State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd. vs Sh. Chandan Singh on 25 May, 2007
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND DEHRA DUN FIRST APPEAL NO. 168 / 2005 New India Assurance Co. Ltd. ......Appellant Versus Sh. Chandan Singh .....Respondent Sh. M.N. Mishra, Learned Counsel for the Appellant None for the Respondent Coram: Hon'ble Justice Irshad Hussain, President Surendra Kumar, Member Ms. Luxmi Singh, Member Dated: 25.05.2007 ORDER
(Per:
Justice Irshad Hussain, President):
This is insurer's appeal against the order dated 28.06.2005 passed by the District Consumer Forum, Nainital, partly allowing consumer complaint No. 284 / 2003 and directing the insurer to pay compensation of Rs. 3,00,000/- with interest @9% in addition to sum of Rs. 10,000/- as damages for mental agony and suffering and Rs. 1,500/- as cost. Complainant was directed to submit documents of ownership etc. to the insurer.
2. Complainant got an open body truck (heavy goods vehicle) financed by New Kumaon Financier's (Regd.), Railway Bazar, Haldwani and have it insured for sum of Rs. 3,50,000/- for the period w.e.f. 11.08.2001 to 10.08.2002 under the policy issued by the insurer, The New India Assurance Co. Ltd., Divisional Office, Haldwani, District Nainital.
3. In the complaint, it was alleged that this vehicle having registration No. DL1G / 9786 loaded with river sand was sent for unloading the commodity at Chandausi on 22.05.2002 and that it did not come back upto 25.05.2002. Complainant alleged to have received a telephonic message that his vehicle had been stolen. He went to Moradabad and wanted to lodge an FIR with the police but could not succeed. It was also alleged that the complainant continued to make search of the vehicle in various cities like Delhi, Meerut and Kanpur but to no result. On account of this and also due to the illness of his brother, complainant remained mentally upset and, therefore, could not intimate the insurer immediately about theft of his vehicle. Complainant claimed to have submitted an application under Section 156(3) of the Code of Criminal Procedure before the concerned Magistrate at Moradabad and by an order under the said provision, FIR under Section 379 IPC against unknown person was registered under Case Crime No. 496 / 2002 at Police Station Kundarki, District Moradabad, After investigation, police submitted final report suggesting that the vehicle was not stolen from district Moradabad and that the theft was probably committed in district Poornia of the State of Bihar. Complainant preferred claim with the insurer and alleging that the insurer repudiated the claim, filed complaint in the month of June, 2003 with a prayer that compensation of Rs. 3,95,000/- be directed to be paid with interest by the insurer.
4. In its written statement insurer pleaded that the complainant gave the information of alleged theft on 20.08.2002 and in response thereof, surveyor Sh. Chandrapal Singh Tomar was deputed to investigate the claim. The surveyor vide his report dated 29.01.2003 did not find the allegation of theft of vehicle from village Hussainpur, District Moradabad as proved and correct and he also referred to the inference drawn by the police after investigation of the matter. The claim preferred by the complainant was not repudiated but by letter dated 15.07.2003, the complainant was asked to provide required information and documents regarding alleged theft within the stipulated time. The complainant instead of making compliance, preferred to file the complaint before the District Consumer Forum.
5. According to the insurer, the complainant had deliberately not disclosed the names of the driver and conductor / cleaner of the vehicle, although during the investigation by the police, it was found that Sh. Yashin S/o Sh. Munna and Sh. Munna Lal S/o Sh. Ram Lal, both residents of Civil Line, Nala Paar, P.S. Civil Line, District Rampur were the driver and conductor / cleaner respectively on this vehicle. The statements of the driver and conductor / cleaner and residents of the place of incident in village Hussainpur, District Moradabad and particularly of Sh. Hetram Singh named by the complainant in the application under Section 156(3) of the Code of Criminal Procedure were recorded by the police and it was found that the truck was not stolen from the alleged place of the incident. The Investigating Officer suggested on the basis of the statement of the witnesses that the vehicle had probably been stolen from the State of Bihar and that the complainant made false claim that his vehicle was stolen from village Hussainpur, District Moradabad on 25.05.2002. Insurer, thus, pleaded that no deficiency in service has been made by it in regard to the claim preferred by the complainant and that the complainant was not entitled to claim any compensation under the contract of insurance.
6. The District Forum on an appreciation of the material on record accepted the contention of the complainant that his insured vehicle was stolen near village Hussainpur within the circle of P.S. Kundarki, District Moradabad and that alternatively even if the vehicle was stolen while being plied under the territory for which there was no permit of the Transport Authority, the fact of theft from that territory, namely, district Poornia (Bihar) having been established by the police investigation, the insurance company was liable to indemnify the loss in view of the contract of insurance between the parties. The District Forum placed reliance on the averment of the affidavit of Sh. Hetram Singh in coming to the conclusion that the theft of the vehicle was committed from the place as alleged by the complainant. The District Forum went on to award the compensation after making depreciation of Rs. 50,000/- from the assured sum of Rs. 3,50,000/- on the premise that the vehicle was of 1995 model and, as such, awarded compensation of Rs. 3,00,000/- with additional damages as stated above.
7. Learned counsel for the insurer persuasively argued that the conclusion of the District Forum is based on no evidence at all and that the conduct of the complainant and the attending circumstances of the case raise serious doubt regarding veracity of the claim and further that no information or notice of the incident having been immediately given to the insurer, no deficiency in service has been made by the insurance in not paying the claim under the policy.
8. Having given our thoughtful consideration to the evidence on record and the facts and circumstances of the case, it need to be stated at the outset that the submissions of the learned counsel for the appellant are sustainable and that the conclusion drawn by the District Forum and the order passed awarding compensation to the complainant being unjust and erroneous need to be set aside.
9. Complainant came up with a specific allegation that his truck was stolen on 25.05.2002 from near village Hussainpur within the circle of P.S. Kundarki, District Moradabad while the truck was being parked by the roadside and the driver and conductor / cleaner went away to take medicine from a local doctor in view of their getting sick of nausea and vomiting resulting from consumption of unhealthy food. The truck was then coming back to Haldwani from Chandausi at about 4.00 A.M. on 25.05.2002 after unloading the consignment at Chandausi. It was further specified in the application under Section 156(3) of the Code of Criminal Procedure (Paper No. 29) that one Sh. Hetram Singh S/o Sh. Balak Ram and two others of that locality accompanied the driver and the conductor / cleaner for taking medicine from the doctor and when they returned to the place where the truck was left parked, the same was found missing. It is of significance that the complainant has not disclosed the name of his driver and conductor / cleaner in this application and as also is the case with his complaint filed before the District Forum. From record, it is evident that the names of the driver and conductor / cleaner were also not disclosed when the information of the incident was given to the insurer and also when the statement of the complainant was recorded by the Investigating Officer of the case. The driver and conductor / cleaner were the most important and natural witnesses of the occurrence of theft and the conduct of the complainant in not disclosing their names, create grave suspicion and doubt in the allegation laid about the incident of theft of vehicle. In the peculiar circumstances of the case, the learned counsel for the insurer rightly argued that an adverse inference has to be legitimately drawn against the complainant that if the complainant was to disclose the names of his driver and conductor / cleaner, they would not have come forward and supported the alleged incident of theft of the vehicle and that for this very reason, the complainant altogether concealed their names. Strangely enough, this important aspect of the matter was not taken note of by the District Forum, which preferred to place reliance on the averment of affidavit of Sh. Hetram Singh and drawing an inference in favour of the complainant's version.
10. In so far as the averment of the affidavit of Sh. Hetram Singh S/o Sh. Balak Ram (Paper No. 45) is concerned, it is of significance that he has also not disclosed the names of the driver and conductor / cleaner of the vehicle of the complainant. It does not stand to reason as to how the complainant could lay his hands upon this witness when he was not even able to remember or tell the name of his own driver and conductor. The affidavit filed before the District Forum was shown to have been verified by a Notary of Moradabad and the endorsement on it revealed that the photograph of the deponent had not been attested by the Notary on the identification of any Advocate, but on the identification of some Ram Nath, R/o Nanpur, Moradabad. The complete address of the person identifying the photograph of the deponent has not been endorsed and in the peculiar circumstances of the case, the identity of the deponent Sh. Hetram Singh having not been properly verified, no reliance on the averment of the affidavit could have legally been placed by the District Forum. This apart, the learned counsel for the insurer also rightly pointed out that the photograph on this affidavit and on an earlier affidavit of the same deponent (Paper No. 30) said to have been filed before the Magistrate of Moradabad in support of the application under Section 156(3) of the Code of Criminal Procedure, clearly differ and do not appear to be of the same person. Not only the photograph but as pointed out, the signature of the so-called deponent Sh. Hetram Singh clearly differ in construction and appearance on these two affidavits and this further raise serious suspicion about the veracity, genuineness and reliability of the averment of the affidavit of the witness Sh. Hetram Singh. In our view, the District Forum fell in gross error in drawing an inference about the incident of theft of the vehicle in favour of the complainant on the basis of the affidavit of the so-called eye-witness Sh. Hetram Singh. Here it shall also not be out of place to mention that as is evident from the police papers regarding investigation (Paper Nos. 33 - 41) neither so-called witness Sh. Hetram Singh, nor any other witness of the locality examined during the investigation supported the incident of theft of the vehicle from the roadside in the vicinity of village Hussainpur of district Moradabad. Further, the result of the investigation was that the theft was not proved to have been committed as alleged by the complainant and it was then suggested that perhaps the vehicle was stolen while it was being plied in district Poornia of the State of Bihar. This suggestion in the final report of the police has no relevance at all in view of the specific allegation of theft from near village Hussainpur of district Moradabad made by the complainant and, therefore, the District Forum was not at all justified to record an alternative finding that at any rate the theft of the vehicle was committed from the State of Bihar making the insurer liable for indemnification of loss to the complainant.
11. Delay in lodging the FIR and sending claim intimation to the insurer has also a substantial bearing on the matter in issue. The vehicle according to the complainant was stolen on 25.05.2002 and the application under Section 156(3) Cr.P.C. (Paper No. 29) was submitted in the month of June, 2002. The record does not reveal as to on which date application was submitted before the Magistrate concerned, although it is dated as 07.06.2002 and whereas the affidavit of so-called witness Sh. Hetram Singh (Paper No. 30) said to have been filed in support of the application is dated 21.06.2002. The order on the application by the concerned Magistrate was passed on 02.08.2002 (Paper No. 31) and there is nothing on record to show that soon after the alleged incident of theft or even before submitting the application under Section 156(3) of the Code of Criminal Procedure, any FIR in fact was lodged with the police by the complainant. As regards the intimation to the insurer is concerned, the same was given on 20.08.2002 vide application of the said date (Paper No. 43). In this intimation, complainant gave reason of delay that a member in his family had died and he was not in a position to give intimation of the incident of theft. It is of significance that as per death certificate (Paper No. 42), death of Sh. Anand Singh Kanwal S/o Sh. Nar Singh Kanwal, said to be the brother of the complainant, took place on 22.05.2002 and, as such, it is not at all believable that for about three months due to this death, the complainant could not care to intimate the insurer about the alleged incident of theft of his vehicle. Referring to this delay, learned counsel for the insurer rightly drew our attention to condition No. 1 of the policy of insurance (Paper Nos. 54 - 59), which reads as under:
"1.
Notice shall be given in writing to the company immediately upon the occurrence of any accident or loss of damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. Every letter, claim, writ, summons and/or process shall be forwarded to be company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution, inquest, fatal injury in respect of any occurrence which may give rise to a claim under this policy. In case of theft or other criminal act, which may be subject of claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender."
12. It is evident that despite the above condition of the policy, the complainant failed to give the intimation as to his claim and the alleged theft of his vehicle for about three months without any cogent reason and further that the FIR of the alleged incident was also not lodged immediately with the police and the complainant continued to conceal the name of his driver and conductor / cleaner clearly with a view to suppress the truth so as to make an attempt to lay false claim with the insurer alleging that his vehicle was stolen on 25.05.2002 from the vicinity of village Hussainpur of district Moradabad while it was returning to Haldwani from Chandausi after unloading the consignment sent there. In the peculiar facts and circumstances of the case, the learned counsel for the insurer rightly placed reliance on a reported decision of the Hon'ble National Commission in the case of New India Assurance Co. Ltd. Vs. Dharam Singh and another; III (2006) CPJ 240 (NC). In the case before the National Commission, the State Commission had awarded compensation arising out of theft of insured vehicle. On appeal being preferred by the insurance company, the same was allowed and by setting aside the order of the State Commission, the complaint was dismissed on finding that despite the alleged theft on 17.05.1991, the FIR was belatedly lodged on 15.07.1991 and intimation to the insurer was given on 11.06.1993 and that the conduct of the complainant being unnatural raise suspicion regarding the manner in which truck was lost. In the instant case also, as stated above, the conduct of the complainant had all along been highly unnatural in the sense that he never disclosed the names of his driver and conductor / cleaner and made an attempt to bring forward a false witness of the incident by concocting a version that the witness had helped his driver and conductor / cleaner to secure medicine from a doctor and in the meanwhile, the vehicle was stolen while being parked on the roadside in the vicinity of village Hussainpur of district Moradabad. Further, the FIR was lodged with considerable delay by taking recourse to provision under Section 156(3) of the Code of Criminal Procedure and also the intimation to the insurer after about three months of the alleged incident and keeping in view these aspects of the matter, the reported decision apply squarely to the facts of this case. We, therefore, have no hesitation in coming to the conclusion that the conduct of the complainant and the facts as referred above raise grave suspicion and doubt regarding the manner in which the truck was lost and in a situation like this, the view taken by the District Forum was legally erroneous and unjustified. The insurer thus made no deficiency in service in not paying the claim lodged by the complainant and his complaint was liable to be dismissed.
13. For the reasons aforesaid, this appeal succeed and is hereby allowed. Order dated 28.06.2005 of the District Forum is set aside and the complaint is dismissed. No order as to cost.
(MS.
LUXMI SINGH) (SURENDRA KUMAR) (JUSTICE IRSHAD HUSSAIN)