State Consumer Disputes Redressal Commission
The Oic Ltd. vs Gian Singh Mehta on 30 July, 2008
H
H.P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, SHIMLA
Appeal No. 537/2007
Date of Decision 30.07.2008
The
Oriental Insurance Company Ltd. Mythe Estate, Kaithu,
Shimla 171 003 through its Sr. Divisional Manager.
. Appellant.
Versus
Sh.
Gian Singh Mehta S/o late Sh. Bragi
Ram R/o Rose Cottage,
Kaithu Shikla 171 003.
. Respondent.
Honble Mr.
Justice Arun Kumar Goel, President.
Honble
Mrs. Saroj Sharma, Member.
Whether Approved
for reporting? No.
For the
Appellant. Mr. Deepak Bhasin, Advocate
For the
Respondent Mr. Shashi
Bhushan Singh Chandel, Advocate.
O R D E R:
Justice Arun Kumar Goel (Retd.) President (Oral) We have examined the record of the complaint file with the assistance of learned counsel for the parties.
2. Case as set out in the appeal is, that the driving licence of Mohinder Singh was found to be fake which aspect has been completely ignored by the District Forum below while passing the impugned order. This fact stood established from the affidavit of Sh. Deepak Batra, Surveyor and Loss Assessor, as well as from Annexure R-1 a photostat copy of the letter dated 17.5.2005 to the Divisional Manager of the appellant-Insurance Company, at D.O-7, Janpath C-Place, Delhi. On the back side of this document no doubt it is mentioned that such kind of driving licence No. C 86095044 is not issued of this office.
There is no mention as to who has issued it and by whom this endorsement was made, because there is neither stamp of the office nor signatures of the person who has issued the same.
3. Similarly in the affidavit filed by Sh. Deepak Batra, there is no mention of the inspection having been carried out by him and if enquiry was made, from whom and at what point of time. According to Mr. Bhasin this is a case of complete misreading by the District Forum below of these documents while passing the impugned order.
4. So far this submission of Mr. Bhasin is concerned, according to us it is without merit. Reason being that if the surveyor and loss assessor Sh. Batra, had made enquiry by applying to the concerned Licensing Authority then there should have been something in black and white. Admittedly that is not the case nor anything said in that behalf in the affidavit in writing. Faced with this situation, Mr. Bhasin referred to paragraph 2 of the affidavit. Again this paragraph is of no consequence. We think it proper to extract the contents of the affidavit of Sh. Batra which are as under:-
1. That the I am working as Surveyor and Loss Assessor in the Oriental Insurance Company.
2. That I had verified the licence No. C86095044 from RLA Majnu Tilla Delhi in the name of Shri Mohinder Singh Driver. This licence has not been issued by the licencing Authority with the remark that no such licence of this number was issued/prepared by the Licencing Authority.
3. That the deponent/further declares that this affidavit of mine is true and correct to the nest of my personal knowledge, no part of it is false and nothing material has been concealed therefrom.
5. Whether he filed any application for inspection of record and or deposited any fee for inspection, if so, how much. The affidavit is silent, as such no reliance can be placed either affidavit or Annexure R-1.
6. Moreover, Annexure R-1 does not bear any signature, stamp or name of the person who issued it.
7. Final survey was carried out by one Sh. Rajesh Wadhawan, his report is Annexure R-2. According to this report Annexure R-2, the case of the appellant is that the insured-respondent consented for Rs. 1,49,000/- on net of salvage basis. We are of the view that once consent was obtained, surveyor had satisfied himself about all other formalities and was only then it was obtained. Otherwise there was no occasion for obtaining consent. We have no hesitation in observing in this behalf that consent is not to be laid as a trap, by first roping in a person and then not to adhere to it. At this stage, Mr. Bhasin stated that obtaining of consent is one thing, still his client is not precluded from declining the claim on grounds legally available to it. This plea is being noted simply to be rejected. Report of the surveyor is not to be accepted in parts. Above all, whatever sum the respondent had consented for, nothing more than it has been allowed to him by the District Forum below. We are of the view that licence of the driver being fake is a good and valid defence open to the insurer, but there is no acceptable and reliable evidence, which is lacking in this case.
8. Mr. Bhasin referred to the decision of the Honble Supreme Court of India in the case of Oriental Insurance Co. Ltd. Vs. Prithvi Raj, 1(2008) CPJ 33 (SC) and United India Insurance Co. Ltd. Vs. Davinder Singh, 2008 CTJ 11 (SC) (CP). So far these two decisions are concerned, there was material on record to uphold the plea of the insurer, whereas, as already observed there is no legally acceptable evidence to uphold the plea of the Insurance Company in the case before us. As such no benefit can be derived by the appellant from these decisions of the Honble Supreme Court.
9. No other point is urged.
In view of the aforesaid discussion, we find no substance in this appeal which is accordingly dismissed, leaving the parties to bear their own cost.
All interim orders passed from time to time in this appeal shall stands vacated forthwith.
Learned counsel for the parties have undertaken to collect the copy of this order from the Reader free of cost as per rules.
Shimla.
30th July, 2008. (Justice Arun Kumar Goel) Retd.
President.
(Saroj Sharma), d.kZ* Member.