State Consumer Disputes Redressal Commission
M/S Vohra Shawls vs Tata Aig General Insurance Company Ltd. on 10 July, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.924 of 2012
Date of Institution: 12.07.2012
Date of Decision : 10.07.2015
M/s Vohra Shawls, Mochpura Bazar, Wool Market, Ludhiana through its
Proprietor Madan Lal Vohra.
Madan Lal Vohra, Proprietor M/s Vohra Shawls, Mochpura Bazar, Wool
Market, Ludhiana
.....Appellant/Complainant
Versus
1. Tata AIG, General Insurance Company Ltd., Branch Office,
Pakhowal Road, Ludhiana, through Branch Manager.
2. Tata AIG General Insurance Company Limited, Regd., Office
Peninsula Corporate Part, Nicholas Priamal Tower, 9th Floor,
Ganpat Rao Kadam Marg, Lower Parel Mumbai through its
Managing Director.
... Respondents/Opposite Parties
First Appeal against order dated
22.05.2012 passed by the District
Consumer Disputes Redressal Forum,
Ludhiana
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri. Harcharan Singh Guram, Member Present:-
For the appellant : Sh.P.M Goyal, Advocate
For the respondent : Sh.Rajneesh Malhotra, Advocate
............................................ J.S KLAR, PRESIDING JUDICIAL MEMBER :-
First Appeal No.924 of 2012 2
The appellant of this appeal (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), challenging order dated 22.05.2012 of District Consumer Disputes Redressal Forum Ludhiana, dismissing the complaint of the complainant by holding that parties at liberty to avail their remedy before the competent civil court in accordance with law, due to complex facts involved in this case. The instant appeal has been preferred against the same by the complainant now appellant in this appeal.
2. The complainant through its proprietor Madan Lal Vohra has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that the complainant is sole proprietor of the concerned M/s Vohra Shawls, Ludhiana and is competent to file the complaint. The complainant purchased one Skoda Superb Car Make 2010 on 04.04,2010, bearing engine no.83138, chassis no.30031, which was registered with Registering Authority, Ludhiana, bearing registration no.PB-10- CV-2605. The complainant took the insurance policy of the above- referred car from the OPs at Ludhiana, vide insurance policy bearing no. 010047877400 for total insured declared value (IDV) of Rs.18,82,080/- valid w.e.f. 04.04.2010 to 03.04.2011 by paying the premium of Rs.42,076/- to OPs. Only one page of the policy was supplied to the complainant and no terms and conditions or exclusion clause thereof were ever supplied to the complainant by the OPs. The terms and conditions of the policy and the exclusion First Appeal No.924 of 2012 3 clause, as alleged in the e-mail dated 3.5.2011 by OPs, are not binding on the complainant because they were not supplied or communicated to the complainant. On the intervening night of 4/5.07.2010 at about 1.25/1.30 am, Karan Vohra son of Sh. Rajeev Vohra grandson of Sh.Madan Lal Vohra met with an accident at village Katani Kalan, near Mangat Nursing Home, Chandigarh- Ludhiana Road, Ludhiana. Sh. Karan Vohra accompanied with Sh. Rahul Verma, was sitting beside driver seat of the car at that time, when they were coming from Chandigarh to Ludhiana. When they reached near village Katani Kalan, the right side front tyre got burst thereof and hit over road divider, while it was being driven at the normal speed by Karan Vohra. The above car struck against boundary wall/gate of Mangat Nursing Home and it caught fire and entire car was damaged completely amounting to total loss of it. Sh.Sikander Singh, Security Man posted with Mangat Nursing Home, Chandigarh Road, Katani Kalan immediately called upon Dr. S.S. Mangat and other staff members from inside Nursing Home and they found that Skoda Car was burning due to fire. They took out their submersible pump along with pipe and started controlling the fire. The driver side door was jammed due to fire and became too hot. The window glass of the driver side door of the car was broken and it was sprayed water with the pipe to bring it under control. The Highway Police Patrolling party came at the spot and driver side of the door of the above car was opened with the help of iron rods. The person on driving seat was taken out. He was suffocated due to First Appeal No.924 of 2012 4 smoke and after 4-5 minutes, he gained consciousness and disclosed his name as Karan Vohra. Both the occupants of the car were taken by Highway Patrolling Police Party to Christian Medical College & Hospital, Ludhiana and person sitting next to the driver seat was also badly burnt. Necessary entry was made in the record by Highway Patrolling Police Party on 5.07.2010 in the hands of Sh.Darshan Singh 1431. Highway Patrolling, Chandigarh Road, Ludhiana about this accident. Rahul Verma, who was admitted in CMC & Hospital Ludhiana at Unit No.C-7264149 on 5.7.2010 at 1.30 a.m. expired at 3.35 a.m on the say day i.e. 5.7.2010. Copy of medico legal injury report was appended and his cause of death was shock with external burns, which was sufficient to cause death in ordinary course of nature. The complainant lodged the insurance claim with the OPs and Sh. Harsh Kumar Laroiya, Surveyor & Loss Assessor, New Tagore Nagar Ludhiana was deputed to assess the loss by the OPs. The Surveyor took the photographs and prepared the report by assessing the loss on the repair basis of Rs.29,99,000/- and net on salvage basis to Rs.18,82,080/- less value of salvage of car Rs.1,65,000/- and less excess clause 1000 in terms of the insurance policy, total amounting to Rs.17,16,080/- and he obtained consent letter from the complainant for settlement of the claim on net salvage. The said Surveyor stated in his report that Karan Vohra son of Sh. Rajeev Vohra was driving the vehicle at the time of accident and he has holding a valid driving license for it and it was got verified from DTO Office Ludhiana and found to be genuine and valid and First Appeal No.924 of 2012 5 the surveyor also checked the record of the Registering Authority Ludhiana of this vehicle. The OPs are bound to settle the claim of the complainant within the period, as stipulated under law as per the IRDA Guidelines. The complainant surprisingly received e-mail dated 29.12.2010 addressed to the son of the complainant Sh. Rajeev Vohra raising false and frivolous objections only. The complainant replied the same through e-mail dated 08.03.2011 and copy of the said reply was also sent through First Flight Couriers Ltd, vide their CN 103280245 dated 09.03.2011. In spite of the receipt of reply to the queries dated 29.12.2010, the OPs have failed to settle the claim of the complainant. The complainant called upon the OPs, vide e- mail dated 2.5.2011 to settle the claim, but to no effect. The OPs ignored the record of the police as well as of Dr. S.S. Mangat that Karan Vohra, who was driving the car at the time of accident. The repudiation of the contract of insurance by the OPs is illegal, arbitrary and unjustified. The complainant has, thus, filed the present complaint directing the OPs to pay a sum of Rs. 17,16,080/- being the amount assessed by the surveyor on net salvage basis along with costs of the complaint and interest @ 12% p.a from the date of lodging the complaint till payment. The complainant has also prayed for compensation of Rs. 1 lac for unfair trade practice on the part of OPs.
3. Upon notice, OPs appeared and filed written reply raising preliminary objections that complaint is barred under Section 26 of the Consumer Protection Act and merits dismissal. The Consumer First Appeal No.924 of 2012 6 Forum has no jurisdiction to try & decide the complaint and there is no deficiency in service on the part of Ops. It was averred that Rahul Verma, while returning back from Chandigarh, could not negotiate a divider and, thus, met with the accident. He sustained severe injuries before he could be evacuated, as he was stuck in the vehicle. The medical documents of Rahul Verma proved that he sustained 90% burns and only lower portion of his back was not burnt. The only injury to Sh.Karan Vohra was abrasion near his left elbow and abrasion on his left ear. Injury to left side of body can take place only due to impact with left door when person seated on co- driver seat or behind co-driver seat. It was further averred that Rahul Verma was under the influence of alcohol, as per the report dated 05.07.2010 of Christian Medical College Ludhiana, where he was taken after the accident. The complainant was called upon by e-mail dated 29.12.2010 by the OPs to give reply to the queries and complainant gave reply to queries, vide e-mail dated 08.03.2011 , which was no consequence. The complaint of the complainant was rejected on the basis of providing false information and misrepresentation. The complaint is not maintainable, as M/s Vohra Shawls is neither a proprietorship concern nor Sh. Madan Lal Vohra is the Sole Proprietor, hence is not competent to file the complaint. It was denied that complainant is consumer of the OPs. On merits, the Ops contested the complaint of the complainant. It was denied that Highway Patrolling Police ever reached the spot nor has made entry in the hand of Darshan Singh, as alleged by the complainant. It was First Appeal No.924 of 2012 7 denied that certificate dated 02.03.2011 was issued by Dr. S.S Mangat. Dr. S.S. Mangat has never witnessed the occurrence nor had taken out the occupants of the car, as alleged and the alleged certificate has got no evidential value at all. It was further pleaded that the statement of the complainant is malafide and self- contradictory, as given out of the police, no action should be taken against anybody. Sh. Karan Vohra stated in his statement before the police that he caused the accident and a person who had died in the accident could not give undertaking that he did not want to take any action against anybody, if Karan Vohra, who was not driving the vehicle and hence he could not given any undertaking that he did not want to take action against anybody. It was not disputed that vehicle was insured with the OPs. It was averred that said loss has been caused by Rahul Verma, who drove the vehicle under the influence of liquor, as confirmed from the medical reports and investigations and hence no claim is payable to complainant on account of violation of terms and conditions of the policy and the OPs, thus, prayed for the dismissal of the complaint.
4. The complainant tendered in evidence the affidavit Ex.CA-1 of Dr.S.S. Mangt of Mangat Nursing Home, Chandigarh-Ludhiana Road, Katani Kalan, Ludhiana, affidavit of Roshan Lal Verma Ex.CA- 2, affidavit of Sh. Karan Vohra Ex.CA-3 along with copies of documents Ex.C-1 to Ex.C-21. As against it, OP tendered in evidence affidavit of Sh. Mohd. Azhar Wasi, Authorized Signatory Ex.RW-2/A, affidavit of Harsh Kumar Loroiya, Mechanical Engineer, First Appeal No.924 of 2012 8 Surveyor & Loss Assessor Ex.RW-4, affidavit of Vinod Kumar, Investigator along with copies of documents Ex.R-1 to Ex.R-53. On conclusion of evidence and arguments, the District Forum Ludhiana, dismissed the complaint of the complainant by virtue of order dated 22.05.2012 with liberty to approach the civil court to settle of the dispute. Dissatisfied with the order of the District Forum Ludhiana dated 22.05.2012, the complainant now appellant has preferred this appeal against the same.
5. We have heard learned counsel for the parties at considerable length and have also examined the record of the case.
6. The District Forum dismissed the complaint of the complainant by giving option to the complainant to seek the redressal of his grievance from the competent civil court. The order passed by the District Forum Ludhiana has been impugned in this appeal by the appellant. We have to refer to evidence on the record to decide the controversy in this case. Ex.CA-1 is affidavit of Madan Lal Vohra, the proprietor of M/s Vohra Shawls, stating on oath that the facts of the case are correct and true to the best of his knowledge. Ex.C-1 is affidavit of Dr. S.S. Mangat of Mangat Nursing Home and he stated in this affidavit that his security men Sikander Singh called him and he and his staff tried to extinguish the fire put on the car with submersible pump and pipe. Driver side door was jammed, as due to fire, it was too hot and hence window glass was broken and water was sprayed with pipes. He further stated that Highway Patrolling came there and driver side door was also opened with the help of First Appeal No.924 of 2012 9 iron rods. Person on driver seat was taken out. He was suffocated due to smoke. After 4-5 minutes, another person was also taken out from the front seat and they were taken by Highway Patrolling to CMC Ludhiana. Person sitting next to driver seat was badly burnt. He further stated he also issued certificate dated 2.3.2011, Ex.C-4 on the record. Ex.C-2 is affidavit of Roshan Lal Verma, father of the Rahul Verma, who died in this case. Roshal Lal Verma stated in his affidavit Ex.C-2 that Karan Vohra was driving the car and his son Rahul Verma was sitting adjoining seat of the car. The affidavit of Karan Vohra , who is victim of this accident as well is also on the record Ex.C-3. He has categorically stated on oath that he was driving the car and Rahul Verma was sitting by him in the front seat of the car. He further stated that the car met with an accident and thereby caught fire and was damaged thereby. That Rahul Verma sustained burn injuries in the accident to the extent of 99%. He stated on oath that he was driving the car and also received burn injuries. Ex.C-4 and Ex.C-5 are the police record by HC Darshan Singh that car met with an accident with some unidentified car. Rahul Verma was got admitted in the CMC Hospital Ludhiana, Ex.C- 6 is policy document proving that car was insured for an amount of Rs.18.82,080/- and insurance policy was operative from 14.05.2010 to 13.05.2011, Ex.C-7 is report of the Harsh Kumar Laroiya, Mechanical Engineer, Surveyor & Loss Assessor to the effect that the liability net salvage basis is Rs.17,16,080.00, Ex.C-8 is consent letter executed by Madan Lal Vohra agreeing to accept the amount First Appeal No.924 of 2012 10 of Rs. 17,16,080/- towards full and final settlement, Ex.C-10 is text of the letter addressed to Rajeev Vohra , Sidharth Textiles, Ludhiana and it unsigned e-mail, Ex.C-11 is DDR Report lodged about this accident. This report lodged by Roshan Lal Verma, wherein it is stated that the car met with an accident and his son sustained injuries due to burn of the car. The postmortem report of Rahul Verma is Ex.C-12 proving on the record that cause of his death was due to shock on account of external burn injuries, which was sufficient to cause his death in ordinary course. Ex.C-13 is e-mail for providing additional information to company. Ex.C-14 is letter from office of Deputy Commissioner of Income Tax Ludhiana to complainant for the assessment of the return for the year 2011. We have also examined the documents Ex.C-15 to Ex.C-21 on the record. None of the documents proved that Rahul Verma was driving the car, when it met with an accident and the name of Karan Vohra is recorded as driver. The cause of death of Rahul Verma is established on account of shock due to external burn injuries, which was sufficient to cause of his death.
7. The OPs tendered in evidence affidavit of Mohd Azhar Wasi, Authorized Signatory of Tata AIG General Insurance Company Ex.RW-1/A on the record and this prolix affidavit on the record is to the effect that Dr.S.S Mangat has not seen the accident. This affidavit is based on anecdotal evidence only and as such, it carries little value and even if there is any submission of Karan Vohra that he does not want to take any criminal action against any person, it is First Appeal No.924 of 2012 11 of little consequence. Ex.RW-2/A is the affidavit of Harsh Kumar Laroiya, Mechanical Engineer, Surveyor & Loss Assessor on the record proving report Ex.R-49. We have also examined the affidavit of G.B Matur of M/s G.B Mathur & Company on the record. The affidavit of Dr.K.P.C Gandhi, Chairman Truth Labs is Ex.RW-4/A and affidavit of Vinod Kumar is Ex.RW-5/A. The report of G.B Mathur & Company is Ex.R-1. This report is to the effect that claim of the insured for the accidental damage was examined and burning of the vehicle and it be treated by the company as deemed fit. It is stated in this report that Rahul Verma was under the influence of the alcohol at the time of the accident. This report carries little value and evidence is required to be on the file on the basis of which, this report has been based that Rahul Verma was under the influence of the liquor at the time of this death. From perusal of Ex.R-17 medical injuries report of Rahul Verma, the counsel for the OPs could not point out that he was under the influence of liquor at the time of accident. He stated that 90% burn injuries were recieved and this was the primary cause of rendering him, comatose. Consequently, in the presence of the report of CMC Hospital Ludhiana Ex.R-17 and postmortem report Ex.R-27 and inquest report filed under Section 174 of Cr.P.C Ex.R-20, we find that it is nowhere proved that Rahul Verma was under the influence of the liquor at the time of above accident. The counsel for the OPs is unable to point out any substance on the record to substantiate and corroborate the report of investigator G.B Mathur & Company ExR-1. This report is based on First Appeal No.924 of 2012 12 the basis of inferences and hypothesis drawn by the above investigator, which is conjectural in nature. Ex.R-2 is registration certificate of the vehicle in dispute, it is registered in the name of M/s Vohra Shawls. There is affidavit of Madan Lal Vohra, who is proprietor of it, besides the plea to this fact in the complaint. Ex.R-4 is driving license of Karan Vohra proving that he has valid driving license till 13.12.2024. Ex.R-5 is driving license of Rahul Verma proving that he held valid driving license till 20.06.2024 for driving the car. Ex.R-4 and Ex.R-5 have proved that both Karan Vohra and Rahul Verma were holding valid driving license, when the accident took place. The photographs Ex.R-6 to Ex.R-11 are on the record of the place of accident, Ex.R-18 is newspaper cuttings, Ex.R-19 is police report. Ex.R-22 is the statement of the witness Roshan Lal Verma recorded under Section 161 of Cr.P.C, Ex.R-23 to Ex.R-24 are also statements of witnesses. Ex.R-20 is inquest report signed by Roshal Lal Verma father of the Rahul Verma and he has nowhere stated that his son Rahul Verma was driving the vehicle at the time of accident. On the other hand, report of Glide Investigation & Security Service Ex.R-29 on the record proving that accident seems to be genuine as per investigation leaving the final decision with the underwriter Glide Investigation and Security Services. In the report Ex.R-29, it is found that accident is genuine. In this case, it has nowhere recorded that Rahul Verma was driver and not Karan Vohra. Ex.R-30 is trauma sheet of Rahul Verma. Counsel for the OPs could not point out on that Rahul Verma was under the First Appeal No.924 of 2012 13 influence of any alcohol at the above relevant time. Ex.R-33 is letter of the Christian Medical College Ludhiana to Mr. G.B Mathur providing copy of the medical record of the patient Rahul Verma. Ex.R-34 is patient record, Ex.R-35 is trauma sheet of Rahul Verma. We have also examined other documents on the record, as placed by the OPs. The Motor Survey Report Ex.R-49 is on the record by Harsh Kumar Laroiya, Mechanical Engineer, Surveyor & Loss Assessor, which found the loss to the extent of Rs.17,16,080. We have examined the DDR Report, vide Ex.R-53 on the record as well.
8. The District Forum observed that due to complexity of the matter, it is not appropriate to decide the case and withheld itself from deciding the case by leaving the parties to seek their remedy before competent civil court. We are of this view that no complexity of the facts is involved in this case necessitating the adjudication of this case by the Civil Court, as trained retired Judicial Officer with experience are manning the Consumer Forums and they can decide such type of cases.
9. We do not agree with the findings of the District Forum that this case involves the complex nature leaving the parties to get their matter adjudicated from the civil court. The onus to prove this fact was on the OP that Rahul Verma was under the influence of the liquor and OPs have failed to substantiate it on the record by means of any concrete evidence. The evidence of the complainant remained unrebutted on the record. Such sensitive issues cannot be decided on the basis of extrapolation by the Consumer Forum alone. First Appeal No.924 of 2012 14 There is no place for inference and the inferences are also drawn on the basis of proven facts on the record. We, thus, find that OPs have failed to prove that Rahul Verma was under the influence of the liquor, when he met with the above accident and he was driver of this car at the time of accident.
10. Consequently, the OPs have failed to prove the violation of the terms and conditions of the policy in this case. The report of GLIDE Investigation and Security Service Ex.R-29 proved that accident was genuine and found no lacuna in it. The report of the surveyor Harsh Kumar is Ex.R-49 on the record and by this document of the OPs, he has proved by virtue of this survey report that the liability on net salvage basis has been assessed to the extent of Rs. 17,16,080.00. The case of the car is case of the total loss and the complainant is entitled to compensation, as per insured declared value of the car. The report of the surveyor carries weightage and is valuable piece of evidence. We cannot ignore the report of the surveyor, who is appointed by the Insurance Company under the Insurance Act and report of Harsh Kumar Laroiya Ex.R-49 is on the record proving the liability on net salvage basis to the tune of Rs.17,16,080.00.
11. Consequently, in view of our above discussion, we hold that order of the District Forum under challenge in this case dated 22.05.2012 is unsustainable in this appeal. We set aside the order of the District Forum Ludhiana dated 22.05.2012 by directing the Ops to pay Rs. 17,16,080.00 to the complainant within 30 days from the date of receipt of certified copy of this order, failing which First Appeal No.924 of 2012 15 complainant shall be entitled to interest @ 9% p.a from the date of accident till actual payment. In addition to the above amount of the compensation, the complainant is also entitled to the amount of Rs.20,000/- towards costs of litigation. The complaint of the complainant is, thus, accepted and stands disposed of accordingly.
12. As a result of our above discussion, appeal of the appellant is accepted and complaint filed by the complainant is also accepted as referred to above.
13. Arguments in this complaint were heard on 07.07.2015 and the order was reserved.
14. Copies of the order be communicated to the parties as per rules.
15. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (HARCHARAN SINGH GURAM) MEMBER July 10, 2015.
(ravi) First Appeal No.924 of 2012 16