(Delivered on 21/11/2016)

PER MR. JUSTICE A.P.BHANGALE, HON’BLE PRESIDENT.

1.      This appeal is preferred  against the judgment and award  dated 07/10/2005 passed by the learned  District Consumer Dispute Redressal Forum, Nagpur  in consumer complaint No. 63/2005.

 2.      The brief facts stated are  that  one Prakash  Somkuwar, husband of the complainant  No. 1 in the case and father of the  complainant Nos. 2 to 4 was sitting on his stationary vehicle  on 01/06/2004 and waiting for his friend. During  this time of waiting  period  a truck bearing No. MH-28/56 (Incomplete number)  gave dash to the stationery vehicle, the motor vehicle  accident   resulting  in to death  of said Prakash Somkuwar.

 3.      Accordingly the appellants were informed. The Police tried  their level best to trace the truck but in vain the truck in question which caused  the motor vehicle accident and  involved in the  dash to the  stationary vehicle  due to  incomplete   registration number could not  be traced out. That being  so, the truck  owner and driver could not  be  impleaded  in the complaint proceeding.

 4.      The stationery vehicle  Bajaj Spirit Scooter owned by the complainant was insured with the appellant. Admittedly accident  occurred  during the period of validity covering the date of accident.  It is also not in dispute that  the death of Prakash Somkuwar resulted while sitting as owner of the vehicle  on the insured vehicle. Unfortunately the stationary  scooter  belonging to him was dashed by the truck.

5.      The learned District Consumer Dispute Redressal Forum  though made a reference to  the police papers  such as Inquest Panchanama, FIR indicating that  the truck has  dashed with the insured  stationery  motor vehicle while owner of the insured vehicle  was sitting  on it and he  died on the spot as a result of accident.  The Post Mortem  report indicating that  the death has occurred due to extensive injury to the head of deceased. It was contended before the learned District Consumer Forum that the insurance policy  covered  personal accident  of owner-driver and that he was not a driver of the vehicle at the time of accident and therefore  complainant could not  have taken benefits of insurance policy in respect  of  vehicle.  It is also contended that  other family members, nephew  who had filed FIR is the only eye witness  of the accident  which had occurred and said vehicle  remained  intact while it was dashed by the truck. The person  sitting  on a stationery scooter died on the spot due to head injury but nothing happened to the vehicle. The learned District Consumer Forum found this version  unbelievable  but  rejected the claim made by the complainant, ultimately dismissed the complaint.

 6.      After hearing submissions advanced at bar,  we have carefully  seen the  insurance policy. We have also perused the copies of  police documents including FIR. Accord