Appeal No.1232/08

Shri Mal Singh and Govind Singh V. United India Insurance Co.Ltd.


Before:


Mr.Justice Sunil Kumar Garg-President

Mrs.Vimla Sethiya-Member


Shri P.K.Khetan,counsel for the appellants

Shri Rishi Pal Agarwal,counsel for the respondent



Date of judgement: 3.3.2009

This appeal has been filed by the complainant appellants for enhancement of the amount, against the majority order dated 26.5.08 passed by the District Forum,Sikar in complaint no.531/2000,by which the complaint of the complainant appellants was dismissed though one learned Member had allowed the complaint for a sum of Rs.1,50,000/-,the amount as assessed by the surveyor.


It arises in the following circusmtances:


That the complainant appellant had filed a complaint against the respondent insurance company before the District Forum,Sikar on 27.11.2000 interalia stating that he has got his jeep bearing no.RJ.23.C.2479 insured with the respondents insurance company for the period 28.5.99 to 27.5.2000 for a sum of Rs.3 lacs. It was further stated in the complaint that on 18.4.2000 when the jeep was carrying some passengers on account of the marriage of the son of the friend, a tanker had caused accident with the jeep as a result of which some persons

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sitting in the jeep were died and some injured and the jeep in question was totally damaged. It was further stated in the complaint that in getting the repair of the vehicle, a sum of Rs.2,70,609.63/- were spent though the surveyor had assessed the loss to the tune of Rs.2,10,000/-,therefore,that amount be ordered to be paid.


A reply was filed by the respondent insurance company before the District Forum,Sikar on 19.2.01 interalia stating that since at the time of accident,the vehicle in question was being used for hire purposes,therefore,claim was not payable as by using the vehicle for hire purposes,the complainant appellant had violated the terms and conditions of the policy and it was prayed that the complaint be dismissed.


It may be stated here that initially the complaint was dismissed by the District Forum through order dated 24.7.01 interalia holding that the matter could be decided by the Civil Court and thereafter an appeal bearing no.1124/01 was filed by the complainant appellant and appeal was allowed and matter was remanded back to the District Forum and thereafter a fresh impugned order dated 26.5.08 was passed by the President and One Member by which the complaint of the complainant appellants was dismissed interalia holding that since the jeep in question at the time of accident was using for hire purposes,therefore,claim was not payable.


Aggrieved from that order,this appeal has been filed by the complainant appellants.


In this appeal,the main contention of the learned counsel for the complainant appellants is that the findings recorded by the District Forum by which the complaint was dismissed on ground of use of the vehicle for commercial purposes are erroneous one as there is nothing on record to prove the fact and further if the same is held like that even

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then,dismissal of the complaint in toto was not justified at all.


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


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


In this case the fact that the vehicle had met with an accident on 18.4.2000 is not in dispute and there is also no dispute on the point that the accident was caused by the tanker with the jeep and challan had been filed for offences u/s 304 IPC against the driver of the tanker Mohan Singh, the copy of the challan had been filed by the learned counsel for the respondent insurance company before this Commission. From the challan it is also very much clear that 3 persons sitting in the jeep had died on the spot and some were injured. Thus the case of the respondent insurance company that the vehicle in question was being used for hire purposes could be found established as many persons were sitting in the jeep and on file there is a report of Shri Suraj Mal Meel dated 4.7.2000 that the jeep in question was being used for hire purposes.


For reasons as stated above,it is held that at the time of accident,the jeep in question was being used for hire purposes,but the accident was caused by the driver of the tanker.


When the jeep in question was being used for hire purposes,in such cases,repudiation of the claim in toto could not be justified as though the use of the vehicle might be irregular but that was not sufficient to repudiate the claim in toto and in our considered opinion,in such cases,the claim should be treated as sub standard. Thus,the findings recorded by the District Forum by which the complaint was dismissed in toto,could not be sustained.

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On file,there is a report of the surveyor,Shri S.K.Dhamija & Associates dated 5.6.2000 which shows that the loss assessed by the surveyor was to the tune of Rs.1,50,000/- and thus,this Commission is of the view that the complainant appellants are entitled to 75% amount of Rs.1,50,000/- that comes to Rs.1,12,500/- with interest @ 9% p.a from the date of filing of the complaint till the payment is made with Rs.5000/- as amount of cost of litigation.


For reasons as stated above,this appeal filed by the complainant appellants is allowed,majority order dated 26.5.08 passed by the District Forum,Sikar is quashed and set aside and the complaint filed by the complainant appellants is partly allowed in the manner that the respondent insurance company would pay a sum of Rs.1,12,500/- with interest @ 9% p.a to the complainant appellants from the date of filing of the complaint till the payment is made alongwith cost of Rs.5000/-. Thus the order dated 26.5.08 passed by the Single Member of the District Forum,Sikar stands modified in the manner as indicated above.



Member President