Appeal No.1312/08

The Oriental Insurance Co.Ltd. V. Kamlesh Tiwari


Before:


Mr.Justice Sunil Kumar Garg-President

Mr.G.S.Hora-Member


Shri Virendra Saraswat,counsel for the appellant

Shri Satish Khandal for the respondent



Date of judgement: 6.4.2009


This appeal has been filed by the appellant insurance company which was op before the District Forum-I,Jaipur against the order dated 30.5.08 passed by the District Forum-I,Jaipur in complaint no.253/05,by which the complaint of the complainant respondent was allowed against the appellant insurance company in the manner that the appellant insurance company was directed to pay a sum of Rs.1,99,500/- to the complainant respondent with interest @ 7% p.a wef 1.6.04 and further to pay Rs.2000/- as amount of cost and if the above amount was not paid within one month,the rate of interest charged would be 12% p.a.


It arises in the following circumstances:


That the complainant respondent had filed a complaint against the appellant insurance company before the District Forum-I,Jaipur on 28.3.05 interalia stating that a mini truck bearing no.RJ.14.1G.7013 was got insured with the appellant insurance company for the period 20.6.03 to 19.6.04 for a sum of Rs.4 lacs. It was further stated in the complaint that the said truck had met with an accident on 16.2.04 and the driver in the

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vehicle of the complainant respondent was Rajeev Choudhary and in that accident one Sushil Kumar had died . It was further stated in the complaint that a FIR bearing no.28/04 was got lodged with the police station,Shivdaspura,District Jaipur on 16.2.04 of that accident and the police after investigation had submitted a challan against Rajeev Choudhary,the driver of the vehicle of the complainant respondent for committing offences u/s 304 A IPC as in that accident one Sushil Kumar had died as two trucks had collided with each other. It was further stated in the complaint that the information of the accident was given by the complainant respondent to the office of the appellant insurance company and as per the case of the complainant respondent a sum of Rs.4,07,280/- were spent in getting the repair of the truck and since that amount was not paid by the appellant insurance company,the complaint was filed.


A reply was filed by the appellant insurance company before the District Forum-I,Jaipur on 20.2.06 admitting the fact that the truck in question was insured with the appellant insurance company and it was further stated that since the driver in the truck was Sushil Kumar and not Rajeev Choudhary and Sushil Kumar was not having a valid licence,therefore,on that ground claim was not payable and it was further stated in the reply that the surveyor Shri J.S.Macker was appointed who had given the final report on 24.5.04 in which he had come to the following conclusion:

Comparision of Liabilities.

Gross Loss Salvage cost Net Loss

On Repair basis 1,71,542.00 7,542.00 Rs.1,64,000.00

On Cash Loss basis 1,31,762.00 6,762.00 Rs.1,25,000.00

On net loss basis 3,99,500.00 2,00,000.00 Rs.1,99,500.00.

Therefore,the complaint be dismissed.


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The District Forum after hearing both the parties,through the impugned order had allowed the complaint interalia holding that the appellant insurance complany had failed to prove the fact that at the time of accident Sushil Kumar was the driver and not Rajeev Choudhary and thus,it was held that the driver of the vehicle of the complainant respondent at the time of accident was Rajeev Choudhary against whom challan had been filed and for coming to the above conclusion the District Forum had placed reliance on judgement dated 16.1.07 passed by the MACT,Jaipur in claim no.486/05 where while deciding issue no.1 the Tribunal had come to the conclusion that at the time of accident the driver was Rajeev Choudhary and further on point of assessment of loss,the District Forum had come to the conclusion that so far as the amount of loss on cash loss basis to the tune of Rs.1,25,000/- was concerned,since that amount was not found acceptable by the appellant insurance company,therefore,the appellant insurance company now could not settle the claim on the basis of cash loss basis and taking into consideration that the surveyor had assessed the loss on net loss basis to the tune of Rs.1,99,500/-,the claim was decreed for the above amount.


Aggrieved from that order,this appeal has been filed by the appellant insurance company and in this appeal,the learned counsel for the appellant has raised the following points:

1.

that the findings recorded by the District Forum by which it was held that at the time of accident,the driver was Rajeev Choudhary are erroneous one, but on the contrary,the driver was Sushil Kumar who was not having a valid licence,therefore,on ground of licence the claim was rightly repudiated.
2.

That since on 24.5.04 the complainant respondent had offered to settle the claim on cash loss basis,therefore,decreeing the claim on net loss basis was not justified and it was prayed that the appeal be allowed accordingly.


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On the other hand,the learned counsel for the complainant respondent has supported the impugned order.


We have heard the learned counsel for the parties and perused the record.


In this case,there is no dispute on the point that the truck in question was got insured for a sum of Rs. 4 lacs for the period 20.6.03 to 19.6.04 and there is also no dispute on the point that the the vehicle in question had met with an accident on 16.2.04 and a report was lodged with the police and the police after investigation had submitted a challan against the driver of the vehicle of the complainant respondent for committing offences u/s 304 A IPC. There is also no dispute on the point that the surveyor appointed by the appellant insurance company had submitted his report on 24.5.04 in which he had assessed the loss on three points as stated above. Further,there is also no dispute on the point that the MACT in judgement dated 16.1.07 had come to the conclusion that at the time of accident,the driver was Rajeev Choudhary.


So far as the case of the appellant insurance company that the driver was Sushil Kumar is concerned,this plea could not be accepted because of the simple reason that even the MACT Tribunal had come to the conclusion that the driver was Rajeev Choudhary and not Sushil Kumar,therefore,this Commission is also of the same view that at the time of accident Rajeev Choudhary was the driver and thus first point raised by the learned counsel for the appellant stands rejected.


On second point,it may be stated here that no doubt,the complainant respondent had offered on 24.5.04 to settle his claim for a sum of Rs.1,25,000/- on cash loss basis but since this submission was not accepted by the appellant insurance company and thereafter the complainant respondent had to file the complaint on

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28.3.05,therefore,now the appellant insurance company could not take the benefit of letter dated 24.5.05 and thus,when this being the position,if the District Forum had passed a decree for a sum of Rs.1,99,500/- taking into consideration the loss on net loss basis,we see no illegality in the impugned order passed by the District Forum and thus,the findings recorded by the District Forum so far as the merits of the case is concerned, are liable to be confirmed one and appeal deserves to be dismissed.


On point of interest.


The District Forum had stated that in case the amount was not paid within one month,the rate of interest charged would be 12% p.a and in our considered opinion,the same is to be reduced to 9% p.a in place of 12% p.a. To that extent,the impugned order deserves to be modified.


For reasons as stated above,this appeal filed by the appellant insurance company is dismissed. However on point of interest it is ordered that the complainant respondent would be entitled to interest @ 9% p.a in place of 12% p.a and to that extent,the impugned order dated 30.5.08 passed by the District Forum-I,Jaipur be treated as modified.




Member President