State Consumer Disputes Redressal Commission
Tata Aig General Insurance Co. Ltd. vs Khusnasib on 22 September, 2015
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION,UTTARAKHAND 176 Ajabpur Kalan,Mothrowala Road, Dehradun-248121 Final Order First Appeal No. A/10/300 (Arisen out of Order Dated in Case No. of District Hardwar) 1. Tata AIG General Insurance Co. Ltd. 4th. floor 8A Milap Niketan, Bahadur Shah Zafar Marg. New Delhi. ...........Appellant(s) Versus 1. Khusnasib s/o Zameel Ahmed r/o Lathar Deva alias Lal Videsh Sekh po. Iqbalpur, Roorkee, Haridwar. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE B.S. Verma PRESIDENT HON'BLE MR. D. K. Tyagi, H.J.S. MEMBER HON'BLE MRS. Veena Sharma MEMBER For the Appellant: For the Respondent: ORDER ORDER
(Per: Mr. D.K. Tyagi, Member):
This is insurer's appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 31.08.2010 passed by the District Forum, Haridwar in consumer complaint No. 183 of 2009. By the order impugned, the District Forum has allowed the consumer complaint and directed the opposite parties to pay to the complainant a sum of Rs. 1,00,000/-, within one month from the date of order.
2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant Sh. Khusnasib is the registered owner of the car named Hyundai Santro bearing registration No. UA08-G-6688 having engine No. 903456, chassis No. 923065, which is insured by the opposite party No. 1-Tata AIG General Insurance Co. Ltd., Dehradun for a period from 13.01.2008 to 12.01.2009 vide insurance policy No. 015035101100. On 18.05.2008, the complainant/registered owner of the said vehicle was going from Deoband to Saharanpur at about 08:00 p.m., when he reached village Talhedi, heavy storm occurred resulting an eucalyptus tree fell down on the insured vehicle due to which the said vehicle was damaged and disbalanced and fell into the ditch. The complainant was also got injured in this incident. The complainant went to Deoband for his treatment and on the next day, i.e. 19.05.2008, he informed Dev Bhoomi Automobile Pvt. Ltd., Roorkee on telephone and also informed the insurance company. The Dev Bhoomi Automobile Pvt. Ltd. advised the complainant to carry the said vehicle at Roorkee, where the surveyor will inspect the damaged vehicle. The complainant reached at the place of occurrence and saw that the vehicle was in bad condition, windows and seats of the vehicle were completely damaged. The vehicle was being carried to Dev Bhoomi Automobile Pvt. Ltd., Roorkee. The complainant also presented all the documents of the said vehicle like D.L., R.C., copy of FIR and ration card, photo ID and receipt of payment of towing the vehicle and some photographs. The surveyor advised the complainant to contact after a week. Again the complainant went to Dev Bhoomi Automobile Pvt. Ltd., who had apprised him that no approval has come so far, therefore, come after 10 days. Dev Bhoomi Automobile Pvt. Ltd., Roorkee also intimated the complainant that either order to repair the vehicle or to pay Rs. 250/- per day. The complainant informed the opposite party No. 1-insurance company, who has apprised the complainant that the survey has already completed and investigation is going on. After 03 months, the survey team again came to the complainant's house and survey the damaged vehicle and also took some photographs. In the month of September, the complainant was informed that his claim has been repudiated by the opposite party No. 2. The opposite parties have repudiated the complainant's claim against the terms and conditions of the insurance contract, thereby committed deficiency in service. The complainant sent a legal notice through registered post as well as UPC through Sh. Sanjeev Kumar Dhiman, Advocate, which was received by the opposite parties, but the opposite parties did not reply the same. The complainant has filed consumer complaint for a sum of Rs. 5,21,860/- as compensation, Rs. 1,50,000/- towards mental and physical harassment and Rs. 10,000/- for litigation expenses.
3. The opposite parties have filed their written statement before the District Forum and pleaded that it is denied that the vehicle in question was insured after acceptance and after full satisfaction by the company. The true fact is that at the time of insurance by the answering opposite parties, the complainant produced the cover note No. PG 6723844 of ICICI Lombard General Insurance Ltd. Co. to show the continuance of previous insurance of the vehicle, therefore, on the basis of continuance of previous insurance, no inspection was done at the time of insurance by the answering opposite parties. The answering opposite parties have pleaded that the complainant has obtained the insurance of the vehicle on the basis of fraud and forge documents. The cover note of ICICI Lombard General Insurance Ltd. Co. produced by the complainant was enquired and on inquiry it was found that the said cover note was issued to other vehicle named Tata Indigo, chassis No. 4119 & engine No. 2634. No such cover note was issued by the answering opposite parties to the complainant in respect to the vehicle of the complainant. In this way, the complainant has committed fraud by producing fake cover note and obtained insurance of the vehicle from the answering opposite parties. Therefore, in these conditions, there is no valid contract of insurance between the complainant and the answering opposite parties. The answering opposite parties have right to repudiate the complainant's claim. It is also pleaded in the written statement that it is wrong and denied that the complainant was going from Deoband to Saharanpur on 18.05.2008 and the vehicle in question being driven by him and on the way due to storm, an eucalyptus tree fell down on his car, resulting injury to the complainant and also falling down the vehicle in the nearby ditch, causing damages to the vehicle. During investigation, the fact came into light that the vehicle in question was involved in a case Crime No. 748A/07 under Section 395/397/427 of IPC. According to the FIR of this case, one of the relative of the complainant was involved in the incident of 18.11.2007 at about 08:00 a.m. In the said incident, this vehicle was damaged during scuffle and quarrel between two parties. This car was badly damaged in the said incident for which an F.I.R. was lodged in the Police Station Deoband, District Saharanpur. In this F.I.R., there is clear cut version of damage to the complainant's car by miscreants and also about fire. Some photographs of the said vehicle were also produced in the police station. In this way, the vehicle in question was involved in the incident on 18.11.2007 and there is no incident on 18.05.2008 as stated in the consumer complaint. The complainant concealed the important facts at the time of taking insurance and obtained insurance policy on the basis of forge documents. The answering opposite parties rightly repudiated the claim of the complainant after a detailed inspection. The complainant has also suppressed the facts about the towing of the vehicle to Dev Bhoomi Automobile Pvt. Ltd. on 19.05.2008 and also about survey by surveyor. The answering opposite parties have informed the complainant about the repudiation of the claim vide letter dated 16.07.2008. There is no deficiency in service on the part of the answering opposite parties. The answering opposite parties have replied the notice of the complainant vide reply dated 05.03.2009 which was sent to the advocate Sh. Sanjeev Kumar Dhiman by speed post. The complainant is not entitled to get any compensation from the answering opposite parties.
4. The District Forum, on an appreciation of the facts and circumstances of the case, has allowed the consumer complaint No. 183 of 2009 vide order dated 31.08.2010 in the above manner. Aggrieved by the said order, the insurance company-appellant has filed the present appeal.
5. Sh. Suresh Gautam, learned counsel for the appellant and Sh. Afzal Ahmad, learned counsel for respondent appeared before this Commission. We have heard learned counsel for the parties and perused the material placed on record.
6. Learned counsel for the appellant has submitted that after thorough investigation, it came into light that the insured vehicle of the respondent was actually damaged, when it was in the possession of the brother-in-law of the insured on 18.11.2007 when it was involved in an incident of firing near Deoband (Saharanpur), where agitated workers in a fit of anger damaged this vehicle with iron rods and in this regard an FIR No. 748/07 under Section 307 IPC dated 18.11.2007 was registered at Deoband Police Station. It was also found that at the time of inspection the damages to the insured vehicle were old and rusted. Cobwebs were present over the insured vehicle which showed the condition of the damages being old. Learned counsel has argued that on further scrutiny of the proposal form and the copy of previous insurance cover note No. 6723844 of ICICI Lombard General Insurance Co. Ltd. effective from 13.01.2007 to 12.01.2008 submitted by the insured at the time of taking of the insurance policy from the appellant, it was confirmed that the said cover note was fake and the respondent had submitted the same to show continuity in insurance so as to avoid pre-inspection of vehicle at the time of taking of a fresh insurance policy from the appellant. The confirmation given by ICICI Lombard about the cover note submitted by the respondent being fake. The said confirmation clearly states that the cover note No. 6723844 was issued to a new vehicle Tata Indigo bearing chassis No. 4119, engine No. 2634. The respondent had thereby violated the declaration made in the proposal form. The respondent had obtained the insurance policy from the appellant effective from 13.01.2008 to 12.01.2009 through misrepresentation, fraudulent documentation and the damages to the insured vehicle occurred on 18.11.2007 were found to be prior to the date of policy inception. The District Forum has allowed the complaint of the respondent-complainant without looking into the facts and evidence on record. The District Forum has failed to appreciate the evidence on record, which clearly shows that the vehicle was damaged much before the effective date of insurance. The respondent has filed fictitious previous policy to avoid the inspection of the vehicle at the time of insurance. The District Forum has failed to appreciate that the insured vehicle got damages on 18.11.2007, which is clear from the police report lodged before P.S. Deoband. The respondent has no evidence which shows that the vehicle got damages in any other incident. The damages of the vehicle clearly shows that the vehicle got damages due to sticks and rods by hitting. The District Forum has failed to appreciate that the surveyor and investigator has clearly mentioned that the damages in the vehicle are old and rusted and also the version of the respondent regarding the accident is contradictory. There is no deficiency proved on the part of the insurance company. The appellant had repudiated the claim of the respondent on genuine ground. On minute physical inspection by the investigator major assemblies like dash board, evaporator unit, ECM, both headlights, two doors with complete fitting, bonnet assembly and some engine parts were found missing. Roof, quarter panel were found damaged in a peculiar fashion which shows the marks of sticks, bricks which shows the same being inflicted at the time of rioting. The District Forum has failed to appreciate that the respondent had obtained the insurance policy with the appellant by providing fake cover note of ICICI Lombard General Insurance Co. Ltd. to show continuity in insurance so as to avoid pre-inspection of the insured vehicle. Also the damages were found to be prior to the inception of policy with the appellant.
7. Learned counsel for respondent has submitted that the appellant had issued insurance policy after proper inspection of the vehicle. The cover note issued by ICICI Lombard General Insurance Co. Ltd. is at paper No. 45 and certificate-cum-policy is at paper Nos. 80 to 81. First policy issued by ICICI Lombard General Insurance Co. Ltd. for the duration from 30.08.2006 to 29.08.2007 is at paper No. 80 and the cover note issued by ICICI Lombard General Insurance Co. Ltd. for the period from 30.08.2007 to 29.08.2008 is at paper No. 81. ICICI Lombard General Insurance Co. Ltd. sent a letter to the respondent-complainant regarding the premium payment not realized and the cheque dated 28.08.2007 issued by respondent was dis-honoured by the bank.
8. The appellant has filed a copy of report dated 24.06.2008 of Insurance Investigators & Consultants (paper Nos. 25 to 28), copy of an F.I.R. dated 18.11.2007 for Case Crime No. 748/07 under Section 307 IPC lodged by Ashraf Ali against Mushir Alam S/o Abdul Latif, R/o Village Gopali P.S. Deoband, District Saharanpur (paper Nos. 29 to 32), copy of an another F.I.R. dated 21.12.2007 Case Crime No. 748A/07 under Section 395/397/427 IPC lodged by Abdul Latif against Shahnawaj, Usman and Sushil (paper Nos. 33 to 36). The appellant has also filed a copy of e-mail dated 30.06.2008 (paper No. 37) correspondence regarding confirmation of cover note sent by TATA AIG to ICICI Lombard GIC Ltd., and reply of said e-mail is at paper No. 38. The appellant has also filed a copy of the complaint dated 20.05.2008 by the respondent to the police station, Kotwali Deoband (paper No. 40) and copy of Intimation cum Preliminary Claim Form (paper No. 41) with a copy of insurance policy (paper Nos. 42 to 44) and copy of cover note (paper No. 45) and copy of repudiation letter dated 16.07.2008 (paper Nos. 46 to 47).
9. From the perusal of the letter 03.09.2007 of ICICI Lombard General Insurance Co. Ltd. (paper No. 82), it is very much clear that the cheque No. 104884 dated 28.08.2007 for a sum of Rs. 8,396/- issued by respondent-complainant in favour of ICICI Lombard General Insurance Co. Ltd. was dis-honoured by the bank, therefore, ICICI Lombard General Insurance Co. Ltd. intimated the respondent that the insurance company under these circumstances cannot process the issuance of Private Car Package policy, meaning thereby it is clear that the ICICI Lombard General Insurance Co. Ltd. has not issued any insurance policy in favour of respondent for the period from 30.08.2007 to 29.08.2008. ICICI Lombard General Insurance Co. Ltd. has intimated the appellant-TATA AIG General Insurance Co. Ltd. vide reply of e-mail that ICICI Lombard General Insurance Co. Ltd. has issued a different policy against the said cover note and the cover not provided by the appellant-TATA AIG General Insurance Co. Ltd. was seems to be tampered. The respondent has admitted that before taking the insurance policy from the appellant-TATA AIG General Insurance Co. Ltd., his cheque was bounced and dis-honoured by the bank. Therefore, it was necessary that before purchasing the insurance policy for the vehicle, the respondent had to inform the appellant-TATA AIG General Insurance Co. Ltd. that his cheque issued in favour of ICICI Lombard had been dis-honoured by the bank. Instead of intimating the actual position, the respondent has provided the appellant a fake and forged cover note, which was verified from the ICICI Lombard GIC Ltd. and it was found tampered. In these circumstances, the respondent obtained the insurance policy from the appellant showing continuity of the insurance from ICICI Lombard GIC Ltd. and no inspection of the vehicle was made before issuing new insurance policy by the appellant-insurance company. Moreover, from the perusal of the two FIR's of Case Crime No. 748/07 under Section 307 IPC lodged by Ashraf Ali against Mushir Alam S/o Abdul Latif, R/o Village Gopali P.S. Deoband, District Saharanpur and Case Crime No. 748A/07 under Section 395/397/427 IPC lodged by Abdul Latif against Shahnawaj, Usman and Sushil in P.S. Deoband, it is very much clear that the vehicle in question, i.e. Hyundai Santro was involved in Case Crime No. 748/07 under Section 307 IPC on 18.11.2007, one Mushir Alam, who is a close relation of respondent, was driving the said vehicle between village Zahirpur to Rajupur. Mushir Alam quarreled with Shahnawaj S/o Khushnasib-respondent and fired on him by his revolver and when he was tried to fled away from the scene of occurrence, several villagers surrounded him and with the help of witnesses Mushir Alam caught by the villagers. His licensed revolver was also taken into possession. Mushir Alam has also lodged an FIR against Shahnawaj, Usman and Sushil regarding the same incident on 24.12.2007 with the help of Civil Judge, Senior Division, Deoband. From the perusal of the FIR lodged by Mushir Alam, he has mentioned that the said vehicle belongs to his brother-in-law-Khushnasib-respondent. In the complaint under Section 156(3) of CrPC, he has also mentioned that this vehicle was badly damaged by the opponents. In this way, it is very much clear that the vehicle in question was badly damaged on 18.11.2007 during scuffle, quarrel and rioting by the villagers and opponents of Mushir Alam. There is no evidence on record to show that this vehicle was damaged during storm on 18.05.2008 as said by the respondent in his complaint dated 20.05.2008. In case any tree or branch of tree fell down over the car, then there was no occasion of damage on each and every part of the vehicle, as indicated by the investigator in his report dated 24.06.2008. The investigator has categorically mentioned in his report that the incident, regarding damage, was occurred on 18.11.2007. The damages are old and badly rusted. The cobwebs are present all over the vehicle. It is also mentioned in his observation that during the course of investigation, it has been proved that the vehicle in question was damaged by agitated villagers by using rods, sticks and other blunt arms on 18.11.2007, while it was in possession of Mushir Alam, Co-brother (brother-in-law) of the respondent. It is also observed that it clearly proves that the insured has not only miss-represented date, time and place of the incident, but has also given fraudulent statements and is tried to suppress the truth from the insurers.
10. From the evidence adduced by the appellant on record clearly indicates that the respondent has not come before the District Forum with clean hands. He has miss-represented and defrauded the lower Fora. There is no clear cut evidence regarding the so called incident of 18.05.2008. In these circumstances, we are of the view that the appeal deserves to be allowed and the impugned order dated 31.08.2010 passed by the District Forum, Haridwar is liable to be quashed.
11. For the above discussion, we are of the view that the District Forum has not properly considered the facts and circumstances of the case and recording an incorrect finding and, hence, erred in allowing the consumer complaint. The order impugned being not sustainable in the eyes of law, is liable to be set aside and the consumer complaint is also liable to be dismissed. The appeal is, thus, fit to be allowed.
12. For the reasons aforesaid, the appeal is allowed. The impugned order dated 31.08.2010 passed by the District Forum, Haridwar is set aside and the consumer complaint No. 183 of 2009 is hereby dismissed. No order as to costs. [HON'BLE MR. JUSTICE B.S. Verma] PRESIDENT [HON'BLE MR. D. K. Tyagi, H.J.S.] MEMBER [HON'BLE MRS. Veena Sharma] MEMBER