met with accident on 21.4.2003. It was insured in the sum of Rs.3,00,000/-. After accident, intimation was given by the respondent to the appellant and he lodged the claim in the sum of Rs.3,07,000/- on the basis of the estimated bills. Claim was not settled, and according to the respondent he had actually spent Rs.1,35,000/- on the repair of the vehicle in order to make it roadworthy. In these circumstances, complaint was filed by him for being indemnified by the appellant in the sum of Rs.1,35,000/- alongwith interest @ 12% per annum besides compensation of Rs.25,000/-, as well as litigation cost of Rs.5,000/-
2. When put to notice, stand of the appellant was that the vehicle was being plied in violation of the terms and conditions of the Insurance policy subject to which it was insured. In addition to this, stand of the appellant was that the driver was not holding a valid and effective driving licence to have driven the vehicle which was a Tempo, meant and adapted for carriage of goods only.
It is further case of the appellant that Surveyor had assessed the loss at Rs.94,358/16P, but the appellant was not liable to pay the same.
3. District Forum below after hearing the parties, while allowing the complaint, has directed the appellant to pay Rs.94,358/- alongwith interest @ 9% per annum after the expiry of 3 months of the date of accident, i.e. 21.7.2003 till realization alongwith Rs.2,500/- as cost of litigation. Hence this appeal.
4. Mr. Thakur, learned Counsel for the appellant while referring to the F.I.R. submitted that it is clearly established beyond any shadow of doubt that at the time of accident the vehicle was being used for transportation of passengers illegally and unauthorizedly in violation of the provisions of the Motor Vehicles Act, 1988 and the rules framed thereunder, as also in violation of the policy conditions subject to which his client had undertaken the insurance in this case. In addition to this, Mr. Thakur pointed out that it is by now well settled that a goods carriage vehicle can in no circumstance be used for transportation of passengers, therefore on both these grounds he prayed for allowing this appeal and consequently dismissing the complaint by setting aside the impugned order.
5. All these pleas were seriously contested and resisted by Mr. Parmar, learned Counsel for the respondent. Per him, there is no violation of the policy conditions and the vehicle was not being used at the time of its accident for the transportation of passengers as claimed by the appellant. He thus prayed for upholding the impugned order by dismissing this appeal with costs.
6. After having considered respective submissions, as well as facts existing on the basis of the pleadings of the parties as well as evidence produced by them on the complaint file, we are of the view that the District Forum below was in error when it allowed the compensation as assessed by the Surveyor in its entirety. From the F.I.R., it is made out that 3 persons had died as a result of the accident.
Driver, according to Mr. Parmar, had come out unscathed as he did not sustain any injury.
This F.I.R. was registered at the instance of Shri Raj Kumar who is none else but uncle of the boy for carriage of whose dowry items this Tempo had been hired as is evident from the affidavit of Shri Raj Kumar which is at page 85 of the complaint file.
While admitting his presence in the vehicle at the time of accident, this witness has chosen to completely ignore the statement on the basis of which F.I.R. was lodged with the Police at Bilaspur. Copy of F.I.R. is at page 147 of the complaint file. We are of the view that this affidavit on which great emphasis was laid by Mr. Parmar is nothing but an after-thought aimed at coming out of the situation in which the respondent was placed after the accident.
We specifically called upon learned Counsel for the respondent as to whether there was any animosity of the respondent or Shri Raj Kumar with the police officials who recorded the F.I.R. at Bilaspur, his answer was that the best person to explain in this behalf is the police official of the Police Station concerned. We are not impressed by this submission. In case the facts had been wrongly or incorrectly recorded, nothing prevented Shri Raj Kumar to have approached the Police immediately thereafter. This F.I.R. is of 21.4.2003, whereas his affidavit is of 2.3.2007. Nothing prevented either the respondent or Shri Raj Kumar to have informed the police authorities regarding incorrect recording of the facts in the statement of latter on the basis of which the F.I.R. was lodged, and at the same time to rectify it. An attempt was made by Mr. Parmar to persuade us that his client as well as Shri Raj Kumar both were acting bonafide, as such version of Shri Raj Kumar in his affidavit needs to be accepted. This submission is being noted to be rejected. Ordered accordingly.
7. Now comes the question as to how to proceed further in the matter. This is prima facie a case of violation of any other policy condition including limitations as to its use. How to deal with such a situation, has been set at rest by a recent decision of the Honble Supreme Court in the case of Amalendu Sahoo Versus Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC). To similar effect is the decision of this Commission in the case of Shri Sardar Singh Thakur Versus The Oriental Insurance Company Ltd., Appeal No.70/2010, decided on 25.8.2010. On the basis of these decisions, we hold that the respondent is entitled to 75% of the sum of Rs.94,358/- assessed by the Surveyor, which comes to Rs.70,768.50 or say Rs.70,768.00. It is on this amount that the respondent is entitled to interest at the rate and from the date, alongwith cost as awarded by the District Forum below.
While partly allowing this appeal, order passed by District Forum below, Shimla, Camp at Solan in Complaint No.85/2005, dated 13.9.2007 is modified accordingly, leaving the parties to bear their own costs.
All interim orders passed from time to time in this appeal shall stand vacated forthwith.
Learned Counsel for the appellant has undertaken to collect copy of this order free of cost from the Court Secretary at Shimla as per rules, whereas Mr. Parmar submitted that it may be sent to him at his address, District Courts, Solan. Office is directed to do the needful.
Solan, September 20, 2010.
( Justice Arun Kumar Goel ) (Retd.) President ( Saroj Sharma ) Member ( Chander Shekhar Sharma ) /BS/ Member.