State Consumer Disputes Redressal Commission
Cholamandalam General Insurance Co. ... vs 1. Kashmir Singh Son Of Shri Ram Chander, ... on 16 July, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.1192 of 2011 Date of Institution: 29.08.2011 Date of Decision: 16.07.2012 Cholamandalam General Insurance Co. Ltd., SCO 236, IInd Floor, Sector 12, Urban Estate, Karnal (through its authorised officer Cholamandalam M/s General Insurance Co. Lte., Ist Floor, Plot No.6, Pusa Road, New Delhi-110005). Appellant (OP-3) Versus 1. Kashmir Singh son of Shri Ram Chander, Resident of VPO Pabnaba, Kaithal. Respondent (Complainant) 2. Metro Motors Pvt. Ltd. (Branch Office) Kurukshetra through its Managing Director. 3. Tata Motors Pvt. Ltd (Authorised Dealers) Tata Motors Ltd., Head Office KM/10 G.T. Road Opp. Mohri Railway Station, P.O. Mohtra, Ambala. 4. Tata Motors Pvt. Ltd., 26th Floor, Centre No.1, World Trade Centre, (H.Q.), Cuffee Prade, Mumbai-400005. Respondents (Ops No.1,2 & 4) BEFORE: Honble Mr. Justice R.S. Madan, President. Dr. Rekha Sharma, Member. For the Parties: Ms. Jaimini Tiwari, Advocate appearing for Shri Rajneesh Malhotra, Advocate for appellant. None for respondents. O R D E R
Justice R.S. Madan, President:
This appeal has been preferred against the order dated 07.04.2011 passed by District Consumer Forum, Kurukshetra whereby complaint bearing No.248/2008 filed by complainant (respondent No.1 herein) was accepted by granting following relief:-
..we accept this complaint being genuine and direct the OP3 to pay Rs.1,78,000/- as assessed amount with interest @ 6% per annum from the date of filing the complaint till final realization.
The brief facts of the present case as emerged from the record are that vehicle Tata DI 207, Model 207 DI RX Economy (EII) bearing registration No.HR64/2954 of the complainant (respondent) was insured with the appellant-opposite party. On 20.03.2008 the complainant damaged in an accident while going from Pipli to Ladwa. Complainant informed the opposite party upon which the opposite party - Insurance Company deputed Shri Rajesh Chhabra, surveyor and loss assessor who inspected the vehicle. The surveyor in order to assess the loss and to submit the necessary documents for processing of complainants claim. Shri Chhabra submitted his spot survey report dated 24.03.2008, wherein it was revealed that the complainant Kashmir Singh was driving the insured vehicle at the time of accident. For final survey Mr. Mahesh Kalra, an independent surveyor & Loss Assessor was deputed. During investigation it revealed that Kashmir Singh complainant, who was driving the vehicle at the time of accident, was not holding a valid and effective driving licence to drive Transport Vehicle. in order to ascertain the veracity of the case, the opposite party appointed Shri R.N. Sharma (Retd) Deputy Superintendent of Police to investigate the claim regarding as to who was driving the vehicle at the time of accident. As per report dated 10.05.2008 given by Shri R.N. Sharma, it revealed that the complainant had intentionally changed the name of the driver as driving licence to drive transport vehicle and the driving licence of Kashmir Singh was only valid for motor cycle with gear, LMV non-transport. Accordingly, complainants claim was repudiated vide order dated 22.05.2008. Challenging the repudiation of his claim, the complainant invoked the jurisdiction of the District Consumer Forum by filing complaint.
Upon notice, the opposite parties No.1,2 and 4 did not contest the complaint and they were proceeded exparte. Opposite party No.3 appeared and contested the complaint by filing written statement wherein it justified repudiation of complainants claim on the ground stated in the preceding para of this order and prayed for dismissal of the complaint.
Aggrieved against the order of the District Consumer Forum, the opposite party No.3 has come up in appeal.
There is a delay of 94 days in filing of the present appeal the condonation of which has been sought by the appellant by moving an application under Section 5 of the Limitation Act. The application is supported with an affidavit of Shri Rajnish Mohli, Cholamandalam M/s General Insurance Co. Ltd. Ist Floor, Plot No.6, Pusa Road, New Delhi.
While dealing with the application for condonation of delay, it is not disputed that the delay cannot be condoned on the ground of equity and generosity, but at the same time it is to be taken into consideration that in case of any legal infirmity is committed by the District Consumer Forum while passing the impugned order which is apparent on record, the same cannot be allowed to continue as it would amount to no order in the eyes of law. Reference is made to the observation made by the Honble Supreme wherein it has been held that when the substantial justice and technical approach are pitted against each other, the former has to be performed. It has further been held that the words Sufficient Cause have to be interpreted to advance the cause of justice. The Honble Apex Court in case cited as State of Nagaland Vs. Lipok A.O. and others, 2005(3) SCC 752 has held as under:-
11.What constitutes sufficient cause cannot be held down by hard and fast rules. In New India Assurance Co. Ltd. Vs. Shanti Misra (1975)(2) SCC (840) this Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression sufficient cause should receive a liberal construction. In Brij Inder Singh Vs. Kanshi Ram (ILR) (1918) 45 Cal.
94 (PC) it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain Vs. Kuntal Kumari (AIR 1969 SC 575) a Bench of three-Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.
In the instant case the District Consumer Forum has passed the impugned order without appreciating the facts of the case and therefore, we think it a fit case to condone the delay. Hence, the delay of 94 days in filing of the present appeal is condoned.
Heard.
On behalf of the appellant it is contended that the accident in the instant case took place on 20.03.2008, information was furnished to the Insurance Company upon which Shri Rajesh Chhabra, as surveyor and loss assessor who after conducting the spot survey, submitted his report dated 24.03.2008 wherein nature and cause of accident was given as under:-
NATURE & CAUSE OF ACCIDENT: As reported to me that the Insured vehicle was being driven to Karnal. At the site of the accident, suddenly, a group of monkeys ran across the road and came directly in front of the insured vehicle. While saving, when quickly steered to right side, it became out of control, got down the road and over turned after hitting and uprooting two trees causing damages.
It was observed that the history of accident: is in accordance to the damages sustained by it and damages are fresh and accidental in nature.
As per report of Shri Rajesh Chhabra (Annexure A-2), Kashmir Singh was driving the vehicle. Learned counsel for the appellant in support of his arguments, has furnished the photo copy of the driving licence of Kashmir Singh which reflects that he was not authorised to drive the Light Transport Vehicle Tata-203 on the date of accident. The plea of the accident was set up by the complainant. No F.I.R./D.D.R. was lodged with the concerned police station. The complainant in order to claim the compensation approached the officials of the Insurance Company to appoint fresh surveyor who submitted final report. It was told to the surveyor that the vehicle was being driven by Ramesh Kumar. The surveyor who submitted the report recorded the statements of Ramesh Kumar as well as of Kashmir Singh which are contradictory each other for which the surveyor has detailed in his report as under-
I Ramesh Chand s/o Ram Chander, R/o Village Pabnawa to hereby state that for the last one month I am working as driver on Vehicle No.HR64-2181. Prior to this from July 2007 to December 2007 I had worked on this vehicle and I used to get a salary of Rs.3500/- per month. In March 2008 I was working of the vehicle of Kashmir Singh who is of my Village and I used to get a salary of Rs.2500/- per month. I do not remember the vehicle number and also do not remember of make of Vehicle. On 20.03.2008 after loading generator from Ladwa were going to Pabnawa and while trying to save the moneys the vehicle struck against a tree and overturned. The vehicle was being driven by me and Kashmir Singh was sitting beside me. The villagers gathered on the spot. I cam to Pabnawa. I do not know who had gone to bring the Crane and I had not gone to bring the Crane. I had not met the police official and had not seen the police man. This accident had occurred at about 4 P.M. I did not get myself treated from any doctor. Kashmir Singh had first given his driving license to the Surveyor and next day Kashmir Singh had taken my license. I do not know how and when the vehicle reached in the workshop. Kashmir Singh did not suffer any injury.
Shri R.N. Sharma, Surveyor in his report has stated as under:-
CONCLUSION In view of the facts stated above and circumstantial evidence available we conclude our report as under:-
i) The accident of Vehicle No.HR74-2954 on 20.03.2008 is confirmed because the vehicle was seen by Mr. Rajesh Chhabra Surveyor on the spot and he has mentioned the name of driver as Kashmir Singh on the spot.
ii) As per preliminary survey report of Mahesh Kalra the name of driver is Ramesh Kumar S/o Ram Chander.
iii) The statements of Kashmir Singh insured and Ramesh Chand driver are contradictory to each other because of the following facts.
Kashmir Singh states that his driver Ramesh Kumar had gone to Pipli to bring the recovery van after the accident but Ramesh Kumar has denied this fact in his statement.
Kashmir Singh states in his statement that his driver got himself treated from a doctor but Ramesh Kumar has denied.
Driver Ramesh Kumar does not remember the make of the vehicle and the number of Vehicle i.e. Mahindera or Tata which was involved in the accident on 20.03.2008.
It appears that Insured has intentionally changed the driver when the vehicle was assessed by Mr. Mahesh Kalra Surveyor because he himself has not having HMV license.
From the facts and circumstances of the case it stands established that the complainant in connivance with the officials of the Insurance Company managed to appoint the second surveyor in which Ramesh Kumar stated to have been driving the vehicle but the perusal of these reports when taken into consideration it creates doubt that in the first version of Kashmir Singh made to the Insurance Company, he stated that he himself was driving the vehicle whereas when he approached the Company for the appointment of second surveyor, a new driver namely Ramesh Kumar was introduced. Ramesh Kumars statement does not coincide with the statement given by Kashmir Singh, rather, a contradictory statement has come up which virtually falsify the case of the complainant because when Kashmir Singh was confronted with his Driving License not bearing the endorsement of LTV, the factum of inventing of new story was adopted by the complainant. Thus, in the instant case, the complainant has not come to the court with clean hands. The officials of the Insurance Company appear to be in collusion with the complainant and ignored the statement of Ramesh Chand who was introduced as driver to drive the vehicle at the time of accident.
In view of the above, when the entire facts and circumstances have taken into consideration, it is a case in which the complainant cannot be allowed for any compensation which he is alleged to have suffered in the alleged accident because Kashmir Singh who was driving the vehicle on the date of accident, was not having a valid and effective driving licence to drive Light Motor Vehicle. Therefore, the terms and conditions of the Insurance Policy have been violated by the complainant. Hence, the impugned order cannot be allowed to sustain.
For the reasons recorded above, this appeal is accepted, impugned order is set aside and the complaint is dismissed.
The statutory amount of Rs.25,000/- deposited at the time of filing the appeal and Rs.81,937/- deposited on 07.10.2011 in view of the order dated 12.09.2011 passed by this Commission, be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: (Justice R.S. Madan) 16.07.2012 President (Dr. Rekha Sharma) Member