United India Insurance Co. Ltd. vs SUNIL PANDURANG DHURVE

THIS appeal arises out of the order passed by the District Forum, Kolhapur in Complaint No. 59 of 1997. The Forum has directed the appellant to pay an amount of Rs. 1,30,000/- alongwith interest @ 18% plus Rs. 3,000/- by way of compensation and Rs. 1,000/- towards cost.

THE facts in brief are that the Tempo MH-09-9660 was insured for Rs. 2,05,000/-. THE insurance policy was in enforce from 4.7.1996 to 3.7.1997. On 5.11.1996 a truck dashed this tempo from behind and it was completely damaged. THE appellant-Insurance Company appointed a Surveyor. THE respondent/complainant submitted his claim of Rs. 2,05,000/- to the appellant but the appellant settled it as a non-standard claim for Rs. 90,000/-. It was alleged that the complainant accepted this amount under protest and filed the complaint before the District Forum. The present appellant in its written version denied the allegations made by the complainant and also raised the point of jurisdiction, since the complainant was already paid Rs. 90,000/- towards full and final settlement of the claim. M/s. Parmar and Co., Kolhapur surveyed the damages and assessed the loss and they have submitted their report to the effect that it was a case of complete loss. After deducting the salvage value, the net loss was assessed as Rs. 1,20,000/- by M/s. Parmar and Co., Kolhapur and 90% thereof was paid to the complainant by treating it is a non-standard claim for the present appellant.

The submissions made by the appellant were not accepted by the District Forum. The complaint was allowed and the impugned order came to be passed and, therefore, this appeal.

THE undisputed facts are that the above mentioned vehicle was registered as a Private Car not entitled to carry any passengers/use for hire or reward. THEre is a clause in the policy known as, "Limitation as to use" which reads as under : "THE Policy does not cover the use for hire or reward or use for organised racing." It is submitted by the appellant that the claim was investigated by one Shri N.I. Patil, retired Police Inspector who has recorded the statements of 4 passengers who had travelled in the vehicle. The main attack of the appellants is that because the vehicle was registered as a private car, lower rate of premium was charged and if a vehicle is registered for a hire or reward, the amount of premium would have been much higher. According to the appellant, this is the basic distinction between a private car and a car registered for hire or reward or for carrying of passengers or goods.

THE Counsels for both the parties have submitted their written notes of arguments, which are taken on record. THE learned Counsel for the appellant has submitted that the investigation papers by Shri N.I. Patil are self-explanatory and all the 4 passengers have admitted that they had hired the tempo for 5 days for going to Malegaon in Nasik district and back. THE accident took place on 5.11.1996 when they were on their return journey. Our attention has been drawn to the copies of the statements which are placed before us and it has been clearly stated by the passengers that they had hired the vehicle for 5 days and the accident took place at about 9.00 a.m. on 5.11.1996 near Karad on their return journey from Malegaon to Ichalkaranji. Copy of the detailed report of Shri Patil is also placed on record. Shri Patil has submitted his affidavit in support of investigation report. THE learned Counsel for the appellant has submitted that there is no reason to disbelieve the statement recorded by Shri Patil and that Shri Patil has not recorded these statements under the provisions of the Criminal Procedure Code and there is no reason to disbelieve them. He has further cited various judgments like Rakesh Sharma v. National Insurance Co. Ltd. & Ors. reported in III (1995) CPJ 183; Shri Gayatri Modern Raw and Boiled Rice Mills Pvt. Ltd. v. New India, II (1994) CPJ 89 (NC) and Other judgments. He has specifically arued that the ratio of the Supreme Court''s judgment in the case of B.V. Nagaraju v. Oriental Insuranec Co. Ltd., not applicable to this case because the facts are totally different. As against this, the learned Counsel for the respondent has submitted that the order passed by the District Forum is perfectly in order and the grounds brought up before the Commission by the appellant are baseless and incorrect and as such the appeal deserves to be dismissed. It is also argued that the investigation report by Shri Patil is not trustworthy in view of the statement made by Jagdishchandra Surajmal Jain who was one of the passengers in that vehicle. It is difficult for us to accept this submission. In this case we have to make a distinction between a vehicle registered as private car and a vehicle used for hire or reward. The vehicle in question was undisputedly registered as a private car and there is ample evidence to prove that the said vehicle was hired for going from Ichalkaranji to Malegaon from 1.11.1996 to 5.11.1996 and as many as 4 passengers who had travelled in the vehicle have stated during the course of investigation that the said vehicle was hired by them for business purpose. In view of this clinching evidence, it was not proper on the part of the District Forum to travel beyond the evidence and arrive at a different conclusion. The ratio of the Supreme Court in B.V. Nagaraju is definitely not applicable in the case before us, as the facts of that case were entirely different.

IN view of the facts and circumstances of the case, we pass the following order : Order "The appeal is allowed. The order passed by the District Forum, Kolhapur is hereby set aside. We treat that the claim was fully and finally settled by the appellants by treating it as a non-standard claim and there was no deficiency in service on the part of the appellant. No order as to costs." Appeal allowed.