Before the District Consumer Disputes Redressal Forum, Mandi, H.P.



Complaint Case No.222/2008

Date of Institution 22-8-2008

Date of Decision 25-3-2009





Sh. Khem Raj Saini son of Sh. Narottam Chand Saini Resident of village Satoh, Post Office Rajgarh, Tehsil Sadar, District Mandi, H.P.



…Complainant





V/S



Divisional Manager, Oriental Insurance Company Ltd Vidya Bhawan Hospital Road, Mandi, District Mandi, H.P.



…..Opposite party











For the complainant Sh. Noor Ahmad ,Advocate

vice counsel.

For the opposite party Sh. Sunder Goel, Advocate.





Complaint under Section 12 of the

Consumer Protection Act, 1986.



ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The case of the complainant is that he is owner of jeep No.HP-33B-0325. The complainant purchased the said vehicle to earn his livelihood by means of self employment. Said vehicle was duly financed by the complainant and insured with the opposite party under comprehensive insurance policy cover in the sum of Rs.2,10,000/- which was valid with effect from

23-1-2008 to 22-1-2009.During the currency of the insurance policy, said vehicle met with an accident on 5-4-2008 at about 6.30 AM near Bhojpur and was totally damaged when the same was hit by bus No. UP-17C-2858 being driven negligently by its driver. First information report No.151 dated 5-4-2008 under section 279, 337 and 338 and 304A IPC was registered against the driver of the bus No. UP-17C-2858 in Police Station Sunder Nagar. The complainant also reported the accident to the opposite party ,thereafter survey was got conducted by the Surveyor of the opposite party and the vehicle was found total loss . The complainant requested the opposite party for early settlement of the claim. The opposite party demanded some documents for early settlement of the claim which were supplied as and when demanded by the opposite party. It had been alleged that the surveyor deputed by the opposite party for investigation of damaged vehicle had not joined the complainant at the time of the investigation and as such the report of the Surveyor is arbitrary one and prepared after thought with the connivance of the opposite party and liable to be ignored. . The opposite party had repudiated the claim on the grounds that the complainant had fraudulently misrepresented and concealed the material fact committed breach of driver clause of the policy ,breach of limitation as to use clause as unauthorized persons were sitting in the vehicle and breach of other terms and conditions of the vehicle as the vehicle was overloaded at the material time of accident.. It had further been alleged that the grounds taken by the opposite party for repudiation of the claim are without any rhyme and reason and the complainant had not committed any breach of the policy .The complainant had served the opposite party with legal notice on 1-8-2008 which was replied by the opposite party vide letter dated 18-8-2008 in which it has been stated that during investigation it transpired that at the time of the accident ,the vehicle was not being driven by Sh. Beli Ram but

by some other person. It had been alleged that above allegations of the opposite party are false and frivolous as Sh. Beli Ram was not driving the vehicle then who was driving the same because Sh. Beli Ram had lodged the first information report and police had also found Sh. Beli Ram driving the vehicle in question. It had further been alleged that the repudiation of the claim is not only deficiency in service but also unfair trade practice . With these averments , the complainant had sought a direction to the opposite party to settle the claim of the vehicle in question on total loss basis , to pay the insured sum , to pay interest amount as claimed by the ICICI from the complainant, the opposite party be directed to waive off the interest and penal interest after the accident of the financed vehicle, to pay Rs.25,000/- on account of harassment , to pay Rs.20,000/- as litigation charges and Rs.10,000/- as cost.

2 The opposite party resisted the complaint by filing reply in which preliminary objections have been raised that the present complaint is no complaint and the dispute referred is no dispute in view of the fact that the claim of the complainant had been put at rest as the claim has been repudiated vide letter dated 15-7-2008 and he was duly communicated under registered post , that there is breach qua terms and conditions of the policy especially the driver clause and limitation as to use of the vehicle at the time of accident , that the complainant has not approached the Forum with clean hands . On merits, it has been admitted that the complainant is registered owner of the vehicle in question. The opposite party admitted the issuance of policy in the sum of Rs.2,10,000/- which was valid from 23-1-2008 to 22-1-2009. It had been averred that the First Information report is manipulated to the extent that subscriber of the first information report was not on the wheel of the insured vehicle. The opposite party had admitted that the complainant had intimated it about accident but averred that the amount of the indemnity recommended by the surveyor was found not to be paid in view of the violation qua the terms and conditions . It had been pleaded that the loss assessed by the surveyor was Rs.2,09 ,500/- which loss is payable subject to the terms and conditions of the policy .The opposite party had admitted that the claim had been repudiated on the ground as alleged in the complaint. It had further been averred that the accident was got investigated and it was found that notwithstanding Sh. Beli Ram , it was somebody else who was driving the vehicle at the time of the accident and Sh. Beli Ram was not even travelling in the vehicle . It has been averred that whole matter was manipulated with the police and false police challan was got prepared to get the compensation. The opposite party has denied any deficiency in service on its part and the opposite party had prayed for dismissal of the complaint .

3. The complainant had filed rejoinder reiterating the averments made in the complaint and controverting the averments made in the reply by the opposite parties.

4. We have heard the ld. counsel for the parties and have carefully gone through the entire record. Be it stated that the opposite party in its reply has not denied the factum of insurance of the vehicle in question and its accident. The opposite party has also not denied that the information in this regard was given to it and the surveyor had recommended the loss on total loss basis in the sum Rs.2.09,500/- subject to terms and conditions of the policy. The case of the complainant is that Sh. Beli Ram driver was driving the vehicle at the time of accident and he also lodged the first information report regarding the accident against the driver of bus No. UP-17C-2858 due to whose negligence the accident had taken place. . On analyzing the rival submissions as well as the material available on record , it is found that as per the repudiation letter dated 15-7-2008, the opposite party had repudiated the claim of the complainant on the

grounds that complainant has concealed the material facts viz- a -viz driver (actual) on the wheel at the material time of accident and committed breach of “ Driver’s clause ”, that at the material time of accident unauthorized persons were sitting in the vehicle and that the vehicle was over loaded. According to the opposite party whole matter was manipulated and a false police challan was got prepared to get the compensation . The onus to prove that Sh. Beli Ram was not driving the vehicle in question , unauthorized persons were sitting in the vehicle and that the vehicle was overloaded lies on the opposite party To discharge the burden , the opposite party had placed reliance upon Investigation report of Sh R.K.Tiwari, Advocate dated 12-5-2008 Annexure -I, . As per the Insurance company, it had deputed Sh.R.K.Tiwari Advocate to carry out investigation who in his aforesaid report dated 12-5-2008 Annexure -1 concluded in his opinion in para (iii) as under:-

“According to news published in the newspaper Amar Ujala dated 11-4-2008 the driver of the vehicle No. HP-33B-0325 named as Vineet Kumar died in the accident in my opinion the owner of the vehicle manipulate a new driver to obtain the own damage claim and other claim from the insurance company.”



However, the report of investigator Annexure -1 cannot be relied upon as the same is not supported by any satisfactory evidence on record. The report is silent about the fact that if Sh. Beli Ram driver was not driving the vehicle in question at the time of accident , then who was driving the same The investigator had also recorded the statements of Sh. Beli Ram driver and Sh Khem Chand owner of the vehicle No. HP-33-B-0325 who stated in their statements that Beli Ram was driving the vehicle at the time of accident. The investigator has based his statement only on the newspaper clipping and apart from that there is no concrete material available on record on the basis of which he formed the opinion that the vehicle at the time of accident was not being driven by Sh. Beli Ram driver. It is settled law that unless proper evidence is led news appearing in the newspapers is hear say. No affidavit of Sh.R.K.Tiwari Investigator has been adduced in evidence in support of the investigation report by the opposite party. Except the investigation report , there is no other evidence on record to suggest that Sh. Beli Ram was not driving the vehicle at the time of the accident. On the other hand, as per the First Information report at the time of accident Sh. Beli Ram was driving the vehicle . Moreover there is no mention in the final Survey report of Sh. Mohinder Kumar Sharma Annexure R-C adduced in evidence by the opposite party itself that Sh. Beli Ram was not driving the vehicle and in fact the report corroborates the version of the complainant that Sh. Beli Ram was driving the vehicle at the time of accident Hence , we have no hesitation to conclude that the Sh. Beli Ram was driving the vehicle at the time of accident .The complainant has placed on record driving license of Sh. Beli Ram and it is nowhere the case of the opposite party that Sh. Beli Ram was not having a valid and effective driving license at the time of the accident. So far as the grounds taken by the opposite party for repudiation of the claim that the unauthorized persons were travelling and the vehicle was overloaded at the time of accident , the opposite party has failed to prove and establish that unauthorized passengers were travelling in the vehicle or the vehicle was over loaded. The complainant has placed on record the registration certificate of the vehicle which reflects that seating capacity of the vehicle is three . As per the copy of the First information report filed by the complainant as well as by the opposite party only three persons were travelling in the vehicle . Moreover it is not the case of the opposite party that the over loading was the cause of accident because the first information report has not been lodged against the driver of the jeep in question and the same has been registered against the bus driver who has hit the jeep from wrong side. In fact no material has been placed on record by the opposite party to suggest that unauthorized persons were travelling in the vehicle or the vehicle was over loaded. Therefore in view of the above facts and circumstances of the case it would not be improper to conclude that the opposite party has repudiated the insurance claim illegally and arbitrarily which act and conduct on the part of the opposite party is gross deficiency in service .

5 Now the next question which arises for consideration before this Forum is as to what amount the complainant is entitled on account of loss suffered by him due to accident of the vehicle. The complainant in his complaint had claimed the assessment of the loss on total loss basis i.e. insurance sum which is Rs.2,10,000/- .On the other hand the opposite party has admitted in his reply in para No.7 on merits and stated that the surveyor has assessed the loss at Rs.2,09,500/- which is payable subject to the terms and conditons of the policy The perusal of the report of Sh. Mohinder K.Sharma Surveyor Annexure C depicts that the Net Loss liability on total loss basis is at Rs.2,09,500/-. The opposite party has also adduced in evidence the affidavit of Surveyor Sh. Mohinder Kumar Sharma which is dated 14-1-2009 in which he has specifically deposed that indemnity has been assessed at Rs.2,09,500/-. The salvage value of the vehicle with registration certificate has been assessed at Rs.50,000/- and if the complainant transfers the registration certificate in favour of the opposite party without salvage , the salvage value has been assessed at Rs.28,000/- . The complainant had not adduced any evidence contrary to the report of Surveyor .Moreover the report of Surveyor is an important document and it cannot be brushed aside without sufficient reasons. The Hon’ble National Consumer Disputes Redressal Commission in United India Insurance company vs Jadhav Kiran Store , III (2005)CPJ-79(NC) has held that the Surveyor report is an important document and it should not be shunned without sufficient reasons. Therefore, in the absence of any satisfactory evidence to the contrary , we accept the report of Surveyor and in view of the same , we hold that the loss suffered by the complainant with respect to the damage caused to the vehicle is at Rs.2,09,500/- subject to deposit of salvage and transfer of registration certificate of the vehicle failing which the opposite party shall be entitled to deduct Rs.50,000/- from the above amount as value of salvage and registration certificate and in case the complainant transfers the registration certificate in favour of the opposite party without salvage in that eventuality the opposite party shall be entitled to deduct the value of salvage at Rs.28,000/- as assessed by the surveyor in his report

6 The complainant had claimed Rs.25,000/- as compensation on account of harassment and mental tension, due to deficiency in service on the part of the opposite party. As discussed above the opposite party has been deficient in providing service to the complainant , therefore he is entitled to some reasonable compensation on this score . Hence , It would be in the interest of justice ,if we award a sum of Rs.10,000/- as compensation.

7 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay Rs.2,09,500/- alongwith interest at the rate of 9% p.a. from the date of filing of the complaint till realization to the complainant subject to deposit of salvage and transfer of registration certificate of the vehicle failing which the opposite party shall be entitled to deduct Rs.50, 000/- from the above amount as value of salvage and registration certificate and in case the complainant transfers the registration certificate in favour of the opposite party without salvage in that eventuality the opposite party shall be entitled to deduct the value of salvage at Rs.28,000/- as assessed by the surveyor in his report The opposite party is further directed to pay Rs.10,000/- as compensation on account of harassment and Rs.5000/- as costs of litigation.

8 Copy of this order be supplied to the parties free of cost as per Rules.

9. File, after due completion be consigned to the Record Room.

Announced (Sushil Kukreja) President