New India Assurance Co.Ltd vs AJIT KUMAR SINGH

THE present appeal is directed against the order dated 18th May, 1994 passed by the District Forum, Hazaribagh, in Case No. 94 of 1993 directing the appellant company (opposite party in the complaint case) to make payment of Rs. 35,000/- alongwith interest amount of Rs. 10,500/- to the respondent (complainant in the complaint case) within one month of the order failing which the appellant would be liable to pay interest on the above amount at the rate of 18%.

THE brief facts leading to this appeal are that the respondent, Sri Ajit Kumar Singh, got his Tata 407-BR-13-L-0858 insured for compre- hensive risk with the appellant company under policy No. 31540604-01135 dated 27.6.1990. THE above vehicle met with an accident at Rajauli Ghati on 1.1.1991. On receipt of information of the accident from the respondent, the appellant deputed surveyor to conduct the spot survey. THE appellant then deputed Parminder Singh of M/s. Kaira & Co. who approved a sum of Rs. 35,000/- as insurance amount against claim of Rs. 50,000/- furnished by the respondent. This amount was also not paid by the appellant in spite of several requests. THE respondent then wrote to the appellant on 31.7.1992 for early payment of insurance claim. In reply the appellant sent their letter dated 26.8.1992 that they were enquiring into the matter. Finding no positive response from the appellant towards finalisation of insurance claim, the respondent filed the complaint case on 3.7.1993 before the District Forum with a prayer for award of (a) Rs. 35,000/- as claim amount; (b) interest on the above amount w.e.f. 1.1.1991 till 30.6.1993 - Rs. 10,500/-; (c) a sum of Rs. 5,000/- as damages. The opposite party-appellant filed written statement before the District Forum and contested the case. The opposite party in its written statement denied any deficiency in service and raised the issue of maintainability. Further case of the opposite party was that the insurance claim of the respondent had been repudiated by the appellant as per letter of repudiation dated 14.3.1992. The complaint case was filed on 3.7.1993 after expiry of one year and as such it was time-barred. It was further alleged that on investigation it was detected that the driver of the vehicle namely Binod Kumar Singh had no valid licence as he had no badge number in his driving licence at the time of alleged accident which is in contravention of Section 3 of M.V. Act, 1988. This according to the appellant was a gross violation of insurance policy contract. They had therefore repudiated the claim of the respondent according to the terms of insurance contract.

It may be pointed out that neither the complainant (respondent in this appeal) nor the opposite party (appellant) adduced any evidence before the District Forum in support of their respective cases. The complainant did not swear even an affidavit in support of the allegations made in the complaint petition. Similarly the opposite party also did not swear an affidavit in support of its case in the written statement. The complainant filed photo copies of two letters and one driving licence but no affidavit was filed to the effect that the photo-copies of letters and licence were true photo-copies of their originals. In the written statement the opposite party is silent about the photo-copies of the said two letters but as regards the licence it has been alleged ''that the driver having no badge number was driving without valid licence. Similarly photo-copy of one letter dated 14.3.1992 and one application dated 3.3.1992 was filed by the opposite party before the District Forum by way of annexures to the written statement but there was no affidavit to the effect that the photo- copies were true photo-copies of their originals. The complainant in para 6 of his rejoinder dated 22.2.1994 to the written statement has alleged that the aforesaid letter dated 14.3.1992 is a fabricated document. In the complaint petition it has been alleged that Surveyor, Parminder Singh of M/s. Kaira & Company approved his claim for Rs. 35,000/-. In the written statement the opposite party kept mum about the said allegation in the complaint petition but in para 3 (IV) of the memo of appeal it has been alleged that the said surveyor assessed the loss at Rs. 26,900/- subject to submission of papers of the vehicle such as driving licence, registration certificate, route permit, fitness certificate, tax token etc. together with bills and cash memo of repairers and suppliers of parts and surrender of salvage items. It may be pointed out that the report of M/s. Kaira & Company was not produced before the District Forum by the parties. Though it is not disputed that the vehicle in question was a passenger motor vehicle and was insured for comprehensive risk with the appellant Company during the relevant period and had met an accident on 1.1.1991 at Rajauli Ghati but it has been alleged in para 11 of the written statement that there was gross violation of policy contract. For ascertaining if there was violation of policy contract or not, copy of the insurance policy should have been brought on record but none of the parties did so.

IT is the specific case of the opposite party appellant in the written statement that the driver of the vehicle had no badge number and as such he was driving the vehicle in question without valid licence in contravention of the provisions of the M.V. Act. In this connection the complainant in para 8 of his rejoinder dated 22.2.1994 has alleged that there is no law requiring endorsement of badge number in the licence. In the record of the District Forum there is letter No. 857 dated 25.4.1994 of the District Transport Officer, Hazaribagh which is to the effect that there is provision for issuing badge number to the driver of Public Service Vehicle but the same was not being issued for several years due to non-availability of badge. IT has been further stated in the letter that under the circumstances an endorsement to the effect that "badge out of stock" is made in the licence of the driver on deposit of necessary fee. As is apparent, the letter of District Transport Officer speaks of general practice in the matter. Whether the driver of the vehicle in question had deposited the required fee for badge or not and whether an endorsement to the aforesaid effect had been made in his licence or not is not clear from the letter of the District Transport Officer. This aspect of the matter also requires some evidence for a just decision with regard thereto. Certain papers which had not been produced before the District Forum have been brought on record by the appellant as Annexures 1 to 5 to the memo of appeal. Since these papers (Annexures 1 to 5) have been brought on record as additional evidence without the permission of the Commission, the same can hardly be looked into. As pointed out earlier, neither party adduced any legal evidence before the District Forum. In view of what has been pointed out above, evidence appears to be necessary for a just decision in the case. Accordingly the impugned order is set aside and the matter is remitted back to the District Forum for a fresh decision in the case after giving reasonable opportunity to both the parties to adduce evidence with regard to the points involved in the case. Under the circumstances there will be no order as to cost. Matter remitted back.