Appeal No. 16/2008.
Date of Decision 4.1.2010.
In the matter of:
1. Smt. Ganga Thakur wife of late Sh Inder Singh;
2. Smt. Gauri Devi wd/o late Shri Puran Chand;
3. Master Sachin Thakur son of late Sh. Inder Singh;
4. Master Sahil Thakur S/o late Sh. Inder Singh;
5. Master Sanchit son of late Sh. Inder Singh, appellants
Nos.3 to 5 being minor sons through their mother and
natural guardian Smt. Ganga Thakur W/o Sh. Inder Singh
All R/o Village Kothi, PO Oachghat,
Tehsil & District Solan, HP.
… … Appellants.
The Oriental Insurance Company Limited, through its
Branch Manager, The Mall, Solan, HP.
… … Respondent.
Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.
Hon’ble Mrs. Saroj Sharma, Member.
Hon’ble Mr. Chander Shekher Sharma, Member.
Whether approved for reporting? Yes.
For the Appellants.: Mr. Pawan Kaprate, Advocate.
For the Respondent. Mr. Narinder Sharma, Advocate.
O R D E R
Justice Arun Kumar Goel (Retd.), President (Oral).
Appellants are aggrieved from the order passed by District Forum Shimla, Camp at Solan, HP, dated 14.12.2007, whereby Complaint No. 54/2004 filed by their late predecessor Sh. Inder Singh has been dismissed. Admitted position giving rise to this appeal is, that vehicle bearing registration No. HP-14-6896 was duly insured under a valid policy of insurance with the respondent, between 9.12.2002 to 8.12.2003, for a sum of Rs. 1.60 lacs.
2. Now the dispute starts. As according to the respondent vide Annexure OP-1 dated 12.12.2002 deceased approached the Solan Branch of the respondent to cancel the policy in question. In this context it may be appropriate to notice that cover note Annexure B was issued on 9.12.2002 after the vehicle had been inspected at Nauni at 7:30 PM. Total payment of Rs. 4245/- was made as per this cover note in cash. Cover note having been issued by the respondent-insurance company by its authorized agent after receipt of cash premium, is not in dispute. Further according to the respondent after the receipt of Annexure R-1, sum of Rs. 3258/- was sent vide cheque Annexure OP-II, dated 27.12.2002. This cheque was forwarded alongwith letter Annexure OP-III, dated 31.12.2002 to the deceased. There is no material whatsoever produced on record to show as to when Annexure OP-III, and by what mode it was sent alongwith the cheque as alleged by the respondent. Likewise, there is nothing on record again placed by the respondent as to when this letter was refused by the deceased. According to us this would have gone a long way to enable us to come to a correct conclusion in this appeal in the face of defence of the respondent while contesting the complaint.
3. Further case of the respondent is that the premium was short, as such on this ground also sum of Rs. 3258/- was returned to the deceased. As already observed premium was paid in cash. It is not the case of the respondent that the sum received by its authorized agent vide Annexure B filed with the complaint was either deficient or in any manner less than the due premium payable. In these circumstance we are of the view that the insurance premium paid vide Annexure B was deficient is being noted to be rejected. In case it was so, how and in what manner the deficiency was worked out. Not only this when cash receipt of Rs. 4245/- is admitted by the respondent vide cover note, then how Rs. 3258/- was worked out and sent as claimed by the respondent in its defence, again there is no material on record placed by it.
4. Now comes the question as to whether the policy had been got cancelled by the deceased Shri Inder Singh Thakur, vide Annexure OP-II on 12.12.2002. If we accept this stand urged on behalf of the respondent, this appeal has to be dismissed.
5. A perusal of Annexure OP-1 the so-called cancellation letter dated 12.12.2002, and all other documents placed on the record prima facie, as well as are clear to the naked eye, that they are not signed by the person who has filed and signed the complaint and who has signed the vakalatnama, as well as affidavit sworn in support thereof.
6. In addition to this, there is other document Annexure OP-IV sent by the complainant through speed post as well as registered post to the respondent-insurance company on this document signature of the deceased also do not match with those on the cancellation letter Annexure OP-I. In this behalf we may also observe that the practice of the courts venturing into comparison of handwriting/signatures is deprecated by the Hon’ble Supreme Court. However fact remains, that the documents relied upon by the parties when seen, clearly negate the stand of the respondent which is solely based on Annexure OP-1. In these circumstances we are constrained to hold that Annexure OP-I the so-called cancellation letter made basis to built up its defence by the respondent, and accepted by the District Forum below while rejecting the claim cannot be accepted on its face value.
7. In addition to this in paragraph 4 of the complaint specific stand of the deceased was that the so-called cancellation letter of insurance cover in question is a forged and fabricated document by the respondent. As he had never sent it. On this particular and specific pleading of the deceased, there is no specific denial. Assuming for the sake of argument that the cancellation letter had been sent by him, as is the case set out by the respondent while contesting the complaint, fact remains how Annexure OP-1 was dealt with till 27.12.2002 when cheque was prepared, and is alleged to have been sent alongwith Annexure OP-III, there is again no evidence. We will go to the extent of holding that there is every possibility of both these documents having not been sent is also there.
8. In these circumstances, the plea of the respondent that the complainant refused to accept the cheque alongwith letter sent to him is without any evidence worth the name. In our opinion, the best evidence would have been the dispatch register and postal receipt vide which the cheque and letter were sent by the respondent. These documents have not been produced by the respondent.
9. Faced with this situation Mr. Sharma learned counsel for the respondent submitted, that his client was justified in repudiating the claim because policy was cancelled at the behest of the deceased. In these circumstances his clients were justified in repudiating the claim, and according to him District Forum below was justified when it dismissed the complaint. This plea has no substance for the view, that we have taken on preceding paras on this aspect of the case.
10. Further submission urged by Mr. Sharma was, that though theft had taken place on the intervening night of 31.12.2002/1.1.2003, but the matter was reported by his client on 14.1.2003 after a gap of 2 weeks. This submission does not improve the case of the respondent in the face of the FIR having been lodged by the deceased on 2.1.2003 at Police Station Sadar, Solan vide FIR No. 2/2003 regarding theft of the vehicle. No doubt deceased Shri Inder Singh Thakur, the owner of vehicle who has filed the complaint, should have intimated the respondent at the earliest, but that does not mean that in the face of Annexure A, copy of FIR, the delay should be made a ground to reject the complaint. It is not the case of the respondent that Annexure A is lodged on 2.1.2003.
11. Catching the last straw, Mr. Sharma further pointed out that his client accepted what was contained in the Annexure OP-1 because before getting the insurance done, there was no proposal form filled in by the deceased-complainant therefore, according to him no benefit can be taken to the signatures of deceased Shri Inder Singh not tallying with those the other documents being there on the complaint file filed by the parties. Suffice it to say in this behalf, that it is for the respondent to get the proposal form filled in, in our opinion if it has filled to do the needful, or else it has to bear all the consequences also. From record it is clear that this is a case of first insurance and not of renewal of an existing policy. In latter case non filling up of the proposal form could be considered.
12. No other point was raised.
Now comes the question as to how to deal with this case for the view that we have taken on evidence on the complaint file. Reason being that the District Forum below was not justified in dismissing the complaint in a cryptic and slipshod manner, District Forum below does not appear to have thoroughly marshalled the facts as well as scanned the complaint file in its right perspective. Admittedly this is a case of the theft of the vehicle, therefore according to us appellants are entitled to be indemnified in the sum of Rs. 1.60 lacs. Ordered accordingly. In addition to this they are further held entitled to interest 9% per annum from the date of filing of the complaint, i.e. 5.3.2004 till the date of payment/deposit whichever is earlier. Appellants are also held entitled to cost of this appeal as well as of the complaint which we quantify in lump sum of Rs. 5,000/- Since this is a case of theft of insured vehicle and FIR stands registered vide Annexure A under FIR No. 2/2003, at Police Station Solan, appellants are directed to execute letter of indemnity as well as power of attorney in favour of the respondent, so that in case the vehicle is traced by the police, it is entitled to deal with it as its absolute owner. At the same time appellants shall also execute Form No. 35 in favour of the respondent-insurance company to deal with the vehicle in the event of its being traced out. In case any other or further document(s) is required to be executed, then the appellants shall do the needful at the cost and expense of the respondent-insurance company. Complaint was originally filed by Mr. Inder Singh husband of Smt. Ganga Thakur, father of respondent Sachin Thakur, Sahil Thakur, Sanchit Thakur and son of Gauri Devi. He died during the pendency of the complaint. Application to substitute the appellants was allowed by the District Forum on 18.5.2007. Neither the office of District Forum below, nor the President of District Forum have bothered to carry out necessary correction in the record. Since the appellants are class-I heirs of the deceased Inder Singh Thakur owner of the vehicle, they shall be entitled to share the amount of compensation with interest as well as cost in equal shares. Appeal is disposed of in these terms after setting aside the order of District Forum Shimla, Camp at Solan, in Consumer Complaint No. 54/2004 dated 14.12.2007.
Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.