State Consumer Disputes Redressal Commission
S.N.Dubey vs The Oriental Insu.Co. on 3 January, 2019
M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PLOT NO. 76, ARERA HILLS, BHOPAL (M.P.)
FIRST APPEAL No. 2210 /2013.
S. N. Dubey,
s/o Shri Parasnath Dubey,
R/o Jagdish Colony,
Guna (M.P.). .... APPELLANT
VERSUS.
The Oriental Insurance Company Ltd.,
A.B. Road, Guna (M.P.). .... RESPONDENT.
BEFORE:
HON'BLE SHRI JUSTICE SHANTANU S. KEMKAR, PRESIDENT
HON'BLE SHRI S. D. AGARWAL, MEMBER
HON'BLE DR. (SMT) MONIKA MALIK, MEMBER
COUNSEL APPEARING FOR THE PARTIES :
SHRI S. K. SAXENA, LEARNED COUNSEL FOR APPELLANT.
SHRI RAVINDRA TIWARI, LEARNED COUNSEL FOR RESPONDENT.
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ORDER
(Passed on 3 /1/2019) The following order of the Commission was delivered by Shantanu S. Kemkar, J :
This appeal under Section 15 of the Consumer Protection Act, 1986 ( for short the "Act") is directed against the order dated 18.9.2013 passed by the District Consumer Disputes Redressal Forum, Guna (for short the 'Forum') whereby the Forum has dismissed the complaint filed by the appellant.
2. Brief facts necessary for disposal of this appeal are that the complainant had approached to the Forum by filing the complaint alleging therein that on 10 th February, 2011 his son, who was driving Indica car owned by the complainant bearing registration No. MP 08 CA 1147. In the said car along with him his friend Mona alias Gaurav Jain and Pradeep Dhakad were also traveling. Mona alias Gaurav Jain was sitting in the front seat whereas Pradeep Dhakad was sitting in the rear seat. The said car met with an accident with a truck bearing registration No. RJ 19 G 2562. In the accident all the three passengers suffered injuries whereas his son Gaurav Dubey and Mona alias Gaurav Jain succumbed to the injuries suffered by them. It has been stated that as the said car was insured with the respondent - Oriental Insurance Company a claim for -3- compensation for the damages caused to the car to the extent of Rs.4,80,000/- was lodged. However, the appellant's claim was repudiated by the respondent on the ground that in the claim form name of the driver has been mentioned as Gaurav Dubey whereas in the police record the name of the driver was recorded as Pradeep Dhakad who was not having valid driving licence and as such there was breach of policy condition. Aggrieved by the repudiation of his claim the appellant had approached the Forum as aforesaid.
3. Before the Forum, in support of his claim the appellant had filed affidavits dated 21.10.2011 of Pradeep Dhakad and Ramswarup Dhakad stating therein that in fact the car was being driven by Gaurav Dubey and not by Pradeep Dhakad as has been recorded by the police in their case diary statement.
4. The respondent contested the claim and stated that the car was not being driven by deceased Gaurav Dubey, but was being driven by Pradeep Dhakad. In support of the stand the respondent has placed on record the statement of Pradeep Dhakad, Ex. R- 2, Ramswarup Dhakad Ex. R-3A and Leelam Singh, Ex. R - 3, recorded by the police on 10.2.2011 stating therein that the car was being driven by Pradeep Dhakad.
5. The Forum after considering the evidence led by the parties dismissed the complaint holding that the appellant - claimant had failed to prove -4- that the car was being driven by Gaurav Dubey. It also held that as per the condition of the policy, Ex. R - 1, the insured car should be driven by a person holding valid driving licence and that the claimant having failed to prove that at the time of accident the driver of the car was holding valid driving licence. The Forum also held that the claimant has failed to produce the driving licence either of Pradeep Dhakad or of deceased Gaurav Dubey. Therefore, the relief claimed in the complaint cannot be granted. Feeling aggrieved by this order passed by the Forum the appellant has filed this appeal.
6. Learned counsel for the appellant has argued that the Forum has committed error in ignoring the affidavit, Ex. C - 7 of Pradeep and the affidavit, Ex. C-9 of Ramswarup Dhakad dated 21.10.2011 both of them stating therein that Pradeep Dhakad was not driving the car and that they had not given any statement to the police that the car was being driven by Pradeep Dhakad. On the contrary they stated before the Police that the said car was being driven by deceased Gaurav Dubey. In the circumstances, according to learned counsel for the appellant the impugned order is liable to be set- aside.
7. On the other hand learned counsel for the respondent has supported the impugned order. He submits that the Forum has rightly discarded the said affidavits as they were contrary to the police record of the incident and that they were filed after more than eight months from the date of incident only to support the false claim of the claimant
- appellant.
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8. We have considered the rival contentions and perused record.
9. On going through the evidence on record we find that the appellant - claimant has not filed the driving licence either of Pradeep Dhakad or of Gaurav Dubey. It is also borne out from the record that immediately after the accident the police recorded the statement of Pradeep Dhakad, Ramswarup Dhakad and Neelam Singh on 10.2.2011. All the three eye witnesses of the incident including Pradeep Dhakad had stated that it was Pradeep Dhakad, who was drivig the said Indica Car. Pradeep Dhakad had categorically stated that Gaurav Dubey deceased was sitting in the back seat of the car. After about eight months of the incident he and Ramswarup filed affidavit stating therein that the car was being driven by Gaurav Dubey and not by Pradeep Dhakad. Interestingly no such affidavit of Neelam Singh has been filed. In the affidavit dated 21.10.2011 neither Pradeep Dhakad nor Ramswarup Dhakad have made any statements as to why in their statements the police has recorded that it was Pradeep Dhakad, who was driving the car. In the affidavits they merely stated that they had not given any such statement to the police. In the F.R. submitted by the police also there is a mention as stated by the respondent in their reply that the car was being driven by Gaurav Dubey. There is no denial to this fact on the part of the appellant - complainant. In these circumstances when there was over whelming evidence to the effect that the car was being driven by Pradeed -6- Dhakad and not by Gaurav Dubey in our considered view the finding recorded by the Forum on the basis of the said evidence by discarding the affidavits which in our considered view is after thought attempt to illegally help the claimant, has rightly been discarded by the Forum.
10. As a result no case for interference is made out. The appeal fails and is hereby dismissed.
(JusticeShantanu S. Kemkar) (S.D.Agarwal) (Dr.MonikaMalik)
PRESIDENT MEMBER MEMBER
Phadke