State Consumer Disputes Redressal Commission
Bharti Axa General Insurance Company ... vs Satnam Singh on 4 November, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1038 of 2013
Date of institution: 30.9.2013
Date of Decision: 4.11.2015
Bharti Axa General Insurance Company Limited, having its Branch Office
at Ranjit Avenue, Amritsar, through its Authorised Signatory / Duty
Constituted Attorney Mr. Amit Chawla, available at SCO 350-352, First
Floor, Sector 34, Chandigarh.
Appellant/OP No.1
Versus
1. Satnam Singh son of Late S. Hazara Singh, R/o House No. 647-48,
Tungpal, Batala Road, Amritsar.
Respondent No.1/Complainant
2. Punjab & Sind Bank, Branch Court Road, Amritsar, through its
Branch Manager.
Respondent No.2/OP No.2
First Appeal against the order dated 6.8.2013
passed by the District Consumer Disputes
Redressal Forum, Amritsar.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. Sanjeev Goyal, Advocate
For respondent No.1 : Sh. A.P. Sandhu, Advocate
For respondent No.2 : Sh. C.S. Sidhu, Advocate
First Appeal No. 1038 of 2013 2
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/OP No.1(hereinafter referred as "OP No.1") has filed the present appeal against the order dated 6.8.2013 passed by the District Consumer Disputes Redressal Forum, Amritsar(hereinafter referred as the District Forum) in consumer complaint No.1082 dated 7.12.2011 vide which the complaint filed by respondent No.1/complainant(hereinafter referred as complainant) was allowed with the direction to Op to pay to complainant a sum of Rs. 14,63,720/-, subject to the condition that salvage of the damaged car shall be deposited by complainant with Op within a period of one month from the date of receipt of the order. Op was directed to make the payment within 2 months from the date of receipt of the salvage, failing which complainant will be entitled to interest @ 9% p.a. on the insured amount from the date of filing of the complaint till payment. Op was further directed to pay Rs. 2,000/- as cost of litigation.
2. Complainant filed complaint under the Consumer Protection Act, 1986 (in short 'the Act') against Ops on the averments that after purchasing his vehicle Sakoda Laura Elegance MT-2-0 bearing registration No. PB-02-BM-8681 from M/s Krishan Auto Sales, G.T. Road, Amritsar for a sum of Rs. 15,40,758/-, the said vehicle was got insured with Op through aforesaid Dealer vide Policy No. 103572275 on 10.9.2010 valid from 10.9.2010 to 9.9.2011. During the validity period of the said insurance, the vehicle met with an accident on 25.2.2011 near Majitha-Verka Byepass, Amritsar when it was being driven by son of complainant. The vehicle was First Appeal No. 1038 of 2013 3 badly damaged and was taken to the Authorized Service Station i.e. M/s Krishna Auto Sales on the same day. The said service station after checking told complainant that it was totally damaged and was not repairable. The claim was submitted to OP No. 1 alongwith all the requisite documents. They deputed a Surveyor, who conducted the spot inquiry as well as the damage to the vehicle. Complainant approached OP No. 1 several times and requested to settle his claim, however, OP No. 1 vide letter dated 26.8.2011 alleged that the accident had taken place on 21.3.2011 and not on 25.3.2011 and as on 21.3.2011, the vehicle was not having valid registration certificate, violating the provisions of the Motor Vehicles Act and accordingly, they repudiated the claim. Repudiation of the claim on that ground was totally illegal as the accident had taken place on 25.3.2011 and the vehicle was got registered on 23.3.2011. Repudiation of the claim of complainant amounted to deficiency in services on the part of OP No. 1. Hence, the complaint with a direction to Op to pay the sum insured alongwith interest @ 18% p.a. and also pay cost to the tune of Rs. 15,000/-.
3. The complaint was contested by Ops. OP No. 1 in its written version took the preliminary objections that complainant had concealed the material facts from the Forum; the vehicle had not met with an accident on 25.3.2011 actually accident took place on 21.3.2011. Since no registration certification was with complainant, he submitted the documents got the registration and showed that the accident had taken place on 25.3.2011. When the claim was lodged with Ops they appointed the investigator and investigator in his First Appeal No. 1038 of 2013 4 investigation also found that actually on 21.3.2011, the vehicle of complainant and other car Honda City bearing No. PB-02-BH-0092 met with an accident with an electric pole and DDR No. 21 dated 31.3.2011 was lodged by complainant with P.P. Majitha in which it was specifically mentioned that the car of complainant and another Honda City car met with an accident on 21.3.2011. The said Honda City was insured with Iffco Tokio Ins. Co. and they had lodged the claim No. ITG/82011578/003240 and the vehicle was got repaired from Honda City Service Station and there the date of loss of accident was mentioned as 21.3.2011. The claim was rightly dismissed on account of misleading Op by stating wrong date of accident by filing wrong affidavit and violation of Section 39 of the Motor Vehicle Act; complainant was stopped by his act and conduct to file the complaint and that complainant had no locus-standi to file the complaint. On merits, issuance of the policy in favour of the complaint was admitted. It was specifically denied that the insured vehicle had met with an accident on 25.3.2011 near Majitha Verka Byepass, Amritsar in fact the accident had taken place on 21.3.2011. This fact was concealed due to the fact that the vehicle was got registered on 23.3.2011 and then the vehicle was taken to Krishna Auto on 25.3.2011 alleging that the accident had taken place on 25.3.2011. Other facts as stated in the preliminary objections were reiterated. The claim was rightly repudiated by Ops on the basis of concealment of fact, filing false report and filing false affidavit and that on the date of accident, the vehicle was not registered and complainant violated Section 39 of the Motor Vehicles Act. The claim First Appeal No. 1038 of 2013 5 was not payable, it was rightly repudiated. There was no merit in the complaint. It be dismissed.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, complainant had tendered into evidence his affidavits Exs. C-1 & 2, cover note Ex. C-3, invoice Ex. C-4, receipt /challan Ex. C-5, RC Ex. C-6, certificate Ex. C-7, repudiation letter Ex. C-8, receipt Ex. C-9. On the other hand, Op had tendered into evidence affidavit of Deepa Chacko, Area Manager Ex. R-1, challan Ex. R-2, customer invoice Ex. R-3, sale certificate Ex. R- 4, RC Ex. R-5, final survey report Ex. R-6, investigation report Ex. R- 7, statements Exs. R-8&9, application Ex. R-10, statement Ex. R-11, DDR Ex. R-12, claim form Ex. R-13 and affidavit of Er. Rohit Kapoor Ex. R-14.
6. Aggrieved with the order passed by the learned District Forum, the appellant/OP has filed the present appeal.
7. We have heard the learned counsel for the parties.
8. Now it has been argued by the counsel for the appellant/OP that the District Forum has not properly appreciated the entire evidence on the record. In fact the documents suggest that the accident had taken place on 21.3.2011 but he had shown it to have occurred on 25.3.2011. DDR was got registered at the instance of complainant in which date was mentioned as 21.3.2011 and the vehicle Skoda has been mentioned. The District Forum did not believe that merely because it is Photostat copy otherwise it has not been denied by complainant that he did not got recorded this DDR. First Appeal No. 1038 of 2013 6 So far as the vehicle number concerned initially it was left blank and lateron its number was entered. All has been done because of the fact that as on the date of accident, the vehicle was not got registered and complainant had violated Section 39 of the Motor Vehicles Act. Since the claim was not payable, he got it registered on 23.3.2011 and then concocted a story that the accident had taken place on 25.3.2011; Investigator appointed by the Company also observed so. The report of the Investigator cannot be disbelieved. The order so passed by the District Forum is against the evidence on the record, therefore, it is liable to be set-aside.
9. To verify whether the District Forum has properly appreciated the evidence on the record, we have to go through the evidence produced by the parties on the record. Ex. C-1 is the affidavit of complainant, it is as per his averments in the complaint. Ex. C-2 is supplementary statement. Ex. C-3 is the copy of the cover note, Ex. C-4 is proforma invoice for purchase of the vehicle, Ex. C-5 is the challan form vide which complainant deposited the money for registration in the office of DTO, Amritsar on 23.3.2011 and Ex. C-6 is registration certificate issued by the Service Manager of Krishna Auto Sales, Ex. C-8 is the repudiation letter, Ex. C-9 is the receipt dated 4.4.2011 vide which Krishna Auto Sales received a sum of Rs. 10,000/- as estimate charges. On the other hand, there is affidavit of Mr. Deepa Chacko, Area Manager(Claims) of OP No. 1 Ex. R-1. His affidavit is on the lines stated on the written reply. Ex. R-2 is the challan receipt of the DTO Office. Ex. R-3 is customer invoice. Ex. R- 4 is sale certificate, Ex. R-5 is registration certificate, Ex. R-6 is final First Appeal No. 1038 of 2013 7 survey report, Ex. R-7 is investigation report. Ex. R-8 is affidavit filed by son of complainant that accident had taken place on 25.3.2011. Ex. R-9 is the affidavit by complainant on the same lines as filed by his son. Ex. R-10 is the application given by complainant on 21.3.2011 addressed to the Police and Ex. R-11 is the statement of complainant Satnam Singh recorded on 31.3.2011 and Ex. R-12 is the DDR. Ex. R-13 is the claim form.
10. The question in controversy is whether the insured vehicle of complainant i.e. Skoda Laura Elegance MT-2-0 having chassis No. 154110, engine No. 003382 lateron having registration No. PB-02-BM-8681 had met with an accident on 21.3.2011 or 25.3.2011. For that the application Ex. R-10 is relevant, which was submitted by complainant Satnam Singh on 21.3.2011. That it met with an accident near Majitha Verka Byepass, Near Grewal Farm House, Amritsar when three wheeler tried to overtake and to save him, he took a turn and the vehicle struck against the pole and from behind one Honda City Car bearing No. PB-02-BH-0092. Then there is statement of Satnam Singh recorded by the Incharge P.P. Majitha on 31.3.2011 in which he again reiterated the stand that the accident of Skoda taken place on 21.3.2011 near Grewal Palace, accordingly, DDR Ex. R-12 was recorded. In case no accident had taken place on 21.3.2011 and that the accident had taken place on 25.3.2011 then what were the reasons that an application was filed by complainant on 21.3.2011. During the course of arguments, the counsel for respondent No.1/complainant stated that on that day his another vehicle which met with an accident. But there is no averment in the First Appeal No. 1038 of 2013 8 complaint that another vehicle of complainant had met with an accident on 21.3.2011. Even after filing the written reply by Ops in which they had taken a specific stand that in fact the accident had taken place on 21.3.2011 and a wrong plea was taken by complainant that accident had taken place on 25.3.2011 then complainant was required to rebut this fact in his affidavit. His affidavit is Ex. C-1 in which it has been simply stated that the accident had taken place on 25.3.2011 and even in the additional affidavit Ex. C-2, it has not been referred whether any other vehicle of complainant had met with an accident on 21.3.2011, therefore, any oral arguments without referring it in the pleadings or affidavit cannot be entertained. In these circumstances, the counsel for complainant was unable to explain that in case accident had taken place on 25.3.2011 what were the reasons for him to move a complaint to the Police on 21.3.2011. Even in his statement recorded before the Police, the date is same in Ex. R-11 and in DDR Ex. R-12. Then there is a report of the Investigator, he in his report Ex. R-7 has referred that as per the DDR, it was mentioned that when his car hit with a pole from back side a Honda City car bearing No. PB-02-BH-0092 had struck against him. It was insured with Iffco Tokio General Insurance through Honda Assure Policy vide Policy No. ITG/82011578 met with an accident on 21.3.2011 and its claim was worked out vide claim No. ITG/82011578/003240. Normally, the report of Surveyor/Investigator should be believed until contrary is proved by the other party. In case a specific findings have been given by the Investigator that in that accident, the vehicle Honda City bearing No. PB-02-BH-0092 was First Appeal No. 1038 of 2013 9 involved and he had raised the claim for accident taken place on 21.3.2011, again this fact has not been rebutted by complainant. In these circumstances, the report of the Investigator can also be relied upon.
11. The District Forum in its order has observed that only Photostat copies were placed on the record, therefore, these cannot be believed and has not been proved on the record. It is pertinent to mention here that the proceedings before the Consumer Fora are summary in nature and provisions of the Evidence Act are not applicable. Even if these were Photostat copies but atleast complainant should deny that fact specifically taken in the written version. Complainant in his own statement Ex. C-1 has not denied these facts. In case the facts as alleged in the written version have not been denied, these can be relied upon even if these are photostat copies. The factum of accident took place on 21.3.2011 has been corroborated by the Investigator and against report of the Investigator, complainant has not placed on the record any evidence rebutting the report of the Investigator. The reasons to change the date of accident is obvious because on 21.3.2011 the vehicle of complainant was not registered. Although he had purchased the vehicle on 1.9.2010 i.e. performa invoice Ex. C-4 from Krishna Auto Sales, it was required to be got registered within a period of 30 days as per provisions of Section 39 of the Motor Vehicles Act but as per challan form Ex. C-5, the payment was deposited for registration on 23.3.2011. It seems that he got deposited this payment to get the registration for obvious reasons that in case his vehicle is not First Appeal No. 1038 of 2013 10 registered then his claim may not be maintainable, therefore, there is reason for complainant to change the date of accident.
12. The District Forum has further given the observation that even if the vehicle was not registered, in view of the judgment of the Hon'ble National Commission in Revision Petition No. 171 of 2012 decided on 27.4.2012 "IFFCO TOKIO General Ins. Co. Ltd. Vs. Pratima Jha" that insurance company is not entitled to repudiate the claim merely on the ground that the vehicle was not registered and the same view was affirmed in an another judgment "Oriental Insurance Company Limited versus Swami Devi Dayal Hi Tech Education Academy" in Revision Petition No. 497 of 2012 decided on 14.2.2012 but this position of the law is not correct. There is latest judgment of the Hon'ble Supreme Court passed in Civil Appeal No. 8463 of 2014 "Narinder Singh versus New India Assurance Company Ltd. and others" decided on 4.9.2014 wherein in para No. 14, the Hon'ble Apex Court observed as under:-
"14. Indisputably, a temporary registration was granted in respect of the vehicle in question, which had expired on 11.1.2006 and the alleged accident took place on 2.2.2006 when the vehicle was without any registration. Nothing has been brought on record by the appellant to show that before or after 11.1.2006, when the period of temporary registration expired, the appellant, owner of the vehicle either applied for permanent registration as contemplated under Section 39 of the Act or made any application for extension of period as temporary registration on the ground of some special reasons. First Appeal No. 1038 of 2013 11 In our view, therefore, using a vehicle on the public road without any registration is not only an offence punishable under Section 192 of the Motor Vehicles Act but also a fundamental breach of the terms and conditions of the policy contract."
13. Therefore, in case after a period of 30 days in case permanent registration number has not been taken by the owner of the vehicle, he is unable to drive the vehicle unless some specific reasons are given and permission is taken to get extension for the registration period but no such extension was applied for by complainant. In this way, he has clearly violated the provisions of Section 39 of the Act and the claim of complainant can be repudiated only on that ground, therefore, the legal preposition relied upon by the District Forum is not correct. We are of Opinion that Op was justified to repudiate the claim as his claim is based upon falsehood, the evidence on the record makes it clear that the accident taken place on 21.3.2011 but the vehicle of complainant was not registered on that day, therefore, he thought a plan to show the accident in the date 25.3.2011 and in the mean time, he got his vehicle registered to show it that before accident his vehicle was registered vehicle. In case the claim of complainant is based upon falsehood then it can be rejected only on that ground else. However, the District Forum has rejected this objection of Op on flimsy grounds as discussed above. It was observed by the Hon'ble Apex Court in 2013(1) CCC 75 (SC) "V. Chandrasekaran & Anr. Vs. The Administrative Officer & Ors." that if a person is not coming to the Court with clean hands, he is not First Appeal No. 1038 of 2013 12 entitled to any relief because if a person seeks equity, must do equity."
14. There is delay in intimation to the insurance company. Claim was lodged with Op on 30.6.2011 whereas the accident had taken place on 21.3.2011. Even if it was taken place on 25.3.2011 in case timely intimation would have been given then the Investigator of the Insurance Company would have verified the position at the spot on that day whether actually the accident had taken place on 25.3.2011 or 21.3.2011. In normal circumstances, the delay may not be fatal but where the claim of complainant is shrouded under suspicious circumstances, then prompt intimation to the insurance company was important and in those cases, delay can be fatal.
15. We are of Opinion that the order so passed by the District Forum is not based upon proper appreciation of the evidence. Therefore, the order is liable to be set-aside.
16. In view of the above discussion, we accept the appeal. Impugned order is set-aside. Consequently, the complaint filed by complainant is also dismissed. No order as to costs.
17. The appellant had deposited an amount of Rs. 25,000/- and Rs. 5,00,000/- with this Commission in the appeal. These amounts with interest accrued thereon, if any, be remitted by the registry to appellant by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
First Appeal No. 1038 of 2013 13
18. The arguments in this appeal were heard on 21.10.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
19. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
November 4, 2015. (Surinder Pal Kaur)
as Member