The main legal point established in the judgment is that the insured party fulfilled the conditions of the insurance policy relating to care and caution, and therefore, the claim was required to be accepted.

Mr. Justice M.A.A. Khan, President—The appellant had got his Tata Truck model 1982 RJE 8883 insured for Rs. 1,80,000/- with the respondent Company for the period from 17.12.1993 to 16.12.1994 for loss and damage by, including fire and other calamities. While the said vehicle was on its way from Javra (M.P.) to Bhilwara and onward to village Alada via Gangapur City on 21.5.1994 and had reached on Gangapur-Raipur Road, the fodder with which the vehicle was loaded, caught fire from electric wires which finally led to the total destruction of the vehicle. The appellant lodged his claim for the assured amount but the respondent Company repudiated such claim on the ground that it did not fall within the purview of the terms and conditions of the insurance. On a complaint filed by the appellant before the District Forum, the District Forum dismissed the complaint on the ground that the appellant had not fulfilled the conditions laid down in the policy relating to care and caution on the part of the complainant. Aggrieved by such order of dismissing his complaint, the appellant has filed this appeal.

2. The respondent did not appear despite repeated calls given to their Counsel. None appeared for and on behalf of the respondent. We, therefore, heard the learned Counsel for the appellant and perused the material available on the record of the Forum. The learned Counsel for the appellant took us through the report of Surveyor and Loss Assessor of fire, motors, marine etc., the FIR lodged by the driver of the vehicle after incident and the report of Sh. K.K. Sharma, Investigator, appointed by the respondent Company and highlighted the fact that the driver and khalasi of the vehicle had taken all care and caution to protect the vehicle from destruction by fire and, therefore, the condition of the policy which was stated to have been violated by the appellant, did not stand attracted to the facts of the present case. Mr. Yogi submitted in particular that the vehicle was loaded with Khakhla upto a height of 14 feet from the ground and that what was noted by the Investigator Sh. K.K. Sharma was that the earth wire on both poles whereunder the vehicle had passed, was having sag and the height of the wire was 11 feet from the ground and that another two phase wires were 14 feet high from the ground and third phase which was on top of the pole was 15.5 feet high from the ground whereas the truck load with Khakhla was having average height of 14 feet and required minimum 14½ feet clearance to pass underneath any wire hanging over. Mr. Yogi further pointed out that while making the vehicle pass underneath the hanging wire, the khalasi on the truck and the owner of the Khakhla had lifted the hanging wire much above the height of the Khakhla in the truck but since the wires had frictioned and sparked, some spark accidently dropped on the loaded vehicle which caught fire. It was submitted that the driver and Khalasi on the vehicle as also the owner of Khakhla had tried to extinguish the fire as soon as of it came to notice but they could not be successful in their efforts despite risk to their lives. It was submitted that the condition relating to care and caution to be taken by the insured for protecting the vehicle from any fire or other like calamity was fulfilled by them in the present case and, therefore, dismissal of the complaint was not in order.

3. On going through the material available on the record of the Forum we find that one of the conditions of the policy was that the owner of the vehicle would take all reasonable steps to safeguard the motor vehicle from loss or damage and would maintain the same in serviceable condition. This condition is contained as Condition No. 5 of the policy. It is not in dispute that the vehicle was loaded with Khakhla upto a height of 14 feet at the time of its passing underneath the hanging wires of the two poles. It was found by Sh. K.K. Sharma, Investigator that the earth wire on both poles was hangin