State Consumer Disputes Redressal Commission
Arun Soni vs National Insurance Company Ltd on 21 August, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 272 of 2012 Date of Institution : 02.08.2012 Date of Decision : 21.08.2012 Arun Soni son of Shri Suresh Kumar, presently residing at House No.2370, Vikas Nagar, Mauli Jagran, Chandigarh, earlier residing at 339, Mauli Jagran, Chandigarh. Appellant V e r s u s National Insurance Company Ltd., through its Senior Divisional Manager, Division Office-1, SCO NO.133-135, Second Floor, Sector 17-C, Chandigarh. ....Respondent Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Kapil Kumar Bhardwaj, Advocate for the appellant.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT
1. This appeal is directed against the order dated 30.05.2012, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint filed by the complainant (now appellant).
2. The facts, in brief, are that the complainant was the owner of a second hand Maruti Van, which he had got insured, from the Opposite Party, at the Insured Declared Value of Rs.1,15,000/-, for the period from 30.09.2008 to 29.09.2009. According to the complainant, on 27.08.2009, while he was coming back from Gurdwara Haripur Sahib, suddenly a vehicle came in front of the Maruti Van, being driven by him, and the same fell into a gorge, due to which, it was badly damaged. It was stated that the complainant sustained some minor injuries. DDR-Annexure A-5, was lodged in Police Station Barotiwala (H.P). It was further stated that the complainant took photographs (Annex. A-6) of the accident. Thereafter, the complainant, himself, hired a crane, to pull out the damaged van, out of the gorge, and towed it to his residence. Subsequently, he approached M/s Lall Autos, 339, Industrial Area, Phase-I, Panchkula (Haryana), for repair of his vehicle, and estimate of Rs.1,83,560/- was prepared by them. Thereafter, the complainant visited the office of the Opposite Party, many a time, for settlement of his claim. It was further stated that it was only after a number of requests, made by the complainant, that Squadron Leader- Gulzar Singh (Retd.), Surveyor-cum-Loss Assessor and Investigator, was appointed to assess damage to the vehicle, in the month of September, 2009. The Surveyor-cum -Loss Assessor and Investigator, inspected the vehicle, and the complainant provided all the documents, demanded by him. However, no intimation, regarding the settlement of claim was given to the complainant. Thereafter, Mr. N.K. Sehgal, Investigator, was appointed by the Opposite Party, to assess damage to the vehicle. He was also supplied all the documents, by the complainant, but the claim remained unsettled. Thereafter, a legal notice dated 19.07.2010 (infact 07.07.2010, and delivered on 19.07.2010), was issued to the Opposite Party, for the settlement of claim, but to no avail. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), seeking indemnification of loss, to the tune of Rs.1,83,560/-; Rs.50,000/-, on account of conveyance charges paid by him, for conveyance; compensation to the tune of Rs.2 lacs, for mental agony and physical harassment; Rs.4,000/- paid towards towing charges; and Rs.7,700/-, as cost of litigation, was filed.
3. The Opposite Party, in its written version, took up the preliminary objection, that the complainant was not a consumer qua it. It was pleaded that the vehicle was being driven, in gross violation of the terms & conditions of the Policy. It was admitted that after purchase of the vehicle, by the complainant, the Registration Certificate and the Policy were transferred, in his name, before the alleged accident. It was stated that the complainant did not extend cooperation, to the Opposite Party, and its Surveyor and Investigator, as per the terms and conditions of the Policy. It was further stated that the claim of the complainant was fraudulent. It was further stated that the alleged accident was a stage managed affair, on the part of the complainant. It was further stated that the complainant, himself, threw the vehicle, in the gorge, so as to get rid of the same, with a view to get claim, from the Opposite Party. It was further stated that the contract of Insurance, is based on utmost good faith, but the accident being a stage managed affair, and, as such, the complainant having played fraud, upon the Opposite Party, was not entitled to any claim. It was further stated that Mr. N.K. Sehgal, the second Fact Finder Investigator, came to the conclusion, that no accident took place, in the manner, set up by the complainant, but it was a manipulated affair. It was further stated, that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The Parties led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above.
6. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
7. We have heard the Counsel for the appellant, and, have gone through the evidence and record of the case, carefully.
8. The Counsel for the appellant, submitted that the entire sequence of events, in which the accident took place, was narrated by the complainant, in the complaint, which was duly proved through his affidavit. He further submitted that, even, the complainant cooperated with the Opposite Party, as also their Investigator and Surveyor. He further submitted that even all the documents were supplied to the Opposite Party, as also its Surveyor and Fact Finder Investigator, as and when demanded. He further submitted that the vehicle was being driven at a speed of 20-25 kms per hour, by the complainant, when all of a sudden, another vehicle from the opposite side came, and the high beam lights thereof, fell into his eyes, as a result whereof, he jumped out of the same, and the said vehicle fell into the gorge. He further submitted that the complainant had a miraculous escape. He further submitted that the case, set up by the complainant, therefore, could not be said to be based on fraud. He further submitted that, by not settling the genuine claim of the complainant, the Opposite Party, was deficient, in rendering service. He further submitted that the District Forum, fell into a grave error, in holding that the claim of the complainant, being fraudulent, and, as such, he was not entitled to the indemnification of any loss. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
9. There is, no dispute, about the factum, that it was the second hand vehicle, which was purchased by the complainant. The Registration Certificate and the Insurance Policy of the same, had been transferred, in his name. It was got insured by the complainant, from the Opposite Party, for the Insured Declared Value of Rs.1,15,000/-, for the period from 30.09.2008 to 29.09.2009. The first question, that arises for consideration, is, as to whether, any accident, in the manner depicted, by the complainant, in the complaint, took place, or it was only a stage managed affair, on his part, to claim the compensation. According to the version set up by the complainant, in the complaint, when he had been coming back on 27.08.2009, from Haripur, by driving the said Maruti Van, suddenly a vehicle from the opposite side came, and it (Maruti Van) fell into a Ditch (Khai), and was badly damaged. According to the complainant, he also sustained some minor injuries in the accident. However, in the DDR at page 221 of the District Forum file, it was stated by him, that he was coming in the Maruti Van aforesaid, when all of a sudden, a jeep came from the opposite side, as a result whereof, his vehicle became imbalanced, overturned towards the left side, and fell into a gorge. He, in clear-cut terms, stated in the DDR, that neither he, nor any other person, received any injury, in the said accident. Had he received injuries, as stated above, by him, in his complaint, he would have certainly mentioned this fact in the DDR. It is also not believable, that, in case, the accident had taken place, in the mode and manner, depicted by the complainant, in the DDR, he would not have sustained serious injuries. Not only this, the averments, made by the complainant, in the complaint, did not find support, from any evidence, as he only submitted a short affidavit, by way of evidence, in support of the averments, contained in the complaint. The short affidavit, does not constitute the legally admissible evidence, which could be read to prove the averments, contained in the complaint. The allegations, contained in the complaint, therefore, only remained allegations, without substantiation, through any cogent and convincing evidence, produced by the complainant. Thus, the complainant failed to prove the mode and manner, in which the alleged accident took place.
10. Not only this, the case set up by the complainant, before Squadron Leader- Gulzar Singh (Retd.), Surveyor-cum-Loss Assessor and the Investigator, as per his report Annexure OP-R/2, and as per the claim form he was coming back after paying obeisance at 10.00 p.m., on 27.08.2009, at the speed of 20-25 kms per hour. It was further stated by him that the high beam lights of the vehicle, coming from the opposite side, fell into his eyes, and it (Maruti Van) got overturned there, as a result whereof, it fell into (rolled) in a deep gorge. It is further evident, from Annexure OP-R/2, the report aforesaid, that the complainant also told the Surveyor that he jumped from the vehicle, when it was being driven at the speed of 25-30 kms per hour, and he did not get even a scratch of injury on his body. From the version, which was set up the complainant, before the Surveyor-cum-Loss Assessor and Investigator aforesaid, it was proved, that it was only a stage managed affair, on his part. How, it was possible, that if a person jumps outside, from a vehicle, being driven by him, at the speed of 25-30 kms per hour, he would not sustain serious injuries. No prudent person, could believe the version set up by the complainant, that he jumped from the vehicle, towards the left side, knowing fully well that another vehicle was coming from the opposite side, so as to invite his death. The version set up the complainant before Squadron Leader- Gulzar Singh (Retd.), Surveyor-cum-Loss Assessor, does not appeal to reason. The complainant, thus, set up a concocted and fraudulent version before Squadron Leader- Gulzar Singh (Retd.), Surveyor-cum-Loss Assessor, with the sole motive of getting claim.
11. Not only this, since the accident appeared to be a highly suspicious to the Opposite Party, it appointed Mr. N.K. Sehgal, Surveyor cum Fact Finder Investigator, who joined the complainant, during the course of spot visit. The version, which was given by the complainant to Mr. N.K. Sehgal is as under:-
On 27.08.2009 at about 9.00 a.m., I took this vehicle alone to pay obeisance at Baba Haripur Gurdwara near Surajpur. I was all alone and there was no body else with me in the vehicle. At about 9/30 p.m., I started back from Gurdwara Sahib and on the way near Surajpur at about 10/15 p.m., it started drizzling. In the meantime a Jeep came from opposite side and its full beam light fell on my eyes and hence I steered my vehicle towards left but suddenly the vehicle went off the road and fell down but before the vehicle slipped I could open the door and jumped outside. At that time my vehicle was running at a speed of 20-30 kms/P.H. I had not put on the safety belt at that time and the vehicle fell about 40/50 ft. below. I suffered minor injury while fell on road from the car and there was no need of any treatment for that. After about 30-40 minutes of the accident, I went to a Nursery and met a person there and enquired for a Telephone and nearby Police Post. He informed me that there is a Forest barrier nearby and we both went there and informed about the accident to my home and Police. At about 12 `O` clock midnight, the police reached the spot and checked the fallen vehicle with the help of their torch, and asked me to go and come back next day morning for lodging report at Policy Station
12. Thereafter, Mr. N.K. Sehgal, Surveyor-cum-Fact Finder Investigator, who visited the spot, recorded his own findings, as under:-
Visit to Spot:- On receiving confirmation from the insured for visiting the spot of accident, fixed for 27 Jan. 2010, I picked up the insured from near Baltana and visited the spot of accident accompanied with the insured and reached near a mile stone before Village Surajpur. The insured located the spot about 5 kms, from Bharotiwala and near Miles-stone, 2 kms before Village Surajpur. I arranged photographs of the spot on the main road and down the hill in gorge where the vehicle allegedly fell on meeting the mishap. I also found the Windscreen broken prices and also the windscreen rubber gasket etc. lying there & took photographs.
On close scrutiny of the site of accident it was observed that the main road coming from Village Haripur side towards Bharotiwala, where the vehicle said to have been driven by the owner Mr. Arun Soni was quite wide and there is no blind turn etc. very close to the site and not only two vehicles but even there is a scope of overtaking of a vehicle atleast from anyone side at any point of time and by no stretchy of imagination, any prudent driver who happens to drive in normal speed, could take the risk of any such situation of coming on his extreme left especially when he know that there are big gorges very deep on his side. Moreover the version of the insured/Driver seems suspicious, when he says that he was running his car at a speed about 25-30 kms and on finding the high beam of opposite coming vehicle steered his vehicle on extreme left (which was not required as the road is quite wide) cannot be believed and also it is surprising to note that he attempted to jump out of vehicle to escape on the speed of 25-30 kms and still he was unhurt and did not suffer any injury. Moreover he has obtained his D/L only in the year 2008 and in one year such a experience of jumping out from vehicle at 25-30 km speed is unbelievable.
13. From the afore-extracted version given by the complainant, to Mr. N.K. Sehgal, Surveyor-cum-Fact Finder Investigator, and the findings recorded by him, after visiting the spot, it is clearly proved, that the alleged accident did not take place, in the manner, in which it was depicted, by the complainant, in the complaint, but it was a stage managed affair, replete with fraudulent design, with a view to get the claim. The Surveyor-cum-Fact Finder Investigator, is an independent person. The report Annexure OP-R/5, given by him, operative part wherefrom, has been extracted above, cannot be disbelieved, without any rhyme or reason. The report Annexure OP-R/5 of the Investigator being based on the correct analysis of the version, set up by the complainant, and the findings of spot visit is reliable. The report of the Investigator, thus, being an important piece of document, was rightly believed by the District Fora. The alleged accident, being a stage managed affair, on the part of the complainant, to get the claim, was rightly disbelieved by the District Forum. The findings of the District Forum, in this regard, being correct, are affirmed.
14. The Counsel for the appellant, however, placed reliance on New India Assurance Co. Ltd. Vs. Pradeep Kumar, IV (2009) CPJ 46 (SC), to contend that the report of the Surveyor is not the last and final word, and it may be a basis for settlement of claim, but neither binding upon the insurer nor the insured. There is, no dispute, with regard to the preposition of law, laid down in New India Assurance Co. Ltd.`s case (supra). However, it may be stated here, that if the report of the Surveyor cum Fact Finder Investigator, is based on cogent material, and data, as also the spot visit, then, by no stretch of imagination, the same can be disbelieved. In the instant case, as stated above, only short affidavit, in support of the averments, contained in the complaint, was submitted by the complainant, by way of evidence, which could not be read into evidence, nor that can be said to be sufficient, to prove the averments, contained in the complaint. In these circumstances, the Fora was required to arrive at the conclusion, on the basis of the report of the Surveyor cum Fact Finder Investigator, and other documents, placed, on the record. Had the complainant produced any other cogent and convincing evidence, to prove the falsity of report of the Surveyor cum Fact Finder Investigator, the matter would have been different. In the instant case, no such cogent and convincing evidence was produced by the complainant.
The report of Mr. N.K. Sehgal, was, thus, rightly relied upon by the District Forum.
15. Not only this, even intimation to the Insurance Company, with regard to the alleged accident, was given by the complainant, on 07.09.2009, as is evident from Annexure OP R/5, whereas, the same took place on 27.08.2009. It means that intimation was given by the complainant, to the Opposite Party, with regard to the alleged accident, after 11 days of the happening of the same. Why, he did not intimate the Opposite Party, immediately, is not known. In the complaint, it was nowhere stated by the complainant, as to on which date, he gave the intimation of the alleged accident, to the Opposite Party. Even in the legal notice Annexure A-14, which was sent by him, on 07.07.2010, he did not state, as to on which date, he intimated with regard to the accident, to the Opposite Party. Under these circumstances, the date of intimation as 07.09.2009, by the complainant, vide letter, as mentioned in Annexure OP-R/5, is required to be taken as correct. Why he slept over the matter, for 11 days, is not known. It appears, that he did not intimate the Insurance Company, with regard to the accident for about 11 days, just with a view to cover up his lapse, and to coin a false story, regarding the mode and manner, in which the alleged accident took place. Had the accident taken place, in the mode and manner, as depicted by the complainant, in the complaint, he would have been the first person to intimate the Insurance Company, immediately, after the same had taken place, and would not have slept over the matter for 11 days. When he was successful, in coining the story, which was depicted, in the complaint, ultimately, he informed the Opposite Party, and, thereafter, the Surveyors were appointed, and investigation was conducted. Delay of 11 days in informing the Opposite Party, with regard to the accident, also made the case of complainant, a highly suspicious and fraudulent affair. No explanation was given by the complainant, in this regard.
16. The District Forum was, thus, right in coming to the conclusion, that since it was a stage managed affair, replete with fraud, the contract of Insurance stood vitiated. The District Forum was also right, in holding that the Opposite Party was not liable to pay the fraudulent claim, lodged by the complainant. The District Forum, was also right, in holding that the Opposite Party was neither deficient, in rendering service, nor indulged into unfair trade practice. The findings of the District Forum, in this regard, being correct, are affirmed.
17. No other point, was urged, by the Counsel for the appellant.
18. The order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
19. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
20. Certified Copies of this order, be sent to the parties, free of charge.
21. The file be consigned to Record Room, after completion Pronounced.
August 21, 2012 Sd/-
[JUSTICE SHAM SUNDER(RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg