State Consumer Disputes Redressal Commission
National Insurance Company Limited vs Attar Singh on 13 August, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.424 of 2009.
Date of Institution: 31.03.2009.
Date of Decision: 13.08.2012.
1. National Insurance Company Limited, Regional Office, SCO No.232-
234, Sector 34-A, Chandigarh through its Manager (Legal).
2. National Insurance Company Limited, through its Branch Manager,
Branch G.T. Road, Sirhind, Tehsil and District Fetehgarh Sahib.
.....Appellants.
Versus
Attar Singh S/o Tara Singh, C/o M/s Dhingra Di Hatti, G.T. Road, Sirhind, R/o
H.No.37780, Ward No.15, Railway Road, Sirhind, District Fatehgarh Sahib.
...Respondent.
First Appeal against the order dated
08.01.2009 of the District Consumer
Disputes Redressal Forum, Fatehgarh
Sahib.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:- Sh. B.S. Taunque, Advocate, counsel for the appellants.
None for the respondent.
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INDERJIT KAUSHIK, PRESIDING MEMBER:-
National Insurance Company Limited and another, appellants (In short "the appellants") have filed this appeal against the order dated 08.01.2009 passed by the learned District Consumer Disputes Redressal Forum, Fatehgarh Sahib (in short "the District Forum").
2. Facts in brief are that Sh. Attar Singh, respondent/complainant (hereinafter called as "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act"), on the grounds that he is owner of car make Tata Indica bearing registration no.PB-23-D-7878 and the same was insured with the appellants vide cover note no.400611 First Appeal No.424 of 2009 2 13033 w.e.f. 15.06.2007 to 14.06.2008 and he paid premium of Rs.8529/-. The respondent had employed one Satpal as driver to drive the car and he was having a valid and effective driving licence to drive the same and he was found to be a competent driver.
3. On 28.08.2007, at about 6.30 P.M., Satpal was driving the car at Chandigarh-Sirhind Road near Badali Ala Singh, when suddenly a stray dog came running on the road from right side and when the driver applied brakes, the vehicle turned down on the left side and struck against a tree. The matter was reported to the appellant, who deputed surveyor to assess the loss to the vehicle and the surveyor assessed the loss to the tune of Rs.2,80,000/- and got completed all the formalities and surveyor also obtained the signatures of the respondent on some blank papers. The respondent received a letter dated 18.03.2008 from the appellant, stating that as per report of the surveyor, the vehicle/car in question was being driven by someone else and not by Satpal and the reply was sought by 25th of March, 2008 which the respondent sent on 24.03.2008, stating that the car in question was driven by Satpal, who was having a valid and effective driving licence at the time of accident. The respondent spent Rs.10,000/- on lifting the car from the spot to Dada Motors, but the appellant filed the genuine claim of the respondent. The respondent suffered lot of mental agony and harassment and is entitled to compensation to the tune of Rs.1.00 lac, Rs.50,000/- as damages, Rs.30,000/- as litigation expenses along with interest @ 18% p.a. and in all, the respondent is entitled to Rs.4,50,000/- along with interest @ 18% p.a. from the appellant.
4. In the written reply filed on behalf of the appellant, preliminary objections were raised that the respondent is estopped by his act and conduct from filing the present complaint. The respondent has not come to the Forum with clean hands and has concealed the true facts. There is no deficiency in service in service on the part of the appellant. The respondent has got no First Appeal No.424 of 2009 3 legal right or cause of action to file the complaint and the complaint is not maintainable. The complaint is bad for non-joinder of necessary parties.
5. On merits, it was admitted that Tata Indica car Model, 2005 bearing registration no.PB-23-D-7878 was insured with the appellant under private car policy-B package insurance cover as per terms and conditions vide policy no.4101405/31/07/6100001044 for the period 15.06.2007 to 14.06.2008 in the name of insured Attar Singh and he paid premium of Rs.8529/-. It was pleaded that said Satpal was not driving the car in question. Intimation regarding the accidental car was received by the branch office of the appellant at Sirhind vide letter dated 29.08.2007. The branch manager deputed Er. J.K. Chhabra, Surveyor & Loss Assessor, Khanna, to conduct spot survey of the vehicle and to give report. The surveyor after inspecting the vehicle gave his report dated 05.09.2007. He made a report that the vehicle suffered heavy impact at the front side and the driver cannot escape injuries and the matter requires further investigation. The branch manager recommended to depute surveyor for assessment of loss and also to depute investigator for the proper investigation of the case and Sh. Arun Kumar & Co., Surveyor and Loss Assessor, Ludhiana was deputed and he gave the report. Thereafter, Sh. D.S. Chadha, investigator was appointed, who after investigation submitted the report dated 08.03.2008, concluding that the respondent has give a false version and Satpal driver was not driving the vehicle, whereas a girl named Anchal and a boy named Preet (Ramanpreet) of Dhingra family were travelling in the car at the time of accident. On the report, the claim of the insured was recommended as 'no claim' and the claim was ultimately repudiated. The repudiation of the claim is legal and valid. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
6. Parties led evidence in support of their respective contentions by way of affidavits and documents.
First Appeal No.424 of 2009 4
7. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that escape of the driver from the injury is not a sufficient ground to repudiate the claim. Three surveyors were appointed without taking permission from the controller of insurance to appoint another surveyor as envisaged U/s 64 UM (G) (3) of the Insurance Act and claim has to be allowed on the basis of previous report as held in "Giriraj Prasad Khandelwal Vs United India Insurance Co. Ltd. & Ors.", 2006 (3) CLT-659, and allowed the complaint, directing the appellants to pay Rs.2,30,000/- along with interest @ 9% p.a. from the date of accident i.e. 28.08.2007 till realization. Rs.20,000/- were awarded as compensation and Rs.1000/- as cost of complaint.
8. Aggrieved by the impugned order dated 08.01.2009, the appellants have come up in appeal.
9. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the appellants.
10. Neither the counsel for the respondent nor anybody else appeared on behalf of the respondent at the time of arguments.
11. The argument raised on behalf of the appellants is that Satpal was not driving the vehicle at the time of accident. It was also contended that the impact of the accident was so much that the car was badly damaged and the driver escaping injuries cannot be imagined, but in this case, no injuries were received by Satpal. As per report of the investigator, one Anchal was driving the vehicle and she received injuries and investigator gave the report and the order of the District Forum is not sustainable.
12. The intimation of the accident was given to the appellants on 29.08.2007 vide Ex.R-2 and Er. Jagdish K. Chhabra was immediately appointed as surveyor, who visited the spot on 29.08.2007 itself i.e. on the same day. The respondent in the Intimation Form Ex.R-2 mentioned that Sh. First Appeal No.424 of 2009 5 Satpal S/o Sh. Deep Singh was driving the vehicle at the time of accident. The surveyor in his report Ex.R-3 also mentioned the name of the driver as Sh. Satpal S/o Sh. Deep Singh and he also mentioned the particulars of the driving licence which was issued on 20.12.2006 and was valid till 19.12.2026. As per this report, the accident took place near Guru Kirpa Filling Station, Badali Ala Singh, as a stray dog came from the right side all of a sudden. The driver applied the brakes and turned the vehicle to left where it slipped and could not be controlled and dashed against a tree. Photocopy of driving licence of Satpal has been produced and the particulars given in the licence tally with the report of the surveyor. The respondent has placed on file copy of DDR Ex.C-5 recorded on the statement of Mandeep Kumar, who stated that on 29.08.2007, at about 8.00 P.M., his niece Achal was coming back after studying and when she reached near Bus Stand, Sirhind, there some vehicle hit her and she received injuries.
13. The appellants after deputing first surveyor, again deputed M/s Arun Kumar & Company & Loss Assessor, who gave the report Ex.R-6 and in that also, he mentioned the name of the driver as Sh. Satpal Singh and assessed the net loss to the tune of Rs.1,96,005/-. He also produced the photographs of the car which shows that only the front bonnet of the car was damaged and there was no damage to the front glass which was not even cracked. Thereafter, the appellants deputed Sh. D.S. Chadha as investigator, who gave his report Ex.R-8, concluding that Sh. Satpal, driver was not occupying the vehicle at the time of accident, but one boy and girl namely Anchal and Preet were travelling inside the car which met with an accident on 28.08.2007 and they were injured. The appellants on the basis of this report repudiated the claim. The District Forum in its order observed that the three surveyors were appointed without taking permission from the Controller of Insurance to appoint another surveyor, as envisaged U/s 64 UM (G) (3) of the Insurance Act. Although, three surveyors were not appointed, but in fact two surveyors only were appointed and one investigator was appointed but the First Appeal No.424 of 2009 6 fact remains that the appellants have not taken any permission either from the Controller of Insurance or from the District Forum/court to appoint another surveyor and as per own whims in order to frustrate the claim, appointed another surveyor and then, investigator. The investigator only recorded the statements, but has not brought on record any evidence to prove that said Anchal and Preet were injured and they were treated by any doctor, nor he tried to find out as to from which doctor/hospital, they took the treatment. As such, his report is totally biased and favourable to the appellants and cannot be relied upon.
14. The respondent examined on oath himself and Bhola Singh, who deposed through his affidavit Ex.C-4 on oath that on 18.08.2007, he along with his brother Sant Singh was working as worker at on Gur Kirpa Filling Station, Badali Ala Singh, District Fatehgarh Sahib. On that day, at about 6.30 P.M., one Indica car bearing no.PB-23-D-7878 met with an accident which was driven by Satpal, who made telephonic call from their Filling Station. Sant Singh has also sworn affidavit Ex.C-5 to the same effect, but the appellants have not cross-examined these independent witnesses to bring home their point that, in fact, it was Satpal, who was not driving the vehicle, but Anchal was driving the vehicle, for the reasons best known to the appellants. The appellants have tried their level best to somehow or the other to repudiate the genuine claim of the respondent and without following the proper procedure, kept on appointing the surveyors and the investigator. The first surveyor appointed gave the detail of the loss in his report Ex.R-3 and also took the photographs, but did not give its value and M/s Arun Kumar & Co. & Loss Assessor was appointed, who has assessed the net loss to the extent of Rs.1,96,005-83. The appellants are liable to pay this amount to the respondent minus the salvage value of the vehicle if the same is retained by the respondent, or else the said amount, the appellants are liable to pay. The District Forum has allowed the claim on the basis of estimate of loss to the tune of Rs.2,30,000/-, but that is not based on any reasoning because certain First Appeal No.424 of 2009 7 parts are not covered under the insurance and the surveyor in his report Ex.R-6 has discussed in detail and assessed the loss on estimate and net loss basis and has come to the conclusion that the assessment on repair basis comes to the tune of Rs.196,005/- and the appellants are liable to pay this amount to the respondent.
15. In view of above discussion, the appeal filed by the appellants is partly allowed and the impugned order under appeal dated 08.01.2009 passed by the District Forum is modified to the extent that the appellants are liable to pay Rs.1,96,005/- to the respondent, instead of Rs.2,30,000/-. The remaining part of the impugned order is legal and valid and is affirmed and upheld. With this modification, the appellant stands disposed of.
16. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
17. Remaining amount as per this order, including the impugned order under appeal upheld vide this order, shall be paid by the appellants to the respondent/complainant within 45 days of the receipt of copy of the order.
18. The arguments in this appeal were heard on 01.08.2012 and the order was reserved. Now the order be communicated to the parties.
19. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member August 13, 2012.
(Gurmeet S)