State Consumer Disputes Redressal Commission
United India Insurance Company Ltd., ... vs Rajinder Kumar on 19 November, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH
2nd Bench
FIRST APPEAL NO. 170 OF 2010
Date of Institution: 5.2.2010
Date of Decision: 19.11.2012
United India Insurance Company Ltd., Branch Office, Bus Stand,
Nakodar through Sh. O.P. Kanava, Deputy Manager, Regional Office,
136, Feroze Gandhi Market, Ludhiana.
.....Appellant
VERSUS
Rajinder Kumar son of Sh. Mohinder Singh, resident of Village
Udhowal Kalan, Tehsil Samrala, District Ludhiana.
.....Respondent
First Appeal under Section 15 of
the Consumer Protection Act,
1986 against the order dated
4.1.2010 passed by the District
Consumer Disputes Redressal
Forum, Ludhiana.
Before:
Sh. Inderjit Kaushik, Presiding Member
Sh. B.S. Sekhon, Member Present:
For the appellant : Sh. Munish Goel, Advocate
For the respondent : Sh. Sahil Kaushal, Advocate
BALDEV SINGH SEKHON, MEMBER
This is an appeal against the order dated 4.1.2010 passed by the District Consumer Disputes Redressal Forum, Ludhiana (hereinafter called as "District Forum") vide which the complaint of the complainant-respondent (hereinafter called as "respondent") was allowed.
2. Briefly stated, the facts of the case are that Sh. Rajinder Kumar (respondent) got his car bearing registration No. PB-07K-5111 insured for Rs. 2,25,000/- on 24.9.2007 with the appellant, which was valid First Appeal No. 170 of 2010 Page 2 of 8 from 24.9.2007 to 23.9.2008. It was pleaded that in the month of June, 2008, the said car met with an accident when the respondent, alongwith his family friends, was coming back from Rishikesh. In the accident, the respondent became unconscious and he was taken to Gaba Hospital, Yamuna Nagar for treatment and after 2-3 days he was shifted to Apollo Hospital, Ludhiana where he regained his consciousness after 8 days. He was discharged from the hospital after 20 days. It was further pleaded that car was shifted to Toyota agency after 2-3 days of the accident where it was declared a case of total loss/damage. The respondent approached the appellant insurance company with a request to settle the claim. However, the appellant refused to entertain the claim and declared it as no claim.
3. Hence, the complaint before the District Forum seeking directions that the appellant should be directed to pay a claim of Rs. 2,25,000/- alongwith damages of Rs. 75,000/- and litigation charges of Rs. 7,000/-.
4. Upon notice, the appellant filed written statement in which it was pleaded that the respondent had suppressed the material facts and, therefore, was not entitled to any compensation and he was also estopped by his act and conduct from filing the present complaint. It was specifically pleaded that the respondent was plying his Tata Qualis No. PB-07K-5111 as taxi for hire and reward in violation of the terms and conditions of the insurance policy. Hence the claim was rightly repudiated by the competent authority and the respondent was conveyed regarding this vide letter dated 29.5.2009. It was denied that in the month of June, 2008, when the respondent, alongwith his family First Appeal No. 170 of 2010 Page 3 of 8 friends, was coming back from Rishikesh, he himself was driving the car when it met with an accident with a bus due to negligence of the driver of the bus. The alleged treatment taken by the respondent was specifically denied and the complaint of the respondent was stated to be a false and fabricated story. It was stated that intimation with regard to the alleged accident was given by one Jaswinder Singh on 14.7.2008. Spot survey could not be got conducted. No immediate information was given to the appellant insurance company to depute a surveyor for spot survey of the vehicle. The appellant company deputed Sh. Inder Dev, surveyor for preliminary survey and the said surveyor gave his preliminary report dated 20.8.2008. The appellant company also deputed M/s A.K. Enterprises to assess the loss of the vehicle and the said surveyor gave the report dated 3.9.2008 assessing the loss to the vehicle at Rs. 2,24,000/- on the basis of total loss basis and also assessed the salvage at Rs. 90,000/-with R.C. and Rs. 60,000/- without R.C. It was further pleaded that both the aforesaid surveyors in their survey reports, had specifically pointed out that the above said vehicle was used for commercial purpose. Investigation of this case was also got conducted by Sh. Raj Kumar Verma, who in his report dated 8.12.2008, found that Gurpreet Singh was backing out from his earlier statement, which was given by him while recording the FIR on the date of accident. The said investigator submitted his enquiry report dated 18.2.2009. The insurance claim of the respondent was minutely scrutinized. Since he had violated the terms and conditions of the insurance policy and Motor Vehicle Act and since the Tata Qualis vehicle, which was insured as a private car was being plied as taxi for First Appeal No. 170 of 2010 Page 4 of 8 hire and reward, as such, the claim of the respondent was treated as no claim and was repudiated by the competent authority vide repudiation letter dated 29.5.2009. Dismissal of the complaint was prayed.
5. The parties led their evidence by way of affidavits and documents.
6. The learned District Forum vide its order dated 4.1.2010, accepted the complaint of the respondent and directed the appellant to pay Rs. 2,24,000/- to the respondent. The respondent was directed to deposit the salvage alongwith R.C. with the appellant company. It was further directed that in case the respondent failed to deposit the salvage alongwith R.C., the appellant had a right to deduct Rs. 90,000/- and in case the respondent deposited the salvage with the appellant without R.C., the appellant had a right to deduct Rs. 60,000/-. Litigation expenses of Rs. 1,000/- was also awarded to the respondent.
7. Aggrieved by this order, the appellant has come up in appeal.
8. The learned counsel for the appellant submitted that the insured vehicle of the respondent was being used as a taxi for commercial purpose at the time of accident against the terms and conditions of the policy, as such, the appellant insurance company was not liable to pay any damages under the insurance contract. From the investigation reports of the surveyor and the investigator it was crystal clear that the vehicle was, in fact, being used for hire and reward. It was also submitted that the District Forum had illegally allowed the complaint of the respondent by holding that neither the police investigation report nor the affidavit of the police officer, who conducted investigation had been placed on record by the appellant to prove that Gurpreet Singh First Appeal No. 170 of 2010 Page 5 of 8 made the statement to the police that the vehicle in question was on hire. In the FIR recorded by Sh. Gurpreet Singh, it was clearly mentioned that the vehicle in question was used as a taxi. Acceptance of the appeal and setting aside of the impugned order was prayed.
9. Learned counsel for the respondent submitted that there was no merit in the appeal and the same be dismissed.
10. Submissions have been considered. Record has been perused.
11. The case of the respondent is that in the month of June, 2008, he, alongwith his family friends was coming back from Rishikesh and was driving the car which met with an accident due to the negligence of the driver of the bus and in the said accident the respondent got fainted and was taken to Gaba Hospital, Yamuna Nagar and after 2-3 days he was shifted to Apollo Hospital, Ludhiana where he got treated and regained his consciousness after 8 days of accident and that the respondent was discharged from the hospital after 20 days where he spent Rs. 3,00,000/- on treatment. None of the facts stated in the complaint by the respondent is supported by any document except his own self serving affidavit (Ex. CW-1/A) and affidavit of Sh. Jaswant Singh s/o Harvilas Singh (Ex. CW-2/A) who has stated that the respondent used the car No. PB-07K-5111 only for his own enjoyment. In addition another affidavit (Ex. CW-3/A) has been filed by Sh. Gurpreet Singh who was traveling in said vehicle on 29.6.2008 when it met with accident. It has been deposed by Sh. Gurpreet Singh that Sh. Rajinder Kumar, respondent was with him and was badly injured in the accident. This version of Sh. Gurpreet Singh, is not, at all, tallying with facts mentioned by Sh. Gurpreet Singh himself in the FIR First Appeal No. 170 of 2010 Page 6 of 8 recorded by him at Khijra Ganj, Police Station, Yamuna Nagar. This FIR has been proved as Ex. R-4. Scrutiny of this document clearly reveals that the respondent was not at all traveling in the insured vehicle when it met with accident. Sh. Gurpreet Singh had clearly stated the names and relationship of all the 12 co-travelers in the FIR and had also stated the nature of the injuries suffered by each one of the passengers. Whereas this FIR has absolutely no reference to the respondent being the co-passenger or having suffered any injury. It has clearly been stated in this FIR by sh. Gurpreet Singh that he had hired the vehicle for visiting Rishikesh and Ponta Sahib. The present affidavit (Ex. CW-3/A) is definitely an afterthought and has been procured to support the version of the respondent. Sh. Gurpreet Singh has stated in Ex. CW-3/A that FIR was recorded by the police officials under influence of the driver of the bus which was involved in the same accident. This argument is not at all tenable because there was absolutely no need for the police to omit reference about a passenger from the list of injured/expired who was the owner of the vehicle. In fact, Sh. Gurpreet Singh has narrated the names of all the 12 passengers who were traveling in the vehicle at the time of accident. The respondent has claimed that he himself got fainted in the accident but the FIR was recorded by Sh. Gurprret Singh, who was well aware of all the passengers and he could never omit the name of the owner of the vehicle. In the complaint, the respondent has mentioned that he was traveling with his relatives and family friends when accident took place, but no relation with any passenger has been stated/proved. The version of Sh. Gurpreet Singh is definitely an afterthought and also First Appeal No. 170 of 2010 Page 7 of 8 proves that the complaint is a concocted story which is not at all supported by any document. Had the respondent actually been treated at the Apollo Hospital, Ludhiana, he could have brought on record certain medical record documents in support of his version specially when he is reported to have spent Rs. 3,00,000/- on his treatment.
12. The appellant has proved on record the survey report dated 20.2.2008 of Sh. Inder Dev (Ex. R-5) and the report of M/s. A.K. Enterprises (Ex. R-20) besides the investigation report of Sh. Raj Kumar Verma (Ex. R-36). Investigation report of Sh. Raj Kumar Verma is further supported by his affidavit (Ex. RW-2/A). From the reports of the surveyor and the investigator and the facts mentioned in the FIR by Sh. Gurpreet Singh that insured vehicle was hired by him clearly establishes that the respondent had violated the terms and conditions of the policy. In fact, as per terms and conditions of policy, the use of the insured vehicle for hire and reward was specifically excluded/prohibited.
13. In view of the above discussion and findings, the appeal of the appellant is accepted and the impugned order is set aside. Consequently, the complaint of the respondent is dismissed. No order as to costs.
14. The appellant has deposited an amount of Rs. 25,000/- with this Commission at the time of filing of the appeal on 5.2.2010 and Rs. 84,000/- on 16.3.2010 as per the order of this Commission. Amount of Rs. 1,09,000/- with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum. First Appeal No. 170 of 2010 Page 8 of 8
15. The arguments were heard on 6.11.2012 and the order was reserved. Now, the order be communicated to the parties.
16. The appeal could not be decided within the statutory period because of the heavy pendency of the court cases.
(Inderjit Kaushik) Presiding Member (Baldev Singh Sekhon) Member November 19, 2012 VINAY