State Consumer Disputes Redressal Commission
Icici Lombard General Insurnace ... vs Sanjay Dharmaik on 8 May, 2014
H.P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, SHIMLA.
F.A. No: 263/2013
Date of Presentation: 26.09.2013
Date of Decision: 08.05.2014
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1. ICICI Lombard General Insurance Company Ltd.,
Quiet Office No.10, Ist Floor, Sector 40-B,
Chandigarh.
2. ICICI Lombard General Insurance Company Ltd.,
Branch Chhota Shimla, Shimla.
Both appellants through their Manager (Legal),
ICICI Lombard General Insurance Company Ltd.,
SCO-501, Sector 70,
Mohali, District Mohali (Punjab).
.... Appellants
Versus
Shri Sanjay Dharmaik, S/o Shri Sohan Lal Dharmaik,
R/o Vill. Thanog, P.O. Kokunalah,
Tehsil Kotkhai, District Shimla, H.P.
... Respondent
.........................................................................................
Coram
Hon'ble Mr. Justice (Retd.) Surjit Singh, President
Hon'ble Mrs. Prem Chauhan, Member
Whether approved for reporting?1
For the Appellants: Mr. Jagdish Thakur, Advocate.
For the Respondent: Mr. Giri Raj Chauhan, Advocate.
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O R D E R:
Justice (Retd.) Surjit Singh, President (Oral) Appellants are aggrieved by the order dated 25.07.2013, of learned District Consumer Disputes 1 Whether Reporters of the local papers may be allowed to see the order? ICICI Lombard General Insurance Company Ltd. & Anr. Vs. Sanjay Dharmaik Redressal Forum, Shimla, whereby respondent's complaint, under Section 12 of the Consumer Protection Act, 1986, which he filed against the appellants, has been partly allowed, and a direction given to the appellants to pay a sum of `2,15,779.98, with interest at the rate of 9% per annum, and also to pay `5,000/-, as compensation, and `2,000/-, on account of litigation expenses.
2. Respondent owned a Santro car, which was insured with the appellants, in the sum of `3,33,000/-, for the period from 26.09.2006 to 25.09.2007. On the night intervening 21st & 22nd November, 2006, when the insurance policy was in force, vehicle met with an accident and according to the respondent-complainant, it was completely damaged and, thus, it was a case of total loss. Report of the accident was lodged with the police, on the basis of report of an Assistant Sub- Inspector of the concerned Police Station. Intimation of the accident was given to the appellants also. A spot surveyor was deputed, who reported that the vehicle had rolled down the road and landed on a tree, about 300 yards down the edge of the road and was extensively damaged. No surveyor was deputed to assess the actual loss. Respondent's claim was repudiated on the ground that the vehicle was being 2 ICICI Lombard General Insurance Company Ltd. & Anr. Vs. Sanjay Dharmaik driven by a person, who did not possess a valid and effective driving licence. Respondent then filed a complaint, under Section 12 of the Consumer Protection Act, 1986, seeking a direction to the appellants to pay the insurance money, which, according to him, was equivalent to the sum assured, as it was a case of total loss, with interest. Compensation and litigation expenses were also sought.
3. Complaint was contested by the appellants and it was pleaded that the vehicle was being driven by one Nishant Thakur, who did not possess a valid and effective driving licence, but later on, the name of driver was changed to Nishant Bhardwaj, with a view to avoiding repudiation of claim, on account of breach of condition of policy, with regard to the persons authorized to drive the vehicle.
4. Learned District Forum, vide impugned order, has allowed the complaint and directed the appellants to pay a sum of `2,15,779.98, with interest at the rate of 9% per annum, and also to pay `5,000/-, as compensation, and `2,000/- as cost of litigation.
5. We have heard learned counsel for the parties and gone through the record.
6. No doubt, in the F.I.R., Annexure R-1, it was Nishant Thakur, who was named as the driver of the 3 ICICI Lombard General Insurance Company Ltd. & Anr. Vs. Sanjay Dharmaik vehicle, but the F.I.R. was not lodged either by Nishant Thakur himself, or by any other eye witness. F.I.R. was registered on the basis of a report sent by an Assistant Sub-Inspector of the Police Station, from the spot, who visited the spot, after accident had occurred. He reported that on inquiries made by him on the spot, it was revealed that the vehicle was being driven by Nishant Thakur. He did not indicate as to who was the person(s), who told him that the vehicle was being driven by Nishant Thakur. After the registration of the case, on the basis of the report of the Assistant Sub- Inspector, investigation was conducted, and final report was submitted by the S.H.O. of the concerned Police Station. Copy of that report is Annexure R-2. As per this report, vehicle was being driven not by Nishant Thakur, but by Nishant Bhardwaj, who died in the accident and, therefore, the S.H.O. recommended closure of the case.
7. Now, when the person, who lodged the F.I.R., was not a witness to the occurrence of the accident and he named the driver, on the basis of some inquiry made by him, and he did not indicate as to who had told him on the spot that the vehicle was being driven by Nishant Thakur, no reliance can be placed upon the contents of the F.I.R. by the appellants in 4 ICICI Lombard General Insurance Company Ltd. & Anr. Vs. Sanjay Dharmaik support of their plea that the vehicle was being driven by Nishant Thakur. This is especially so when the police after conducting investigation reported to the Judicial Magistrate, vide report, Annexure R-2, that the vehicle was being driven by Nishant Bhardwaj. It is not in dispute that Nishant Bhardwaj possessed a valid and effective driving licence to drive the vehicle.
8. Vehicle was insured in the sum of `3,33,247/- as per certificate-cum-policy schedule, Annexure R-5. According to the respondent-complainant, it was a case of total loss. He submitted estimate prepared by Laxmi Hyundai, Solan, per which a sum of `3,53,247/- was estimated to be the cost of repair/replacement of damaged parts. Loss was not got assessed by the appellants. Their plea is that the respondent- complainant did not cooperate with the surveyor and because of that, loss assessment could not be carried out. May be, what the appellants say, is true, but the fact remains that the spot surveyor deputed by the appellants reported, vide Annexure R-6, that the vehicle was extensively damaged. He reported that apparently the following parts of the vehicle were badly damaged:-
"1. Both Bumpers broken. Rail Front Bumper crushed.
2. Radiator Grill broken. Fender linings broken.
3. All light assemblies dislodged and broken. 5 ICICI Lombard General Insurance Company Ltd. & Anr. Vs. Sanjay Dharmaik
4. Radiator/A.C. Condenser assembly crushed.
5. Except rear RH & Rear LH door window glasses, all other window glasses broken.
6. Front Cross member crippled.
7. Rear View mirrors broken.
8. Front suspension arms bent.
9. RH side wheel rims bent/dented.
10. Battery dislodged & broken into pieces.
11. Coolant bottle broken. Washer bottle broken.
12. Panel Instrument broken.
13. Roof moulding wrinkled.
14. BODY SHELL:
BARE BODY SHELL badly dented/pressed/damaged. RH & LH Fenders crushed. Bonnet crushed.
Ft. LH door assy. crushed. Ft. RH door assy. crushed. Rear RH & LH door panels dented/buckled. Back door assy. crushed.
15. Wipers damaged."
9. The detail of the damaged parts of the vehicle reproduced hereinabove, shows that the estimate, Annexure R-9, submitted by the respondent- complainant to the appellants may not be exaggerated. As per this estimate, money required for bringing the vehicle to its original shape was more than the cost of 6 ICICI Lombard General Insurance Company Ltd. & Anr. Vs. Sanjay Dharmaik the vehicle, i.e. `3,33,247/-, for which sum the vehicle was insured.
10. Learned Distinct Forum, vide impugned order, has awarded a sum of `2,15,779.98, against the estimate of `3,53,247/-. This amount of money cannot be said to be on the higher side by any means.
11. As a result of the above stated position, appeal is dismissed.
12. A copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Prem Chauhan) Member May 08, 2014.
DC Dhiman) 7