State Consumer Disputes Redressal Commission
Vijinder Singh Chauhan vs New India Assurance Co. Ltd. on 9 January, 2008
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRA DUN
FIRST APPEAL NO. 54 / 2007
Sh. Vijinder Singh Chauhan
R/o Village Shivpur, Kotdwar,
District Pauri Garhwal.
......Appellant
Versus
1. Branch Manager, The New India Assurance Co. Ltd.,
Najibabad Road, Kotdwar.
2. Haryali Travellers
Najibabad Road, Kotdwar.
.....Respondents
Sh. H.L. Khanna, Learned Attorney for the Appellant
Sh. Niranjan Prakash, Learned Counsel for Respondent No. 1
None for Respondent No. 2
Coram: Hon'ble Justice Irshad Hussain, President
C.C. Pant, Member
Dated: 09/01/2008
ORDER
(Per: Justice Irshad Hussain, President):
Consumer - complainant has, by way of this appeal under Section 15 of the Consumer Protection Act, 1986, challenged the legality and propriety of the finding that the insured vehicle No. UP06 / 1389 was being driven at the time of the accident by the complainant himself, who did not possess a driving licence and, as such, the insurer was not liable to pay the compensation and reimburse the loss occasioned to the complainant by reason of the damage to the vehicle and consequential dismissal of the complaint.
2. Having heard the learned attorney for the appellant and the learned counsel for the respondent, we are, for the reasons to follow, of the considered view that the finding recorded by the District Forum 2 is not proper and reasonable and that the vehicle was being driven at the time of the accident by driver Ganesh Singh, who was holding a valid driving licence.
3. Learned attorney for the complainant - appellant would submit that the District Forum made an error in placing reliance on the affidavit of driver Ganesh Singh filed as Paper No. 13/5C as an annexure to the investigation report of Sh. B.P.S. Rawat, who was appointed by the insurer to make an investigation about the incident. According to the learned attorney, the District Forum was not justified in discarding the averment of the affidavit of the complainant Vijinder Singh Chauhan, who has unequivocally asserted that at the time of the accident on 26.05.2004, the vehicle was being driven by his driver Ganesh Singh. He has reiterated that although he was the other occupant of the vehicle at the time of the accident, but he was himself not driving the vehicle as has wrongly been claimed by the insurer on the basis of the investigation report, referred above. Taking into consideration the ordinary course of nature, in all probability, normally a professional and duly licensed driver will be on the steering wheel of the vehicle, while the owner, who do not possess driving licence is also occupying the vehicle at the time of the accident. Keeping this aspect of the matter in view, only highly reliable and cogent evidence of the driver or any of the eye-witness would have rebutted the statement on oath made by the complainant in his affidavit. We are convinced that neither no such reliable material has been placed on record, nor the so-called affidavit of driver Ganesh Singh, referred to by the District Forum in the impugned judgment would have served the purpose. The reason being that the investigation report of Sh. B.P. S. Rawat (Paper Nos. 48 to 51), does not indicate that the investigator knew driver Ganesh Singh personally or that some other person identified Ganesh Singh 3 before him or before the notary public, who was made to attest the so-called affidavit of Ganesh Singh to be delivered to the investigator. The identity of driver Ganesh Singh, thus having not been established, it was not legally permissible to draw an inference that driver Ganesh Singh sworn an affidavit to be given to the investigator and that the said deponent correctly testified that at the time of the accident, he was not driving the vehicle.
4. Further, the averment of the affidavit of the complainant could have been controverted only by filing the duly attested affidavit of driver Ganesh Singh before the District Forum and in the totality of the circumstances of the case, the so-called affidavit of driver Ganesh Singh procured by the investigator could not have been taken to rebut the evidence of the complainant. It was submitted by the learned counsel for the insurer that the burden lay upon the complainant to file the affidavit of his driver Ganesh Singh and even if the investigation report was not to be relied upon, the fact that the bus was being driven by driver Ganesh Singh at the time of the accident, could have been proved only by the evidence of this driver and none else. The submission of the learned counsel carry no conviction in view of the fact that according to the investigation report itself, the driver Ganesh Singh was not traceable and it was one of the reason for delayed submission of the report. The investigator claimed to have laid his hands upon driver Ganesh Singh through some informer, who had not been named in the report and as stated above, there was no definite evidence to indicate that driver Ganesh Singh had been correctly identified and brought to the investigator for getting an affidavit prepared and attested by notary public. It is also in the report that in the accident, complainant Vijinder Singh Chauhan suffered serious injuries and had to be referred for specialized treatment at Delhi, whereas the driver Ganesh Singh received minor injuries and was 4 discharged only after two days from the hospital. After the accident, driver Ganesh Singh was not in the employment of the complainant, who remained confined to bed for long and was thus not in a position to trace driver Ganesh Singh in order to file this driver's affidavit on the record of the case. Therefore, in these peculiar circumstances of the case, the only reliable evidence about the accident was that of complainant himself, who was one of the occupant of the ill-fated vehicle at the time of the accident. It shall not be out of place to mention here that the investigator of the insurer has also not recorded the statement of any of the residents of the locality, where accident took place and there can be no gain saying that the evidence of the complainant had not been rebutted by any cogent and reliable evidence of the insurer. The investigation report was, thus, of no avail in claiming that at the time of the accident, the vehicle was not being driven by duly licensed driver Ganesh Singh. It is the admitted case of the insurer that driver Ganesh Singh was holding a valid driving licence as has been mentioned in the final survey report dated 24.01.2005 submitted by insurer's surveyor Sh. Bhopendra Singh (Paper Nos. 35 to 43).
5. On behalf of the insurer, learned counsel pressed into service a reported decision of the Hon'ble Supreme Court in the matter of United India Insurance Co. Ltd. Vs. Gian Chand and others; AIR 1997 Supreme Court 3824, to bring home his point of view that finding of fact that the vehicle at the time of the accident was not being driven by a duly licensed driver, would not be upset in view of the reasoned finding of the District Forum. As discussed above, the finding recorded by the District Forum was not based on proper and fair appreciation of the evidence on record and, therefore, the ratio of the reported decision can be of no help to the cause of the insurer. Moreover, the reported case pertain to motor accident claim, in which 5 the finding of the Tribunal had been affirmed by the High Court also and finally the finding of the fact had been accepted by the Hon'ble Apex Court.
6. For the reasons aforesaid, it is hereby held that the vehicle was being driven, at the time of the accident, by the duly licensed driver Ganesh Singh and not by the complainant himself and that the finding to the contrary recorded by the District Forum is incorrect.
7. In view of the above finding, the question which now arose is as to what compensation, the complainant was entitled? It is not in dispute that the vehicle fell down into a deep gorge and suffered major damage. This was the reason that the insurer's surveyor recommended settlement of the claim on total loss basis. As per the surveyor's report, the net liability of the insurer on total loss basis comes to Rs. 56,500/- after making deduction of Rs. 30,000/- as value of the salvage. The surveyor has taken into account the IDV of the vehicle, for which the vehicle was insured and assessed the loss rightly on total loss basis at Rs. 86,500/- without deduction of the value of the salvage. It is well settled that the surveyor's report is an important document and unless and until, cogent material and alternative assessment is put forward from the side of the opponent, the same cannot be legally disputed. In this case, there is nothing on record from the side of the complainant - insured as may indicate that the assessment made on total loss basis by the surveyor is not based on the proper and correct value of the vehicle and also on improper deduction of cost of the missing parts / assemblies / components, for which the complainant was to account for to determine the value of the salvage. Therefore, the liability of the insurer on total loss basis has rightly been worked out at Rs. 86,500/- and that the salvage value of the damaged vehicle has rightly been assessed at Rs. 30,000/-
6keeping in view the model of the vehicle and damage to its components and assemblies. Therefore, the complainant - insured can be held entitled to compensation to the tune of Rs. 86,500/- only in case the salvage is returned to the insurer.
8. It is to be noted that there has been inordinate delay by the insurer in settling the claim. Accident occurred on 26.05.2004, whereas the first communication made by the insurer to the insured was on 28.06.2005 vide letter of the said date (Paper No. 18) and, therefore, it would be just and proper to award interest on the compensation awarded to the insured @7%p.a.
9. In view of above, the appeal succeed and the consumer complaint is fit to be allowed for awarding compensation of Rs. 86,500/- in case the salvage is returned by the complainant and in case the salvage is not returned, the compensation payable shall be Rs. 56,500/-.
10. Appeal is allowed. Order dated 23.01.2007 of the District Forum is set aside. Consumer complaint is also allowed. The complainant - appellant is held entitled from respondent No. 1 - insurer to the compensation of Rs. 86,500/- in case the salvage is returned by him to the respondent and in case the salvage is not returned by him, he shall get the compensation of Rs. 56,500/-. The complainant shall get interest on the said amount of compensation @7%p.a. to be calculated after three months of the submission of claim by the complainant till the date of the payment and Rs. 2,000/- as cost. The complainant - insured shall also submit the registration certificate of the vehicle with the insurer within one month.
(C.C. PANT) (JUSTICE IRSHAD HUSSAIN)