Decided on July 24,2009

Palwinder Kaur Appellant


ARUN KUMAR GOEL - (1.) THIS appeal was heard on 17.7.2009 and is listed today for dictating orders. Appellant is aggrieved from the order passed by District Forum, Una in Consumer Complaint No. 156/2007. By means of impugned order complaint filed by the appellant has been dismissed solely on the ground, that the condition regarding limitation as to use contained in cover note Annexure C -3 filed by the appellant (its copy is Annexure R -3) was violated.
(2.) BEFORE dealing with the merits of this case it may be appropriate to mention here, that vehicle being insured on 4.10.2006 when mishap occurred and as a result, it caught fire due to sudden blast of cylinder is not in dispute. FIR No. 92/2006 was registered regarding this incident is again established. Surveyor was appointed on receipt of information by the respondent -Insurance Company. Report of the Surveyor is Annexure R -1. In accordance with this report, appellant is entitled to Rs. 60,578, whereas according to the appellant he had spent a sum of Rs. 1,13,600. Another fact that needs to be noted here is, that the appellant had also approached the Ombudsman of Insurance Company at Chandigarh and his claim was rejected on 14.6.2007. This dismissal was also bad in law according to her. After rejection of her claim, complaint was filed with a prayer to allow Rs. 1,31,600 along with 9% interest as well as compensation in the sum of Rs. 20,000 besides Rs. 5,000 as litigation cost.
(3.) WHEN put to notice, complaint was resisted on a number of grounds. However, pith and substance of the defence of the respondent is that truck bearing registration No. HP -B20 -5315 left Mandi with filled cylinders from Mehatpur and after parking the truck near Lathaini Sidh Chano Mandir, its driver along with one Gaggan Singh started taking meals. In the meantime another truck loaded with empty cylinders was also parked there. They heard sound of cylinders in the truck and thereafter said Ashwani Kumar and Gaggan Singh went to his truck and found that one filled cylinder was missing and the driver of truck No. HP -20 -5315 drove his truck rashly towards Bangana. Police was informed and it followed the truck No. HP -20B -5315 by a jeep upto village Nalwari, but its driver jumped out of the truck and as a result of it, this truck fell down about 20 feet deep. Police also reached at the spot and found one filled cylinder as also truck No. HP -20B -5315 having caught fire. Driver had stolen the filled cylinder. Accident was a result of driving the truck rashly and negligently, as such claim was not payable. Rejection of claim by Insurance Ombudsman, Chandigarh was also set up as defence for rejection of the complaint. District Forum below after hearing the parties and as already observed by placing reliance on the limitation as to use as contained in the cover note dismissed the complaint, hence this appeal. After having heard learned Counsel for the parties, as also having examined the cover note Annexure C -3 as well as its copy Annexure R -3, we are of the view that this was not a case of either organized racing or speed testing. We are further of the view that the view taken by District Forum below by invoking limitation as to use as contained in the two referred Annexures was wholly inapplicable to the facts and circumstance of this case. This clause had wrongly invoked by the District Forum below.;

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