P A SINIK Vs. ORIENTAL INSURANCE COMPANY LIMITED

JUDGEMENT

(1.) This appeal is by the complainant in OP 965/96 on the file of the CDRF, Ernakulam. Complainant alleged before the District Forum, while he was driving his Maruthi Car KL7g-7144 from Ernakulam to Palakkadu at about 1 p. m. on 6.9.1995, a K. S. R. T. C. Superfast passenger bus which was coming from the opposite direction in a rash and negligent manner hit against the car near Mullakkara, Thrissur, by which the car got irrecoverably damaged and the two other occupants of the car Mrs. Joseph and minor Sincy sustained injuries and later succumbed to the injuries. The car had valid insurance cover. The accident was immediately reported to the opposite party who appointed Surveyor who submitted a report stating that it would not be economical to repair the vehicle. After discussion, the opposite party and Surveyor, according to the complainant, suggested to settle the matter for an amount of Rs.1,40,000/- to which the complainant agreed; but the opposite party did not pay the amount. The car in question was sold by the complainant as scrap. The opposite party sent a letter to the complainant on 26.6.1996 stating that the car since was actually driven by Mrs. Mary Joseph and the complainant had suppressed the said fact, the complainant is not eligible for the insurance amount or any amount towards the damage to the car. Therefore, the complainant wanted a direction to the opposite party to pay Rs.1,40,000/- with interest @ 24% and also compensation. In the version by the opposite party they admitted the policy and to there having appointed a Surveyor, but they maintained, that a second survey was also conducted. While so the opposite party had got information that the car in question at the time of occurrence was driven by a lady Rose Mary, who was killed in the accident and the said Rose Mary, was not having driving licence. A detailed investigation was conducted and the investigation revealed that it was Rose Mary who was behind the steering wheel of the car at the time of accident. The Investigator had recorded statements of the eye-witnesses and also had got the trip sheet prepared by the conductor of the bus. On the basis of the said trip sheet, and also statements of witnesses, since the car in the relevant time was driven by a person who had no licence, the repudiation of the claim under law cannot be treated as deficiency of service, they wanted dismissal of the complaint. Before the District Forum the complainant gave evidence as P. W.1, the Investigating Officer of the Company was examined as D. W.1. Complainant produced Exts. A1 to A20 and the opposite party produced Exts. B1 to B10. On a consideration of the said evidence the District Forum came to the conclusion that there is no deficiency of service and on that finding dismissed the complaint. The said dismissal, as indicated early, is under challenge in this appeal at the hands of the complainant.

(2.) It is argued by the learned Counsel for the appellant that the District Forum could not have relied on the evidence of D. W.1 or his report Ext. B5, as according to the learned Counsel the investigation itself was after over one year of the date of occurrence and the materials relied on by the Investigator to come to the conclusion are such that the same cannot have any credibility to be accepted. It is urged by the learned Counsel, that one of the persons questioned and gave statement before D. W.1 had sworn before the Criminal Court that he did not witness the occurrence. Apart from the same, D. W.1 could not have made reliance on Ext. B10. It is also urged by the learned Counsel, the very reasoning of the District Forum to hold that it is probable that Rose Mary could have been in the driving seat at the time of occurrence, cannot be accepted. But the learned Counsel for the respondent sought to support the dismissal saying that since D. W.1 came to the conclusion after extensive investigation wherein he has recorded the statements of the witnesses who had witnessed the occurrence, the conclusion reached by D. W.1 cannot be assailed. It is also submitted, that the opposite party repudiated the claim after applying its mind.

(3.) The fact that the vehicle belonging to the complainant met with the accident on 6.9.1995, the vehicle sustained extensive damage and that two of the three occupants in the car died in the accident are not in dispute. It is also not in dispute, that at the time of the accident the vehicle had valid insurance. The vehicle belonged to D. W.1, whereas P. W.1 would maintain that at the relevant time he was driving the car, D. W.1 stated that on his investigation it was revealed at that time, Rose Mary one of the occupants of the car was driving the vehicle and she had no licence to drive. There is no case for the complainant that Rose Mary had driving licence. The very basis of the repudiation is, that at the time of accident the car was driven by a person who had no valid licence to drive the vehicle. On the other hand if the car during the relevant time was being driven by the complainant himself, the repudiation cannot be said to be valid and the repudiation by itself would constitute deficiency of service. So the crucial question is, whether at the time of occurrence as a matter of fact Rose Mary was driving the vehicle. Reliance was made by the learned Counsel for the appellant on the decision of the Kerala High Court in United India Insurance Company V/s. Jameela Beevi, 1991 1 KerLT 832, to say that the burden at proof is on the Insurance Company to establish that the vehicle at the time of occurrence was driven by a person who had no valid licence. Having regard to the aforesaid argument, now the question to be considered is, whether as a matter of fact, Rose Mary, the deceased was driving the vehicle at the time of the occurrence.