State Consumer Disputes Redressal Commission
Shriram General Insurance Company Ltd. vs Kishanpal on 15 February, 2023
Appeal No. Shriram General Insurance Co. Ltd. 15.02.2023
210 of 2015 Vs.
Sh. Kishanpal
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Institution: 23.09.2015
Date of Final Hearing: 09.02.2023
Date of Pronouncement: 15.02.2023
First Appeal No. 210 / 2015
Shriram General Insurance Co. Ltd.
Registered Head Office: E-8, EPIP, RIICO
Industrial Area, Sitapura, Jaipur, Rajasthan
Branch Office: 25 and 36 Block-F, IInd Floor
Meedo Plaza, Rajpur Road, Dehradun
Through Authorised Signatory
Sh. Sanjay Tiwari
(Through: Sh. Deepak Ahluwalia, Advocate)
.....Appellant
VERSUS
Sh. Kishanpal S/o Sh. Fakkar Singh
R/o House No. 28, Village - Ghissapari, Doiwala, Dehradun
(Through: Sh. Shashvat Aggarwal, Advocate)
.....Respondent
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
This appeal under Section 15 of the Consumer Protection Act, 1986 has been directed against the judgment and order dated 24.08.2015 passed by the learned District Consumer Disputes Redressal Forum, Dehradun (hereinafter to be referred as the District Commission) in consumer complaint No. 432 of 2012 styled as Sh. Kishanpal Vs. Shriram General 1 Appeal No. Shriram General Insurance Co. Ltd. 15.02.2023 210 of 2015 Vs. Sh. Kishanpal Insurance Co. Ltd. and others, wherein and whereby the complaint case was allowed.
2. The facts giving rise to the present appeal, in brief, are as such that the respondent - complainant is the registered owner of the vehicle Mahendra Genio bearing registration No. UK07-CA-5310 (Model 2012), which was insured with the opposite parties - Shriram General Insurance Co. Ltd. for the period commencing from 04.04.2012 to 03.04.2013 bearing policy No. 107013/31/13/000153. On dated 30.06.2012, the driver of the respondent - complainant was driving the vehicle in question and took the same from Rishikesh to Srinagar with goods, but on the way, 10 Kms. ahead from Devprayag, the vehicle in question met with an accident resulting thereof, the vehicle overturned on the road causing damages. The intimation about the occurrence was given immediately through telephonic call of the son of respondent - complainant to the opposite parties; the opposite parties deputed their surveyor Sh. Pawan Kumar Tonk, who inspected the vehicle in question and prepared the documents. The respondent - complainant received a letter on 30.08.2012 whereby the Insurance Company sought the Driving License of Sh. Suresh and reason for three days delay for forwarding the information to the opposite parties. Vide an affidavit, the respondent - complainant informed the opposite parties (insurer) that Sh. Suresh was not his driver; at that time he was a conductor of the vehicle. Sh. Ajay Kumar driver of the vehicle was plying the vehicle at the time of occurrence, who is also called as Kuldeep. Sh. Ajay and Kuldeep are the same person; the opposite parties have committed deficiency in service and adopted unfair trade practice, due to which the respondent - complainant has to suffer mental agony and physical loss, therefore, the respondent - complainant has submitted his complaint for getting the required relief mentioned in the complaint.
2Appeal No. Shriram General Insurance Co. Ltd. 15.02.2023 210 of 2015 Vs. Sh. Kishanpal
3. In the written statement the opposite parties have averred that in the claim form as well as in the complaint, the name of the driver is mentioned as Sh. Ajay Kumar, whereas in the claim intimation slip the name is shown as Sh. Suresh, whereas the voucher / builty of the goods was prepared in the name of Sh. Kuldeep, ,thereby the vehicle was being run by Sh. Suresh on the date of occurrence. Concealing and twisting the true facts, the complaint was filed by the respondent - complainant with concocted story, hence, it is liable to be rejected.
4. The District commission after perusing the material evidence available on record passed the judgment dated 24.08.2015 wherein it was held as under:-
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5. On having been aggrieved by the aforesaid judgment of the District Commission, the present appeal has been preferred by the appellant - opposite parties contending that the District Commission has failed to consider that the insurance policy is a contract between the insured and the 3 Appeal No. Shriram General Insurance Co. Ltd. 15.02.2023 210 of 2015 Vs. Sh. Kishanpal insurer and both the parties are liable to be abided by the terms and conditions as well as exclusions of the insurance policy; the District Commission has also failed to consider that no benefit can be given to the respondent - complainant against his own admissions. It is further averred that in the claim form, date and time of accident mentioned is 09:30a.m. on 30.06.2012, but in the claim intimation slip dated 02.07.2012, it is mentioned as 07:30a.m. on 30.06.2012. It is also averred in the memo of appeal that in the claim intimation slip, name of driver mentioned is Sh. Suresh and in the claim form and in complaint, the driver name has been changed from Sh. Suresh to Sh. Ajay Kumar, whereas the actual driver of the vehicle would not have been holder of valid driving license, hence there is difference in the name of the driver in above various documents; there is no deficiency in service on the part of the appellant - insurance company, the impugned judgment is perverse without any law, facts and evidence and the same is liable to be set aside.
6. We have heard both the sides and perused the material available on record.
7. Learned counsel for the respondent - complainant has contended that the report of the surveyor of the insurance company has also indicated the name of the driver as Sh. Ajay Kumar, hence the insurance company cannot be make dispute about the name of the driver. It is further averred that the driver Sh. Ajay Kumar was holding a valid and effective driving license and there is no violation of the terms and conditions of the insurance policy, hence the impugned judgment is perfect, according to the mandate provisions of law and is liable to be affirmed.
8. It is admitted fact that the vehicle in question was insured with the appellant - insurance company - opposite parties on the date of accident. In 4 Appeal No. Shriram General Insurance Co. Ltd. 15.02.2023 210 of 2015 Vs. Sh. Kishanpal the complaint as well as in the intimation letter (paper No. 5Kha/13 & 5Kha/14 of the District Commission's record), it is specifically mentioned that at the time of occurrence, the vehicle in question was being run by the driver Sh. Ajay Kumar alias Sh. Kuldeep and Sh. Suresh Kumar was his conductor. In the complaint, date of incident is averred as 30.06.2012 and in the intimation letter (paper No. 5Kha/13 & 5Kha/14 of the District Commission's record), the same date of the accident is alleged herein. The appellant has averred the difference of time of occurrence between the claim form and intimation slip. It is further averred on behalf of the appellant that in the affidavit, name of the driver is shown as Sh. Suresh, but we are not convinced with the said contention as neither Sh. Suresh nor any other witness was produced in evidence by the insurance company to prove the same, hence such plea is not sustainable.
9. Here it is also to mention that the intimation slip (Annexure-I paper No. 42 of the appeal file) is not signed by the respondent - complainant. It is prepared by the surveyor Sh. Pawan Kumar Tonk on dated 02.07.2012, wherein the time of the accident is given 09:30a.m. Here it is to mention that if the surveyor has conceded in its report (paper Nos. 45 to 48 of the appeal file) the time of accident as 09:30a.m., then it appears that in the claim intimation slip, the time is mistakenly written by the surveyor. In any column of such intimation slip (paper No. 42 of appeal record) nothing is shown that the intimation slip was prepared and filled by the respondent - complainant. Apart from it, if the surveyor has admitted that the accident has occurred on dated 30.06.2012 at about 09:30a.m. and the surveyor did not find any difference in his report about the time of occurrence, then the contention of the insurance company about the difference in time of accident appears to be not sustainable.
10. The second contention of the appellant - insurance company is that the vehicle in question was being plied by some Sh. Suresh, whereas in the 5 Appeal No. Shriram General Insurance Co. Ltd. 15.02.2023 210 of 2015 Vs. Sh. Kishanpal claim form, the driver's name has been shown as Sh. Ajay Kumar, but in the voucher / builty, the driver name has shown as Sh. Kuldeep.
11. Learned counsel for the respondent - complainant has averred that Sh. Ajay Kumar and Sh. Kuldeep is the same person and in the First Information Report, the driver's name has also mentioned as Sh. Ajay Kumar.
12. Here it is mention that the survey report (paper No. 45 to 48 of appeal record) has been submitted in the record of the appeal on behalf of the appellant, whereas in the final survey report, the driver name has been shown as Sh. Ajay Kumar S/o Sh. Jagbir Singh, whose driving license was duly verified as per the surveyor.
13. Learned counsel for the appellant has argued that neither Sh. Ajay Kumar nor Sh. Suresh were produced in the District Commission as a witness and in the absence of such witness, it cannot be presumed that Sh. Ajay Kumar and Sh. Kuldeep is the same person.
14. We are not of the same view. The burden of proving the above fact lies on the shoulder of the appellant - insurance company, but this burden is not discharged by the appellant - insurance company in the District Commission. The appellant - insurance company has not submitted any such document in which the father name has been shown different.
15. Here it is pertinent to mention that if the surveyor has found after proper verification and after perusing all the papers about the accident that Sh. Ajay Kumar was plying the vehicle in question, then it cannot be supposed that at that time, Sh. Suresh was the driver.
6Appeal No. Shriram General Insurance Co. Ltd. 15.02.2023 210 of 2015 Vs. Sh. Kishanpal
16. It is pertinent to mention that the surveyor report is an important piece of document which cannot be brushed aside unless and until there is some cogent and reliable evidence to disapprove it. In the following cases the same view has been taken.
(i) Sikka Papers Limited vs. National Insurance Company Limited and Others, (2009) 7 Supreme Court Cases 777
(ii) National Insurance Co. Ltd. vs. Noli Ram and Sons, 2017 (4) CPR 388 (NC)
(iii) Ashish Kumar Jaiswal vs. ICICI Lombard General Insurance Company Ltd. and Ors., 2017 (3) CPR 71 (NC)
(iv) Sri Venkateswara Syndicate vs. Oriental Insurance Company Limited and Another, (2009) 8 Supreme Court Cases 507
17. We are of the opinion that the principles as laid down in the above referred cases are fully applicable to the case in hand. As per the above cited case laws, the surveyor report is an important piece of document, which cannot be disbelieved until and unless there is some evidence contrary to it.
18. The surveyor report is filed by the appellant - insurance company and the appellant - insurance company has not denied its contention. The appellant - insurance company has also not submitted any documentary evidence on record that Sh. Suresh was plying the vehicle in question at the time of accident to contradict the version of the surveyor that Sh. Ajay Kumar was not the driver of the vehicle in question at the time of accident.
7Appeal No. Shriram General Insurance Co. Ltd. 15.02.2023 210 of 2015 Vs. Sh. Kishanpal
19. Learned counsel for the appellant - insurance company has submitted a cited case law in the case of Sanjib Kumar Dey & Anr. Vs. Chabbi Dey & Ors., 2015(4) CPR 584 (NC), wherein the Hon'ble National Commission has held that documentary evidence will always get preponderance over oral evidence.
20. Learned counsel for respondent - complainant has filed the following cited case laws, which are as under:
(i) Civil Appeal No. 653 of 2020, Gurshinder Singh Vs. Shriram General Insurance Co.
Ltd. & Anr., decided on 24.01.2020
(ii) Civil Appeal No. 15611 of 2017, Om Prakash Vs. Reliance General Insurance and Anr. decided on 04.10.2017
21. In the case of Gurshinder Singh (supra), the Hon'ble Supreme Court of India has held that the Consumer Protection Act aims at protecting the interest of the consumers and it being a beneficial legislation deserves pragmatic construction. We find, that in Om Prakash (supra) this Court has rightly held that mere delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine.
22. In the case of Om Prakash (supra) it is held that rejection of the claim on purely technical grounds in a mechanical manner will result in loss of confidence of policy holder in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay.
8Appeal No. Shriram General Insurance Co. Ltd. 15.02.2023 210 of 2015 Vs. Sh. Kishanpal The principle as laid down in the above cited case laws are fully applicable to the case in hand. The complaint cannot be rejected accordingly on the ground that the intimation about the accident was given belatedly.
23. In the various cases, the Hon'ble Supreme Court of India has held that the complaint cannot be rejected only on the ground of delayed intimation, unless there is some other ground / reason on the record to reject the same.
24. After appreciation of the evidence available on record, we are of the view that the appellant - insurance company has not succeeded to prove that Sh. Ajay Kumar and Sh. Kuldeep is not the same and they are different person. The appellant - insurance company has also unable to prove that the vehicle in question was being run by Sh. Suresh at the time of accident. As per the survey report, the respondent - complainant is entitled to get the assessed amount (Rs. 1,61,405.15ps.)
25. We have also perused the impugned judgment. In the impugned judgment, the District Commission has awarded the claim to the tune of Rs. 2,09,145/- alongwith compensation of Rs. 10,000/- and Rs. 5,000/- towards costs of litigation.
26. We are of the view that the survey report is fully proved. Thus, the claim should also be awarded as per the survey report. Therefore, the impugned judgment in regard to the awarded amount of Rs. 2,09,145/- should be modified. In such circumstances, the appeal is liable to be partly allowed and the impugned judgment is also to be modified.
9Appeal No. Shriram General Insurance Co. Ltd. 15.02.2023 210 of 2015 Vs. Sh. Kishanpal
27. Appeal is partly allowed to the above extent and the impugned judgment is accordingly modified. It is ordered that the appellant - Insurance Company shall pay Rs. 1,61,405/- (Rupees One Lakh Sixty One Thousand Four Hundred Five only) in place of Rs. 2,09,145/- (Rupees Two Lakh Nine Thousand One Hundred Forty Five only) to the respondent - complainant. No modification in other respect. It is hereby ordered that the appellant - Insurance Company shall pay insured amount within 30 days from the date of this judgment, failing which the respondent - complainant shall be entitled to get simple interest @ 8% per annum from the date of judgment of the learned District Commission till its actual realization.
28. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. The record of the District Commission be returned to the concerned District Commission alongwith copy of this judgment for record and necessary information.
29. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 15.02.2023 10