State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd. vs Kishore Singh Bisht on 7 November, 2024
First Appeal No. The New India Assurance Company Limited 07.11.2024
76 of 2020 Versus
Sh. Kishore Singh Bisht
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
Date of Admission: 28.08.2020
Date of Final Hearing: 04.11.2024
Date of Pronouncement: 07.11.2024
FIRST APPEAL NO. 76 / 2020
The New India Assurance Company Limited
Regional Office, Ram Institute, 430, Niranjanpur
Dehradun through Deputy Manager
(Through: Sh. Rajesh Kumar Devliyal and
Sh. Vijay Pal Tiwari, Advocates)
...... Appellant
Versus
Sh. Kishore Singh Bisht S/o Sh. Nandan Singh Bisht
R/o House No. 36, Village Hali, P.O. Ratighat
Tehsil Kosiyakutoli, District Nainital
(Through: None)
...... Respondent
Coram:
Ms. Kumkum Rani, President
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, President):
This appeal under Section 15 of the Consumer Protection Act, 1986 has been directed against the impugned judgment and order dated 18.11.2019 passed by learned District Consumer Disputes Redressal Forum, Nainital (hereinafter to be referred as "The District Commission") in consumer complaint No. 10 of 2019, styled as Sh.
Kishore Singh Bisht Vs. The New India Assurance Company Limited, wherein and whereby the consumer complaint was allowed.
1First Appeal No. The New India Assurance Company Limited 07.11.2024 76 of 2020 Versus Sh. Kishore Singh Bisht
2. The facts giving rise to the present appeal, in brief, are, as such that respondent / complainant - Sh. Kishore Singh Bisht is the registered owner of Pick Up bearing registration No. UK04-CA-8886, which was insured with the appellant / opposite party under Commercial Vehicle Package Policy for the period from 04.05.2015 to 03.05.2016 at an IDV of Rs. 5,60,500/-, on payment of premium of Rs. 26,176/-. It was also stated in the consumer complaint that an accident took place on dated 02.02.2016 near Ratighat (Garampani), when the subject vehicle fell in a deep ditch, resulting into huge loss to the vehicle and Sh. Gopal Singh Rautela, who was sitting inside the cabin of the vehicle as an owner of the construction material being carried in the subject vehicle, also expired. The vehicle was towed to the authorised workshop with the help of crane, where the repair cost was assessed as Rs. 2,97,698/-. The complainant had paid an amount of Rs. 2,70,000/- to the authorised workshop towards repair cost of the vehicle. The occurrence was immediately reported by the complainant to the insurance company, but his claim was repudiated by the insurance company, stating that the same is not liable to be allowed and the claim file was closed. By repudiating the claim on unreasonable ground, the insurance company has committed deficiency in service. The complainant has not violated any of the terms and conditions of the insurance policy, but the insurance company showing Sh. Kamal Bisht as driver, has repudiated the claim, alleging that Sh. Kamal Bisht was not having a valid and effective driving licence, just to avoid its liability in regard to the accident in question. It was further stated in the consumer complaint that the legal heirs of deceased Gopal Singh Rautela have submitted a claim petition titled as Smt. Deepa Devi and others Vs. Sh. Kishore Singh Bisht and others, before Motor Accident Claims Tribunal, Nainital, which was decided on 05.02.2018 and as per 2 First Appeal No. The New India Assurance Company Limited 07.11.2024 76 of 2020 Versus Sh. Kishore Singh Bisht the said judgment, Sh. Soban Singh was held to be the driver, driving the subject vehicle at the time of accident. Apart from it, Sh. Kamal Bisht, the alleged driver of the subject vehicle as per the contention of the insurance company, was also possessing a valid and effective driving licence. The complainant had incurred an amount of Rs. 7,000/- towards towing charges for taking the vehicle to the workshop. Hence, the consumer complaint was submitted by the complainant.
3. The appellant / opposite party submitted written statement before the District Commission, pleading that after receiving the information of the occurrence, investigator was appointed, who investigated the matter and it was found that at the time of occurrence, Sh. Kamal Bisht S/o Sh. Nandan Singh was driving the vehicle, but the said fact was concealed by the complainant in the claim form, showing Sh. Soban Singh as driver of the subject vehicle. Besides this, there were five persons travelling in the vehicle at the time of accident. On the above grounds, the claim of the complainant was repudiated, which was duly informed to the complainant vide letter dated 21.06.2016. There was no deficiency in service on the part of the insurance company, hence the consumer complaint is liable to be dismissed.
4. Learned District Commission, after hearing both the parties and after taking into consideration the entire material available on record, allowed the consumer complaint vide impugned judgment and order dated 18.11.2019, thereby directing the appellant - insurance company to pay compensation of Rs. 2,70,000/- to respondent - complainant along with interest @7% p.a. from the date of filing of the consumer complaint till actual realization as well as litigation charges of 3 First Appeal No. The New India Assurance Company Limited 07.11.2024 76 of 2020 Versus Sh. Kishore Singh Bisht Rs. 5,000/-. It was also directed that the insurance company shall have no right over the salvage of the vehicle.
5. On having been aggrieved by the impugned judgment and order, the present appeal has been submitted on behalf of the insurance company as an appellant, alleging that the impugned judgment and order is against law, facts and evidence on record. Learned District Commission has failed to consider the fact that when an insured purchases an insurance policy, a contract of insurance automatically comes into existence between the insured and the insurer and both the parties are abided by the terms of the said contract and the insured should not conceal the true facts from the insurer. It was also stated that learned District Commission has also ignored the fact that at the time of accident, the owner of the subject vehicle was travelling in the vehicle and as per his direction, five passengers were travelling in the vehicle, thereby violating the terms and conditions of the insurance policy. It was further stated that as per the investigation report, Sh. Kamal Singh was the driver of the vehicle, whereas in the claim form, the complainant has mentioned Sh. Soban Singh as his driver. Learned District Commission has also ignored the fact that the owner of the vehicle was also sitting in the vehicle and he was plying the vehicle, but this fact was concealed from the insurance company and he has not submitted his driving licence. Therefore, the appeal is fit to be allowed and impugned judgment & order is liable to be set aside.
6. We have heard learned counsel for the appellant and perused the record. Vide order dated 30.08.2024, it was directed that the appeal shall proceed ex-parte against respondent.
4First Appeal No. The New India Assurance Company Limited 07.11.2024 76 of 2020 Versus Sh. Kishore Singh Bisht
7. On behalf of the appellant, an application was submitted before this Commission for taking the survey report on record, which was allowed and the survey report was taken on record. It is evident from the record that the survey report was not submitted before the Commission below. As per the registration certificate (Paper No. 39), the complainant - Sh. Kishore Singh Bisht is shown as registered owner of the vehicle. As per the claim form (Paper Nos. 40 & 41) submitted to the insurance company, Sh. Soban Singh S/o Sh. Kripal Singh was shown as driver, who was plying the vehicle at the time of accident. As per the repudiation letter dated 21.06.2016 (Paper No. 42), the insurance company has denied the claim of the complainant alleging that the driver Sh. Kamal Bisht S/o Sh. Nandan Singh, who was plying the vehicle at the time of occurrence, was not having a valid and effective driving licence on the date of occurrence on 0202.2016 and the complainant has tried to add Sh. Soban Singh S/o Sh. Kripal Singh as the driver, whereas he has no concern with the said occurrence and on account of violation of the policy terms and conditions, the claim is not payable, hence the claim file is closed. Thus, as per the repudiation letter, the claim of the complainant was repudiated only on one ground that at the time of accident, Sh. Kamal Bisht S/o Sh. Nandan Singh was plying the vehicle as driver and he was not having a valid and effective driving licence and by misrepresenting the insurance company, the complainant has represented Sh. Soban Singh S/o Sh. Kripal Singh as driver, whereas he had no concern with the said occurrence. Therefore, as per the repudiation letter, the insurance company has not repudiated the claim on the ground of overloading of the vehicle, so the legal ground that five persons were travelling in the vehicle at the time of occurrence, is not available to the insurance company and the said ground can not be considered at this stage. Apart from it, a claim 5 First Appeal No. The New India Assurance Company Limited 07.11.2024 76 of 2020 Versus Sh. Kishore Singh Bisht petition was submitted before Motor Accident Claims Tribunal, Nainital by the legal heirs of the deceased - late Gopal Singh Rautela, wherein the ground of overloading of the vehicle was not proved and compensation was allowed to the legal heir of the above deceased. When in the claim petition submitted before Motor Accident Claims Tribunal, Nainital, the factum of overloading of the vehicle was not proved, in such circumstances, the said ground is not legally tenable and sustainable in the present proceedings.
8. So far as the question as to whether Sh. Kamal Bisht S/o Sh. Nandan Singh was driving the vehicle at the time of occurrence or not is concerned, in the G.D. report No. 35 dated 02.02.2016 (Paper Nos. 36 to 37), Sh. Kamal Singh has been shown as driver of the vehicle, but the said fact has not been proved by the insurance company by producing Sh. Kamal Singh as a witness to support the version of the insurance company that he was plying the subject vehicle at the time of occurrence. This apart, as per the insurance company, four persons were also injured in the said accident. The list of injured persons has been submitted on record vide Paper No. 35, but none of them has been examined by the insurance company to prove the fact that at the time of accident, Sh. Kamal Singh was driving the vehicle. The insurance company has not filed any cogent and reliable evidence on record that at the time of occurrence, Sh. Kamal Singh was actually driving the vehicle, therefore, it can not be held that the finding of the District Commission about the driver of the vehicle, is erroneous and against the evidence on record. Thus, we are of the considered view that Sh. Soban Singh S/o Sh. Kripal Singh was driving the subject vehicle at the time of occurrence and nothing was concealed by the insured from the insurance company.
6First Appeal No. The New India Assurance Company Limited 07.11.2024 76 of 2020 Versus Sh. Kishore Singh Bisht
9. Thus, after appreciation of the evidence available on record, as discussed above, we are of the definite opinion that the impugned judgment and order in the above regard is perfectly justified and does not suffer from any irregularity and infirmity.
10. Learned counsel for the insurance company has further submitted that the awarded amount is on the excessive side for the reason that as per the survey report, the loss was assessed as Rs. 2,29,988.85/-. We have perused the survey report (Paper Nos. 45 to 50), wherein the surveyor has assessed the net loss to the tune of Rs. 2,29,988.85/-. In the impugned judgment and order, learned District Commission has observed that the insurance company has not filed any survey report, therefore, after deducting the towing charges of Rs. 7,000/-, the complainant is entitled to get compensation of Rs. 2,70,000/-. In the present appeal, the insurance company, after taking permission of this Commission, has submitted the survey report, wherein after deducting salvage and amount towards excess clause, the net loss of Rs. 2,29,988.85/- has been assessed by the surveyor. The respondent has not submitted any evidence that the survey report is not in consonance with the loss. Thus, we are of the considered view that the respondent is entitled to compensation of Rs. 2,29,988.85/- in place of Rs. 2,70,000/- awarded by the District Commission and the impugned judgment and order is to be modified accordingly. Rest of the impugned judgment and order passed by the District Commission is perfectly justified and requires no interference. This way, the appeal is fit to be partly allowed.
7First Appeal No. The New India Assurance Company Limited 07.11.2024 76 of 2020 Versus Sh. Kishore Singh Bisht
11. Appeal is partly allowed. Impugned judgment and order dated 18.11.2019 passed by the District Commission is modified to the extent that the amount of compensation awarded by the District Commission is reduced from Rs. 2,70,000/- to Rs. 2,29,988.85/-. Rest of the impugned judgment and order passed by the District Commission is maintained. No order as to costs of the appeal.
12. 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. A copy of this Order be sent to the concerned District Commission for record and necessary information.
13. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) President (Mr. B.S. Manral) Member Pronounced on: 07.11.2024 8