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



Complaint Case No.138/2008

Date of Institution.9-6-2008

Date of Decision 19-3-2009





Vinod Kumar Bawa son of Sh. Naubat Rai resident of Main Bazar, Joginder Nagar, ,District Mandi, H.P.



…Complainant





V/S



Oriental Insurance Company ltd through its Divisional

Manager Mandi, Division Mandi, H.P.

..Opposite party.



For the complainant Sh. Abhisek Pal , Advocate

For the opposite party Sh.S.C. Dwivedi ,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 registered owner of vehicle No. HP-29-1677as per registration certificate Annexure C-1 which was insured with the opposite party under comprehensive insurance policy with effect from

30-9-2006 to 29-9-2007 on payment of premium as per cover note annexure C-2 in the sum of Rs.3,06,000/-. During the currency of the insurance policy, the said vehicle met with an accident on 6-2-2007at about 7.45 AM. At the time of the accident the vehicle in question was being driven by Sh. Sanjay Kumar and the driving license of the driver is Annexure C-3. The vehicle suffered colossal damages . The mater was reported to the Police Station Sunder Nagar and first information report No.58 of 2007 Annexure C-4 under section 279,337 and 304-A IPC was registered .The complainant submitted all the relevant documents alongwith estimate of loss qua the repair of the vehicle to the opposite party for early settlement of the claim but the same was repudiated by the opposite party vide its letter dated 24-8-2007 and 11-9-2007. It has been alleged that the repudiation letter itself speaks volumes of arbitrary and malafide approach of the opposite party as the same is without due application of mind

It has also been alleged that repudiation of just and genuine claim of the vehicle 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 pay Rs. 3,06,000/-to him alongwith interest at the rate of 12 % p.a from the date of accident till payment and also to pay Rs.11,000/- as compensation Apart from this , costs of litigation in the sum of Rs.10,000/- has also been claimed .

2. The opposite party resisted the complaint by filing reply in which preliminary objections have been raised that there is no deficiency in service on its part, that the complaint is not maintainable , that the claim lodged by the complainant was got investigated and assessed and when the same was not found to be genuine claim, the same was repudiated by the competent authority after due application of mind and in good faith and decision was duly communicated to the complainant, that the complainant had violated the driver’s clause of the insurance policy, that the complainant had committed breach of clause limitation as to use , that the complainant had concealed the material information because at the time of accident Sh.Anant Ram was driving the vehicle and not Sh.Sanjay Kumar , that at the material time gratuitous passenger Sh.Surinder was travelling in the said vehicle and that complex question of law and facts are involved therein and the controversy between the parties cannot be resolved in summary proceedings . On merits , the opposite party averred that the vehicle No. HP-29-1677 was insured with the opposite party for the period from 19-10-2006 to 18-10-2007 in the sum of Rs.3,00,000/- or the actual loss suffered which ever is less as per insurance policy Annexure R-1. It has been admitted that the opposite party had received information about the of accident of the vehicle in question on 6-2-2007 at place “Jai Dev” and immediately appointed Sh.Vishal Kumar Gautam to conduct the spot survey of the vehicle who after conducting spot survey submitted his report dated 7-3-2007 Annexure R-2. The Surveyor has also taken photographs Annexure RG-1 to RG-4. It has been averred that as per the information gathered by the opposite party at the time of accident Sh.Anant Ram conductor of the truck was driving the vehicle and not Sh.Sanjay Kumar son of Sh. Prem Singh. The complainant has not supplied the driving license of Sh.Anant Ram which shows that he was not possessing valid and effecting driving license to drive the vehicle in question. The opposite party had denied that the complainant had submitted all the documents for settlement of the claim. It has further been averred that the opposite party had hired the services of Sh. Mohinder Kumar Sharma for conducting assessment of loss and he has submitted his report dated 8-4-2007 Annexure R-3 in this behalf and as per his report the vehicle has been totally damaged and subject to terms and conditions of the insurance policy he recommended to settle the claim on net liability on total loss basis in the sum of Rs.2,64,000/- and in this respect the complainant had given his consent letter Annexure R-4. It has further been averred that since Sh. Anant Ram was driving the vehicle at the time of accident and he was not possessing a driving license to drive the vehicle in question and gratuitous passengers was travelling, therefore the claim was repudiated vide letter dated 24-8-2007 and 11-9-2007

Annexure R-5 and R-6, respectively. The opposite party had again hired the service of Sh.J.C. Prashar Investigator , to investigate the claim lodged by the complainant who after visiting the spot and after recording the statements Annexure R-7 to R-11 and also visiting the office of Indian Oil Corporation at Karsog and obtaining the record Annexure R P-1 to P-6 submitted the investigation report dated 6-8-2007 Annexure RP and as per the said report while truck No.HP-29-1677 loaded with empty cylinders from Karsog to Baddi was being driven by its conductor Sh.Anant Ram and not by real driver Sanjay Kumar and Sh.Anant Ram died . It has further been pleaded that the claim is baseless , contrary and there is no deficiency in service on its part. The opposite party had prayed for dismissal of the complaint qua it.

4. The complainant had filed rejoinder reiterating the contents of the complaint and denying those contrary to the complaint.

5. The opposite party had filed sur-rejoinder reiterating the contents of the reply.

6. We have heard the ld. counsel for the parties and have carefully gone through the 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.2,64,000/- subject to terms and conditions of the policy. It is a matter of record that Sh.Anant Ram had died on the spot in the accident of the vehicle in question. On analyzing the rival submissions as well as the material available on record , the short controversy needs redressal in this complaint is as to whether the opposite party has rightly repudiated the insurance claim lodged by the complainant on the ground that the vehicle was being driven by Sh.Anant Ram conductor and not by Sh. Sanjay Kumar as alleged by the complainant and that one Sh.Surinder was sitting / travelling in the vehicle as an unauthorized passenger which amounts to breach of policy conditions and limitation as to use of the vehicle or not. The onus to prove that Sh. Anant Ram conductor of the vehicle was driving the vehicle at the time of accident and the same was not being driven by Sh. Sanjay Kumar and that Sh. Surinder Kumar was travelling as unauthorized passenger in the vehicle lies on the opposite party. In this respect the opposite party had placed reliance upon the investigation report dated 6-8-2007 of the investigator Sh. J.C. Prashar Annexure R-P. As per the insurance company, it had deputed one Sh. J.C. Prashar as Investigator to carry out investigation who in his report dated 6-8-2007 concluded that at the time of the accident , Sh Anant Ram conductor was driving the vehicle . The investigation report placed on record alongwith statements of witnesses purported to be recorded by the investigator i.e. the statement of Sh.Dharam Singh Annexure R-7,Sh.Tula Ram Annexure R-8,Sh.Dhayan Singh Annexure R-9,Sh. Paras Ram Annexure R-10 and Sh.Surinder Kumar Annexure R-11. The opposite party had also placed on record the affidavit of Sh. J.C. Prashar where in he deposed that he investigated the case by taking written statements of aforesaid witnesses i.e.Annexure R-7 to R-11 and he also visited the office of the Indian Oil Corporation, Karsog and after obtaining the record, he found that the vehicle was being driven by its conductor Sh. Anant Ram and not by Sh.Sanjay Kumar He further deposed that Sh.Surinder Kumar took lift from Karsog in the said truck However, the report of the investigator Annexure R-P cannot be relied upon as the same is not supported by any documentary evidence on record . Every fact which is alleged in the report of the investigator has to be proved as fact on record .The investigation report Annexure RP unsupported by the affidavit of persons on the basis of whose statements the report was prepared cannot be relied upon . The investigator had only recorded the statements of the witnesses Annexure R-7 to Annexure R-11 but has failed to procure the affidavits of the witnesses and in the absence of affidavits of these persons this forum is not satisfied as to whether these statements were actually given by the above named persons. Moreover there is no mention either in the spot survey report of Sh.Vishal Kumar Guatam Annexure R-2 or in the final Survey report of Sh. Mohinder Kumar Sharma Annexure R-3 adduced in evidence by the opposite party itself that Sh.Anant Ram was driving the vehicle and in fact these reports corroborate the version of the complainant that Sh.Sanjay Kumar was driving the vehicle at the time of accident . It is not understandable why the opposite party has hired the services of investigator when the two Surveyors appointed by the opposite party itself have not uttered even a single word that Sh. Anant Ram was driving the vehicle or Sh.Surinder Kumar was travelling as gratuitous passenger. On the other hand , the complainant has placed on record charge sheet under section 173 Cr.P.C. Annexure C-8 which has been filed against the driver Sh. Sanjay Kumar in a criminal case State V/S Sanjay Kumar in the court of Ld. Additional Chief Judicial Magistrate Sunder Nagar . The perusal of the charge sheet shows that the police has carried out the investigation with respect to the accident in question and their investigation revealed that at the time of accident Sh. Sanjay Kumar was driving the vehicle in question . The charge sheet has been filed by Investigating agency of the State in the discharge of its official duty and nothing has been shown by the opposite party as to why the police officer in the discharge of his official duty would file charge sheet against a person who was not driving the vehicle at the material time . Moreover the investigation carried out by the police officials cannot be ignored because they are the first ones to have reached the spot and gathered information. Therefore, in the facts and circumstances of the case it can safely be held that at the time of accident Sh. Anant Ram was not driving the vehicle and it was Sh.Sanjay Kumar who was on the wheel at the relevant time. So far as the repudiation of the claim by the opposite party on the ground that one Sh.Surinder was travelling as gratuitous passenger in the vehicle is concerned , the opposite party has failed to prove and establish by placing on record satisfactory evidence that Sh. Surinder Kumar was travelling in the truck as gratuitous passenger. It is the specific case of the complainant that Sh.Surinder Kumar was travelling in the vehicle in the capacity of helper and was duly insured in the policy. The burden lies on the insurance company to prove and establish that Sh.Surinder Kumar was travelling as gratuitous passenger. In this respect also except for the report of investigator Sh. N.C. Prashar ,Annexure R-P there is no other evidence on record led by the opposite party. As discussed earlier, the investigation report Annexure RP cannot be relied in evidence being not supported by any documentary evidence on record. Moreover the opposite party has also failed to prove and establish that the presence of Sh.Surinder Kumar in the truck has attributed to the cause of accident. The complainant has placed on record copy of Registration certificate Annexure C-1 which also depicts that the seating capacity of the vehicle was five . The opposite party has failed to prove and establish that more than five persons were travelling in the vehicle at the time of accident . Furthermore, Sh.Surinder Kumar had also filed a Claim petition Annexure C-9 before the Ld. Motor Accident Claims Tribunal, II Mandi under section 166 of Motor Vehicles Act for the award of compensation wherein he had stated that he was a labour for loading and unloading the gas cylinders in the truck in question which was returning back from Karsog after supplying filled gas cylinders to the consumers and when it reached near Phangwas near Kateru curve , it met with an accident. Hence in view of the evidence adduced by the parties it cannot be said that Sh.Surinder Kumar was travelling as gratuitous passenger in the vehicle at the time of accident .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 .

7 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 clamed Rs.3.06,000/- alongwith interest .On the other hand the opposite party has admitted in his reply that the vehicle had been totally damaged and the surveyor had assessed the net liability on total loss basis at Rs.2,64,000/- as per Annexure R-3. The opposite party had also adduced in evidence consent letter dated 6-4-2007 Annexure R-4 given by the complainant to the opposite party whereby he had agreed to receive Rs.2,65,000/- on total loss basis as full and final settlement of the claim. In the affidavit of Sh. Mohinder Kumar Sharma dated 16-9-2008 he deposed that he recommended to settle the claim on total loss basis . The Surveyor had further deposed that the complainant had agreed to accept Rs.2,64,000/- and submitted the consent letter Annexure R-4 . He further deposed that in case the opposite party admits the liability and agrees to pay on total loss basis then the salvage of the vehicle under reference will be the property of the opposite party. As per the Surveyor report Annexure R3/A, the salvage value of the vehicle with registration certificate has been assessed at Rs.70,000/- and if the complainant transfers the registration certificate in favour of the opposite party in that event the salvage value has been assessed at Rs.50,000/-. The ld counsel for the complainant had not denied that the consent letter was not given to the opposite party or this much amount is not acceptable to him. 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.2,64,000/ subject to deposit of salvage and registration certificate of the vehicle failing which the opposite party shall be entitled to deduct Rs.70,000/- 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.50,000/- as assessed by the surveyor in his report Annexure R.3/A.

8 The complainant had claimed Rs.11,000/- as compensation on account of mental tension, torture and agony as well as financial loss suffered by him 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.

9 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay Rs.2,64,000/- 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 registration certificate of the vehicle failing which the opposite party shall be entitled to deduct Rs.70,000/- 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.50,000/- as assessed by the surveyor in his report Annexure R.3/A. The opposite party is further directed to pay Rs.10,000/- as compensation on account of harassment and Rs.5000/- as costs of litigation.

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

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

Announced (Sushil Kukreja) President 19-3-2009