ORDER
K.S. Gupta, J. (Presiding Member)
1. This revision is directed against the order dated 6.6.2002 of Consumer Disputes Redressal Commission UT, Chandigarh allowing appeal against the order dated 3.12.2001 of a District Forum and directing the petitioner/opposite party-Insurance Company to pay Rs. 10,000/- as compensation for deficiency in service and to settle the claim of Respondent/complainant under the policy within a period of two months.
2. In short, facts giving rise to this revision petition are these. Bajaj Trax Model 95 bearing Registration No. DL-ICE-1878 owned by the respondent was insured for an amount of Rs. 2,50,000/- with the petitioner for the period from 25.7.1996 to 24.7.1997. Vehicle met with an accident on 3.9.1996 near Palwal. At that time, it was being driven by Ravi Kumar, son of the respondent. On being informed of incident, the petitioner appointed Surveyor and subsequently investigator. On claim being repudiated, the respondent filed complaint which was contested by the petitioner. In written version, the petitioner, inter alia, pleaded that vehicle in question was insured for private use but was being plied as taxi at the time of accident. Taking note of the contents of 10 claim petitions before Motor Accident Claims Tribunal, Chandigarh filed by the occupants, etc. of the vehicle, the District Forum dismissed the complaint holding that there was no deficiency in service on part of Insurance Company in repudiating the claim of respondent. Against District Forum’s order, the respondent filed appeal which was allowed by State Commission with the direction noticed above. State Commission was of the opinion that claim petitions filed by the occupants of vehicle in question before Motor Accident Claims Tribunal, Chandigarh were not relevant pieces of evidence and there was no other evidence led by Insurance Company to show that the vehicle was being used as taxi in breach of conditions of policy at the time of accident.
3. It was indicated by Mr. S.P. Singh for respondent that after the order under challenge was passed, the petitioner-Insurance Company settled the claim for Rs. 1,28,785/- being 75% of Rs. 1,77,699/- being the amount incurred on repairs of vehicle and that amount has also been received on 14.1.2003 by the respondent.
4. Submission advanced by Shri Atul Nanda for petitioner was that State Commission did not consider the report dated 12.11.1997 of B.L. Vashist, Investigator which was exhibited as R-l in the affidavit of Rakesh Mohan, Divisional Manager filed by way of evidence before the District Forum. Further, claim petitions filed before Motor Accident Claims Tribunal, Chandigarh would show that vehicle in question at the time of accident was being used as taxi in violation of the terms of policy. According to him, conclusion reached by State Commission that there was no evidence except the claim petitions to prove that vehicle was being used as taxi is erroneous. On the other hand, while supporting the order of State Commission, it was pointed out by Shri Singh, Advocate that neither the affidavit of Investigator nor that of Raj Kumar and Ramesh Kumar referred to in investigation report dated 12.11.1997 were filed by way of evidence by the Insurance Company. Reliance was placed on the decision in B.V. Nagaraju v. Oriental Insurance Company Ltd. and Anr., and National Insurance Company Ltd. v. Swaran Singh and Ors., I (2004) ACC 1 (SC) : JT 2004 (SC) 109.
5. To be only noted that Evidence Act, 1872 has no applicability to Consumer Fora. Claim petitions which showed use of the vehicle in question not for private use for which it was insured at the time of accident, are relevant in the case.
6. Said Investigation Report (copy at pp 45-54) being Ex. R-1 is part of evidence though affidavit of Investigator was not filed by Insurance Company. As noticed above this report was not taken note of by the State Commission. We are satisfied from this report that vehicle in question was being used at the time of accident as taxi though it was insured for private use. Needless to repeat that claim petitions pending before the Motor Accident Claims Tribunal, Chandigarh were held to be not relevant pieces of evidence by the State Commission taking note of Sections 40, 41 and 42 of the Indian Evidence Act, 1872. It is not in dispute that under Clause 10(iii) of the Procedural Manual in respect of Motor Insurance Claims of petitioner company, the breach of warranty/condition of policy in relation to limitation was to use can be settled on non-standard basis upto 75% of admissible claim. Respondent has received amount of Rs. 1,28,7857- on 14.1.2003. Contention advanced by Mr. Nanda was that as this amount was realised in execution proceedings, it was subject to outcome of present revision petition. Above said amount was 75% of Rs. 1,77,699/- spent on repairs of vehicle. Aforementioned direction was not to settle the claim in a particular manner claim for the said amount was presumably settled treating the claim of respondent as non-standard. Though the order of State ‘Commission on merit cannot be legally sustained, still in view of said payment and discussion, the revision petition now does not survive. Dismissed as such leaving the parties to bear their own cost.