NATIONAL INSURANCE COMPANY LIMITED Vs. MAHENDRA KUMAR AGGARWAL

JUDGEMENT

(1.) THIS is an appeal against the order dated 10.12.1993 passed by the District Forum, Pauri Garhwal whereby the complaint of the complainant was allowed.

(2.) THE brief facts of the case are that the complainant was the owner of a Maruti car. It was insured. It met with an accident on 21.9.1989. Information was given to the Insurance Company. It was surveyed. The complainant has suffered a loss of Rs. 25,000/ -. He produced all the papers, receipts etc. to the Surveyor. On 23.11.1992 the complainant was informed that his claim has been repudiated on the ground that he uses the vehicle as a taxi. The complainant sent a notice. When the payment was not made, the complainant filed the complaint.

(3.) IN this case the only dispute is whether the vehicle was being run as a taxi. If it was being run as a taxi, no 3rd person except the driver appears to have been injured. The driver was examined by the Surveyor but the driver himself has filed affidavit that he has not given any such statement to the Surveyor that the vehicle was being run as a taxi. It is true that there is also affidavit of the Surveyor but in view of the specific denial of the driver that he has not given any such statement, he has not signed the papers, it was obligatory on the part of the Insurance Company to have produced expert evidence. Even the owner of the vehicle, i.e., complainant has filed affidavit that he was not plying the vehicle as a taxi. He has never used the vehicle as a taxi. Secondly also the accident took place on 21.9.1989, there was absolutely no justification that by letter dated 23.11.1992 after a period of 3 years, the claim should have been repudiated merely on this ground. The Surveyor should not have been allowed more than 3 months time. The statement recorded by the Surveyor on 2.11.1992 is meaningless. By that time the driver might have been removed by the owner of the vehicle and may have become enemical to the complainant. The complainant was not allowed opportunity to cross -examine the driver. No reliance can be placed on such recorded statement. Even otherwise it is admitted fact that at the time of accident, the vehicle was being run by the driver all alone, there was no 3rd person. In view of what has been said above the order passed by the learned Forum was perfectly correct in allowing the complaint. However, the interest appears to have been awarded on very high side. Although the learned Forum was vigilant enough to have passed the order that if the amount is paid within 30 days, it should be paid @ 4% and if the payment is not made within 30 days, it should be 18%. There is no provision of any penal interest. In our view looking the date on which the accident took place, when interest need to very high and also the attitude of the Insurance Company that it was not fair in making the payment to the complainant, the rate of interest should be 12%. The appeal is partly to be allowed and partly to be dismissed.