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Judgment
B.L. Bhat, J.—This letters patent appeal is directed against the judgment dated 26.2.2002 recorded by the learned Single Judge in O.W.P.
No. 1091/2001 titled as New India Assurance Co. Ltd. v. Smt. Neelam Kumari.
The facts leading up to this appeal are that a petition in terms of Section 10 of the J&K Consumer Protection Act, 1987 came to be filed by the
respondent No. I/complainant before the Divisional Forum constituted under the said Act (hereinafter referred to as Divisional Forum) alleging
therein that her husband, namely, Surinder Kumar Sehgal was an Auto Rickshaw Driver, he had obtained Janta Personal Accident Policy in the
sum of Rs. 2.00 lakhs from the appellant/opposite party-New India Assurance Co. Ltd., Branch Shalamar, Shalamar Road, Jammu which was
valid from 6.12.1996 to 5.12.1999. That on 9.7.1997, Surinder Kumar Sehgal-husband of the respondent No. 1/ complainant was repairing his
Auto Rickshaw on the road side at Prem Nagar, Jogi Gate, Jammu when he was knocked down by another Auto Rickshaw which was coming
from the opposite direction as a result of which said deceased-insured sustained head injury; medical treatment was given to him by taking him to
Dr. Satish Mehta Clinic and Research Centre Private Ltd., Shalamar Road, Jammu but he died on 22.10.1997 on account of the said head injury.
That the respondent No. I/ complainant being the nominee and legal heir of the deceased-insured raised insurance claim with respect to the death
of the deceased-insured on account of accident with the appellant/opposite party who refused to give the same. That the appellant-Insurance
Company resisted the petition by filing its objections, wherein, it admitted the insurance of the deceased-insured and resisted to give the insurance
claim inter alia on the ground that an independent investigator was appointed to investigate the claim of the respondent No. 1/ complainant who
had opined that the deceased-insured had not died due to the alleged accident and that the respondent No. 1/complainant failed to furnish the
documentary proof in support of the death of her husband. That the respondent No. 1/complainant had failed to establish her claim and, therefore,
the insurance claim is not payable. In support of her petition, the respondent No. 1/complainant before the Divisional Forum filed her own affidavit
and that of one Bhajan Kumar and Dr. Satish Mehta, she has also produced certificate issued by the said Doctor dated 10.3.1998 and also a
copy of the Report No. 11 of the Police Daily Dairy dated 10.1.1997 (sic). On the other hand, appellant filed the affidavit of the Administrative
Officer, namely, J.L. Koul and also a report of the Investigator, namely, S.B. Bakshi. The Divisional Forum below after discussion of the affidavits
produced by the parties in support of their respective claims, came to dismiss the complaint by virtue of its order dated 29.9.2000. This order of
the Divisional Forum came to be challenged before the J&K State Consumer Protection Commission, Jammu (hereinafter referred to as State
Commission), who on re-appraisal of the evidence of the parties came to accept the appeal after setting aside the order recorded by the Divisional
Forum and accordingly came to award Rs. 2.00 lakhs as insurance claim to the respondent No. 1/complainant together with interest at the rate of
9 per cent against the appellant-Company. The appellant-Company came to assail his judgment and order by invoking the writ jurisdiction of this
Court. The learned Single Judge of this Court by virtue of his judgment dated 26.2.2002 came to dismiss the petition after holding that:
I am of the opinion, that this is a finding of fact which cannot be reappreciated in the exercise of writ jurisdiction. These findings are even
otherwise based on sound reasoning. This petition as such is found to be without merit and is dismissed.
The stand of Mr. R.K. Gupta, learned Counsel for the appellant-Insurance Company is that the report with respect to the alleged accident made
by the deceased-insured was not immediately lodged before the concerned police and the same came to be lodged after the death of the
deceased. That the deceased after sustained head injury was removed to private clinic instead of Government Hospital and that no post-mortem of
the dead body of the deceased was conducted and not to speak of furnishing the report before the appellant-Company for the settlement of the
insurance claims.
On the other hand the stand of Mr. Bali, learned Counsel for the respondents is that report filed by the Private Investigator appointed by the
appellant in the case fully establish the fact that there is nexus between the vehicular accident and the death of the insured, therefore, under all
circumstances, appellant is liable to pay the insurance claim to the respondent No. 1/complainant she being the nominee of the insurance policy in
question and legal representative of the deceased-insured who lost his life in the vehicular accident in question.
Considered the rival contention of the learned Counsel for the parties. The contention of the appellant is that on receipt of intimation from the
respondent No. 1/complainant with respect of the death of her husband-insured, who had expired on 10.9.1997, one Mr. S.B. Bakshi,
Investigator and Private Detective came to be appointed by the appellant-Company to investigate the matter, he has submitted his report which is
on the record of this case. In this report, the Investigator Mr. S.B. Bakshi while giving factual position of the case has inter alia stated that he made
inquiries with respect to this episode and found that insured Surinder Kumar Sehgal had family relations with Bharat Bhushan another Auto Driver
who knocked him down while driving his Auto Rickshaw No. 6755-JK02D en route to City of Jammu from Gujjar Nagar where he had gone to
drop a passenger, as a result of which blood started oozing from his nose. He was removed by another Auto Rickshaw bearing No. 9476-JK02E
to Janipur, where one Dr. R.K. Raina advised for his treatment with further advice to take the deceased to Medical College Hospital, Jammu
because of head injury. But the deceased-insured with the intention to save Bharat Bhushan from a criminal action refused to remove to the
Medical College Hospital, Jammu, therefore, he was taken to the Clinic of Dr. Satish Mehta at Shalamar Road, Jammu where his treatment was
started but due to the head injury he was unable to drive his vehicle for the whole day. This report further reveals that on the inquiries from Dr.
Mehta about 'Subdural Haemotoma' the Doctor opined that this 'Subdural Haemotoma' due to the head injury might remain silent and can prove
fatal later on by causing death. This report of the Investigator is binding upon the appellant because it is the appellant who has produced it. From
this report, it is proved that the insured Surinder Kumar Sehgal died because of the head injury on 22.10.1997 which he sustained in a vehicular
accident on 10.9.1997 at Prem Nagar, Jogi Gate, Jammu. The reason for lodging delayed report about the accident before the Police also stands
explained in the report of the said Investigator who as indicated has stated in the said report that due to close family relations the insured did not
want to get his friend Bharat Bhushan involved for a criminal action by whose act he was knocked down by an auto and sustained the head injury.
Dr. Mehta has admittedly issued a medical certificate of the deceased wherein he has found 'Subdural Haemotoma' on the head of the insured, the
most vital part of a human body. Besides lodging of delayed report with the Police concerned with respect to the accident can by no stretch of
imagination through the case of the petitioner out, because FIR does not carry the same importance in a civil case as it carried with respect to a
criminal case. Rule of law is that the civil cases are always decided on preponderance of evidence. Besides this, there is nothing in the evidence of
Dr. Mehta that the insured-deceased died a natural death when he as per the report of the Investigator has stated before him that the insured had
sustained 'Subdural Haemotoma' due to head injury which might remain silent and prove fatal later on by causing death. Learned State Commission
has appreciated this report of the Investigator and opinion of Dr. Mehta in right prospective and same cannot be said perverse or erroneous.
It is well-settled that High Court acting in its writ jurisdiction cannot exercise its power as an Appellate Court or substitute its own judgment in
place of that of the subordinate Court or Tribunal to correct an error which is not apparent on the face of record. This is also settled that High
Court can set aside or ignore the findings of facts of an inferior Court or Tribunal, if there is no evidence at all to justify or the finding is so perverse,
that no reasonable person can possibly come to such a conclusion to which Court or Tribunal has come. The learned Single Judge has rightly
observed that this is a finding of fact which cannot be re-appreciated in the exercise of the writ jurisdiction when these findings are even otherwise
based on sound reasoning.
Viewed thus, appeal in hand does not suffer from any infirmity or error of law, the same is liable to be dismissed. Therefore, appeal is
disallowed. The amount of compensation which stands deposited in this Court be released forthwith in favour of the respondent No. 1/
complainant.