NATIONAL INSURANCE COMPANY LTD Vs. NARESH KUMAR

JUDGEMENT

(1.) When this appeal was taken up today, it was submitted by Mr. Tomar, learned Counsel for the appellant-Insurance Company that the impugned order passed by the District Forum below in Complaint No. 656/2003, on 19.7.2004 is illegal as well as contrary to law. Per him, Tractor in question was insured by his client for being used for agricultural purposes. By referring to copy of the Daily Diary Report No. 3 dated 17.4.2002 recorded at Police Station Pangna, District Mandi, he pointed out that the Tractor in question had been deployed for the purpose of carriage of stone gravel (Rori) and aggregate (bajri) on Saraur - Slapper road which was under construction. This report was lodged per Mr. Tomar by father of the Tractor owner. In addition to this, Mr. Tomar also urged that the amount awarded is excessive because as per the estimate of the cost of parts given by Yamuna Syndicate Limited, Kullu Road, Nerchowk, Mandi, its cost was Rs. 23,953, whereas compensation has been awarded in favour of the respondent in the sum of Rs. 48,821. Both these pleas have been controverted by Mr. Sharma on behalf of the respondent. According to him, this is a case of no evidence in support of the pleas raised on behalf of the appellant. He also placed reliance on the Daily Diary Report relied upon by the learned Counsel for the appellant.

(2.) We will take up the plea for reduction of compensation first. In this behalf, respondent has placed on record the affidavits of Motor Mechanic Ashok Kumar and Surinder Kumar, Proprietor of Jai Hanuman Crane Service, Nerchowk, besides bills of the expense incurred by him. It is not the case of the appellant that the respondent has not incurred expense and/or that the bills are fake as submitted by the latter. Fact of the matter is, that the evidence produced by way of affidavits and bills by the respondent have remained uncontroverted because no evidence whatsoever has been produced by the appellant. Reliance was placed by Mr. Tomar on the affidavit of Mohinder Kumar Sharma, Surveyor and Loss Assessor. According to this Surveyor, he had done the spot survey and inspected the vehicle and had assessed the loss and damage in the sum of Rs. 14,266.30. When survey Report submitted by him is examined, we find that while either curtailing or completely refusing certain items, no reasons whatsoever have been given by him. As such, keeping in view the evidence produced by the respondent together with the bills, we are satisfied that the compensation awarded in the sum of Rs. 48,821 calls for no interference in this appeal. Plea to the contrary is hereby rejected.

(3.) Now coming to the argument of Mr. Tomar that the Tractor in question was being used for hire and reward instead of agricultural purpose, therefore, his client is absolved of the liability, if any, to indemnify the respondent. For the reasons to be recorded as well as on the basis of documents on record, this plea also cannot be accepted. In the Daily Diary Report itself there is a clear-cut mention which when translated into English, reads as under : "....My son at 5.45 p.m. after being relieved was taking the Tractor for parking towards Sarour. Road being Kucha, Tractor suddenly skidded and went down the road." This clearly shows that even if it is accepted for the sake of argument that the tractor was being plied for hire and reward as was urged by Mr. Tomar, still at the time of accident it was being taken towards Saraur for parking when due to skidding it rolled down the road. The facts detailed in the Daily Diary Report relied upon by the appellant is also supported from the letter No. 421201/CL/ dated 28.6.2002 from the Senior Branch Manager of the appellant-Insurance Company at Moti Bazar, Mandi, to the respondent. In this letter, it is clearly mentioned "that after finishing day job of carrying road building material the insured was reversing the Tractor for parking, suddenly the earth below its wheel subsided, consequently it fell down and damaged", though in the next breath it is mentioned that the Tractor was being used for commercial purpose at the time of its accident. In the face of these clear-cut facts, we find that at the time of accident, Tractor was not being plied for hire and reward and was in fact being taken for parking when the accident took place. There is no evidence to the contrary produced by the appellant.