National Consumer Disputes Redressal
Kashi Prasad Patel vs New India Assurance Co. Ltd. on 5 September, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 929 OF 2019 (Against the Order dated 09/01/2019 in Appeal No. 769/2013 of the State Commission Madhya Pradesh) 1. KASHI PRASAD PATEL S/O. TILAK DHARI PRASAD PATEL, R/O. VILLAGE DUGAULI, POST HANUMANA TEHSIL HANUMNA, DISTIRCT-RIWA MADHYA PRADESH ...........Petitioner(s) Versus 1. NEW INDIA ASSURANCE CO. LTD. THROUGH BRANCH OFFICE NEW INDIA ASSURANCE CO. LTD. NEAR LABOUR COURT NARENDRA NAGAR REWA MADHYA PRADESH ...........Respondent(s)
BEFORE: HON'BLE MR. BINOY KUMAR,PRESIDING MEMBER
FOR THE PETITIONER : MS.NAMRATA CHANDORKAR, ADVOCATE FOR THE RESPONDENT : MR.RAVI BAKSHI, ADVOCATE (THROUGH VC)
Dated : 05 September 2024 ORDER
Aggrieved by the concurrent findings and Orders passed by the District Consumer Disputes Redressal Forum, Rewa, MP (for short, the District Forum) and the Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal (for short, the State Commission), the Petitioner/Complainant - Mr. Kashi Prasad Patel filed the Revision Petition No. 929 of 2019 under Section 21(b) of the Consumer Protection Act, 1986 (for short, the Act) against the 'The New India Assurance Co. Ltd.' (for short, Respondent/Insurance Company). The Complaint filed by the Complainant being Consumer Complaint No. 95 of 2012 before the District Forum was dismissed. The relevant portion of the Order dated 06.04.2013 is reproduced as under:-
9. As far as not giving the driving license of the Dinesh Prasad Patel to the Opposite Party, in that context the Complainant states that at the time of the accident the truck was driven by Ramshiromani Patel which was confirm by Ramshiromani Patel in his statement. Claim case No. 6/11 presents a copy of the statement made by the Dinesh Kumar Patel in Exhibit p-13, in which Dinesh Kumar Patel have stated that he was injured in the accident and the vehicle in question was driven by Ramshiromani Patel, Opposite Party witness Ratan Kumar Ghosh has stated that the truck of the Complainant was driven by Dinesh Kumar Patel who does not have a valid and effective driving license at the time of the incident, the complainant tied up with the local police and changed the name of the driver.
10. Based on the First Information Report made by the police officer Udwant Nagar In the incident Exhibited P-7 the name of the driver of the vehicle at the time of the accident was written as Ramshiromani Patel, in the Exhibit D-3 also the name of the driver is written as Ramshiromani Patel. That the information given by the Complainant to Opposite Party in Exhibit D-4 has not been denied by the Opposite Party, that the Complainant have mentioned to have injured the driver and the khalasi. That immediate after the accident the security guard of Udwant Nagar gave the information to the police station Udwant Nagar Exhibit D-7 based on which the police filed the FIR exhibited as D-6 in which name of the driver is written as Dinesh Kumar Patel.
11. Name of Ramshiromani Patel is not mentioned in the FIR nor he was injured during the accident, statement of Ramshiromani Patel also shows that he was injured during the accident, while in Exhibit D-4 information latter given by the Complainant also states that the driver was badly injured during the accident. It is clear from the above facts that the accident was very serious and getting injured in that accident is quite obvious but he did not injured. But the son of the Complainant Anil Kumar Patel died in the accident while Dinesh Kumar Patel and Ramasjeevan Pal got injured during the accident. The information of the accident was also not given by the Ramshiromani Patel as he said he was driving the vehicle at the time of the accident.
12. It is admitted that the Complainant was not present on the spot of the accident at the time of the accident, the Security Guard of the Udwant Nagar informed the police about the accident shown in Exhibit D-7 in which it is written that with the help of the villagers the driver and the khalasi was taken out and one person was stuck in the bonnet of the truck bearing No. MP 17 HH 1707, the information of the accident was given in the police station Udwant Nagar. The driver told his name to be Dinesh Kumar Patel S/o Swayambar Prasad Patel R/o village Ataria Tehsil Hanuma, District, Rewa and name of Khalasi was told to be Ramasjeevan Pal S/o Mathura Pal R/o Barrohi P.S Shahpur District Rewa and the name of the person stuck in bonnet of the truck was Anil Kumar Patel S/o Kashi Prasad Patel. The said security guard was not familiar with the people in truck, he told the police what he was told by Dinesh Kumar Patel to him, there is no evidence to denial to this.
13. Appeal letter Exhibit-4 does not indicate on what basis the police has changed the name of Dinesh Kumar, the driver mentioned in the First Information Report, Exhibit D-7. No documentary evidence presented regarding the name was change of the driver. Therefore, it is clear on the basis of the above analysis that at the time of the accident, the driver of the vehicle in question was Dinesh Kumar Patel rather than Ramshiromani and the vehicle in question was being driven by Dinesh Kumar Patel. Whose name was changed to Ramshiromani Patel.
14. In view of the above facts and circumstances it is clear that at the time of the accident, the in question vehicle was driven by Dinesh Kumar Patel, the Opposite Party through D-11 to D-13 Exhibit asked the Complainant to submit the driving license of the driver Dinesh Kumar Patel but Complainant did not provide the same neither in whole case Complainant submits the copy of the driving license, which shows that at the time of the accident the driver Dinesh Kumar Patel did not have the valid driving license and this the violation of the terms of the insurance policy, in case of violation of terms and conditions of the insurance policy the insurance company should not be held liable to pay the compensation. It is clear from the judgment passed in the matter titled as United India Insurance Company Lt. Vs Inderjeet Singh 2011 NCJ 399 (NC), New India Insurance Company Ltd. Vs Suresh Chandra Aggarwal 2008 TAC 586 SC and New India Insurance Company Ltd. Vs Shailesh Yadav 2008 2 MPVN 8.
15. Because at the time of the accident driver did not have the valid driving license which amounts to violation of the terms and conditions of the insurance policy in case of violation of terms and conditions of the insurance policy the insurance company should not be held liable to pay the compensation. Hence, the Opposite Party by repudiating the claim of the Complainant did not committed deficiency in service. Consequently the Complainant is not entitled to get any compensation from the Opposite Party. The Complaint filed by the Complainant deserve to be dismissed, both the parties shall bear their litigation cost by own."
2. In an Appeal filed before the State Commission, the same was dismissed and the relevant portion reads as under:
10. The main contention in this case is that vehicle was driven by Dinesh Kumar Patel or Ram Shiromani Patel. It is clear that Dinesh Kumar Patel does not have valid driving licence. According to the appellant and police investigation report Ram Shiromani Patel was the driver. According to the forum report it got written by him Exhibit D-7 is proved completely fair because he got written this report in the police on asking itself from Dinesh Kumar Patel. Besides above, this was informed to the Insurance Company by the appellant that in the vehicle accident, driver has gone seriously injured, however, alleged vehicle driver Ram Siromani Patel has stated in his Affidavit that he did not sustain any injuries. Thus, pleas of the appellant are completely contradictory. Besides above, Village Chowkidar registered First Information Report before the Police on dated 22.11.2010, however, Police prepared his report on dated 24.12.2010 and told Ram Siromani as vehicle driver. Thus, it is clear that police later conducted investigations and told Ram Siromani Patel as vehicle driver, it is beyond the truth. Therefore, on the basis of case prepared against Ram Siromani Patel by the Police, appellant cannot get any benefit in the Insurance Claim Case prepared by the Police against Ramsiromani Patel. It is completely proved from the record that vehicle was being driven by Dinesh Kumar Patel not by Ram Siromani Patel. In the light of the above-mentioned facts, we are agreed to the conclusions of the Forum and any factual or legal error is not found in the Order of the Forum, in which, any interference may be made.
11. Hence, this Appeal, being baseless, is dismissed and order passed by the Forum is upheld. Both the parties will bear their respective costs of Appeal."
As the State Commission and District Forum have comprehensively addressed the facts of the case, I find it unnecessary to reiterate the same.
Heard learned Counsel for both the parties and perused the material available on record.
Learned Counsel for the Petitioner argued that the insured vehicle of the Complainant was involved in an accident on 22.11.2010. The issue between the parties is confined only to the extent of identity of who was driving the car and whether such person had valid driving license. The Final Police Report submitted by the Police states that the insured vehicle was driven by Ram Siromani Patel. The Surveyor of the Insurance Company in his report dated 07.03.2011 assessed the loss at Rs.3,14,080/-.
Learned Counsel for the Respondent argued that there is concurrent finding of the State Commission and District Forum. Therefore, this Commission has limited revisional jurisdiction. Both the Commissions below have held that the insured vehicle was being driven by Dinesh Kumar Patel, who had no valid driving license at the time of accident. The written information of the accident was given by the security guard of the Village Udwant Nagar to PS Udwant Nagar in which it was mentioned that the driver of the vehicle at the time of accident was Dinesh Kumar Patel. The FIR also mentioned the name of the driver as Dinesh Kumar Patel. The Ld. Counsel further contended that Ram Siromani Patel was not injured but Dinesh Patel was injured.
The central issue at hand is to decide who was driving the vehicle at the time of accident and whether the District and State Commission were justified in rejecting the final police report?
It is the contention of the Insurance Company that the driver at the time of accident was Mr. Dinesh Kumar Patel who did not have a valid driving license. The source of this contention is based on the FIR that was filed by the Police on the statement of Mr. Ram Avdhesh Singh (village chowkidar). However, the chargesheet that was filed later on, mentions the name of the driver as Mr. Ram Shiromani Patel, who had a valid driving license. The Insurance Company's own Survey Report has stated that the driver of the vehicle at the time of accident was Mr. Ram Shiromani Patel. The Insurance Company has not accepted its own Surveyor's Report without assigning any reason. No Repudiation Letter was filed. The District Forum and the State Commission have not considered the submission of the Police's Final Report/ Charge-sheet wherein it supports the Surveyor Report as well. The District Forum and State Commission have erred in reaching the conclusion that the driver at the time of the accident was Mr. Dinesh Kumar Patel. They based their finding on the ground of FIR, wherein the name of the driver is mentioned as Dinesh Kumar Patel, who had sustained injuries, whereas Ram Shiromani Patel did not receive any injury as stated by him in his Affidavit.
However, relying only of FIR, weakens the case of the Insurance Company and the Orders of the District Commission and the State Commission. In the Order of the Hon'ble Supreme Court in National Insurance Co. Ltd. Vs. Rattani & Ors. Decided on 18.12.2018, it was observed that ordinarily FIR has less evidentiary value. Here in this case Ram Siromani Patel has given an Affidavit. Mr. Dinesh Kumar Patel has also given his statement before the District Forum that it was Mr. Ram Shiromani Patel, who was driving the vehicle. Even Mr. Ramshiromani Patel has also stated that he was the driver of the vehicle at the time of the accident. For these mentioned reasons, I am of the view that it will be in the interest of justice to set-aside the Orders of the District Forum and the State Commission, and rightly allow the Complaint in favour of the Insured.
The Surveyor's Report is to be given due credence and the assessment made by him. I would like to draw attention towards the Order of the Hon'ble Supreme Court in National Insurance Co. Ltd. v. Hareshwar Enterprises (P) Ltd., (2021) 17 SCC 682 decided on 18.8.2021, wherein it was held as under :
Thus, a perusal of the surveyor's report would indicate that the same is not perfunctory but has referred to all aspects, discarded what was not reliable and the assessment has been made thereafter. In that background, as noted, the fire incident had occurred on 6-11-1999 and the surveyors had visited the site on 9-11-1999 itself and the interim as also the final report were submitted on 23-3-2000 and 13-3-2001 to the insurer after due deliberations. The insurer did not take any steps immediately but after much delay appointed the investigator on 22-6-2001 and had not concluded the said process though Respondent 1 had made repeated request. The insured had approached Ncdrc and it is in the said proceedings, for the first time the insurer seeks to rely on the investigator's report. Therefore, in the facts and circumstances herein the surveyor's report was submitted as the natural process, the conclusion reached therein is more plausible and reliable rather than the investigation report keeping in view the manner in which the insurer had proceeded in the matter. Hence, the reliance placed on the surveyor's report by Ncdrc without giving credence to the investigation report in the facts and circumstances of the instant case cannot be faulted. In that view, the conclusion reached on this aspect by Ncdrc does not call for interference."
In view of the aforesaid discussion, the present Revision Petition is allowed and the Insurance Company is directed to pay to the Complainant Rs.3,14,080/- (i.e. the amount assessed by the Surveyor) with interest @ 6% p.a. from the date of filing of Complaint till the date of realization within eight weeks of this Order, failing which the rate of interest shall be 9% p.a. for the same period.
12. Pending application, if any, stands disposed of.
............................ BINOY KUMAR PRESIDING MEMBER