(Delivered on 06/05/2022)

PER SHRI A. Z. KHWAJA, HON’BLE JUDICIAL  MEMBER.`

1.         Appellant Mr. Dharmesh Gupta has preferred the present appeal feeling aggrieved by the impugned judgment and order dated 30/06/2017 passed by the learned District Consumer Commission, Nagpur in Consumer Complaint No. CC/791/2015, by which the complaint filed by the complainant/appellant came to be dismissed.

2.         Short facts leading to filing of the present complaint may be narrated as under,

            Complainant – Mr. Dharmesh Gupta, resident of Bhande Plot, Nagpur had purchased one two wheeler namely Karizma bearing registration No. MH-49/A-8212 for price of Rs. 66,500/-. The complainant had also insured the vehicle with the O.P. ICICI Lombard General Insurance Co. Ltd.  and also paid a premium  of Rs. 1615/- and policy  was valid  for the  period  from 31/08/2014  to 30/08/2015. The complainant has contended that on 14/09/2014 he was proceeding in his Karizma two wheeler at about 3.00 p.m.  when suddenly one vehicle  came on the wrong side from the opposite direction  and gave dash  to the vehicle of the complainant.  The complainant himself was not injured but vehicle was severely damaged leading  to monetary loss of Rs. 40,000/-. The complainant  then parked the vehicle  on the spot  and then went  along with  his friend namely  Mr. Ashish Patel to Lakadganj Police Station  and informed the Police. On 21/09/2014 Lakadganj Police Station was registered  the FIR vide crime No. 8214/2014 The complainant  has contended that  it became necessary to repair the vehicle  but  parts of the vehicle were  not  available  and so he was required  to suffer  huge monetory loss as well as mental  harassment. The complainant then lodged the claim with the O.P. but O.P. refused to settle the claim.  The complainant  then  issued  legal notice to the O.P. on 26/06/2015 claiming  sum of Rs. 50,000/- within  a period of 7 days  but  there was  no  response from the O.P. namely ICICI Lombard General Insurance Co. Ltd. The complainant  was then constrained  to  file the Consumer Complaint.

3.         The O.P. ICICI Lombard General Insurance Co. Ltd. has appeared and resisted the complaint by filing written version on record.  The O.P. has contended that the complaint itself was not  maintainable  as there was no deficiency in service  on the part of the O.P. The complainant has also suppressed the material facts. The complainant had no locus standi to file the case.  The O.P has admitted that the vehicle was insured with them for the period  from 31/08/2014 to 30/08/2015 and complainant  had also paid  premium  of Rs. 1615/-. The O.P. has admitted that the Police has registered offence vide No. 8214 on 21/09/2014 and has also prepared the spot panchanama. The O.P. has taken a plea that the complainant had not given due intimation to the O.P. regarding the accident and so the complainant was not entitled and the complaint was not tenable in law and deserves to be dismissed.

4.         The learned District Consumer Commission, Nagpur thereafter went through  the evidence adduced on record by the complainant  as well as O.P. The learned District Consumer Commission, Nagpur also went through the written notes of argument filed by both the parties.  After appreciating the oral and documentary evidence on record the learned District Consumer Commission, Nagpur dismissed  the complaint  by passing  judgment  and order dated 30/06/2017.  Against this  judgment and order dated 30/06/2017 the present appellant/complainant has come up in appeal. 

5.         We have heard learned advocate for the appellant as well as respondent. We have heard Mrs. Murkute, learned advocate for the appellant. It is not in dispute  that the complainant  was the owner of the one  two wheeler namely Karizma and same was duly  insured  with the respondent /O.P. ICICI Lombard General Insurance Co. Ltd. for the period  from 31/08/2014 to 30/08/2015. There is also no serious dispute that accident had taken  place on 14/09/2014 during the period of policy. The complainant has alleged that due to accident his vehicle was completely damaged and there is monetary loss of more than 40,000/- and there was no injury to person. The appellant /complainant has further contended that after the accident he had given due intimation immediately to Lakdganj Police Station but the offence was registered on 21/09/2014. The O.P. namely ICICI Lombard General Insurance Co. Ltd. has taken a plea that though the complainant had  given  proper  intimation  to the Police but  no  prompt  intimation  was given to the O.P. ICICI Lombard General Insurance Co. Ltd. and so there was breach of terms and  conditions of the  Insurance  agreement.

6.         The learned advocate for the appellant /complainant  has submitted before  us that the learned District Consumer Commission, Nagpur had not properly appreciated the documentary evidence  on record and had wrongly rejected the complaint on the sole ground that  the complainant  himself  had not  lodged the  report with  Lakadgang  Police Station. It is pointed  out by  Mrs. Murkute , the learned  advocate appearing  on behalf of the  appellant  that the  findings  given by the learned District Consumer Commission, Nagpur were  erroneous  in nature since  though  the complainant – Dharmesh Gupta  had  himself  not lodged  the report  with the Police Station, Lakadgang but  his friend Mr. Ashish Patel had  lodged the report. In this connection she has drawn our attention to the copy of FIR which is on record. We have gone through the copy of FIR in Crime No. 8214/2014. If we go through the copy of FIR the same was lodged by one Mr. Ashish Patel who had given a report that the vehicle met with an accident on 14/09/2014 in afternoon 3.00 p.m.  It is now well settled and also clearly laid down  by the Section 154 of the Code of  Criminal Procedure   that any person can set the criminal law in to motion by lodging FIR regarding  any incident. It is therefore not at all necessary  that  the victim  himself  or owner of the vehicle must  himself  lodge the  report with the police station.   Many times in course  accident the rider  himself  is injured  and therefore  it is not possible  for him  to lodge the report. On the basis of this fact no adverse inference can be drawn against the victim/owner of the vehicle. Here in the present case FIR was lodged by Ashish Patel who was the friend of the complainant.  As such we do find considerable force in this contention of the learned advocate for the appellant that the learned District Consumer Commission, Nagpur has not appreciated the copy of FIR in proper perspective. We  find that on the basis or  this  fact alone the leaned District Consumer Commission, Nagpur had drawn  erroneous inference  that  the  facts  were suppressed by the complainant  but this finding  was erroneous  in nature.

7.         During the  course of argument  the learned advocate for the appellant has also  drawn our attention  to the repudiation letter  issued by the ICICI Lombard General Insurance Co. Ltd. on 09/10/2014 and same shows that  the claim of the  complainant  was repudiated  on the ground  that  the  complainant  was not having any  insurable  interest   which  inter alia  means  that the vehicle was sold  to  third party. On this  point  the learned advocate for the appellant has drawn our attention  to the copy  of R.C. Book which  is marked at annexure -D and same clearly shows that  the vehicle was duly registered  in the name of  Mr. Dharamesh Gupta as owner. During  the course of argument  the learned  advocate for the respondent  has also taken  this plea that  the vehicle  has come  to be transferred  to the  third person but  surprisingly   the  Insurance Company has not  placed on record single  documents  to show that  the  complainant  has transferred  the vehicle  to any person. Even the name of the transferee is not mentioned and in the absence of any details the claim of the complainant came to be repudiated.  As such contention of the learned advocate for the respondent cannot be accepted  in the absence  of any documents  on record.

8.         During the course of argument, the learned advocate for the appellant has also placed reliance upon one judgment  in the case of Lakhmi Chand Vs. Reliance General  Insurance, delivered by  the Hon’ble Supreme Court of India on 07/01/2016 in Civil Appeal No. 49/2016.. In this case it has been  observed that  when  the  insurance company takes a plea of breach of  terms and conditions  of policy  then burden lies on the insurance company to establish the same . Here in the present case though the O.P. has repudiated the claim no such document supporting the repudiation have been filed on record.  Further, the learned  advocate  for the appellant has also relied  upon  one judgment  of Hon’ble Kerala High Court  in the case of  L. Mini and others Vs. Gireeshkumar  and Anr.  delivered  on 02/09/2016 in  M.A.C.A. No. 2102/2013  but the same  is not  applicable  to the facts of the present  case.

 9.        In the light of aforesaid  discussion  held above, we find  force in the contention  learned advocate  for the appellant  that  the  facts on record  and  documents  on record are not properly  appreciated  by the  learned District Consumer Commission, Nagpur. As such we are of the view that  the order passed by the learned District Consumer  Commission, Nagpur dated 30/06/2017 will have to be  set aside  and complaint  will have to be remanded  back to the learned District Consumer Commission, Nagpur for  fresh disposal as per law and so we pass the following order, 

ORDER

 i.         Appeal is hereby partly   allowed.

ii.          Order dated 30/06/2017 passed by the learned District Consumer Commission; Nagpur is hereby set aside and Consumer Complaint No. CC/791/2015 is remanded back to the learned District Consumer Commission, Nagpur for fresh disposal in accordance with law.

iii.         Appellant to bear  his own costs as well as costs of the respondent.

vi.        Copy of order be furnished  to both the parties, free of cost.