State Consumer Disputes Redressal Commission
Oic Ltd. vs Sh. Neem Chand on 22 November, 2007
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA Appeal No. 60/2007. Date of Decision 22.11.2007. Oriental Insurance Co. Ltd., Mythe Estate Shimla through its Sr. Divisional Manager. . Appellant. Versus Shri Neem Chand S/o Sh. Kanhya Ram R/o Vill. Kanswala, PO Parnu, Tehsil Arki, Distt. Solan, HP. . Respondent. For the Appellant. Dr. Lalit K. Sharma, Advocate. For the Respondent. Mr. Dheeraj Bansal, Advocate. Honble Mr. Justice Arun Kumar Goel, President. Honble Mr. Narinder Singh Thakur, Member. Honble Mrs. Saroj Sharma, Member. Whether Approved for reporting ? Yes. O R D E R:
Justice Arun Kumar Goel (Retd.) President (Oral) Heard learned counsel for the parties. Admitted facts of this case are that vehicle bearing registration No. HP-02-3065 was insured under a valid policy of Insurance with the appellant. During the validity period of the Insurance policy, on 8.8.2001 this vehicle met with an accident. After accident claim form was filled-in by the respondent. Amongst other facts, regarding driver it was disclosed that one Ramesh Chand was driving the vehicle at the time of accident.
2. While disputing this claim form Mr. Bansal raised two-fold plea. Firstly according to him it was not filled in by his client, alternatively he urged that even if it was filled-in by his client, he had never disclosed the name of Ramesh Chand to be the driver of vehicle at the time of accident. Therefore, according to him no benefit can be derived by the appellant from this claim form.
3. To our specific query Mr. Bansal pointed that his client is a literate person and this is also evident from the documents placed by him on record.
4. In the context of accident it may also be noted that one Chet Ram had got his statement recorded with the ASI In-charge, of Police Post Kunihar. This Chet Ram has mentioned Ramesh Chand to be the driver of the van in question and accident having been caused due to rash and negligent driving on his part. The matter did not rest here only. In the FIR itself, copy whereof is Annexure-3 it is mentioned that at about 7:45 AM on 8.8.2001 a telephonic message was received from Medical Officer PHC, Kunihar that one Ramesh Chand in injured condition due to accident is in the PHC, so necessary action may be taken. In the FIR and action taken by the police mention of said Ramesh Kumar having been medically examined and appropriate form filled- in, in that behalf is there.
5. Immediately after accident preliminary survey was done by one Mr. Vineet Kaura. He in column No.5 of his report has stated that driving licence was not produced and driving licence to be verified, but in paragraph 12(b) he has mentioned, copy produced and checked. This sub para deals with licence. Similarly in the final survey report Annexure R-5 of Mr. Deepak Sood, under the heading of Driving Particulars, he has mentioned that photocopy of driving licence, entries reproduced are legible. He has given the particulars of licence of Ramesh Chand. Regarding type of licence he has stated to check (illegible).
6. Record further shows that Insurance Company on getting suspicious, got the matter investigated from one Mr. Iqbal Singh, a retired Police Vigilance Officer, who submitted his report Annexure R-6 and his affidavit which is at page 47 of the file of District Forum below. In his affidavit Annexure RB, he has reiterated what is contained in Annexure R-6.
7. On the other hand as already noted case of the respondent is that he had never submitted any claim form and alternatively his further case is that it was never filled in by him. Affidavit has been filed by one Mr. Promod Kumar to the effect that he is a professional driver and on 8.8.2001 he was driving the vehicle i.e. Maruti van owned by the respondent. He was driving the said vehicle with due care and there was no lapse in causing the accident. He has not said a word in his affidavit who were the other occupants and whether any one of them was injured and taken to PHC, Kunihar and or police came there and any person having been treated.
8. Learned counsel for the respondent when specifically confronted this situation, reiterated that his client had engaged this Promod Kumar as driver and not Ramesh Chand who, he neither knew, nor the respondent was aware about this Ramesh. Mr. Bansal learned counsel for the respondent submitted that assuming for the sake of argument without conceding that Ramesh Chand was on the wheel at the time of accident even then the impugned order calls for no interference. In this behalf he placed reliance on paragraph 12 of the preliminary survey report, and also on the final survey report, particularly on what is contained under the heading under Drivers Particulars. He further urged that driving licence of Ramesh was seen and photocopy was supplied. Therefore, according to him even if it is held that Ramesh was driving the van in question at the time of its accident, still from the documents placed by the appellant on record his clients case is duly proved.
9. In this behalf by referring to a decision of the Rajasthan High Court in the case of M/s Nand Construction Company Vs. Regional Manager, Oriental Insurance Co. and another, AIR 2002 Rajasthan 272, he submitted that Insurance Company cannot be permitted to take U turn. And if it is held that Ramesh was driving the vehicle and not Parmod who was employed as a driver, still appeal merits rejection. Suffice it to say in this behalf, that appellant is not taking any U turn in this case. Reason being that from day one on the basis of the material on record appellants stand is that driver was Ramesh and not Promod at the time of accident. Not only this, but he was hospitalized and was medically examined at PHC, Kunihar. Intimation was sent to police by the Medical Officer, PHC, Kunihar. Ramesh was prosecuted for the accident in question for this under Sections 279, 337 of IPC.
10. Faced with this situation Mr. Bansal submitted that investigator has observed that Ramesh was holding a learners licence because it was not the case of the respondent that Ramesh was driving the vehicle at the time of accident and Parmod Kumar in his affidavit had not said a word regarding the accident on 8.8.2001, in these circumstances in our opinion doctrine of falsus in uno falsus in omnibus is fully attracted to the circumstances of this case.
11. Further submission of Mr. Bansal on behalf of the respondent was that reliance placed on the affidavit of Parmod by the District Forum below while allowing the complaint is perfectly justified and the impugned order does not call for any interference in this appeal. In this behalf he placed reliance on a decision of the National Commission in the case of National Insurance Company Ltd. & Anr. Vs. Sukhdev Singh Gill & Ors. 2006 NCJ 738 (NC). When a reference is made to this decision it is evident that firstly it cannot be taken to be a precedent for the simple reason that it is a judgment of its own facts and secondly the controversy involved in the case before us is who was on the wheel at the time of accident Ramesh or Parmod. At the risk of repetition we may observe that latter is silent about accident and for holding former driving the vehicle there is overwhelming evidence and no plausible explanation could be given on behalf of the respondent.
12. Another reason on which the impugned order of the District Forum below cannot be upheld is that after the receipt of Annexure R-6, appellant had been writing to the respondent vide Annexure R-7 (b) to R-7 (g) to provide original driving licence of Ramesh Kumar. None of these letters have been replied to by the respondent. Though Mr. Bansal referred to a letter of 8.3.2002 written by his client, Annexure C-4 explaining that it was Parmod and not Ramesh who was the driver of the vehicle at the time of accident. With a view to further support the case of respondent, Mr. Bansal also relied upon the affidavit of Chet Ram at whose instance the FIR was lodged. Let us accept this submission that Chet Ram was not aware who was driving the vehicle, but in FIR there is a mention about Ramesh having been admitted as an injured person on account of accident at the PHC, Kunihar and the Medical Officer had asked the police to take action. He was got medically examined by the police and on the basis of material on record he was prosecuted.
13. Learned counsel was not in a position either to rebut or controvert Annexure R-6 report of the investigator as well as his affidavit. In case what had been mentioned in his report was factually incorrect and or respondent wanted to controvert the same, complaint file shows that no attempt was made to get him summoned for his cross-examination. Learned counsel for the respondent further argued that onus was upon the Insurance Company to prove that it was Ramesh and not Parmod driver, at the time of accident and validity or otherwise of the licence was also required to be established by the appellant when it based its defence on a licence. This plea also merits rejection. Reason is that if Parmod Kumar driver was actually driving the vehicle, and then if it did not meet with accident, something should have been said in his affidavit, as already observed not a word is there in that behalf. Secondly it is not the case of the respondent that Ramesh was driving the vehicle at the time of accident. In this behalf Mr. Bansal tried to challenge the FIR by saying that it is not a substantive piece of evidence. Suffice it to say we are not dealing with a criminal case. No doubt Chet Ram resiled from what he stated in the FIR. Still there is mention of Ramesh having been admitted in the hospital in an injured state as a result of accident cant be ignored. Not only this he was medically examined and latter on prosecuted is proved from Annexures R-6 and RB both given by Investigator Mr. Iqbal Singh. And Medical Officer of PHC, Kunihar had sent intimation in this behalf to the police, who took action under law.
14. Lastly learned counsel for the respondent made an attempt to persuade us by arguing that Ramesh was also holding a valid driving licence and the appellant has failed to negative this plea, for this he relied upon preliminary and final survey reports filed by the appellants. We have already noted this plea and dealt with it in the preceding paras. Appellant successfully on the basis of contemporaneous official record has established Ramesh was the driver at the time of accident and not Parmod. Regarding claim form we may observe that appellant in preliminary objection No.1 of its reply pleaded that the same has been filled-in by the respondent. In rejoinder filing of the claim form is not disputed, what is disputed is that the name of Ramesh was not mentioned by the respondent, as such we are of the view that claim form was lodged by the respondent after accident is clearly established and all its contents are accepted to be correct.
15. No other point is urged.
In view of the aforesaid discussion this appeal deserves to be allowed and as a result of it order passed by District Forum Shimla, Camp at Solan, in Complaint No. 52/2003, dated 19.3.2003 needs to be quashed and set aside. Ordered accordingly, as a result of it the complaint filed by the respondent stands dismissed, leaving the parties to bear their own costs.
All interim orders passed from time to time in this appeal shall stand vacated forthwith.
Office is directed to supply a copy of this order free of costs to the parties as per rules.
Shimla 22nd November, 2007 (Justice Arun Kumar Goel) Retd.
President.
(Narinder Singh Thakur), Member.
(Saroj Sharma), Karan* Member.