NATIONAL INSURANCE CO. vs PRATAP SINGH BARGLEY

THIS is an appeal against the order dated 6.8.1998 passed by the District Forum, Nainital whereby the appellant was directed to pay a sum of Rs. 14,686.88 (Rupees fourteen thousand six hundred eighty-six and eighty-eight paise) along with interest @ 12% from 15.9.1992 till the date of actual payment.

THE brief facts of the case are that the complainant Sh. Pratap Singh Bargley lodged a complaint with the allegations that he is the owner of vehicle No. UAB/4007 and the vehicle is insured with the opposite party, Insurance Company. THE complainant alleged that on 15.9.1991 his vehicle was coming from Sitarganj to Haldwani. Unfortunately due to coming of animal in front of the vehicle and due to failure of the brakes, the vehicle went out of control, due to which the vehicle fell down in the Nala and because of heavy flow of water his vehicle was damaged. THE report was lodged in Thana Chorgalia the same day. He made an estimate of the damaged vehicle, which came to Rs. 16,186/- (Rupees sixteen thousand one hundred eighty-six). He lodged his claim with the Insurance Company. He alleged that opposite party vide its letters dated 6.3.1992 and 30.6.1992 informed him that the vehicle was damaged due to flood and the vehicle in question was not insured in respect of loss due to flood, therefore, his claim has been repudiated. The opposite party filed written statement and alleged that the vehicle was damaged due to flood, which loss was not covered under the policy.

After taking the evidence of the parties and hearing them, the learned Forum allowed the complaint. Against which order the present appeal has been filed.

NOTICE was issued to the opposite party. It did not return unserved. It is presumed to have been served. Therefore the appeal was heard ex parte. We have heard the learned Counsel for the appellant and gone through the records. The only question is that whether there has been deficiency in service on the part of the appellant in repudiating the claim of the complainant or not? The insurance is admitted. The information of the alleged accident is also admitted. On 17.9.1992, the complainant again informed the Insurance Company that when his vehicle was coming from Sitarganj to Haldwani, in Shernala in process of saving animals and due to brake failure, his vehicle went out of control and fell down in Khud, due to which his vehicle was badly damaged.

THE Insurance Company appointed Surveyor to assess the loss. THE Surveyor investigated the vehicle and after investigation, he assessed the loss of the complainant to the tune of Rs. 14,686.88 (Rupees fourteen thousand six hundred eighty-six and eighty-eight paise). In his report, Sh. Denesh Kumar Saxena in heading Labour Charges has mentioned labour charges for brake overhauling and also chassis front cross member repairing. THE labour charges shown in the survey report for brake overhauling and chassis front cross member repairing shows that the brake of the vehicle was not working properly and repairing of chassis from cross member is also caused due to some type of jerk which is only possible when it had some problem. Surveyor Sh. Saxena in his report has also mentioned the name of the driver Sh. Khim Singh and has also mentioned in driving licence number which was valid up to 10.10.1993 and in details of passengers has written that there were 10 persons including driver and conductor in the said bus at the time of incident. THEre is no affidavit or statement of driver Sh. Khim Singh or conductor or even the other passengers said to be travelling in the said bus at the time of accident. THE Surveyor did not record the statement of any of the passengers travelling in the bus that the accident took place only due to flood and there was no brake failure to avoid accident with cattles. In absence of such material evidence of the driver and passengers, the Insurance Company was not justified in repudiating the claim of the complainant. The opposite party challenged the contention of the complainant that due to brake failure his vehicle fell down in a Khud. The complainant informed this fact to the Insurance Company on 15.9.1991 itself. He also lodged the F.I.R. Again he wrote a letter on 17.9.1991 and alleged in process of saving animals and due to brake failure, his vehicle went out of control and fell down in a Khud. The contention of these two letters of the complainant is very much the same. It appears that in the letter dated 15.9.1991, the word of brake failure is an omission but in his letter dated 17.9.1991, he clearly mentioned that in process of saving animals and due to brake failure, his vehicle fell down in a Khud. There is no evidence to disbelieve this contention of the complainant. The complainant also filed the copy of FIR, which also supports the very case of the complainant. The Surveyor also relied only on the study as subsequently put in by the complainant. In our view there is no evidence on record to disbelieve the case of the complainant. In view of supporting documents and in absence of any statement of driver, conductor, and other passengers from whom the Surveyor did not investigate the case of the appellant cannot be accepted.

IN view of what has been said above the INsurance Company was definitely deficient in its service in repudiating the claim and the learned Forum was perfectly justified in allowing the complaint.

WE do not find any force in this appeal and the appeal is liable to be dismissed. ORDER The appeal is hereby dismissed. Cost of this appeal shall be easy. Appeal dismissed.