1 Sr. No. 7 IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH AT SRINAGAR OWP No. 1162/2011 IA No.01/2011 [1843/2011] United India Insurance Company Ltd. …Appellant(s)/Petitioner(s) Through: Mr. Nissar Ahmad Dendru, Advocate. Vs. Haji Abdul Ahad Pandit and Others ...Respondent(s) Through: Mr. Showkat Ahmad Makroo, Sr. Advocate with Mr. Mohammad Amin Bhat, Advocate and Mr. Danish, Advocate. CORAM: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE HON’BLE MR. JUSTICE SANJAY PARIHAR, JUDGE O R D E R 02.06.2025 P 1. This petition under Article 227 of the Constitution of India has been filed against the order dated 27.07.2011 passed by the J&K State Consumer Disputes Redressal Commission, Kashmir (for short ‘the Commission’), whereby the Commission has set aside the order dated 11.05.2009 passed by the learned Divisional Consumer Protection Forum, Kashmir (for short ‘the Forum’) dismissing the complaint preferred by the respondent No.1, and has allowed the claim of the respondent No.1. 2. Brief facts relevant for the disposal of this petition are that a complaint came to be preferred by the respondent No.1 under Section 10 of the Jammu and Kashmir Consumer Protection Act. It was stated in the complaint that he had insured his vehicle bearing registration No. JK01D-5229 with the National Insurance Company for the year 2006-2007 and similarly the product to be transported in the vehicle 2 was also insured. Initially, the insurance policy was purchased from the National Insurance Company, but later the policy was transferred from vehicle bearing registration No.JK01A-5526 to the vehicle bearing registration No.JK01D-5229 and endorsement to this effect was made part of the policy No.67/1/1172/06 issued by the petitioner. There was a specific pleading in the complaint that vehicle bearing registration No.JK01D-5229 had a Carrier Liability Insurance with the petitioner under policy No.67/1/1172/06 for which the premium of Rs.7,822/- was paid to the petitioner against receipt dated 29.03.2006. The policy was a miscellaneous Traditional Business policy and covered wider risks besides flood, water and other damages. The petrol and diesel items were covered under the policy, which was valid from 30.03.2006. 3. It was averred in the complaint that the vehicle in question while on its way from Jammu to Srinagar on 10.12.2006, when reached at Panthal, came under land sliding resulting into damage to the vehicle and the total loss of diesel (HSD). The respondent No.1 raised his claim with the petitioner and National Insurance Company. The National Insurance Company paid the claim of an amount of Rs.53,500/- in respect of damage caused to the vehicle whereas the petitioner deputed Mr. Sharma, as Surveyor from Jammu who submitted report to the petitioner on 10.03.2007. The grievance projected by the respondent No.1 was that after a period of 15 months, when the respondent No.1was expecting the release of amount due to him in respect of loss suffered by him, he received a letter of repudiation of his insurance claim from the Baramulla Branch of 3 Insurance Company. It was contended by respondent No.1 that the letter of repudiation was issued without application of mind and was against the terms and conditions of the policy, as such, was liable to be set aside. The respondent No.1 in his complaint specifically reflected his awareness about the legal requirement of insuring the vehicle and the products for running his business. 4. By placing the above facts before the Forum, respondent No.1 had sought setting aside of letter of repudiation and for release of payment of Rs.3,95,280/- along with interest (cost of product loss), Rs.50,000/- as compensation and Rs.5,000/- as litigation costs. 5. The petitioner responded to the complaint by submitting that it was under contractual obligation to indemnify the owner on the following terms and conditions: - 1. BASIC COVER:- Under this liability arising out of loss/damage caused by fire, explosion or accidents to the vehicle carrying the goods arising out of negligence of the insured or criminal acts of his servants. 2. WIDER COVER:- Includes in addition to the basic cover:- a. Damage by Fire, Burglary, Riot, Strike, Malicious Damage affecting the goods at warehouses, transshipment yards, whilst the goods are in the custody of the carriers. b. Shortage of contents due to theft of cargo at any time whilst the goods are in the custody of the carriers. C. Flood or Water damage, Taint damage. d. Breakage, Leakage, Damage due to improper handling. The cover with the loading of the cargo on board the vehicle and will be in force until unloading of the same at the discharging point or until expiry of seven days after the arrival of the vehicle at the destination point whichever is earlier." 6. The petitioner admitted the issuance of policy in favour of the respondent No.1 effective from 30.03.2006 to 29.03.2007 and simultaneously pleaded that the vehicle in question was carrying 4 12,000 liters of diesel and while it was on way from Jammu to Srinagar, met with an accident on 10.12.2006 at Panthal Ramsoo. The vehicle had overturned to its left side and the diesel reportedly leaked out. FIR in relation to the incident was also registered. Entry No.08 was made in the Daily Diary Report (DDR) on 10.12.2006. As per the police report, the vehicle got stuck, the traffic got blocked and shooting stones from the hilltop hit the vehicle. The vehicle was pulled out with the help of the recovery vehicles. As per the report there was no negligence of driver of the vehicle. 7. The petitioner and respondent No.1 examined one witness each in support of their respective contentions. The learned Forum vide its order dated 11.05.2009 dismissed the complaint with an observation that the claim was not covered under the perils of Insurance Policy. The appeal preferred by the respondent No.1 against the order dated 11.05.2009 came to be allowed vide order dated 27.07.2011. 8. The order dated 27.07.2011 has been impugned by the petitioner inter-alia, on the grounds that the Commission has not appreciated the terms and conditions of the Insurance policy in its right perspective and that without there being any pleading and documentary evidence in respect of negligent act of the driver, the Commission has assumed and attributed the loss to the negligent act of the driver. 9. The respondent No.1 has filed the response thereby denying the grounds urged by the petitioner for negating the claim of the respondent No.1. 10. Rejoinder affidavit has also been filed by the petitioner thereby reiterating the stand taken by it in the main petition. 5 11. Heard learned counsel for the parties and perused the record. 12. The insurance policy provides that the Insurance Company is required to indemnify the insured against his legal liability for actual physical loss or damages to goods or merchandise directly caused by fire and/or accidental to the vehicle registered under the number No.xxxx whilst such goods or merchandise are actually transported in the said vehicle provided that fire or accident has arisen on account of the negligence of the insured or negligence or criminal act of his servants and further provided that the vehicle is damaged by such fire or explosion or accident and claim in respect thereof is admitted under the Motor comprehensive insurance policy covering the vehicle. 13. The sole controversy between the parties hinges around the fact as to whether the claim of the respondent No.1 in respect of the loss of product in an accident which took place on 10.12.2006, was attributable to the negligent act of the driver or not and accordingly covered/not covered under the Policy. This is also fact that the petitioner has not examined the driver who on the date of accident was driving the vehicle in question. The petitioner in response to the complaint has specifically stated that on 10.12.2006, the vehicle in question was carrying 12,000 litters of diesel, being driven by Mohd Afzal, met with an accident resulting in the overturning of the vehicle on its left side and leakage of diesel. Simultaneously, another stand was taken by the petitioner that as per the police report, on 10.12.2006 the vehicle got stuck in the loose soil on the road and the traffic got blocked and due to shooting stones from the hilltop the tanker was damaged causing leakage of diesel. 6 14. We have examined the order dated 27.07.2011 passed by the Commission and we find that the Commission, instead of determining the controversy on the basis of pleadings and documentary evidence on record, has allowed the claim of respondent No.1 after taking judicial note of certain facts in respect of location of the incident and thereafter applying the principle of res ipsa loquitur. The Commission by assumptions and presumptions has attributed the incident to the negligence of the driver, particularly when the driver was never examined. If the Commission was unable to return any conclusive finding, it could have remanded the matter back to the Forum but could not have allowed the complaint simply on assumptions and presumptions. The Commission, while allowing the complaint, has made the following observations in para-7 of the order impugned: “-----The element of negligence on the part of driver cannot altogether be eliminated because he may have taken a plunge to cross that area when stray shooting of stones or sliding of hill might had started. In order to show his chivalrous act of professional expertise, the driver might have taken a plunge to cross that dangerous area all alone. It could also be possible that he may have not noticed any impending danger of land slide due to abnormal human error. He may had shown his extraordinary courage, which no other driver of ordinary prudence might have shown in the given circumstances. -----" 15. This is an admitted fact that the respondent No.1 has suffered a loss of Rs.3,95,280/- the cost of diesel being transported in the vehicle in question. From the record, we find that the petitioner has examined only one witness namely Raj Kumar Tickoo, Deputy Manager. He was witness to the record only and not to the incident. 16. In view of the disputed facts in respect of incident, the driver of the vehicle in question was the most important witness to arrive at a conclusion as to whether the accident took place because of the 7 negligence of the driver or otherwise. Not only the driver but the factum of negligence could have been proved by way of other evidence as well. 17. We are conscious of limited scope for interference while exercising power under Section 227 of the Constitution of India but at the same time when the finding has been returned by the appellate authority without there being any evidence on record but on assumptions and presumptions, it would amount to a jurisdictional error on the part of appellate authority and such finding cannot be sustained. 18. Accordingly, we deem it proper to set aside the order dated 27.07.2011 and remand the matter back to the appellate authority to consider the matter afresh and decide the same in accordance with law. In view of the fact that the dispute pertains to the year 2006, we request the Commission to make all possible endeavors to dispose of the appeal as expeditiously as possible, preferably within a period of three months from the date of receipt of this order. The amount already released in favour of the respondent No.1 shall remain with him but subject to outcome of the appeal and balance amount lying with the Registry shall stand released in favour of the petitioner. 19. Registry to remit back the record forthwith, if scanned original. 20. Disposed of. (SANJAY PARIHAR) (RAJNESH OSWAL) JUDGE JUDGE SRINAGAR 02.06.2025 Ishaq Whether approved for reporting Yes/No