State Consumer Disputes Redressal Commission
Hdfc Ergo Gen.Insurance vs Dhanlal Shrawan on 6 July, 2011
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
(A/10/2089)
Appeal No.579/2010
Instituted on : 28/09/2010
HDFC ERGO Gen. Insurance Co. Ltd.,
Through : Manager,
6th Floor, Leela Business Park, Andheri East,
Mumbai (M.S.) ... Appellant
Vs.
Dhanlal Shrawan, S/o Shri S.A. Shrawan,
R/o : Main Road, Village - Chilphi, P.S. Chilphi,
District - Kabirdham (Kawardha) (C.G.) ... Respondent
PRESENT :
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SMT. VEENA MISRA, MEMBER
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES :
Shri Shishir Bhandarkar, for appellant.
Shri Rahul Shrivastava, for respondent.
ORDER (ORAL)
DATED : 06/07/2011 PER :- HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT This appeal is directed against the order dated 18.06.2010 of District Consumer Disputes Redressal Forum, Kabirdham / Kawardha (C.G.) (hereinafter called "District Forum" for short) in Complaint Case No.09/2009, whereby the appellant/Insurance Company has been directed to pay a sum of Rs.7,00,000/-, Insured Declared Value of the insured vehicle to the respondent/complainant with interest @ 9% p.a. with effect from 22.07.2009 till the date of payment and also to pay // 2 // further compensation of Rs.10,000/- for mental agony and cost of litigation Rs.2,000/-.
2. Briefly stated, the facts of the case are that a delivery vehicle Tata 909, bearing registration No.C.G.09-B/0315 was of the registered ownership of the respondent/complainant and was insured by the appellant/Insurance Company for a period between 25.05.2009 to 24.05.2010 with Insured Declared Value of Rs.7,00,000/-. The said vehicle suffered a road accident on 29.05.2009 and after the accident, was burnt by a mob collected there, so it was a case of total loss. The incident was reported to the Police and then claim was preferred before the appellant/Insurance Company praying therein for payment of Insured Declared Value of the vehicle. The appellant/Insurance Company repudiated the claim on the ground that insurance cover was obtained by the complainant by playing foul with the appellant/Insurance Company and a forged document of previous insurance of the vehicle with another company was produced and no claim bonus was also obtained by the complainant/respondent by getting some relief in premium. As policy was obtained by the complainant by misrepresentation of facts with the appellant/Insurance Company, so it was violation provisions of Section 64(5)-B of the Insurance Act and so, nothing was payable by the appellant/Insurance Company to the respondent/complainant.
// 3 //
3. Learned District Forum, after having considered the material placed before it by both parties, allowed the complaint and directed the appellant/Insurance Company to pay compensation, as mentioned hereinabove in first paragraph.
4. We have heard arguments advanced by both parties and perused record of the District Forum.
5. In record of the District Forum, document Annexure A-9, is available, which is insurance policy issued by Reliance General Insurance Company Ltd. in favour of the respondent/complainant, in respect of the same vehicle for a period between 29.11.2007 to 28.11.2008 and another document purporting to be photocopy of policy issued by the same Reliance General Insurance Company Ltd. in respect of the same vehicle for a period between 25.05.2008 to 24.05.2009 (Annexure O.P.1) was brought on record by the appellant/Insurance Company before the District Forum with the saying that this photocopy was produced by the respondent/complainant before the appellant/Insurance Company to show that earlier immediately before taking insurance cover from the Insurance Company, the vehicle was insured with Reliance General Insurance Company Ltd. The case of the appellant/Insurance Company before the District Forum that, that document was got // 4 // verified from Reliance General Insurance Company Ltd., and was certified by the Reliance General Insurance Company Ltd. that the policy period mentioned in the policy was wrong and policy was in fact issued for the period between 29.11.2007 to 28.11.2008.
6. On the basis of this document, counsel for the appellant/Insurance Company submitted that the photocopy of the insurance policy, which was submitted by the complainant was a forged and fabricated document and insurance cover was obtained on the basis of such forged and fabricated document and so no benefit was payable to the respondent/complainant on the basis of insurance policy issued by the appellant Insurance Company.
7. Learned counsel for the respondent/complainant, to counter these arguments submitted that no proof has been led by the appellant/Insurance Company to show that any forgery or fabrication was made by the respondent/complainant in the document and if in the photocopy of the document, date of insurance were mentioned wrongly, then it may be on account of numerous reasons including typographical error committed by some staff of the Insurance Company for which respondent/complainant, can not be held responsible. It has been argued that he was having that document to show that vehicle in question was insured till 24.05.2009. District Forum has also came to the same conclusion.
// 5 //
8. We have considered the aforesaid contentions of both parties.
9. We find that the evidence led by the appellant/Insurance Company was a little short from the standard of evidence, which was required to be produced by it to prove allegation of forgery and fabrication of the document. As allegation of the appellant/Insurance Company was that document Annexure O.P.1 was a forged document, then cogent and convincing evidence by producing any Certificate from Reliance General Insurance Company Ltd. or by producing any affidavit of the officer of that Company, was required to be produced to prove that this forgery was committed by the respondent/complainant and wrong dates were not mentioned by any of the employees of the Insurance Company.
10. No doubt, it is true that an endorsement has been made by someone in the bottom of the photocopy of the insurance policy (document Annexure O.P.1), a rubber seal impression of Reliance General Insurance Company Ltd. has also been put there, but in that endorsement, only it has been stated that the dates were wrong and correct policy period was 29.11.2007 to 28.11.2008. This endorsement is incomplete. There is no Certificate that after 28.11.2008 or from 25.05.2008, no policy was issued by that Company. No affidavit of person who has signed this document, has been filed to show that this // 6 // endorsement was made by a competent and responsible person of the Insurance Company. This exercise was required to be done by the appellant/Insurance Company to establish allegation of forgery in the document.
11. Counsel for the appellant/Insurance Company submitted that an opportunity be granted to the appellant for producing certificate of Reliance General Insurance Company Ltd. along with affidavit of responsible officer of that company.
12. It has also been argued by counsel for the appellant/Insurance Company that the premium of the insurance policy was paid to the appellant/Insurance Company by a cheque and that cheque, could not be encashed prior to the date of incident and before any premium could be credited to the Insurance Company, the incident happened and so also the Insurance Company can not be held responsible to pay any compensation to the respondent/complainant. We do not agree with this contention of the counsel for the appellant/Insurance Company, because the premium of policy was accepted by the appellant/Insurance Company by cheque and cheque was not dishonored. The risk was accepted by the appellant/Insurance Company from a particular date and therefore, the Insurance Company is liable from that particular date in respect of risks, which have been covered by the Insurance Policy.
// 7 //
13. After having considered the matter from all angles, we are satisfied that some more evidence is required to be led by the appellant/Insurance Company to establish the allegation of forgery in the document and for that purpose, one opportunity should be provided to the Insurance Company. Therefore, this appeal is allowed subject to payment of cost of Rs.1,000/- to the respondent/complainant. The impugned order is set aside and the case is remanded back to the District Forum for providing opportunities of leading evidence to both parties and then to decide the matter afresh on merits. The amount deposited by the appellant/Insurance Company before the District Forum, in compliance of Second Proviso to Section 15 of Consumer Protection Act, 1986 be retained by it till disposal of the complaint case after its remand by this Commission. Parties are directed to appear before District Forum, Kabirdham/Kawardha (C.G.) on 16.08.2011. No order as to the cost of this appeal.
(Justice S.C.Vyas) (Smt.Veena Misra) (V.K. Patil)
President Member Member
/07/2011 /07/2011 /07/2011