H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA.

Appeal No. 391/2008.

Date of Decision 24.07.2009.

In the matter of:



Smt. Palwinder Kaur W/o Sh. Sajjan Singh

R/o Vill. Raipur Sahoran, Tehsil & District Una

through her husband as General Power of Attorney

S. Sajjan Singh Gill son of Shri Jagir Singh R/o Vill. Raipur

Sahoran, Tehsil & Distt. Una, HP.

… … Appellant.

Versus



The Oriental Insurance Company Ltd. through its

Branch Manager, Railway Road, Nangal Dam,

Tehsil Anandpur Sahib, District Ropar, Punjab.

… … 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 Appellant: Mr. Jai Dev, Advocate vice counsel

Mr. Naresh Kumar Thakur, Advocate.



For the Respondent: Mr. Anil Tomer, Advocate vice counsel

Mrs. Seema Sood, Advocate.

O R D E R



Justice Arun Kumar Goel (Retd.), President (Oral).



This appeal was heard on 17.7.2009 and is listed today for dictating orders. Appellant is aggrieved from the order passed by District Forum, Una in Consumer Complaint No. 156/2007. By means of impugned order complaint filed by the appellant has been dismissed solely on the ground, that the condition regarding limitation as to use contained in cover note Annexure C-3 filed by the appellant (its copy is Annexure R-3) was violated.

2. Before dealing with the merits of this case it may be appropriate to mention here, that vehicle being insured on 4.10.2006 when mishap occurred and as a result, it caught fire due to sudden blast of cylinder is not in dispute. FIR No. 92/2006 was registered regarding this incident is again established. Surveyor was appointed on receipt of information by the respondent-Insurance Company. Report of the surveyor is Annexure R-1. In accordance with this report, appellant is entitled to Rs. 60,578/-, whereas according to the appellant he had spent a sum of Rs. 1,31,600/-. Another fact that needs to be noted here is, that the appellant had also approached the Ombudsman of Insurance Company at Chandigarh and his claim was rejected on 14.6.2007. This dismissal was also bad in law according to her. After rejection of her claim, complaint was filed with a prayer to allow Rs. 1,31,600/- alongwith 9% interest as well as compensation in the sum of Rs. 20,000/- besides Rs. 5,000/- as litigation cost.

3. When put to notice, complaint was resisted on a number of grounds. However pith and substance of the defence of the respondent is that truck bearing registration No. HP-B20-5315 left Mandi with filled cylinders from Mehatpur and after parking the truck near Lathaini Sidh Chano Mandir, its driver alongwith one Gaggan Singh started taking meals. In the mean time another truck loaded with empty cylinders was also parked there. They heard sound of cylinders in the truck and thereafter said Ashwani Kumar and Gaggan Singh went to his truck and found that one filled cylinder was missing and the driver of truck No. HP-20-5315 drove his truck rashly towards Bangana. Police was informed and it followed the truck No. HP-20B-5315 by a jeep upto village Nalwari, but its driver jumped out of the truck and as a result of it, this truck fell down about 20 feet deep. Police also reached at the spot and found one filled cylinder as also truck No. HP-20B-5315 having caught fire. Driver had stolen the filled cylinder. Accident was a result of driving the truck rashly and negligently, as such claim was not payable. Rejection of claim by Insurance Ombudsman, Chandigarh was also set up as defence for rejection of the complaint. District Forum below after hearing the parties and as already observed by placing reliance on the limitation as to use as contained in the cover note dismissed the complaint, hence this appeal.

4. After having heard learned counsel for the parties, as also having examined the cover note Annexure C-3 as well as its copy Annexure R-3, we are of the view that this was not a case of either organized racing or speed testing. We are further of the view that the view taken by District Forum below by invoking limitation as to use as contained in the two referred Annexures was wholly inapplicable to the facts and circumstances of this case. This clause has been wrongly invoked by the District Forum below.

5. In this behalf submission urged by Mrs. Sood for upholding the order needs to be noted. According to her after having stolen and filled gas cylinder from the vehicle in question, driver indulged into rash and negligent driving by driving the vehicle at excessive speed and thus committed violation of the insurance policy. According to her by driving the vehicle at a fast speed, in a rash and negligent manner at an excessive speed, clause governing limitation as to use of insured vehicle was clearly applicable to the facts of the present case. We find no substance in this submission, driving vehicle in rash and negligent manner is neither a case of organized racing nor speed testing, as such not covered by any of the grounds covered for excluding the liability of insurance by invoking the clause pertaining to limitation as to use. Once this conclusion is arrived at, then decision of this case need not detain us.

6. Again faced with this situation Mrs. Sood submitted that in case the impugned order is not upheld and consequently complaint is allowed, it will tantamount to putting premium on the act of theft of the driver who with a view to save his skin drove the vehicle in a rash and negligent manner. We do not agree with her for the view that we have taken in relation to the interpretation of limitation as to use in this case.

7. No other point is urged.

In view of the aforesaid discussion, we are of the view that this appeal deserves to be allowed. Ordered accordingly. Consequently while partly allowing this appeal, order passed by District Forum, Una in Consumer Complaint No. 156/2007, on 21.11.2008 is set aside thereby allowing the complaint and holding that the respondent-insurance company is liable to pay Rs. 60,578/- as assessed by the surveyor in his report Annexure R-1 alongwith interest @ 9% per annum from the date of filing of the complaint, i.e. 29.11.2007 till the date of payment/deposit whichever is earlier. Appeal is accordingly allowed subject to these directions, leaving the parties to bear their own costs.

Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.

Shimla,

July 24, 2009. ( Justice Arun Kumar Goel ) (Retd.)

President.



(Saroj Sharma)

Member.



( Chander Shekher Sharma )

/Karan/ Member.