NEW INDIA ASSURANCE CO. LTD. vs S.PUSHPADEVI JAMAD

THIS is an application under Section 5 of the Limitation Act for condonation of delay. The facts in the application make out a sufficient cause for condonation of delay. The delay in filing the appeal is condoned and the appeal is entertained.

FIRST Appeal No. 249 of 1993 This is an appeal against the order of the State Commission, Tamil Nadu at Madras dated 6.4.93 in O.P. No. 340/92. The New India Assurance Co. Ltd. is the Appellant herein and Mrs. S.Pushpadevi Jamad and Mr. B. Palanival are Respondents Nos. 1 & 2 respectively before us. The Respondent No. 1 is a Financier and financed the purchase of a second hand Ashok Layland Lorry bearing registration No. TSJ 8496 bought by Shri B. Palanivel, Respondent No. 2 herein on a hire purchase agreement on 25.7.92. This lorry was registered in the name of the Respondent No. 2 with an endorsement IMT-10 Hire Purchase which reads as follows : "IMT"10 Hire Purchase: It is hereby understood and agreed that ......(hereinafter referred as the owners) are the owners of the Agreement made between the owners on the one part and insured of the other part arid it is further understood and agreed that the owners are interested in any monies which but for the endorsement would be payable to the insured under this policy in respect of loss or damage to the Motor Vehicle (which loss or damage is not made good by repair reinstatement or replacement) and such moneys shall be paid to the owner as they are the owners of the motor vehicle and the receipt shall be a full and final discharge to the company in respect of such loss or damage.".

This lorry was taken possession of by the Financier Mrs. S.Pushpadevi Jamad, Respondent No. 1 herein on or about 23.9.91 when the insured truck loaded with machinery for delivery to M/s. BEML at Patna was proceeding on the way, against the Will and consent of the Registered owner, who had purchased it on hire purchase. This vehicle met with an accident at Palavalasa when it was in the custody and possession of Financier and her husband. They are alleged to have shifted the goods to another vehicle and left the insured vehicle unattended at the site of accident where it remained lying abandoned and unguarded till 27.3.91 when some people are alleged to have set this vehicle on fire causing heavy damage to it. Smt. S.Pushpadevi Jamad, the Financier of the truck filed a claim on 15.4.91 on behalf of and in the name of the Registered Owner Shri B. Palanivel with the Appellant-Insurance Company. The Appellant-Insurance Co. on the receipt of the said claim appointed an independent Surveyor and also got the matter investigated in regard to the fire from Mr. S.K. Patnaik. The Investigator vide his report dated 30.12.91 opined that the fire was caused either by the owner or his Agent and not by any miscreant. It was also reported by them that no FIR was lodged by the said Financier. Consequently, the New India Assurance Co. Ltd. vide their letter dated 27th February, 1992 addressed to Mr. B. Palanivel, Respondent No. 2, repudiated the claim on the ground that the alleged circumstances of the loss of the vehicle were suspicious and unconvincing and also that there were serious lapses on the part of the Financier in not intimating the developments regarding the possession of the vehicle and also leaving it unattended for nearly 10 days. The Insurance Co. also mentioned in this letter that neither the owner of the vehicle nor the Financier cared to intimate the, change of ownership and the events regarding the seizing of the vehicle by the Financier from the owner. The State Commission, Tamil Nadu at Madras after examining the record came to the conclusion that the Financier was entitled to maintain the claim in view of the hire purchase clause in the policy of insurance which has been reproduced f as IMT 10 Hire Purchase earlier, against the Insurance Company and therefore, allowed the complaint awarding a sum of Rs. l,18,500/-with interest at 12% per annum from the date of the f claim till payment.

WE have heard the Counsel for both the parties and have gone through the records of the case carefully. We find substance in the argument advanced by New India Assurance Co. Ltd. in their letter dated 27thFebruary, 1992that the fact regarding the change of possession of the lorry from the hands of Mr. B. Palanival " hire purchaser to Mrs. S.Pushpadevi Jamad, the Financier was not intimated to the Company before filing the claim. In any case the letter of repudiation by the Insurance Co. gives specific and clear reasons for not accepting the claim. In the face of it, we accept this appeal and set aside the order of the State Commission on the ground that no deficiency in service on the part of the Insurer is made out. The Respondents are at liberty to approach the Civil Court for seeking any relief, if so advised, in accordance with law. There will be no order as to costs.