Per Mr S R Khanzode, Hon’ble Presiding Judicial Member
Adv.Mr S M Paldhikar for the appellant is present.
Respondent absent. Heard.
1. This appeal takes an exception to an order dtd.05.01.2001 passed in Consumer Complaint No.CC/00/126 – Pundalik Gulabrao Gawande Vs. Divisional Manager, The New India Assurance Co Ltd., - by District Consumer Forum, Akola. (‘the Forum’ in short).
2. The consumer complaint pertains to repudiation of the claim in respect of vehicle which met with an accident on 08.07.1999 on way to Murtizapur from Akola. The claim was repudiated on the ground of breach of terms of policy, since it is alleged by Insurance Co. that at the time of accident the vehicle was used on hire and reward basis since it was carrying passengers. The Forum by not accepting said contention, awarded claim, directing Insurance Co. to pay Rs.31,416/- towards insurance claim and Rs.10,000/- as compensation towards mental & physical torture. Feeling aggrieved thereby this appeal is preferred by original opponent-Insurance Company.
3. The point placed before us is that there was an alleged breach of terms of policy, which accordingly to the appellant is established from the papers of accident enquiry made by the Police and which were produced on record. The other ground submitted for consideration is about the levy of 18% interest on the compensation. It is also submitted that compensation for mental torture awarded is not just and proper.
4. We categorically asked the Ld. Counsel for the appellant as to whether any affidavit of investigator / surveyor - Mr Pohekar is tendered in an evidence. It is only pointed out that respondent made an application for cross-examination of said investigator. Obviously, said application remained un-decided. However, said application, as per the endorsement made on the same application, was not pressed by respondent and therefore, no order has been passed.
5. In any case, unless there is a examination in chief i.e. tendering affidavit of the investigator as per the provision of Sec.13(4) of Consumer Protection Act, 1986 (‘the Act’ for brevity), no question of any cross-examination would arise in absence of such evidence and particularly when the documents of accident enquiry or investigation are not admitted documents. When Insurance Company desired to rely on those documents, they ought to have tendered in evidence the same by filing affidavit of the investigator or enquiry officer. In absence of such evidence, the documents submitted by the Insurance Company cannot be looked into. The appellant could have taken the recourse calling upon the other side to admit the documents. It was for the Insurance Company to justify the repudiation and which they failed to do so.
6. In the circumstances, we find, the appeal devoid of any substance and accordingly, we pass the following order:-
ORDER
1. Appeal stands dismissed.
2. No order as to cost.
3. Inform the parties accordingly.
Pronounced on 25.07.2011
