State Consumer Disputes Redressal Commission
Cholamandlam M S Gen.Ins.Co.Ltd vs Ghodawala Ahemad Ismail on 30 November, 2022
Details DD MM YY
Date of Judgment 30 11 2022
Date of filing 01 08 2022
Duration 29 03 -
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
Appeal No. 634/2022
Court No. 1
1. Cholamandalam Ms Gerneral Insurance Company Ltd.
Through: 2nd floor, option Building, C.G.Road,
Ahmedabad-380009, Opposite Nest Hotel, Off C G Road,
Ahmedabad.
...Appellant
Vs
1. Ghodawala Ahmad Ismail
37 vallabhangar-2, Bhuravav Road,
Godhra, Dist- Panchamahal ...Respondent
Coram : Hon'ble Mr. Justice V. P. Patel, President
Hon'ble Ms.A.C.Raval, Member
APPERANCE : Mr.R.P.Raval, advocate for the appellant Order by Hon'ble Ms. A.C. Raval, Member
1. The appellant has filed this appeal under section 15 of the consumer protection Act 1986, being aggrieved by and dissatisfied with the order dated 30.12.2021 passed by the Learned District Commission Panchamahal @ Godhra in consumer complaint No.87/2019.
2. Heard learned Advocate Mr.R.P.Raval for the appellant.
2.1. The appellants is the original complainant, and respondent is Original opponent before the District Commission. Hereinafter the parties will be referred as per their original status.
3. Order under challenge:.
"Applicant application is allowed.
The applicant is entitled to receive Rs.9,50,000/- from the opponent
along with simple interest @ 9% per annum from the date of application till the date of payment of the money.
SHIVAM A-634-2022 Page 1 of 5 The applicant is entitled to recover Rs.5,000/- from the opponent for mental pain and expenses.
To implement the above order within 2 months."
4. Facts of the case: It is the case of the complainant that the complainant was a owner of goods carriage vehicle no.GJ-01-DZ-0411. The complainant had taken comprehensive insurance policy for his vehicle from the opponent for the period between 31/01/2019 to 30/01/2020. As per the policy the own damage value of the vehicle was fixed at Rs.9,50,000/-. On 26/06/2019 at about 3:30 AM midnight vehicle was met with an accident. The vehicle of the complainant was in total loss. At the time of accident the vehicle was driven by the driver of the complainant Barkat Kha yakub Kha Belim. The police complaint was given on the same day and registered as FIR no. 52 of 2019. The complainant presented the claim form before the opponent which was repudiated by the opponent on the ground of the driver was changed. The complainant gave legal notice to the opponent thought the opponent did not pay the claim amount. The complainant preferred consumer complaint no. 87 of 2019 before the District Commission Panchmahal which was partly allowed by the Learned District Commission. Hence this appeal.
5. Argument of the appellant: Advocate for the appellant argued that on receipt of the claim from the complainant as per the usual practice, the insurance company proceeded the claim. The appellant received the documents submitted by the complainant. In addition, an expert opinion procured by the appellant and was thoroughly reviewed. Upon review of the entire set of the documents, facts and circumstances, it was discovered that claim was not payable. In view of the opinion of the expert the insurance company has repudiated the claim. The insurance company has rightly repudiated the claim for assigning cogent reason. Being aggrieved by the decision of the insurance company the complainant had filed the complaint against the opponent before the Learned District Commission Panchmahal. The learned district commission has decided the complaint against the present appellant without considering the genuine defense of the appellant. Therefore the SHIVAM A-634-2022 Page 2 of 5 order passed by the learned district commission should be quashed and set aside and this appeal may be allowed.
Merit of the case:
6. There are certain undisputed facts in the complaint that the complainant was possessing comprehensive insurance policy for his vehicle registered No. GJ-01-DZ-0114 for the period 31/01/2019 to 13/01/2020. Vehicle on damage value was fixed at Rs.9,50,000/-. On 26/06/2019 at about 3:30 midnight the said vehicle met with an accident and accured a total loss. The claim of the complainant repudiated by the opponent.
7. For repudiating the claim vide letter dated 27 September 2019 the opponent had given the reason as below:
"Dear Sir, With reference to above claim, we would like to inform you that, on scrutiny of the claim & documents, the following points were observed. And we request you to kindly clarify the same.
Vehicle was accident on 26/06/2019 and claim was lodged by you on 26/06/2019 vide the service No. 2100829 and claim No 3379277672. We have observed that AS PER CLAIM INTIMATION, FIR AND INSURED STATEMENT IV DRIVER WAS BARKATKHAN BELIM AND CLEARNER WAS RAZZAK KHAN WAS DIED IN THIS ACCIDENT BUT AS PER VEHICLE DAMAGE CONDITION AND MEDICAL LEGAL INVESTIGATION REPORT DRIVER WAS RAZZAKHAN & HE WAS DIED IN THIS ACCIDENT AND BARKA TKHAN BELIM WAS SEATED ON CLENER SEAT. HENCE CLAIM IS NOT BE ADMISSIBLE FOR DRIVER SWAPPING / HIDDEN FACTS AND DRIVER IMPLANT. "
Form the above mention ground for repudiation it seems that the claim was not admitted for driver sweeping hidden facts and driver implant.
8. The opponent has totally relied upon the expert opinion received by the insurance company from Dr.C.H.Asrani, dated 21/08/2019. The said report is produced at page no.76. The expert has opined and given a conclusion that;
"Observing extensive damage i.e. impact was so powerful that it took the steering wheel column and the driver seat upwards towards the roof of the cabin and the entire dashboard having been ripped apart from the cabin. It is opined that driver could not have escaped unhurt. Further collating damage to IV with Razzak Khan's (alleged cleaner) death due to splenic SHIVAM A-634-2022 Page 3 of 5 rupture it is opined that the was in the driver's seat when the accident occurred"
Dr.Asrani has also filed affidavit in support of his opinion this is the opinion by the expert regarding how the accident could have occured and how the injuries could have received by the driver and the cleaner. Looking to the affidavit filed by the Dr.Asrani, it seems that Dr. Asrani is possessing degree of DNB, MBBS and so more. He is a medical person and not the technical person and has opined on technical aspect of the accident.
9. The opponent has taken into consideration the, the opinion given by the expert on perusing the documents on record but failed to consider the documents filed by the complainant. Complainant has produced the FIR no, 52 of 2019 registered with the Navipura Police station and the charge sheet filed before the 4th JMFC Court Bharuch. The FIR was given by Barkat Kha Yakub Kha Belim the driver of the truck. In the FIR he has stated that on 25th June 2019 he and the cleaner Rajab Khan were travelling in the Eicher tempo towards Tapi. One truck tried to overtake the Eicher tempo from empty side and he lost his grip form the steering and mate with an accident. In that accident, clearer Rajab Khan received grave injuries and died the statement of the eye witness the Kalubhai Sukhabhai produced at page no.32, also reveals that Eicher tempo no., Gj-01-DZ-0114 met with an accident and the cleaner was badly injured and died on the spot. Similarly the another eye witness Tersingbhai Jetrabhai garasiya in his statement revealed the same fact. It seems that the version of FIR is required to be believed. The version of complainant is supported by the independent witnesses evidence. The ground for repudiation is seems to be false.
10. The claim presented by widow of the cleaner Rajab Khan before the Motor Accident Claim Tribunal is produced at page no.55. In the judgment of motor accident clam petition no. 433 of 2019 filed by Nasib Bibi widow of Rajab Khan, where it is mentioned that Rajab khan was serving as cleaner and helper on Eicher tempo no. GJ-01-DZ-0411. The claim of the widow was accepted and compansation granted by the MSCP tribunal vide order dated 31st august 2021. Looking to the aforementioned documentary evidence on record the ground for SHIVAM A-634-2022 Page 4 of 5 repudiation, swapping of person is not tenable hence it our opinion this appeal is required to be rejected at the admission stage.
11. We have considered the grounds stated in memo of appeal, reasons stated in impugned Judgment and order, documentary evidence produced on record, argument advanced by the learned advocate by the parties, ratio laid down in the above referred citation and fact and circumstances of the case. We have satisfied that the order passed by the Learned District Commission is legal, proper and correct in Eye of law. Therefore it does not required interference as a result the appeal is required to be dismissed. Hence in the interest of justice following order is passed.
ORDER A. The Appeal No.634/2022 is hereby dismissed.
B. The order dated 30.12.2021 passed by the Consumer Disputed Redressal Forum, Panchamahal @ Godhra in Consumer Complaint No. 87/2019 is hereby confirmed.
C. No order as to cost.
D. Office is directed to verify the amount deposited by the appellant in appeal No. 634/2022 and if found deposited, refund the same with interest, if any, accrued on the deposit to the appellant by RTGS after following due procedure and verification. For this purpose the appellant has to file an application with details to the account branch of this commission.
E. Registry is directed to send certified copy of this judgment to the parties free of cost. Registry is further directed to send copy of this judgment to the District Commission Panchamahal @ Godhra through E-mail in PDF format for taking necessary action.
Pronounce in open court today on 30.11.2022.
[Ms. A. C. Raval] [Hon'ble Justice V.P. Patel]
Member President
SHIVAM A-634-2022 Page 5 of 5