RUGHA RAM Vs. NEW INDIA ASSURANCE CO LTD

JUDGEMENT

(1.) THIS appeal by the complainant is directed against the order dated 2.12.2002 of Consumer Disputes Redressal Commission Rajasthan, Jaipur dismissing the complaint.

(2.) FACTS giving rise to this appeal lie in a narrow compass. M/s. Meel and Co. whereof the appellant is the managing partner, has been executing work contracts for construction of roads and bridges, etc. In the year 1995, firm was awarded work of upgrading Nawalgarh -Sikar Road from 0.00 to 25.5 Kms by the PWD. Work was completed by June, 1995. To execute the work, the appellant had taken Medium Term Loan of Rs. 6,70,000 from Punjab National Bank, respondent No. 3/ opposite party No. 3 against the security of machinery which included Tar boiler, Pover Finisher and Hot Mixed Plant, purchased from M/s. Surjeet Singh Engineering Works, New Delhi. Policy under Cover Note No. 77759 dated 26.5.1997 was purchased from respondent Nos. 1 and 2/ opposite party Nos. 1 and 2 -Insurance Company for the period from 6.6.1997 to 5.6.1998 of Rs. 12,61,500 by the Bank on behalf of the appellant. It was alleged that after execution of the said work by June, 1995, the machinery had been lying in idle condition. On 1.4.1998 at about 11.00 p.m., Kurda Ram, Chowkidar informed the son of appellant that some unknown vehicle had dashed against the machinery causing extensive fire in which the insured machinery was burnt. Appellant on return from Jaipur and after inspection of the site, lodged FIR with P.S. Raghunathgarh, Distt. Sikar on 3.4.1998 whereupon criminal case No. 73/98 under Sections 279 and 427, I.PC. was registered. Since the police could not trace out either the vehicle or driver, a final report was submitted on 30.4.1998. Appellant intimated of the occurrence to respondent No. 3 -Bank on 3.4.1998. Along with letter dated 6.4.1998, the Bank sent a copy of the Cover Note to the appellant with advice to lodge claim with the respondent -Insurance Company. On lodging claim, the Insurance Co. deputed S.C. Jain, Chartered Accountant to verify the loss. In his report, Shri Jain mentioned that the alleged occurrence did not take place and the damage to the machinery was not caused as a result of accident but was because of wear and tear. Claim was accordingly repudiated by the Insurance Co. Complaint filed by the appellant was contested by filing written version by the Insurance Co., inter alia, pleading that the claim was repudiated for good reasons after considering the report of S.C. Jain, Surveyor and thorough investigation into the facts of the case. In its written statement, the respondent No. 3 Bank alleged that immediately on receipt of information of damage to the insured machinery, it forwarded the Cover Note to the appellant and advised him to lodge the claim with Insurance Co. Bank has already filed suit before the Bank Tribunal against the appellant for recovery of its debts.

(3.) SUBMISSION advanced by Mr. S.K. Sharma for the appellant is that the State Commission did not consider the statements of Debu Ram, Bhadurmal and Sultan Singh, eye -witnesses of the occurrence as also the joint inspection report of N.P. Mathur and S.P. Mathur. Tar -boiler, Pover finisher and Hot mixed plant insured with respondent No. 1 - Insurance Company for Rs. 12,61,500 were lying in idle condition. Appellant alleges that a trolla while taking back turn at the three -way crossing dashed against the machinery as a result whereof those fell down and caught fire. In criminal case No. 73 of 98 under Sections 279 and 427, I.P.C. registered on the FIR lodged by the appellant on 3.4.1998 at P.S. Raghunathgarh, the Investigating Officer had recorded the statements under Section 161, Cr.P.C. of Hari Ram son of the appellant, Kurda Ram and said Debu Ram, Bahadurmal and Sultan Singh. Copies of these statements are placed at pages 46 to 50 on the paper book. It is in the statement of Kurda Ram that he was employed with the appellant and after completion of construction work, the machinery was lying idle near by -pass road near Kudli. On 1.4.1998, he had gone to the house of appellant for taking meals and on his return at 10.00 p.m. he found machinery lying on the earth and engulfed in fire. He made inquiry from Debu Ram who told that a trolla had arrived from the side of Jaipur through the by -pass road and had dashed against the machinery due to which the plant and machinery fell down and caught fire. Thereafter, he went back to the house of appellant and had apprised Hari Ram of the occurrence. At that time, appellant had gone to Jaipur. In his statement under Section 161, Debu Ram stated that he has been running a tea shop in front of the Court at Sikar. On 1.4.1998, when he was going to his village on bicycle after closing the shop and reached Jaipur by -pass around 10.00 p.m., he saw a trolla coming from the side of Jaipur at a very high speed. It took back turn at the three -way crossing and dashed against the plant and machinery as a result whereof it fell down and caught fire. Driver ran away with the trolla. Bahadurmal and Sultan Singh had also reached the site on scooter and though they chased the trolla but were unable to catch it. As it was night he could not see the number of the trolla. In the meantime, Kurda Ram came there and told him about the entire incident. Likewise are the statements of Bahadurmal and Sultan Singh. FIR was lodged by the appellant on the basis of information received from Kurda Ram. Bare reading of the impugned order would show that the State Commission after dealing with in detail about the alleged presence of these witnesses at the time of occurrence, has disbelieved their presence there. It is pertinent to mention that in the FIR the names of said Debu Ram, Bahadurmal and Sultan Singh do not figure as eye -witnesses of the occurrence. Had these persons witnessed the occurrence and apprised Kurda Ram about it, then in all probabilities the appellant may not have omitted to mention their names as eye - witnesses in the FIR. In this backdrop, no fault can be found in the conclusion reached by the State Commission in regard to these three witnesses not being present at the time of occurrence at the site. Further, the appellant has filed the copy of the site plan prepared by the Investigating Officer. In his report S. C. Jain has noticed that the place where the plant and machinery was kept, was quite far off from the road and a vehicle running on the main road will not be in a position to hit the plant and machinery under the normal conditions of running or turning unless the plant and machinery is purposely hit by the vehicle. Part of this observation regarding distance finds support from the site plan prepared by the Investigating Officer. Repudiation letter dated 31.3.1999 would show that one of the grounds taken therein by the Insurance Co. is that the damage to the plant and machinery does not coincide with the cause given by the appellant and the appellant has misrepresented the material facts leading to the damage of plant and machinery. In view of aforesaid discussion, the Insurance Company cannot be said to have unjustifiably repudiated the claim. Joint inspection report of N.P. Mathur and S.P. Mathur touches only the extent of damage to the plant and machinery and valuation and is of no help to the appellant in the matter.