STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 11.05.2017
Date of final hearing: 18.05.2023
Date of pronouncement: 28.07.2023
First Appeal No.572 of 2017
In the matter of :-
Bharti AXA General Insurance Company Ltd., Branch Office at JMD Regent Arcade, 2nd Floor, Shop No. 13,14,15 MG Road, Near Sahara Mall, Gurgaon through its authorized signatory Ms. Shivani Sharma, Assistant Manager Legal, Mercantile House, 7th Floor, Kasturba Gandhi Marg, Cannuaght Place, New Delhi. .…..Appellant
Versus
Sher Singh S/o Shri Mehar Singh, resident of Village Sherpur, Tehsil Pataudi, District Gurgaon. …..Respondent
CORAM: Naresh Katyal, Judicial Member
Argued by:- Sh. Sachin Ohri, counsel for the appellant.
Sh. Gaurav Aggarwal, counsel for the respondent.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Delay of 70 days in filing of present appeal stands condoned for reasons mentioned in the application for condonation of delay.
2. OP No. 1-Bharti Axa General Insurance Company Ltd. is in appeal. Challenge has been invited to the legality of order dated 18.01.2017 passed by District Consumer Disputes Redressal Forum-Gurgaon (In short “District Commission”) in complaint case No.152 of 2012, which has been allowed.
3. Factual matrix: complainant is registered owner of vehicle No. HR-55G-6783. It was insured with OP vide Policy No. 10525331 from 26.02.2011 to 25.02.2012. IDV value of vehicle was Rs.13,56,912/-. Vehicle met with an accident on 11.06.2011 within jurisdiction of Police Station-Boiser (Maharashtra) and damaged. At that time, it was being driven by Islam S/o Fajru, who, as per plea was holding valid and effective driving license. Complainant informed insurer/appellant of the accident. Vehicle was taken to Rajasthan for repair by incurring Rs.10,000/-. Complainant allegedly spent Rs.1,69,160/- on its repairs and submitted claim No. C0122995 with OP/appellant, but it was not reimbursed. On these pleas, complaint for seeking claim amount of Rs.1,69,160/- (as per details mentioned in Para 8 of complaint) was filed along with claim for litigation and harassment charges amounting Rs. 50,000/-.
4. Appellant/insurer raised contest. In defence so entered, it is pleaded that: complainant has no cause of action. Complaint is not maintainable. There is no deficiency in service on part of insurer. Claim was got investigated and assessed, but found violative of terms and condition of insurance policy. “No Claim” was done/paid and complaint was informed of same. It is pleaded that complainant has concealed true, material and relevant facts. It is pleaded that: complainant got insured HTV Truck No. HR-55G-6783, Model 2008 for period, from 26.02.2011 to 25.02.2012 with excess clause of Rs.1500/-. Truck met with an accident on 11.06.2011; company was informed late, after five days, on 15.06.2011. Complainant was bound to give notice in writing to police, as well as to insurance company immediately. It is claimed in complaint that: Islam (Driver of Truck at the time of accident) was having valid driving license, purported to be issued from Motor Vehicle Department-Agra. It is pleaded that: said driving license was not issued in favour of Islam. Driving license was fake. Thus, as per plea, complainant’s driver was not having valid and effective driving license at the time accident. Claim was found violative of terms and condition of policy and done as “No Claim”. Insurer’s Surveyor and Loss Assessor vide his detailed report dated 10.08.2011 assessed final loss to the tune of Rs.68,155/- (Rs.71,155/- as loss minus Rs.3,000/- as salvage value). It has been denied that Rs.10,000/- was incurred on transporting the damaged vehicle. It is denied that complainant is entitled to Rs.1,69,160/- and Rs. 50,000/- for litigation and harassment charges.
5. Record of learned District Consumer Commission shows that: no evidence was led by complainant and his evidence was closed by learned District Consumer Commission on 26.08.2013. Likewise, no evidence was led by OP and its evidence was closed on 11.11.2014.
6. On subjectively analyzing the case put forward by both parties to this lis; learned District Consumer Commission-Gurgaon vide order dated 18.01.2017 has allowed the complaint and directed to opposite party/insurer to pay Rs.71,155/- as assessed by insurer’s surveyor to complainant with 9% interest p.a. from date of filing of complaint, till realization. Complainant has also been held entitled to Rs.10,000/- as compensation for mental agony, harassment and litigation expenses.
7. Feeling aggrieved, this appeal has been filed by insurance company.
8. I have heard learned counsel for insurer/appellant and learned counsel appearing for respondent/complaint at length. With able assistance of both learned counsel; record of District Consumer Commission has also been perused.
9. On behalf of appellant; learned counsel has urged that: once driving license of insured’s driver was found fake then, insurance company is not liable to indemnify the insured. Learned counsel, to stimulate his contention, has relied upon documents Annexure-A2 to Annexure-A4 (All three Annexures viz A-2, A-3 and A-4 are appended along with paper book of this memorandum of appeal). It is urged that: driving license was not issued the name of Islam as per report of office of Regional Transport Authority-Agra. Consequently, learned counsel for appellant has urged for acceptance of appeal.
10. Per contra, learned counsel appearing for respondent/complainant has supported the impugned order dated 18.01.2017 by urging that it is outcome of proper appreciation of pleaded facts by learned District Consumer Commission and same warrant no interference.
11. It is admitted that Truck No. HR 55G-6783 had met with an accident on 11.06.2011 and it was damaged. It is admitted that: Truck was carrying insurance cover at that time, which had currency period from 26.02.2011 to 25.02.2012. Insurer has rejected the claim of insured/complainant on pedestal that: Islam S/o Fajru (Driver of ill-fated truck) was not holding a valid and effective driving license at the time of accident and this stance of insurer/appellant has been thrown overboard by learned District Consumer Commission, vide impugned order dated 18.01.2017. Now, in present appeal learned counsel has impressed upon documents viz. Annexure A-2 to Annexure A-4. Annexure A-2 is the letter dated 26.09.2016 so written by Sh. Chandra Raj Singh Chauhan-Advocate and addressed to the Claim Manager, Bharti Axa General Insurance Company Ltd. Agra. It is on subject: Verification of DL No. 18068/Ag/04 of Islam, which was issued on 17.11.2004, and has validity till 16.11.2024. Remarks, as mentioned in this Annexure (A-2) runs as under:-
“According to RTO record said driving license no is issued in the name of Anand Prakash and not issued in the name of Islam. So as per record driving license is fake.”
12. Annexure A-3 is the letter dated 29.08.2016 so written by Sh. Chandra Raj Singh Chauhan-Advocate and addressed to the Claim Manager, Bharti Axa General Insurance Company Ltd. Agra. It is on subject: Verification of DL No. 18066/Ag/04, which was issued on 17.11.2004, and has validity till 30.03.2017. Remarks as mentioned in this Annexure A-3 runs as under:-
“According to RTO Agra record above driving licence is Fake and not issued in the name of Islam.”
As per this document (Annexure A-3); license holder is Yogendra Kumar S/o Sukhwar Lal, R/o 378/10, Avas Vikas Colony, Agra.
13. Insurer has also impressed upon Annexure A-4. This is Form 54 (Accident Information Report). As per this document; Licensing Authority-Agra has specified in context of license No. 18068/Ag/04 dated 11.10.2004 concerning Islam S/o Fajru, R/o Sheedh Nagar, Agar (driver of insured) that: “As per office record; license from numbers 16199/Ag/04 to 16384/Ag/04 were issued on 11.10.2004. License No. 18068/Ag/04 was not in issued/existence on 11.10.2004”. Legally, it implies from this document that series meant for license No. 18068/Ag/04 had not yet commenced on 11.10.2004.
14. In firm opinion of this Commission; documents Annexure A-2 to Annexure A-4 which are now been relied upon by insurer/appellant in proceedings of this appeal, were material documents to be produced and proved in evidence by insurer/appellant, during the proceedings of learned District Consumer Commission. Complainant was required to be confronted with these documents at evidence stage of complaint as ramification flowing out from these documents was enormous. Curiously enough, no evidence has been led by insurer/appellant to establish credence to these documents, even though document Annexure A-2 was appended along with written statement by insurer. Much less than that, even no affidavit, towards oral statement on oath of insurer’s representative was placed on record. Insurer has also appended accidental information report dated 26.09.2016 which contains recital of Licensing Authority Agra to the effect that: license No. 18068/Ag/04 dated 17.11.2004 was issued in the name of Anand Parkash S/o Ram Dass and it is valid upto 16.11.2024. Even this report was not proved by insurer by leading admissible evidence. Having miserably failed to prove above referred documents in the proceedings of learned District Consumer Commission; insurer/appellant cannot, now be permitted to stimulate its contention on the foundation of these documents viz. Annexure A-2 to Annexure A-4, appended along with memorandum of appeal. It cannot be taken, by any stretch of legal interpretation that documents Annexure A-2 to Annexure A-4 are per-se admissible in evidence.
15. To the contrary, there is a letter of Licensing Authority Motor Vehicle Department-Agra concerning license No. 18066/Ag/04. This letter recites that: this license has been issued in the name of Islam S/o Fajru of Sheedh Nagar-Agra and this license holder is authorized to drive the vehicle of descriptions: M/Ch, LMV, HTV and it has validity from 20.02.2009 to 19.02.2012. There is also an endorsement to this effect appearing underneath this letter, which has been relied upon by complainant. May be, complainant has also not led any evidence to prove this document and also there is no affidavit of complainant towards his affirmative statement on oath submitted as such before the learned District Consumer Commission, yet, learned District Consumer Commission has arrived at an express conclusion by holding that: in absence to the evidence to the contrary, it is held that offending vehicle was being driven by Islam S/o Fajru who was holding a valid and effective driving license at the time of accident. This view of learned District Consumer Commission cannot be found faulted. More so, it is a well settled legal adage that: if two views are possible from given sets of facts, then, view which supports the cause of complainant should be accepted.
16. Surveyor of insurer has assessed the quantum of damage suffered by vehicle No. HR-55G-6783 to the tune of Rs.71,155/- (this assessed amount include salvage amount as well) through its report dated 10.08.2011. Learned District Consumer Commission has awarded this amount to the complainant through order dated 18.01.2017. There is absolutely no illegality, perversity and manifest error in the impugned order dated 18.01.2017 passed by learned District Consumer Commission-Gurgaon. It is maintained and affirmed. Present appeal being devoid of merits, is hereby dismissed.
17. Statutory amount of Rs.25,000/- deposited by appellant at the time of filing of this appeal be refunded to it, after due identification and verification as per rules and on expiry of period meant for further appeal /revision, if any.
18. Applications pending, if any stand disposed of in terms of the aforesaid judgment.
19. 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.
20. File be consigned to record room.
Date of pronouncement: 28th July, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
