NEW INDIA ASSURANCE CO LTD Vs. NEELAM KUMARI

JUDGEMENT

(1.) This Letters Patent Appeal is directed against the judgment dated 26-2-2002 recorded by the learned single Judge in OWP No. 1091/2001 titled as New India Assurance Co. Ltd. v. Smt. Neelam Kumari and others.

(2.) The facts leading upto this appeal are that a petition in terms of Section 10 of the J. and K. Consumer Protection Act, 1987 came to be filed by the respondent No. 1/complainant before the Divisional Forum constituted under the said Act (hereinafter referred to as Divisional Forum) alleging therein that her husband, namely, Surinder Kumar Sehgal was an Auto Rikshaw Driver, he had obtained Janta Personal Accident Policy in the sum of Rs. 2.00 lac from the appellant/opposite party-New India Assurance Co. Ltd., Branch Shalamar, Shalamar Road, Jammu which was valid from 6-12-1996 to 5-12-1999. That on 9-7-1997, Surinder Kumar Sehgal-husband of the respondent No. 1/complainant was repairing his Auto Rikshaw on the road side at Prem Nagar, Jogi Gate, Jammu when he was knocked down by another Auto Rikshaw which was coming from the opposite direction as a result of which said deceased-insured sustained head injury; medical treatment was given to him by taking him to Dr. Satish Mehta Clinic and Research Centre Private Ltd. Shalamar Road, Jammu but he died on 22-10-1997 on account of the said head injury. That the respondent No. 1/complainant being the nominee and legal heir of the deceased-insured raised insurance claim with respect to the death of the deceased-insured on account of accident with the appellant/opposite party who refused to give the same. That the appellant-Insurance Company resisted the petition by filing its objections, wherein, it admitted the insurance of the deceased-insured and resisted to give the insurance claim inter alia on the ground that an independent Investigator was appointed to investigate the claim of the respondent No. 1/complainant who had opined that the deceased-insured had not died due to the alleged accident and that the respondent No. 1/complainant failed to furnish the documentary proof in support of the death of her husband. That the respondent No. 1/complainant had failed to establish her claim and, therefore, the insurance claim is not payable. In support of her petition, the respondent No. 1/complainant before the Divisional Forum filed her own affidavit and that of one Bhajan Kumar and Dr. Satish Mehta, she has also produced certificate issued by the said Doctor dated 10-3-1998 and also a copy of the Report No. 11 of the Police Daily Diary dated 10-1-1997. On the other hand, appellant filed the affidavit of the Administrative Officer, namely, J. L. Koul and also a report of the Investigator, namely, S. B. Bakshi. The Divisional Forum below after discussion of the affidavits produced by the parties in support of their respective claims, came to dismiss the complaint by virtue of its order dated 29-9-2000. This order of the Divisional Forum came to be challenged before the J. and K. State Consumer Protection Commission, Jammu (hereinafter referred to as the State Commission), who on re-appraisal of the evidence of the parties came to accept the appeal after setting aside the order recorded by the Divisional Forum and accordingly came to award Rs. 2.00 lac as insurance claim to the respondent No. 1/complainant together with interest @ 9% against the appellant-company. The appellant-company came to assail this judgment and order by invoking the writ jurisdiction of this Court. The learned single Judge of this Court by virtue of his judgment dated 26-2-2002 came to dismiss the petition after holding that :-

(3.) The stand of Mr. R. K. Gupta learned counsel for the appellant-Insurance Company is that the report with respect to the alleged accident made by the deceased-insured was not immediately lodged before the concerned Police and the same came to be lodged after the death of the deceased. That the deceased after (he) sustained head injury was removed to private clinic instead of Government Hospital and that no post-mortem of the dead body of the deceased was conducted and not to speak of furnishing the report before the appellant-company for the settlement of the insurance claims.