State Consumer Disputes Redressal Commission
Sh. Rajender Singh Bisht vs The New India Assurance Co. Ltd. on 31 March, 2006
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARANCHAL - 9 - STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARANCHAL DEHRA DUN APPEAL NO. 339 / 2002 Sh. Rajender Singh Bisht ......Appellant Versus The New India Assurance Co. Ltd. .....Respondent Sri Zafar Ullah Siddiqui, Learned Counsel for the Appellant Sri T.S. Bindra, Learned Counsel for the Respondent Coram: Hon'ble Justice Irshad Hussain, President Ms. Luxmi Singh, Member Dated: 31.03.2006 ORDER
(Per:
Mr. Justice Irshad Hussain, President):
This is complainant's appeal against the order dated 13.11.2002 passed by the District Forum, Nainital dismissing the complaint for recovery of compensation amounting to Rs. 1,08,000/- together with interest; Rs. 10,000/- for mental agony and Rs. 10,000/- towards cost of the litigation.
2. There was no dispute that the transport vehicle No. UP01 / 0954 met with an accident on 11.01.2000 during the subsistence of the policy of insurance. The claim preferred by the insured - complainant was repudiated by the insurer per letter dated 22.05.2000 (Paper No.
37) on the grounds that Sh. Dhyan Singh Negi, who was driving the vehicle, was not authorized for driving the same for want of licence and also that the insured malafidely put forward the claim alleging driving of the vehicle by Sh. Bhopal Singh. In other words, the defence taken by the insurer was that there was breach of condition of the insurance policy and therefore the insurer was justified in repudiating the claim.
3. The District Forum on an appreciation of the material on record accepted the defence pleas and dismissed the complaint.
4. The question which falls for determination of this appeal is whether the finding of the District Forum that at the time of the accident, the accidental vehicle was being driven by Sh. Dhyan Singh Negi (deceased) who was not having a valid and effective driving licence is not based on proper and just appreciation of the material on record and is thus incorrect.
5. The Learned Counsel for the insured - complainant argued that the District Forum did not take into account the report of the police, P.S. Bhawali (Paper No. 16) which was submitted to the Senior Superintendent of Police, District Nainital, wherein it was specifically reported that the accidental vehicle was being driven by its driver Sh. Bhopal Singh S/o Sh. Harak Singh and whereas Sh. Dhyan Singh Negi (deceased) S/o Sh. Dhan Singh was the cleaner of the vehicle at time of the accident. It was, therefore, recommended that the postmortem report and the inquest report be directed to be consigned to record. The endorsement on this report was made by the Circle Officer directing the consignment of these documents to record. The Learned Counsel then referred to the copy of the report dated 20.01.2000 (Paper No. 6/2 of the original record) filed by Sh. Rajender Singh Bisht, the insured - complainant before the Station Officer, Police Station Bhawali, District Nainital in connection with the accident of the vehicle and submitted that in this report also it was specifically mentioned that the vehicle was being driven at the time of the accident by its driver Sh. Bhopal Singh, whereas Sh. Dhyan Singh Negi (deceased) S/o Sh. Dhan Singh was the cleaner / conductor. Learned Counsel then drew attention to 'Bilty' (Paper No. 6/8B of the original record) in which the name of the driver is mentioned as Bhopal Singh in relation to the consignment of cement of Sh Jaspal Singh transported allegedly on 09.01.2000. Reference was also made to surveyor's report regarding assessment of the damages (Paper Nos. 51 to 56) wherein in the relevant column of driver, name of Sh. Bhopal Singh had been mentioned by the surveyor. The submission was that these important documents were not taken into consideration in proper perspective. The District Forum referred to the other documents namely inquest report of Sh. Dhyan Singh Negi, deceased (Paper Nos. 43 to 45); copy of G.D. Report No. 2 dated 12.01.2000 (Paper No. 46); discharge slip of Sh. Praveen Kumar Sharma (Paper No. 47), who was also an occupant of the vehicle and sustained injuries; statement of said Sh. Praveen Kumar Sharma (Paper No. 48) as recorded by the fact finding surveyor, who submitted report dated 06.04.2000 (Paper Nos. 38 to 41); newspaper report of the accident (Paper No. 50) and copy of the challan report of the said vehicle dated 17.11.1999 (Paper No. 60) to infer that in fact at the time of the accident, the vehicle was being driven by Sh. Dhyan Singh Negi (deceased) S/o Sh. Dhan Singh. According to the Learned Counsel, the District Forum reached to this incorrect conclusion on the basis of these documents that Sh. Bhopal Singh was not driving the vehicle at the time of the accident.
6. On the other hand, the Learned Counsel for the insurer - respondent persuasively submitted that the view taken by the District Forum is reasonable and since it is based on proper and fair appraisal of the material on record, legally no interference is warranted in the decision and the appeal being devoid of merit, is liable to be dismissed. Having carefully considered the submissions in the light of the material on record, it is stated at the outset that the submission of the Learned Counsel for the insured - complainant are not sustainable and the conclusion drawn by the District Forum is neither incorrect, nor infirm and the same do not warrant any interference in exercise of the appellate jurisdiction of the Commission.
7. The reasons are that report of the Police, P.S. Bhawali (Paper No. 16) clearly appear to be a procured and managed document so as to show that in the police record after verification, it was endorsed that the vehicle in question was being driven at the time of the accident by Sh. Bhopal Singh S/o Sh. Harak Singh and its cleaner at that time was Sh. Dhyan Singh Negi (deceased) S/o Sh. Dhan Singh. Chapter XII of the Code of Criminal Procedure, 1973 (for short "Code") incorporate the provisions as to the information of offence either cognizable or non-cognizable to the police and their powers to investigate the incident. On completion of the investigation, the police officer submits a report as envisaged under Section 173 of this Chapter of the Act. The report dated 29.01.2000 (Paper No. 16) alleged to have been submitted in regard to the incident neither conforms to the said provision of the Act, nor it endorses any relevant and corresponding G.D. report of submitting such an unusual report or recommendation to the higher authorities by the Sub Inspector Incharge of the police station. We also could not lay our hands on any provision of the Police Manual which may have required the Sub Inspector Incharge of the police station to submit such a report to the higher authorities without referring to the relevant and corresponding number of G.D. report for consignment of the postmortem report and inquest report to the record. It was also unusual that the Circle Officer would make an endorsement of consignment of these documents to record as the endorsement on it suggest. On the top of the document, it is endorsed that the report of Police, P.S. Bhawali is numbered as NIL. We reiterate that without any corresponding G.D. diary, no report could have been sent to the higher authorities such as Senior Superintendent of Police by the Sub Inspector Incharge of the police station and it clearly appear that the so called report dated 29.01.2000 was procured and managed to show that according to the police record, the vehicle was being driven by Sh. Bhopal Singh and not by Sh. Dhyan Singh Negi (deceased). It is of significance that the information about the accident was received at P.S. Bhawali on 11.01.2000 vide G.D. report No. 32, 20:25 (Paper No. 42) and later on information was received the same day vide G.D. report No. 33 of 23.00 p.m. (Paper No. 45) from B.D. Pandey Hospital, Nainital that the dead body of driver Sh. Dhyan Singh Negi is lying in the mortuary and whereas the cleaner Sh. Rakesh S/o Paan Singh and another occupant named as Sh. Pawan Kumar Sharma of the accidental vehicle are receiving treatment as indoor patients in the said hospital. On this report, the Sub Inspector went to the mortuary and held inquest (Paper Nos. 43 to 45) on the dead body of Sh. Dhyan Singh Negi referring to the same as that of the driver of the accidental vehicle as has been the case throughout till that date. There is absolutely no police document as may have revealed that later on the police came to inquire and verify that the accidental vehicle was being driven by Sh. Bhopal Singh and not by Sh. Dhyan Singh Negi (deceased) and in a situation like this, there was no occasion for the Sub Inspector Incharge of the police station, Bhawali to have submitted the report dated 29.01.2000 (Paper No. 16, referred above). We, therefore, do not find any cogent reason to place any reliance whatsoever on this police report which was purposefully managed and procured after a considerable period after the date of the accident.
8. The so-called FIR (Paper No. 6/2 of the original record) dated 20.01.2000 said to have been submitted by the insured at P.S. Bhawali, can also safely be placed on the similar footings. There was no occasion for the insured to have submitted such a report after nine days of the accident when the cognizance of the incident had alerady been taken by the police and the dead body of the deceased Sh. Dhyan Singh Negi had been subjected to postmortem and subsequent funeral and in our considered view, the report was purposefully submitted with an unusual detailed version of the incident to show that at the time of the accident, the vehicle was not being driven by Sh. Dhyan Singh Negi S/o Dhan Singh but by Sh. Bhopal Singh S/o Sh. Harak Singh. This document, therefore, also cannot be taken to safely support the claim of the insured that the vehicle was not being driven at the time of the accident by Sh. Dhyan Singh Negi (deceased) S/o Sh. Dhan Singh.
9. Bilty (Paper No. 6/8B of the original record) has interpolation and cutting on the date of the consignment of cement belonging to consignor Sh. Jaspal Singh as it clearly appear that the bilty was initially prepared on 02.01.2000 and by interpolation, the date was changed to 09.01.2000. This document does not contain any column for mentioning the name of the driver and purposefully it appear that the name of driver Sh. Bhopal Singh of truck No. UP01 / 0954 was endorsed and by naked eye, it is evident that the name of the driver was mentioned by differed pen and ink and in all probability subsequently when interpolation in the date of the bilty was made with an attempt to show that on the return journey on 11.01.2000, the truck met with an accident while being driven by the same driver. Considering the intrinsic evidence of this document, we also feel it safe to discard it also and the same cannot be taken to support the cause of the insured.
10. Then comes the surveyor's report dated 04.02.2000 of assessment of damages also relied upon by the insured. In it, in the relevant column, the name of Sh. Bhopal Singh as driver was mentioned merely on the basis of the claim form so submitted by the insured and the same is not based on any investigation to that effect having been carried by the surveyor Sh. D.N. Bhatt. In fact, the investigation report of the accident was submitted on 06.04.2000 (Paper No. 38) by Sh. K.N. Joshi who had mentioned in the report that the vehicle at the time of the accident was driven by Sh. Dhyan Singh Negi S/o Sh. Dhan Singh and that the investigation revealed that at the time of the accident Sh. Bhopal Singh was not there in the vehicle and that in the accident cleaner Sh. Rakesh and another occupant Sh. Praveen Kumar Sharma sustained injuries. As also referred above, both these persons were got admitted for treatment in B.D. Pandey Hospital, Nainital and were later on discharged. Paper No. 47 is the discharge slip of Sh. Praveen Kumar Sharma who also gave his statement (Paper No. 48) to the said investigator to the effect that at the time of the accident the vehicle was driven by Sh. Dhyan Singh Negi and the cleaner in the vehicle at that time was Sh. Rakesh. Sh. Bhopal Singh in fact was not there and this appear to be the reason that any injury report of Sh. Bhopal Singh was not brought on record by the insured to even suggest that Sh. Bhopal Singh was there in the vehicle in his capacity as a driver and sustained injuries in the accident. Considering these aspects of the matter, the damages assessment survey report (Paper Nos. 51 to 56) also cannot be taken to support the claim of the insured. In our view, the District Forum was justified in also rejecting these documents and not accepting that the vehicle was being driven by Sh. Bhopal Singh at the time of the accident.
11. The District Forum has taken into account the relevant documents such as various copies of the G.D. reports, inquest report, investigation report of the spot surveyor etc. and also an earlier challan dated 17.11.1999 (Paper No. 60) which indicated that Sh. Dhyan Singh Negi (deceased) S/o Sh. Dhan Singh was the employee of the insured and used to remain on this vehicle as attendant and was thus given the copy of the said challan in the past to come to the conclusion that the accidental vehicle was not being driven by Sh. Bhopal Singh at the time of the accident but it was being driven by Sh. Dhyan Singh Negi (deceased) S/o Sh. Dhan Snigh who unfortunately sustained serious injuries and died at the spot, as is also evident from the G.D. report No. 32 of 20.25 dated 11.01.2000 (Paper No. 42).
12. For the reasons aforesaid, we come to a definite conclusion that the accidental vehicle was driven by Sh. Dhyan Singh Negi S/o Sh. Dhan Singh, who admittedly had no driving licence and was thus disqualified to drive the vehicle and there being breach of the terms of the insurance, the insurer was justified to repudiate the claim. The stand of the insured was also malafide in submitting that the vehicle at the time of the accident was being driven by licenced holding driver Sh. Bhopal Singh and this was also a valid ground to repudiate the claim made by the insured. Therefore, our answer to the question which falls for determination of this appeal is that the finding of the District Forum that at the time of the accident the vehicle was driven by Sh. Dhyan Singh Negi (deceased) who was not having a valid and effective driving licence is based on proper and just appreciation of the material on record and the inference drawn by the District Forum is correct. It was immaterial that Sh. Bhopal Singh was having a valid driving licence as evidenced by Paper No. 17 of the record. The claim of the insured was rightly repudiated by the insurer and the appeal being devoid of merit, is liable to be dismissed.
13. Appeal is dismissed. No order as to costs.
(MS.
LUXMI SINGH) (JUSTICE IRSHAD HUSSAIN)