ORIENTAL INSURANCE CO. LTD. vs GEETA DEVI

Late Shri Kishan Lal, husband of the complainant owned a truck bearing Registration No. RJ-14 1G 4182 which he had got insured with the petitioner company. The case of the complainant / respondent is that on 19.8.2006, when the aforesaid truck was being driven by its second driver Salim Ullah and the deceased Kishan Lal was sitting with him, the truck got swept away in the water, due to high flow of the river on a bridge (pulia), resulting in death of both the occupants of the truck. The complainant lodged one claim for the damage to the truck and the other claim for payment of the personal accidental benefit which was available to the deceased Kishan Lal under the terms of the insurance policy taken by him. The claim having not been paid, the complainant approached the concerned District Forum by way of two separate complaints, one for payment of the personal accidental benefit available under the insurance policy of the truck and the other for reimbursement for the damage to the truck.

The complaint was resisted by the petitioner on the ground that at the time of the accident, the truck was being driven by deceased Kishan Lal and not by Salim Ullah and Kishan Lal did not possess a valid driving license for driving the said truck.

The District Forum having ruled in favour of the complainant, the petitioner insurer approached the concerned State Commission by way of two separate appeals. Both the appeals having been dismissed, the insurer is before this Commission by way of these two separate revision petitions.

The only disputed question of fact involved in these petitions is as to whether the truck was being driven by the deceased Kishan Lal or it was driven by Salim Ullah at the time it got swept away in the flood water of the river. Admittedly, there is no eye witness who may have seen either deceased Kishan Lal or deceased Salim Ullah driving the truck at the time it got swept away in the flood waters. The learned counsel for the petitioner has drawn my attention to the FIR and the investigation report, in support of her contention that the truck was being driven by Kishan Lal and not by Salim Ullah at the time this incident happened. A perusal of the FIR would show that it was lodged by one Shyam Lal Meena SHO Police Station Shivganj Siroho on 24.8.2006 whereas the unfortunate incident happened on 19.8.2006. The FIR refers to the investigations made after registration of a DD report of the incident. It is stated in the DD entry that a tall man was sitting on the driver side, whereas a child looking person was sitting on the other side in the truck. However, the aforesaid document does not indicate who had seen the tall man sitting on the driver''s seat and the boyish man sitting on the other side of the truck. The petitioner did not file the affidavit of any person who may have seen a tall man driving the truck or sitting on the driver''s side and the other person sitting on the seat adjoining the driver seat of the truck. In the absence of such an evidence, it would be difficult to know as to who out of the two occupants of the truck was driving the same at the time this unfortunate incident happened.

In the report of the investigator, it is stated that late Kishan Lal was a tall man whereas late Salim Ullah was a short person. The aforesaid report of the investigator is based upon the information stated to have been obtained by him from third parties. However, neither the affidavit nor any statement of any such person confirming the heights of late Shri Kishan Lal and the late Shri Salim Ullah has been filed by the insurer. In the absence of such an evidence, the report of the investigator cannot be said to have proved that late Shri Kishan Lal was a tall person whereas Salim Ullah is a short person. In any case, what is more material is that there is no direct evidence to even prove that the truck was being driven by a tall person and the short person was sitting on the sea adjoining the seat of the driver.

The onus was upon the insurer to prove that the vehicle was being driven by Kishan Lal at the time it got swept away in the flood water. No direct evidence to prove the said allegation having been produced by the petitioner company. The concurrent finding of fact returned by the fora below therefore cannot be said to be perverse so as to justify interference by this Commission in exercise of its revisional jurisdiction.

For the reasons stated hereinabove, I hold that since the concurrent finding of fact returned by the fora below cannot be said to be perverse, it does not call for interference by this Commission in exercise of its revisional jurisdiction. The revision petitions are therefore dismissed, with no order as to costs.