National Consumer Disputes Redressal
Dilawar Khan vs New India Assurance Co. Ltd. & Ors on 17 November, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2714 OF 2008 (Against the Order dated 05/03/2008 in Appeal No. 1500/S.C/2003 of the State Commission Uttar Pradesh) 1. DILAWAR KHAN Resident of Village Sadhan, P.S. Achner Agra Uttar Pradesh ...........Petitioner(s) Versus 1. NEW INDIA ASSURANCE CO. LTD. & ORS Through Divisional Manager, Office Block 40, Second Floor, Agra Uttar Pradesh 2. BRANCH MANAGER, INSURANCE CO. LTD. 4/85A, Baluganj Agra Uttar Pradesh ...........Respondent(s)
BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER
For the Petitioner : For the Respondent :
Dated : 17 Nov 2017 ORDER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioners
:
Mr. Sandeep Kapoor, Advocate
For the Respondents
:
Mr. Mohan Babu Agarwal, Advocate
PRONOUNCED ON : 17th NOVEMBER 2017
O R D E R
PER DR. B.C. GUPTA, MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 5.03.2008, passed by the U.P. State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in First Appeal No. 1500/S.C./2008, "New India Assurance Co. Limited versus Dilawar Khan", vide which, while allowing the appeal, the order dated 12.05.2003, passed by the District Forum Agra in consumer complaint No. 86/2001, filed by the present petitioner/complainant, Dilawar Khan allowing the said complaint, was set aside and the consumer complaint was ordered to be dismissed.
2. During the pendency of this revision petition, the petitioner Dilawar Khan died and his successors-in-interest were substituted as the petitioners.
3. The facts of the case are that the complainant Dilawar Khan purchased a Tata Sumo vehicle, bearing registration No. UP80 P 5740 on 28.01.99 from M/s. Ashok Auto Sales, Nunihai, Agra for a sum of ₹3,99,589/- and the said vehicle was insured for the period from 28.02.99 to 27.01.2000 with the opposite party (OP), the New India Assurance Co. Limited. The vehicle was supposed to carry 9+1 passengers under a private permit issued by the Regional Transport Officer, Agra. It is stated that the vehicle was being driven by Vijay Singh driver on 03.08.99 for travel to Kakod, District Bulandshahar, when it met with an accident at about 1:00 AM in the night at Rohinda Turning, P.S. Arniya, District Bulandshahar with truck No. DIAL 4199, coming at a fast speed. It is stated in the complaint that at that time, some of their relations, namely, Joginder Singh, Gyan Singh, Prem Singh etc. were travelling in the said vehicle and they got injured. Prem Singh lodged the report of the incident on 05.08.99 at P.S. Arniya, Bulandshahar and a criminal case No. 128/99 u/s 279/337/339/427 IPC was registered. An intimation about the accident was given to the Insurance Company. It is stated in the consumer complaint that the surveyor had been pressurising the complainant to accept a sum of ₹3,10,000/- as insurance amount, but the complainant demanded the entire sum insured of ₹4 lakh. However, later, the Insurance Company decided to repudiate the claim of the complainant, taking the ground that at the time of the accident, the vehicle was being driven by Joginder Singh, who did not have a valid and effective driving licence. Alleging deficiency in service on the part of the OP Insurance Company, the complainant filed the consumer complaint, seeking payment of the insured amount alongwith interest @24% p.a. and a compensation of ₹5,000/- etc.
4. The complaint was resisted by the OP Insurance Company by filing a written statement before the District Forum, saying that the vehicle was not being driven by Vijay Singh as claimed by the complainant, but Joginder Singh was driving the vehicle, who did not have a driving licence to ply the same. Moreover, at the time of the accident, the vehicle was being used for hire, as it was carrying the samples of scientific implements of Gyan Singh and his son Prem Singh and for that purpose, they had paid a sum of ₹1600/- to the driver.
5. The District Forum, after considering the averments of the parties, allowed the consumer complaint vide their order dated 12.05.2003 and directed the OPs to pay a sum of ₹4 lakh with interest @12% p.a. from 3/4.8.99 to December 2000 and after that, to pay interest @9% p.a. Being aggrieved against the order of the District Forum, the OP Insurance Company filed an appeal before the State Commission. Vide impugned order dated 05.03.2008, the said appeal was allowed and the order passed by the District Forum was set aside and the consumer complaint was dismissed. Being aggrieved against the said order of the State Commission, the complainant is before this Commission by way of the present revision petition.
6. It was argued by the learned counsel for the petitioners that the OP Insurance Company, vide their letter dated 25.05.2000 addressed to the complainant, had already offered to pay a sum of ₹3,10,000/- and had sought his consent. The said offer had been made, based on the report of the surveyor appointed by them. It was, therefore, not desirable on the part of the Insurance Company to have repudiated the claim subsequently. The learned counsel has drawn attention to the report of the surveyor, in which it has been stated that Vijay Singh was driving the vehicle. The learned counsel argued that if Vijay Singh did not suffer any injury during the accident, it does not mean that the vehicle was being driven by somebody else. Not a single document had been produced on record to say that Vijay Singh was not driving the vehicle at the time of the accident. In the charge-sheet etc., prepared by the Police as well, Vijay Singh had been shown to be the driver of the vehicle. Since Vijay Singh had a valid driving licence, the complainant was entitled to get the claimed amount from the OP Insurance Company.
7. Per contra, the learned counsel for the OP/respondent Insurance Company has drawn attention to the order passed by the State Commission which brings out that the part of the Tata Sumo vehicle towards the seat of the driver was badly smashed. Joginer Singh who was driving the vehicle at that time suffered injuries during the accident. Had Vijay Singh been driving the vehicle at that time, he would also have been injured. The State Commission have, therefore, rightly brought out that the complainant had indulged in fraudulent behaviour by projecting that Vijay Singh was the driver at the time of accident and not Joginder Singh. The complainant was, therefore, not entitled to the claim in accordance with the terms of the policy.
8. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.
9. There are two main considerations, based upon which the State Commission decided to dismiss the consumer complaint, namely, that the vehicle was being driven by Joginder Singh at the time of the accident and he did not have a valid and effective driving licence and moreover, the vehicle was plying on hire at the time of the accident. In this regard, the original record of the State Commission as well as of the District Forum have been examined. In the impugned order, the State Commission have brought out that during investigation conducted by Nav Ratan Singh on behalf of OP Insurance Company, Prem Singh and his father Gyan Singh gave statements that the vehicle was being driven by Joginder Singh at the time of accident and not by Vijay Singh. Prem Singh also stated that they had paid a sum of ₹1,600/- to the driver for hire of the vehicle @₹3.5/- per km. Prem Singh had a shop M/s. Tomar Biological Centre at Agra and on that day, some science equipment as samples was being transported by them to Pithoragarh. Prem Singh also stated that he never lodged an FIR with the local police. The report made to the local police had been made by Dilawar Khan, impersonating himself as Prem Singh. The alleged signatures of Prem Singh on the said report had been made in Hindi language, whereas Prem Singh always signed in English language. It is further brought out from the record of the District Forum that a report was received from the office of the Joint Director, Forensic Science Laboratory, Agra according to which, the signatures of Dilawar Singh were compared with the report given to the Police. It was concluded in this report submitted to the OP Insurance Company on 28.03.2000, that the writing in the report given to the Police matched with the standard writing made by Dilawar Khan. From the facts stated above, it is clear that the OP Insurance Company has been able to prove on record, that the vehicle in question, was being driven by Joginder Singh at the time of the accident, and that the report about the accident was lodged with the Police by the complainant himself, impersonating as Vijay Singh. The State Commission has made observation in the impugned order that the driver seat of the vehicle was completely smashed in the accident and the actual driver sustained serious injuries and was under medical treatment in many hospitals. Since Vijay Singh did not sustain any injury, it can be safely presumed that he was not the driver of the vehicle at the time of the accident. The complainant has not been able to provide any reasonable explanation to controvert the version given by the OP Insurance Company.
10. It is true that the Insurance Company made an offer to the complainant vide their letter dated 25.05.2000 to accept a sum of ₹3,10,000/- as partial payment of the claim. However, the subsequent events in the case indicate that as per the investigation made by the OP Insurance Company, the fraudulent behaviour on the part of the complainant stood established and hence, the State Commission was justified in allowing the appeal and dismissing the consumer complaint in question. I do not find any illegality, irregularity or jurisdictional error in the impugned order passed by the State Commission and the same is upheld. The present revision petition, being without any merit, is ordered to be dismissed. There shall be no order as to costs.
...................... DR. B.C. GUPTA PRESIDING MEMBER