National Consumer Disputes Redressal
Iffco Tokio & Anr. vs K.P.Prakash on 22 February, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.4206 OF 2007 (From the order dated 07.11.2007 in Appeal No.422/2007 of the State Commission, Karanataka) IFFCO TOKIO General Ins.Co.Ltd. & Anr. Petitioners(s) Versus K.P.Prakash Respondent(s) BEFORE : HONBLE MR.JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Petitioners(s) : Mr.S.M.Tripathi, Advocate For the Respondent(s) : Mrs.Kiran Suri, Advocate with Ms.Aparna Mattoo, Advocate Pronounced on 22nd February, 2012 ORDER
PER VINEETA RAI, MEMBER The IFFCO Tokio General Insurance Co.Ltd. (hereinafter referred to as the Petitioner) has filed the present revision petition against the order of the State Consumer Disputes Redressal Commission, Karnataka (hereafter referred to as the State Commission) in Appeal No.422/2007 wherein K.P. Prakash was the Respondent.
Briefly, the facts of the case according to the Respondent who was the original complainant before the District Forum, are that he had purchased a Toyota Innova Car for a sum of Rs.9,84,070/- and had got this vehicle insured with the Petitioner/Insurance Company from 02.02.2006 to 01.02.2007 by paying a premium of Rs.35,348/- for the above amount. The said vehicle met with in accident on 21-22/03/2006 near Belaguma Gate, Kasaba Hobli, Arasikere Taluk on Bangalore Honnavara Road in which the vehicle was damaged beyond repair.
Three persons travelling in the car died and two suffered serious injuries. Petitioner lodged the claim for reimbursement of the insured amount towards replacement of the vehicle with the Petitioner/Insurance Company but the same was repudiated on the grounds that although it was insured as a private vehicle, it was being used for hire and reward purposes which was against the terms and conditions of the insurance policy. Since, this was not a factually correct statement and because the vehicle which had been entrusted for replacement etc. to the dealer, M/s Ravindu Toyota was charging parking charges on daily basis and the Respondent also had to repay the loan taken from the ICICI Bank for purchase of the vehicle, he requested the Petitioner/Insurance Company to settle the claim urgently. This was followed by a legal notice. Since it was a case of unfair trade practice and deficiency in service on the part of the Petitioner/Insurance Company, Respondent filed a complaint before the District Forum requesting that the Petitioner be directed to settle the entire claim of Rs.9,84,070/- as per the terms and conditions of the policy in connection with the replacement of his vehicle and also to award costs as deemed proper.
The above contentions were denied by the Petitioner/Insurance Company who stated that following the accident the claim of the Respondent was investigated and it was found that though it was insured as a private vehicle, it was being used for carrying passengers on hire and rewards basis from Bangalore to Arsikere. This is against the terms and conditions of the insurance policy which clearly stated that the policy covers use of the vehicle for any purpose other than hire or reward.. Since, there was obvious violation of the terms and conditions of the policy, therefore, the claim of the Respondent was rightly repudiated.
The District Forum dismissed the complaint by relying on the FIR and the investigators report and observed as follows:
From the evidence made on record, admittedly, there is no direct evidence to come to the irresistible conclusion that the insured vehicle was so used for hire or reward at the relevant point of time.
However, having regard to the totality of the facts and circumstances of the case, what emerged is that the vehicle must have been so used at the relevant point of time for hire and reward.
Since the said Policy of Insurance pertains to a private car, the clause touching limitation as to use gains all importance here.
Aggrieved by this order, Respondent filed an appeal before the State Commission which allowed the appeal and set aside the order of the District Forum by observing that no reliance could be placed on the FIR which was filed on the basis of a complaint made by one of the injured passengers, Dr.G.M.Joshi, because he filed an affidavit categorically denying that he had given any facts as stated in the contents of the FIR. On the other hand, Dr.Joshi stated that following the accident he lost consciousness and was admitted to the hospital and therefore, was not in a position to make any complaint to the Police.
Dr.Joshi further contended in the affidavit that he is the family doctor of the vehicle owner and that no payment was taken from him for travelling in the said vehicle.
The State Commission also placed reliance on the affidavit of the driver of the vehicle who stated that it was not being used for hire and reward purposes at the time of the accident. The State Commission also did not place reliance on the affidavit of the Investigator appointed by the Petitioner/Insurance Company since it was based on hearsay evidence. Further, there were no affidavits of the persons who reportedly made statements before the Investigator in order to prove the contents of the Investigators affidavit. Keeping in view the above facts and since the vehicle in question was new and had met with an accident within one and half month of its purchase, the State Commission on the basis of the losses assessed by the Surveyor of the Petitioner/Insurance Company directed that sum of Rs.8,69,570/- (total loss basis) be paid to the Respondent in settlement of the insurance claim with interest @ 6% per annum from the date of filing of the complaint before the District Forum till realization subject to surrender of the salvage. Rs.5,000/- were awarded as litigation cost.
Hence, the present revision petition.
Counsel for both parties made oral submissions.
Learned Counsel for contended that the State Commission erred in not taking into account the FIR which is an independent document recorded by the Police and based on the statement of one of the passengers, Dr.G.M.Joshi. Counsel for Petitioner further contended that although Dr.Joshi later resiled from his statement, he had admitted in his cross-examination that his statement was recorded by the Police. Therefore, his later resiling from his first statement was an afterthought to help the Respondent and was not based on the actual facts. Also, the State Commission erred in not relying on the affidavit of the Investigator appointed by the Petitioner/Insurance Company who had reached the conclusion that the vehicle was used for hire and reward purposes after examining witnesses in reaching this conclusion. In view of the above facts and since hire and reward was excluded in the limitation clause of the insurance policy, the State Commission erred in allowing the Respondents appeal and setting aside the credible and well-reasoned order of the District Forum.
Learned Counsel for Respondent on the other hand stated that no reliance could be placed on the two documents i.e. the FIR and the Investigators report which was used by the Petitioner/Insurance Company to prove its contentions. It is legally well established through a number of judgments including of the Apex Court that the FIR is not a substantive piece of evidence and in the instant case even less reliance can be placed on it because the person on whose complaint the FIR was purportedly written had through an affidavit stated that he did not make any such statement to the Police. Even the Investigators report relied upon by the Petitioner/Insurance Company is not a credible document because it based on hearsay and the affidavits of the persons on whose statements the Investigator reached his conclusion have not been filed. Counsel for Respondent denied that the vehicle was being used for hire and reward and stated that it was carrying passengers known to the owner of the vehicle.
These facts have been confirmed by the driver of the vehicle as well as Dr.Joshi in their affidavits filed before the Fora below.
We have heard learned Counsel for both parties and have considered the evidence on record. The facts pertaining to the insurance of the vehicle and its accident which resulted in total loss to the vehicle are not in dispute. We note that the Petitioner/Insurance Company has repudiated the claim on the grounds that the vehicle was being used on hire and reward purposes which was not permitted under the insurance policy based on the FIR recorded by the Police on the statement of Dr.Joshi as well as the report of the Investigator appointed by the Petitioner to inquire into the accident. We agree with the contention of the Counsel for Respondent that the FIR is not a substantive piece of evidence and in the instant case even the person (Dr.G.M. Joshi) on whose complaint he Police recorded the FIR has categorically denied through an affidavit that he had made any such statement.
In this context, it also needs to be noted that it is not in dispute that Dr.Joshi was injured in the accident and admitted in the hospital. So far as the report of the Investigator is concerned, we note that it is based on hearsay evidence and even though the Investigator has filed his affidavit, no affidavits of the persons who stated that the vehicle was being used for hire and reward purposes has been filed in evidence. In view of the above facts, we agree with the order of the State Commission that the Petitioner has not be able to substantiate the claim that the vehicle was being used for hire and reward purposes. We, therefore, uphold the order of the State Commission. The revision petition is dismissed.
Petitioner is directed to settle the claim of Respondent for Rs.8,59,570/- on total loss basis along with interest @ 6% per annum as awarded by the State Commission within a period of six weeks from the date of receipt of this order failing which interest @ 9% will be applicable on the entire amount.
Petitioner will also pay Rs.5,000/- to the Respondent as litigation cost.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/