State Consumer Disputes Redressal Commission
The New India Assurance Co. Ltd. & Anr. vs Ishwar Singh Rathore on 12 August, 2008
H
H.P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, SHIMLA
Appeal No. 449/2007
Date of Decision 12.8.2008.
1.
The New India Assurance Co. Ltd., through its Senior
Divisional Manager IIIrd Floor, Block No.7,
SDA
Complex, Shimla 171 009,
2.
The New India Assurance Co. Ltd. Branch Manager,
Bhagra Niwas, The Mall, Shimla.
. Appellants.
Versus
Sh.
Ishwar Singh Rathore S/o Sh. Surat Singh R/o
Vill.
Jarawa, PO Bharanoo, Tehsil Chopal, Distt. Shimla, HP.
. Respondent.
Honble Mr.
Justice Arun Kumar Goel, President.
Honble
Mrs. Saroj Sharma, Member.
Whether Approved
for reporting? No.
For
the Appellant. Mr. Ratish Sharma, Advocate.
For the Respondent Mr. Ramesh Negi, Advocate.
O R D E R:
Justice Arun Kumar Goel (Retd.) President (Oral) Admitted facts giving rise to this appeal are, that the vehicle that is subject matter of this case is a LTV open goods carriage Tata 709. It was insured in the sum of Rs. 3,50,000/- on IDV basis. Period covered was between 28.5.2003 to 27.5.2004. It was financed by HP State Co-operative Bank Ltd. Its sitting capacity was 1+2.
2. Further facts revealed from the complaint file are, that 34 persons were travelling on 21.5.2004 when it met with accident, there were 29 casualties and 5 persons were injured.
3. In the aforesaid background, on receipt of intimation, preliminary survey was got done by the appellant. Mr. Umesh Kumar Sood was deputed who had visited the spot on 25.5.2004 and conducted the spot survey. In the spot survey report it is mentioned by him that the insured could not give registration certificate, route permit, driving licence, insurance policy, log book etc., as neither the insured- respondent nor his representative was present.
4. Suffice it to say in this behalf, that grievance about nobody being present at the spot, can only be made by the surveyor as well as by the appellant if their further case is, that due and timely intimation had been given to the insured to be either present in person or for deputing an authorized representative. There is nothing on record in this behalf and none could be pointed out by Mr. Sharma with reference to the complaint file, that the respondent had been duly intimated in that behalf either by the appellant or the spot surveyor.
5. When hearing in this case commenced, main thrust of the submission of Mr. Sharma learned counsel for the insurance company was, that the vehicle in question was meant and is adapted for carriage of goods with a sitting capacity of 1+2. As such in no case it could have been converted into a passenger carriage vehicle which is evident from the number of persons who died as a result of the accident as also those who were injured. Therefore, according to him this is a case of clear cut violation not only of the terms and conditions of the contract to insurance subject to which the vehicle was insured by his client, but also of the Motor Vehicles Act, 1988 and the rules framed thereunder. Further according to him final survey could not be done because vehicle was not produced by the respondent despite repeated communications, both from the appellant as well as by the surveyor (Mr. Umesh Kumar Sood), deputed for the said purpose. In these circumstances there is no fault on the part of the appellant. In support of this submission he also submitted, that on the admitted facts, his client was neither supposed to cover nor had in fact covered the risk of more than the permissible sitting capacity of the persons in the vehicle. Therefore the vehicle which was a goods carriage vehicle was hired by the HP PWD, and at the time of accident was carrying passengers in breach and violation of the terms and conditions of the policy and therefore, the person who had hired the same would not be covered under Section 147 (1) of the Motor Vehicles Act, 1988. As such his client was not liable. Reliance in this behalf was placed by Mr. Sharma on a recent decision of the Honble Supreme Court in the case of United India Insurance Co. Ltd. Vs. Suresh K.K. & Anr., II (2008) CPJ 25 (SC).
6. Without in any manner admitting or conceding the liability of his client, Mr. Sharma submitted that even if everything is held against his client there, even then there is ample material on record to suggest that the vehicle had been hired by the HP PWD from 17.5.2004 to 21.5.2004 between 9:00 AM to 5:00 PM. Whereas accident has taken place at 6:00 PM, therefore in any situation his client is not liable and thus he prayed for allowing this appeal by setting aside the impugned order and consequently dismissing the complaint.
7. Copy of letter dated 3.1.2005 from Assistant Engineer, Bhallu, Sub Division, (B&R) HP PWD, Nerwa, in this case was placed on record and has been relied upon, on behalf of the appellant by Mr. Sharma. As per this letter the vehicle was hired for carriage of store from 17.5.2004 to 21.5.2004 on daily basis from 9:00 AM to 5:00 PM from Truck Union, Nerwa and accident occurred on 21.5.2005 after 5:00 PM i.e. after duty hours. This communication has been sent in response to the letter of the Branch Manager of the Shimla Branch of the appellant.
8. When vehicle is attached or hired with the Government agency what is its effect is no more res-integra in view of the decision of Honble Supreme Court in the case of National Insurance Co. Ltd. Vs. Deepa Devi and Ors., (2008) 1 SCC 414. This completely negatives the submission of Mr. Sharma, that the accident having taken place when the vehicle was admittedly attached with the HP PWD, so his client is not liable. To similar effect there is a decision of Karnataka High Court in the case of United India Insurance Co. Ltd. Vs. S.R. Prasanna & Ors., AIR 2008 (NOC) 1435 (KAR). In this case it was held that vehicle was hired by Karnataka State Road Transport Corporation when it met with accident, insurer was liable to pay compensation, its plea to the contrary that hirer being the Karnataka State Road Transport Corporation was owner and hence liable, was not accepted.
9. So far reliance placed by Mr. Sharma on the judgment of the Honble Supreme Court in the case of United India Insurance Co. Ltd. Vs. Suresh K.K. & Anr., (supra) is concerned, according to us this judgment is distinguishable. In this case the question for consideration before the Honble Supreme Court was, that person who hired goods carriage vehicle would not come within the purview of Section 147 (1) and it was further held that any person, envisaged under the said section does not include any gratuitous passenger. If claimant was not travelling in the vehicle as owner of the goods, he was also not covered by the policy of the insurance. After laying down this proposition of law, the Honble Supreme Court while dealing with the facts of that case, came to the conclusion that claimant/respondent collie worker who hired autorickshaw, a goods carriage vehicle and accident occurred when he was sitting by the side of the driver is liable to be indemnified by the owner as driver could not have allowed anybody else to share his seat, violation of contract of insurance having been proved, High Court and Tribunal should have held owner of the vehicle being guilty of breach of policy. However in view of the accident having taken place, then on facts of that case insurance company was directed to pay the compensation to the claimant and recover the same from the owner, whereas in the appeal before us, case of the appellant is that the vehicle was attached with the HP PWD. Again great emphasis was laid by the learned counsel for the appellant on the time for which the it was hired, and also on the time when accident had taken place. This per Mr. Sharma was after the time for which truck was hired by the HP PWD. No doubt in the aforesaid letter of the HP PWD, it is mentioned that it was hired for carriage of goods. Whether labour was also being carried in it, neither it was asked for, so there was no occasion for the HP PWD to have said anything in this behalf.
It is not the case of any of the parties, that the passengers who were travelling at the time of accident in the vehicle were either the labourers of the respondent, or were being carried for hire and reward. On this ground also we find no infirmity in the impugned order.
10. Mr. Sharma emphasized by referring to the claim form alongwith letter that when the material (salvage), was lying at Nerwa in store, then why it was not got inspected by the respondent. On what date and time the insurance company and or the surveyor Mr. Dinesh Kumar wanted appellant to be present to show the accidental vehicle, there is nothing on record. No doubt there are letters on record from the appellant-insurance company, as well as by Mr. Dinesh Kumar surveyor, whereby the respondent was called upon to produce the salvage so that final survey could be done. In this behalf Mr. Sharma also submitted that once the material was lying in the store as mentioned in the claim form, there was no question of its having been washed away. Estimates of repair were submitted by the respondent on 30.11.2004 vide Annexure C-9.
This purports to have been issued by M/s Himalaya Motor Workshop, 21 Tyagi Road, Rest Camp, Dehradun.
According to Mr. Ratish Sharma this estimate could only be prepared in case vehicle was there, otherwise there was no occasion to have got prepared the estimate in question.
11. At this stage we may observe that hearing in this case had been concluded on 11.8.2008. With a view to satisfy ourselves in this behalf, we had directed learned counsel for the appellant to produce the original claim form since its photostat copy is there on the complaint file. Today he stated at the bar that since numbers of Motor Accident Claim cases were filed by the claimants, wherein both i.e. Appellant and respondent have been exonerated, by holding the HP PWD liable, therefore it may be on the file of one of such cases. Purpose of asking for the original claim form was, that the copy on which reliance is placed by the insurance company is not free from doubt. Reason being that it is open to the naked eye, that it has been filled in different hand, and this is evident from the signatures which are there on Annexure R-3, and what is filled in it the claim form, so it cannot be said that it is in the hand of the respondent himself. It also does not indicate whether the original, photostat copy whereof is on record is signed by the respondent-insured or not.
12. Lastly it was urged by Mr. Sharma that his client is not liable for consequential losses which are there in the present case. We say nothing in this behalf, for the simple reason that insurance of the vehicle is admitted. It having met with accident resulting in casualties etc., is also admitted. Its being attached with the HP PWD on the date of accident is again the case set out by the appellant itself. Though accident took place according to it after the working hours while it was attached/hired by the HP PWD. How and on whose instance the persons were found in the vehicle is not made out from anything produced by the appellant on the record. Though investigator deputed by appellant is a retired Deputy Superintendent of Police. We are not satisfied with his report alone to allow this appeal. Plea of final survey being not done in this behalf for allowing this appeal is likewise without substance. In the circumstances of this case this argument is being noted to be rejected. Because it is too late in the day to say, and also we are sorry to observe in this behalf, that appellant as well as surveyor appointed by it, both failed to inform the respondent about the date and time for the purpose of inspection of the salvage for final survey. In this behalf we are of the view that had the surveyor made a little effort, things would have been sorted and final survey was possible but instead of being practical, be just wrote letters and did nothing else.
13. No other point is urged.
In view of the aforesaid discussion, we find no merit in this appeal which is accordingly dismissed, leaving the parties to bear their own cost.
All interim orders passed from time to time in this appeal shall stands vacated forthwith.
Learned counsel for the parties have undertaken to collect the copy of this order from the Reader free of cost as per rules.
Shimla.
12th August, 2008. (Justice Arun Kumar Goel) Retd.
President.
(Saroj Sharma), d.kZ* Member.