Haryana

StateCommission

A/1159/2018

HARWINDER PAL KAUR - Complainant(s)

Versus

ORIENTAL INSURANCE CO.LTD. - Opp.Party(s)

01 May 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                      First Appeal No.1159 of 2018

                                                Date of Institution: 15.02.2018

                                                               Date of Decision: 01.05.2023

 

Harwinder Pal Kaur W/o Sh.Gurpreet Singh, R/o H.No.1071, Sector-9,  Ambala City-134002.

…..Appellant

Versus

1.      M/sOriental Insurance Company  through its Branch Manager, LIC Building Ambala City.

2.      M/s Oriental Insurance Company Limited, Oriental House, A-25/27, Asaf Ali Road, New Delhi 110002.

…..Respondents

CORAM:    S.P.Sood, Judicial  Member

                                                                

Present:-    Mr.Abhineet Taneja, Advocate for theappellant.

                   Mr. D.C.Kumar, Advocate for respondents.

                                                ORDER

S P SOOD, JUDICIAL MEMBER:

          Delay of 13 days in filing the appeal is condoned for the reasons stated in the application filed for condonation of delay.

2.      The present appeal No.1159of 2018 has been filed against the order dated 29.12.2017 of the District Consumer Disputes Redressal Forum, Ambala(In short Now “District Commission”) in complaint case No.216of 2016, which was dismissed.

3.      The brief facts of the case are that complainant was registered owner of vehicle Ford Fistabearing  registrationNo.HR 01U5996and the same was got insured with opposite parties-insurance company vide insurance policy No.261101/31/2014/3983valid from25.09.2014 to 25.09.2015 for sum assured of Rs.2,25,000/-.Unfortunately, on 06.07.2015,  the above said vehicle met with an accident for which FIR No.169 was also lodged on the same day.  Intimation was given to OP No.1 following whichsurveyor was appointed, who assessed the loss to the said vehicle.  Afterwards complainant requested OP to settle her claim, but later did not agree and repudiated the claim. Faced with this situation, he got issued legal notice upon the Ops, but to no avail. But repudiation of the claim was illegal on baseless ground that it was not clear as to who was driving the vehicle at the time of accident.  Thus there being a gross deficiency in service on the part of the Ops, hence the complaint.

4.      In its written version, OPs submitted that upon intimation about incident, surveyor was appointed, who assessed the loss to the car to the tune of Rs.2,02,000/-. As per FIR the accident took place around 5.40 p.m. on GT road between the offending canter and car of complainant bearing registration No. HR 01 U 5996 driven by grandson of complainant and  Dipankar, Ridhima,Harsikha and Anushikha were also seated in the carillfated car.  According to the FIR, the car was being driven by complainant’s grandson namely Gurvinder Singh. Unfortunately out of all the occupants riding in the car sustained fatal injuries,resulting in death of four persons except one Harsikha. Who survived this mishap.   As per the original version of the informant it was disclosed that this car was driven by Gurvinder Singh which was so recorded in the FIR also but afterwards realizing that he did not have the driving licence so the said author of FIR vide his supplementary statement disclosed that it was Dipankar who was driving the car.  Well no normal person of stable mind would ever think of doing all this at such a crucial juncture when such an horrible accident involving four casualities had happened. It was normally expected from author of the FIR  in his supplementary statement recorded on the same dayafter three hours would have stated that car was being driven by another occupant of the car namely Dipanker.   These two different statements raised a doubt  as to whether and under what circumstances, grandfather, as per whom he witnessed  the occurrence and got recorded in the FIR, the name of his grandson Gurvinder Singh driving the car and subsequently changed the same, which casts a bonafide doubts to whether Inderjit Singh Walia has suppressed the truth regarding the driver of the car or not.  As per investigator, it was found that grandson of the author of FIR was not having driving license but it was only Dipankar who was having driving license. Since the car being driven by a person who was not having driving license, as per the original version given by the informant, therefore, the claim of the complainant was rightly repudiated vide letter dated 13.04.2016. Thus there was no deficiency in service on the part of the OPs.

5.      After hearing both the parties, the learned District Commission, Ambalahas dismissed the complaint vide order dated 29.12.2017.

6.      Feeling aggrieved therefrom, complainant-appellant has preferred this appeal for setting aside the impugned order.

7.      These argument were advanced by Sh.Abhineet Taneja, learned counsel for the appellant and Sh.D.C.Kumar, learned counsel for the respondent. With their kind assistance, entire record of appealas well as original record of the District Commission including whatever evidence has been led on behalf of  both the parties has also been properly perused and examined.

8.      Learned counsel for the appellant argued thatduring this accident, out of five occupants of this car four persons died on the spot and only one girl Harshikha survived. Further he argued that it wasSh.Inderjeet Singh who got registered the FIR regarding this accident and had stated that this vehicle was being driven by his grandson  Gurvinder Singh but later on he changed his version and got recorded his supplementary statement that Gurvinder Singh was not driving the vehicle, but, it was his friend Mr.Dipanker who was at the wheel.  Learned counsel  for the appellant further argued that the surveyor has assessed the loss to vehicle to the tune of Rs.2,02,000/- and Mr.Dipanker was having a valid driving licence as such  the complainant being owner of the car was entitled for the surveyor amount as prayed for. So District Commission did not appreciate  thefacts in right perspective and dismissal of the complaint was not justified.

9.      Learned counsel for the respondents vehemently  argued that according to the FIR, the car  was driven by his grandson namely Gurvinder Singh and after three hours, the said author of the FIR  in his supplementary statement recorded on the same day that car was driven by another occupant of the car namely Dipanker.   These two different statements raised a question mark  as to how and under what circumstances, grandfather, who as per him, witnessed  the occurrence initially got recorded in the FIR, the name of his grandson but subsequently changed the same, which cast a bonafide doubts as to whether he was suppressing the material facts.
Therefore,   Ops have rightly repudiated the claim vide letter dated 13.04.2016 on the ground that two version were given by the complainant  which contradict each other as on one hand he has stated that his grandson Gurwinder Pal Singh @ Sunny was driving the vehicle at the time of accident and lateron he has made an altogether different statement that Dipankar was driving the vehicle at the time of accident.Therefore was not entitled for claim amount as prayed for. The learned District Commission has rightly dismissed the complaint.

10.    It is not disputed that during the subsistence of the policy, the vehicle of complainant met with an accident. It is also not disputed that Inderjit Singh Singh made two statements, on the one hand he stated that  the vehicle was driven by his grandson Gurvinder Singh whereas in another supplementary statement  he disclosed that vehicle was driven by one Mr. Dipanker. The complainant has also placed on record  affidavit of Ms.Harshikha Ex. PW 2/A, who of course was travelling in the car with Sunny Ahluwalia, Dipankur Bansal and two of her other friends others were coming towards Amabla Cantt after taking food at Mohra Hotel.  In this affidavit Ms.Harshikhahas clearly stated on oaththat the vehicle was driven by Dipankur Bansal and their other friends were  following them in separate car driven by Chetan and Tanjhor and Akansha. It is also said by her in the cross examination that the ill-fated vehicle was driven by Dipankur Bansal.  Her testimony cannot be brushed aside lightly.  Her testimony has created a formidable and acceptable base.  Her testimony could not be demolished or dented in her cross examination. Hence, statement of Harshikha version on oath is credible and thus reliable. Moreover FIR is not an encyclopedia and its contents is not considered to be a  substantive piece of evidence. Even otherwise no oblique motives could be attributed to supplementary statement got recorded by informant on the day of accident as such.The case law relied upon by the counsel for the respondent titled Surinderjit Singh Vs. Kuldip Rai Thapar and others, 1982 PLR 711 is not applicable to the case in hand because the facts and circumstances of the case are different that from the present case.The learned District Commission fell in error and wrongly dismissed the complaint of the complainant.

11.    In view of the above, the impugned order is set aside and appeal is partly allowed, the complainant-appellant is entitled for the surveyor amount i.e. Rs.2,02,000/-.  Accordingly, Ops No.1 and 2-respondents are directed to pay the amount of Rs.2,02,000/- to complainant within 45 days from the date of passing of this order with interest @ 9% per annum from the date of filing of this complaint till its actual realization.  In addition, Rs.50,000/- is awarded to the complainant-appellant towards mental harassment and damagesand Rs.25,000/- is awarded to the complainant-appellant towards litigation expenses.  With aforesaid terms, the appeal stands disposed of, being partly allowed.

12.       Applications pending, if any stand disposed of in terms of the aforesaid judgment.

13.       A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.

14.      File be consigned to record room.

 

01th May, 2023                                                                    S. P. Sood                                                                                                                            Judicial Member    

S.K

(Pvt. Secy.)