(Delivered on 2/5/2018 )

Per Mr. B.A. Shaikh, Hon’ble Presiding Member

1. This is a complaint filed under Section 17 of Consumer Protection Act, 1986. The case of the complainant as set out in the complaint in brief are as under.

1. The motor vehicle called as truck described in the complaint as owned by the complainant was insured by him with the opposite party (for short OP) for the period from 11/12/2012 to 10/12/2013. The insured declared value of that vehicle was Rs. 20,50,000/-. The said vehicle met with an accident on 24/05/2013 when it was crossing the bridge  of river near  village Chidiyawasa. At that time, its driver namely Issa Khan could not keep control over the insured truck and therefore said truck  fell down below the bridge and it was damaged.
2.   The information of that accident was given to police station Baswada where crime was registered and Panchanama of the place of accident was prepared by police.
3. The intimation of that accident was given immediately by Barkat  Khan to the complainant on phone and hence the complainant gave that intimation to the OP/insurance company. The complainant also furnished  a builty, the bills of the goods, insurance policy, registration certificate of the insured vehicle, its fitness certificate, permit and the driving license of the driver Issa Khan  along with claim to the OP. The OP appointed surveyor to make the spot survey. The said surveyor inspected the spot and thereupon the complainant with the help of Mr. Shubham Crane Services took out the insured vehicle by means of crane   by expending Rs. 12,000/- and the said insured truck was taken on Suprutnama by the complainant and he took it by towing it to another vehicle to Chandrapur by expending Rs. 39,000/-.
4. The damaged vehicle was taken to the authorized workshop of Mahindra Company namely Augasta Motors where estimate of repairing was given at Rs. 21,07,907/- The same was submitted by the complainant to the OP. The cost of the repairing is more than purchasing value of the insured truck.
5. There was total loss of the insured vehicle and hence the said vehicle could not be repaired. The surveyor Mr. Bhandari appointed by the OP also submitted report to the OP. The complainant is therefore  entitled to insured declared value  of Rs. 20,50,000/- from the OP.

The OP did not settle the claim of the complainant within three months of receipt of the insurance claim and thus the OP rendered deficient service to the complainant.Hence this complaint is filed seeking following directions to the OP.

1. The OP shall pay total Rs. 22,35,000/- with interest at the rate of 9 percent per annum from 25/05/2013 to the complainant.
2. The OP shall pay expenses of Rs. 50,000/- incurred by the complainant for taking the damaged truck from the place of accident to Chandrapur.
3. The OP shall pay compensation of Rs. 1,00,000/- for physical and mental harassment and litigation cost of Rs. 25,000/- to the complainant.

2. The complainant along with complaint filed copies of the documents namely registration particulars of the insurance vehicle, goods bill, insurance policy, final report filed by the police under Section 173 of Cr.PC, panchanama prepared by police, post mortem examination report of deceased Gani Khan, the verification of driving license of Issa  Khan as driver, claim intimation letter, builty,  bills of crane and towing, quotation of repairing, insurance claim form, order passed by District Consumer Forum dated  4/7/2015. The complainant also filed his counter affidavit cum rejoinder.
3. On the other hand, the OP filed its reply and thereby resisted the complaint in brief as follows.
4. It is not disputed that the truck owned by the complainant was  insured by the OP for the period from 11/12/2012 to 10/12/2013 for insured declared value of Rs. 20,50000/- The FIR lodged by  Barkat Khan with the police at Police Station, Sadar  on 25/05/2013 shows that the cleaner (Khalashi)  Gani  Khan  was driving insured  truck at the time of accident. The said Gani Khan was not holding driving licence to drive the insured truck and therefore there is a breach of policy condition. The investigator appointed by the OP after due investigation submitted a report which also shows that the deceased Gani Khan  was driving that truck and died on the spot in the accident. The widow of deceased Gani Khan and injured  Khalashi namely Barkat Khan have filed  applications under Workmen Compensation Act before the Commissioner for compensation at Jaipur. Moreover, the crime was also registered by the police on the report  of Barkat Khan for  offences  specified  in the reply of the OP. The additional statement of Barkat Khan was also  recorded on 25/05/2013 at 8.15 pm by police, which also shows that Gani Khan was driving insured  truck  at the time of accident. There was no  chance for the driver of the truck to leave steering  and his seat as the vehicle all of sudden  fell down from the narrow bridge in Nala in a fraction of second. Therefore the claim of the complainant is frivolous and vexations . Therefore it is prayed by the OP that complaint may be dismissed.
5. The OP in support of the complaint field copies of following documents i.e. FIR dated 25/05/2013, crime detail form dated 25/05/2013, medical certificate dated 25/05/2013 regarding injuries to Issa Khan, statement of Barkat Khan Naseer Khan recorded by police on 25/05/2013 at 6 pm, his additional statement recorded by police on 25/05/2013 at 12.30 pm. The report of investigator namely  Mr. Mukhtar Qureshi dated 3/6/2014, application  given to the Commissioner under Workmen Compensation Act by Barkat Khan and also by legal heirs of deceased Issa Khan and the claims made  by them under the said Act against the complainant Ramjan  Khan, insurance policy, certificate of registration of insured vehicle, letter of chief medical officer of Mahatma Gandhi Hospital, Baswada, Indoor Patient Card,  Extract of medical OPD register and reply from CMO, Mahatma Gandhi hospital, Baswada.   
6. The OP also filed rejoinder cum affidavit of Ashwini Kumar Krishnalal. The advocate of the OP also filed a pursis along with affidavit of Mangesh Kishor  Deshpande to show that the aforesaid proceedings under Workmen Compensation Act have  been proceeded exparte against the complainant. The learned advocates of both the parties have  also filed written notes of arguments. 
7. We have heard learned advocate of both the parties at length and perused entire record and proceeding of the present complaint.
8. The learned advocate of the complainant in his arguments reiterated the aforesaid case of the complainant as set out in the complaint and submitted that the defence raised by the OP in the present complaint cannot be relied on as the chargsheet filed by the police after due investigation reveals that the driver of the insured truck was Mr. Issa Khan and not deceased Mr. Gani Khan and that Mr. Issa Khan had also sustained injuries in that accident as shown in medical certificate filed on record.   He also submitted that otherwise also the sketch map of the place of accident filed on record also support the case of the complainant and as the vehicle fell down from the bridge towards the cleaner side, it is the cleaner Mr. Gani  Khan who died and the driver Issa Khan,  was saved as he jumped out of the vehicle on the bridge and sustained injuries. He also submitted that the documents filed on record by the advocate of the OP also do not support the defence of the OP. The complaint is also filed within the limitation considering  that first  complaint was filed before the District Consumer Forum, Chandrapur within time & this  second complaint is filed after seeking permission from Forum below to withdraw first complaint and  to file second complaint before this Commission.
9. On the other hand, the learned advocate of the OP also reiterated the aforesaid case of the OP as set out by the OP in its reply and he has drawn our attention to the documents filed on record by both the parties.  He has particularly drawn our attention to FIR lodged by the cleaner namely Barkat Khan immediately  after the accident showing the name of the driver of the vehicle as Gani Khan. He has  also relied on the report of the investigator Mr. Mukhtar Qureshi dated 3/6/2014 in which it is concluded that the statement of Barkat Khan recorded by police is reliable and it is true and correct and therefore deceased Gani Khan  was driving the insured vehicle at the time of accident and died on the spot. The learned advocate of the OP also relied on application made by  Barkat Khan and legal heirs of deceased Ganni Khan before the Commissioner under Workmen Compensation Act claiming compensation for  loss from the OP & complainant  and submitted that Barkat Khan after service  of notice did not appear before the said Commissioner and therefore the said applications are proceeded exparte against him. He also submitted that deceased Gani Khan was not holding driving license and therefore there is a breach of  policy condition and hence the complainant is not  entitled to make any claim under the policy for loss  caused  due to damage of vehicle in accident.  Moreover the complaint is also  barred by limitation.
10. The learned advocate of the complainant relied on  the decisions in the following case.

1. National Insurance Co. Ltd. Vs. Giriraj Proteins, reported in IV (2012) CPJ 151 (NC). It is held that Hon’ble National Commission in the said case that the report of surveyor is not a last and final word. It is not a conclusive proof & it can be ignored if it is perverse or arbitrary, based on mere inferences or surmises and is suspicion.
2. Rajendra Kumar Shukla Vs. New India Assurance Co. Ltd., reported in 2001 (1) CPR 267. In that case surveyor had given a report that said endorsement made on the driving license was forged and no affidavit of surveyor was filed to prove the same. Therefore it is held that the driver was driving the vehicle on the date of accident had a valid driving licence. In the said case it is further observed that the complainant is entitled  to interest at the rate of 18 percent per annum after lapse of three months from the insurance claim till the date of payment.
3. Jagdish Devidas Somaiya Vs. Oriental insurance Company Ltd.  & Anr., reported in  II (2012) CPJ 67. It is held that the report of the approved surveyor cannot be treated as a gospel truth. It can be ignored if it is perverse or arbitrary based on mere inferences or surmises  and suspicion.
4.  New India Assurance Co. Ltd. Vs. M.S. Venkatesh Babu, decided by Hon’ble  National Commission on 12/08/2011 reported in 2011 CJ (NCDRC) 322. It is observed in the said case that FIR as well as statements recorded by police cannot be used by Insurance company in  support of its case since the FIR and the statement recorded by police are not substantive piece of evidence.

11. On the other hand, the learned advocate of the OP in support of his  submission relied on the decisions in the following cases.

1. New India Assurance Company ltd. Vs. Suresh Chandra Aggarwal, reported in III(2009) ACC 895 (SC). In that case the deceased driver of the vehicle had no valid and effective driving licence on the date of accident. It is held by Hon’ble Supreme Court that provisions of Motor Vehicles Act are violated by entrusting vehicle to person not holding valid licence and hence insurer is not liable to indemnify  the  loss suffered and thus repudiation of the claim is justified.
2. National Insurance Company Ltd. & Anr. Vs. Sansar Chand, reported in III (2010) CPJ 256 (NC). In that case there was repudiation of the insurance claim on the ground of invalid driving licence. The Hon’ble National Commission made  observations that Apex Court  held that when driver is not holding valid and effective driving licence, it is in violation of Section 10 (2) of Motor Vehicle Act, 1988 and hence claim cannot be settled on non standard basis where there is breach of policy condition as above.
3. New India Assurance Co. Ltd. Vs. Jaysukhlal Maganlal Doshi & Ors. , reported in 2014(2) All MR (JOURNAL) 15. In that case, the FIR was lodged by one of the claimants. However the said claimant did not enter into witness box. Another claimant produced FIR in her evidence and relied on the same. It is observed by Hon’ble Gujrat High Court in the said case that ordinarily averment made in FIR  is not admissible in evidence  per se but when FIR  is relied upon by claimants themselves, same can be looked into for deciding main issue in controversy.
4. Oriental Insurance Co. Ltd. Vs. Premlata Shukla & Ors., reported in 2007 ALL SCR 1750. In that case FIR was admitted as exhibit  without any objection. It is held that when party is getting FIR admitted in proof of accident then it cannot turn round and contend that it cannot be used by other party for fixing liability on the part  of the driver.
5. M.M. Jaffer & Company Vs. New India Assurance Company Ltd. reported in IV (2010) CPJ 244 (NC). It is held that the repudiation is justified on the ground that cleaner of vehicle  was driving it  when accident was occurred. We find that factum of occurrence of the accident of the insured vehicle during the period of the policy issued by the OP and sustaining  of damage to the said vehicle causing total loss is not disputed.

12. Initially, we proceed to decide   as to whether  the complaint is barred by limitation. It is not disputed that the accident took place on 25/05/2013 and the consumer complaint was initially filed by the complainant before the District Consumer Forum, Chandrapur  on 29/10/2013 as policy  claim submitted by complainant to the OP was not settled. Thus, the said complaint was filed within a period of two years from the date of accident.  The District forum below after hearing  both the parties passed final order  in that complaint on 4/7/2015 and held that the complaint is beyond its pecuniary jurisdiction and permitted the complainant to file the complaint before  appropriate Forum or Commission. Thus, in view of the said permission granted by the District Forum, Chandrapur on 4/7/2015 the complainant filed this complaint on 24/07/2015. Hence it cannot be  said that the complaint is barred by limitation.
13. The  material question involved in the present complaint is as to whether the insured vehicle was  being driven by the deceased Gani Khan or by Mr. Issa Khan at the time of accident. The complainant  has relied on chargesheet filed by the police after due investigation before the concerned Court. It is seen from that chargesheet   that police arrested the Issa Khan Abdul Khan on 28/05/2013 and then after due investigation filed chargesheet against him only, for the offences punishable under Sections 279, 304 A, 338 and 337 of Indian Penal Code & under Section 134 read with Section 187 of Motor Vehicle Act. Police after investigation thus found that  it was Issa Khan who was driving the insured vehicle at the time of accident.
14. On the other hand, the OP relied on the FIR lodged by Barkat Khan and his additional statement recorded by police in which he had stated that  Khalashi Gani Khan was driving the vehicle at the time of accident. However chargesheet  shows that Barkat Khan had subsequently changed his  statement before the police and stated that it was Issa Khan who was actually  driving the vehicle at the time of accident.
15. It is seen from the aforesaid decisions of the Hon’ble National Commission relied by the learned advocate of the complainant that the FIR and the statement recorded by police during investigation are not admissible in evidence. Therefore  the said FIR and the statement relied on by the learned advocate of the OP cannot be read in evidence to support the aforesaid case of the OP.
16. It  is also pertinent to note that the said FIR and the statement of Barkat Khan are not relied on by the complainant and therefore the decisions in the case of New India Assurance Co. Ltd. Vs. Jaysukhlal Maganlal Doshi & Ors.  (Supra) relied on by learned advocate of the OP is not applicable  to the facts and circumstances of the present case in which it is held that when FIR is relied on by claimant then it can be looked in to. Moreover, another decision in  the case of Oriental Insurance Co. Ltd. Vs. Premlata Shukla & Ors. (Supra) relied  on by learned advocate of the OP is  also not applicable to the present case as copy of the FIR filed by OP is not admitted in the evidence before this Commission. In that case, FIR was admitted as evidence without any objection of the other party.
17. So far as,  the report of investigation submitted by Mr. Mukhtar Qureshi  and relied on by the OP is concerned, we find that the said report is  based on inadmissible statement of Barkat Khan recorded by police  and  FIR lodged by him and hence cannot bear any weight. We also find that the inference drawn by Mukhtar Qureshi  on the basis of the location of place of accident, cannot be accepted since the vehicle fell below the bridge  from cleaner side and there is every possibility of sustaining fatal injury by  cleaner Gani Khan only after fall  of the vehicle from his side and  there is also every possibility of jumping out by the driver Issa Khan from the vehicle, within spur of moment since he was on the other side of the vehicle which was on the  bridge when the vehicle was being fallen down from the cleaner side. Therefore the report of Mr. Mukhtar Qureshi is of no assistance to the OP to justify the defence raised by it in the reply.
18. It is also pertinent to note that the applications were made under Workmen Compensation Act before the Commissioner by Barkat Khan and also by the legal heirs of deceased Gani Khan. In the application of Barkat Khan, it is shown  that he was going by the vehicle as a labour and Gani Khan was going by the vehicle as Khalashi ( Cleaner). Moreover, in the application of the legal heirs of deceased Ganni Khan, it is stated that deceased Gani Khan  was going by that vehicle as Khalashi (cleaner).  Both the applications do not show that at the time of accident deceased Gani Khan was driving insured vehicle. Therefore we find that the said copies of the applications filed by the OP do not establish that the deceased Gani Khan was driving the insured vehicle. Therefore act of Barkat Khan in not appearing before the Commissioner after service of notice, has got no bearing on the issue involved in the present complaint.
19. We also find that other decisions relied on by learned advocate of the OP are not applicable to the facts and circumstances of the present case in as much as in the present case, we find that it is proved by the complainant that Issa Khan, who was holding valid and effective driving licence at the time of accident was driving the insured vehicle and when we also find that the OP failed to prove that deceased Gani Khan was driving the vehicle at the time of accident. Thus, we are of the considered view that there is no breach of policy condition and hence the complainant is entitled to make a claim under insurance policy to indemnify the loss suffered by him. It is also not disputed that the sum assured under the policy was Rs. 20,50,000/-. It is also not disputed that there  is a total loss of vehicle in that accident as the estimate of repairing given and filed on record is more than the insured declared value of the insured vehicle.  Hence there is no question of settlement of claim on repairing basis.
20. It is also pertinent to note that previously  the complaint was filed by the complainant before the District Consumer Forum, Chandrapur as discussed above . In that complaint, the complainant had claimed Rs. 19,00,000/- only by deducting 5 percent amount of the depreciation value, since the accident  took place after six months of the date of insurance policy. We find that the complainant is entitled to Rs. 19,00,000/- with interest at the rate  of 9 percent per annum from the date of complaint and he is  also entitled  to compensation of Rs. 50,000/- for physical and mental harassment and litigation cost of Rs. 10,000/-.  The accident  took place as back as on 25/05/2013 and now  near about five years have been already passed since then. We have already reduced five percent amount out of the insured declared value of the vehicle. Moreover, we are not granting compensation towards the expenses incurred by him for taking damaged vehicle from the place of accident to the workshop. Hence we hold that the complainant is entitled to retain the salvage of the insured vehicle. Thus,  we pass the following order.

ORDER

1. The complaint is partly allowed as under.

1. The OP shall pay to the complainant Rs. 19,00,000/- with interest at the rate of 9 percent per annum from the date of the complaint i.e. from  24/07/2015 till its realization by him.
2. The OP shall also pay  to the complainant compensation of Rs. 50,000/- for physical and mental harassment and litigation cost of Rs. 10,000/-.

2. Complainant is entitled  to retain the salvage of the insured vehicle.
3. Copy of the order be furnished to both the parties, free of cost.