J U D G M E N T
         The Complainant has filed the instant   complaint against the Opposite Parties praying therein that this Forum direct the Opposite Parties to make payment/compensation of a sum of ₹3,14,620/- (Rupees Three Lakhs Fourteen Thousand Six Hundred and Twenty) only and interest at the rate of 12% per annum from 28.01.2015 i.e. the date of payment of the Bills till realization, to the Complainant so as to meet the expenses for repairs of the vehicle in question, for deficiency of service, harassment and mental tension, agony, cost of deprivation of using the vehicle and hiring other vehicles for transportation, cost of litigation, cost for hiring an Attendant in order to secure the vehicle while it was being repaired.

2.    The case of the Complainant, in a nutshell, is that she is the owner of a Hyundai i-10 Grand Asta vehicle bearing registration No. SK-01 P 4779. On 03.01.2015 at around 3:30 p.m. to 4 p.m., the Complainant was returning from Gangtok towards her residence in the said vehicle which was driven by her driver Sunil Rai. When the vehicle reached above Smile Land, Namli Village, a Truck suddenly came from the opposite direction, driven in a rash and negligent manner. In order to avoid the collision and save himself and the Complainant, the driver turned the vehicle and as a result of which the vehicle fell into a drain and badly got damaged. Immediately after the accident, the Complainant informed about the said accident to the officials of the Opposite Party No. 1 in their toll free number. However, the Complainant being in a state of shock and nervousness at that time inadvertently informed the official that she was the one who was driving the vehicle when the accident occurred.

3.    That on 15.01.2015, the driver of the Complainant had stated on oath before the Oath Commissioner at Gangtok, East Sikkim about the facts and the same has been submitted to the SHO, Ranipool Police Station, East Sikkim. On 22.01.2015, the Complainant also lodged a report which was treated as General Diary and recorded in the Station House Diary vide General Diary Entry No. 245.

4.    At the time of the accident, the vehicle was duly insured with the Opposite Party No. 1. After the accident, the Complainant informed the Opposite Party No. 1 and lodged General Diary. Thereafter, the Complainant made representation to the Opposite Parties and supplied them copies of the statements and General Diary and all the relevant documents. The Complainant requested the Opposite Party No. 1 to make good of the cost of the payment made for repairing the vehicle. However, even after receiving all the documents, the Opposite Party No. 1 failed to acknowledge the same and issued a letter dated 21.01.2015 requesting the Complainant to supply the Driving License of the Complainant despite of knowing the fact that the authorized driver of the vehicle was driving the vehicle at the time of the accident.    The Complainant herself had given the said vehicle for repairing at Denzong Automotive Sales & Services and paid a sum of ₹44,620/- (Rupees Forty Four Thousand Six Hundred and Twenty only) which was communicated to the Opposite Party No. 1. But despite of receipt of the same, the Opposite Party No. 1 sent a letter thereby expressing their inability to accept their liability for the reasons of “suppression and misrepresentation of facts”.  The act of the Opposite Party No. 1 tantamounts to deficiency in service, hence the instant complaint.

5.    The Opposite Party No. 1 filed its written objection, inter alia denying and disputing the claims put forth by the Complainant. The complaint on account of alleged deficiency in services is not sustainable but a misconceived one and is legally not maintainable. There is no deficiency in service on the part of the Opposite Party No. 1. The Complainant is not entitled to any relief or reliefs from the Opposite Party No. 1. It is contended that the Complainant has not approached this Forum with clean hands.

6.    The Opposite Party No. 1 further stated that the Complainant has not only claimed compensation for the unpredicted financial losses but also “suppressed and mis-represented” material facts and information. The Complainant has also indulged in concealment of material information and has submitted false declarations that the insured vehicle was driven by the driver Mr. Sunil Rai.

        It is stated that the Complainant had immediately informed the Opposite Party No. 1 (Insurance Company) in the toll free number that she was the one driving the vehicle. However, in order to obtain illegal gains under the policy, the Complainant has subsequently stated that the vehicle was being driven by its driver and it was due to a state of shock and nervousness that she inadvertently informed the Opposite Party No. 1 that she was the one driving the vehicle at the time of accident.

7.    It is stated that by suppressing and misrepresenting material facts, the Complainant has not only violated the terms and conditions of the Insurance Policy but has made an unlawful/illegitimate, illegal gain out of Public Exchequer.
    
        It is further stated that the Opposite Party vide letter dated 05.01.2015, 06.01.2015 and 12.01.2015 had requested the Complainant to submit her Driving Licence which was required to process the claim but even after repeated reminders, the Complainant failed to produce the same to the Opposite Party No. 1, thereby forcing the Opposite Party No. 1 to close the claim of the Complainant for non-submission of the required Driving Licence.

8.    It is further stated that by not assisting and producing certain documents/information, the Complainant has violated Clause 1 and 4 of the terms of the Insurance Policy which clearly states that the Insured i.e. the Complainant herein, shall after giving notice of the claim, give the company such information and assistance as required by the Insurance Company i.e. opposite Party No. 1. The General Diary Entry No. 245 dated 22.01.2015 of Ranipool Police Station reveals that the matter was intimated to the Police authorities after a period of eighteen days from the date of the accident. The Complainant cannot take the shelter of sheer ignorance for making an unlawful/illegal gain as ignorance of law cannot be an excuse. It is further contended that according to the principle of indemnity, an insurance contract is signed only for getting protection against unpredicted financial losses arising due to future uncertainties. That an insurance contract is not made for making profit. Its sole purpose is to give compensation in case of any damage or loss. Therefore, the Opposite Party No. 1 prays for rejection of the prayers of the Complainant.

9.    The Opposite Party No. 2 filed its reply stating that the vehicle in question bearing Registration No. SK-01P-4779 (Hyundai i-10 Grand Asta) was duly insured with Opposite Party No. 1 when the alleged accident had occurred and the said vehicle was financed by the Opposite Party No. 2. As such Opposite Party No. 2 is not liable to pay any amount to the Complainant. It is stated that the Opposite Party No.2 is not a necessary or proper party. It is further stated that the complaint filed by the Complainant is without merit and all the allegations made against the Opposite Party No. 2 are baseless and false. It is stated that the Complainant has no case against Opposite Party No. 2. Ld. Counsel submitted that the Complainant is not entitled to any relief from the Opposite Party No. 2 and that the complaint against the Opposite Party No. 2 is liable to be dismissed with exemplary costs.

10.    This forum considered the submissions of the parties.

11.    On the basis of the pleadings and after hearing Ld. Counsel for the parties, the forum framed only one issue as follows:

(i)    Whether the Complainant is eligible to receive the compensation claimed. If so, who is liable to pay the same?

12.    Thereafter the Complainant filed her Evidence-on-Affidavit as well as the evidence of her witness Shri Sunil Rai. The said evidence was confirmed by the Complainant and her witness and they were duly cross-examined by Ld. Counsel for the Opposite Parties. Opposite Party No. 1 filed the Evidence-on-Affidavit of Shri Pankaj Kumar, Legal Manager and authorized representative of O.P. No. 1.  The said evidence was confirmed by Opposite Party No.1 Shri Panakj Kumar and he was duly cross-examined by Ld. Counsel for the other parties. Ld. Counsel for the Opposite Party No. 2 submitted that he had no Evidence-on-Affidavit to file. The matter was accordingly fixed for final argument.
 
13.    Ld. Counsel for the Complainant, placing his arguments, reiterated what had been stated in the complaint. It is further submitted that the Complainant herself had given the vehicle in question bearing Registration No. SK-01P-4779 (Hyundai i-10 Grand Asta) for repairing at Denzong Automotive Sales & Services and paid a sum of ₹44,620/-. As such, the Opposite Party No. 1 is liable to pay the said amount as well as the entire amount claimed by the Complainant.

14.    Per contra, Ld. Counsel for the Opposite Party No. 1, while putting forth his arguments, submitted that the Complainant is not entitled to any amount as claimed by her in the petition. While arguing this, Ld. Counsel for Opposite Party No. 1 reiterated the entire facts mentioned in the written objection and submits that the Complainant is not entitled to any relief from the Opposite Party No.1. It is further averred that the Complainant has violated the terms of contract.

15.    Ld. Counsel for the Opposite Party No. 1  has placed reliance on (2014) 1 Supreme Court Cases 686, Export Credit Guarantee Corporation of India Limited -Versus- Garg Sons International wherein it is held that it is not permissible for the court to substitute the terms of contract itself, under the garb of construing terms incorporated in the agreement of insurance. No exception can be made on the ground of equity. The liberal attitude adopted by the court, by way of which it interferes in the terms of an insurance agreement, is not permitted. The same must certainly not be extended to the extent of substituting words that were never intended to form a part of the agreement.
 
        In Kulwant Singh -Versus- The Managing Director, United India Insurance Co. Ltd. and another, Revision Petition No. 3320 of 2014,  it is held that by delaying the information of theft to the police, the Complainant had acted against the interest of the insurer and this violation of condition is fundamental to the loss caused which justifies the repudiation of claim by the Respondent Insurance Company.  

16.    Ld.  Counsel for the Opposite Party No. 2, while putting forth his arguments, reiterated the entire facts mentioned in the written objection filed by the Opposite Party No. 2 and submitted that the vehicle in question bearing Registration No. SK-01P-4779 (Hyundai i-10 Grand Asta) was duly insured with Opposite Party No. 1 when the alleged accident had occurred and the said vehicle was only financed by the Opposite Party No. 2. As such, Opposite Party No. 2 is not liable to pay any amount to the Complainant.

17.    The only issue is, therefore, taken up for consideration and decision.

ISSUE:                

18.    The sole issue framed in this case is whether the Complainant is eligible to receive the compensation claimed. If so, who is liable to pay the same?   

19.    In order to decide this issue, the documentary as well as the oral evidence of the parties were considered. Exhibit-3 to Exhibit-18 are the documents exhibited and relied on by the Complainant. Exhibit-1 is the Evidence-on-Affidavit of the Complainant and Exhibit-2 is the Evidence-on-Affidavit of Complainant's witness, Shri Sunil Rai.

20.    In this case, it is not disputed that the vehicle in question bearing Registration No. SK-01P-4779 (Hyundai i-10 Grand Asta) was duly insured with Opposite Party No. 1 when the alleged accident had occurred. The Opposite Party No. 1 also admitted the said fact. However, the Opposite Party No. 1 took the plea that the Complainant had immediately informed the Opposite Party No. 1 (Insurance Company) in the toll free number that she was the one driving the vehicle. However, in order to obtain illegal gain under the policy, the Complainant has subsequently stated that the vehicle was being driven by its driver and it was due to a state of shock and nervousness she inadvertently informed the Opposite Party No. 1 that she was the one who was driving the vehicle at the time of accident. It is contended that by suppressing and misrepresenting material facts, the Complainant has not only violated the terms and conditions of the Insurance Policy but has made an attempt to have unlawful/illegitimate gain out of Public Exchequer.

        The Opposite Party vide letter dated 05.01.2015, 06.01.2015 and 12.01.2015 had requested the Complainant to submit her Driving Licence which was required to process the claim. But even after repeated reminders, the Complainant failed to produce the same to the Opposite Party No. 1, thereby compelling the Opposite Party No. 1 to close the claim of the Complainant for non-submission of the required Driving Licence and the same was intimated to the Complainant vide letter dated 21.01.2015. The terms of the Insurance Policy clearly states that 'the Insured i.e. the Complainant herein shall after giving notice of the claim, give the company such information and assistance as required by the Insurance Company.'


        Another plea taken by the Opposite Party No. 1 is that the alleged accident occurred on 03.01.2015 at around 3:30 p.m. but information was given to the police after a delay of eighteen days on 22.01.2015 at Ranipool Police Station which amounts to violation of the terms and conditions of the insurance policy.   

21.     As per the Complainant, the vehicle bearing Registration No. SK-01P-4779 (Hyundai i-10 Grand Asta) was driven by its driver Sunil Rai and Opposite Party No. 1 is liable to pay the expenses for repairs of the vehicle in question.

        It is an admitted fact that immediately after the accident, the Complainant informed the officials of the Opposite Party No. 1 in their toll free number as mentioned in the Policy over the mobile phone regarding the accident that she was the one who was driving the vehicle when the accident occurred. However, as per the Complainant, she was in a state of shock and nervousness at that time and inadvertently informed the official, that she was driving the vehicle when the accident occurred.

22.    In order to decide the issue, let us examine the documents and the evidence of the parties. Exhibit-1 is the Evidence-on-Affidavit filed by the Complainant. Exhibit-2 is the Evidence-on-Affidavit of Complainant's witness Shri Sunil Rai.

Exhibit-14 is the Attested copy of the statement of the driver of the vehicle in question. In his statement, he has stated that while returning from Gangtok at around 3.30 pm when they reached above Smile Land, Namli village road, a Truck rashly came from the opposite side endangering their lives. Accordingly, he tried to save the vehicle due to which the same fell in the drain and the front portion of the vehicle in question was damaged. They were under shock and nervousness for some time and later he came to know that the owner of the vehicle wrongly informed to the Insurance Officer through toll free number that she was driving the vehicle in question.  


        The Complainant and her witness, Shri Sunil Rai stated the same facts in their Evidence-on-Affidavit, Exhibit-1 and Exhibit-2 respectively.

        In her Evidence-on-Affidavit at paragraph 12, the Complainant has stated, “......I immediately informed the officials of the Opposite Party No. 1 in their toll-free number as mentioned in the Policy over the mobile phone regarding the accident. However, I being in a state of shock and nervousness at that point of time, inadvertently informed the official that I was one who was driving the vehicle when the accident occurred....”   

        Under cross-examination, the Complainant   deposed, “.....It is true that after the accident I immediately informed the officials of the opposite party No. 1 in the Toll free number. I do not know whether I had informed the Insurance company (O.P. No. 1) whether the vehicle had been driven by me or by my driver on the relevant time.......”

23.    The Complainant's witness, Shri Sunil Rai at paragraphs 6, 7 and 8 of his Evidence-on-Affidavit, deposed,

“6.....I was under shock and nervousness for some time and I later came to know that the owner of the vehicle wrongly informed to the Insurance Office through toll free number that she was driving the vehicle in question.

7.    …......because of shock and nervousness and because every thing happened in a spur of moment I did not notice the registration number of the Truck.

8.    …...I was driving the vehicle bearing registration number SK-01 P 4779 at the relevant point of time and the accident had occurred solely because of the negligence on the part of the Truck that came from the opposite direction.......”

        Under cross-examination, he has stated, “It is true that the owner of the vehicle had called in the Toll free number of the insurance company to register her complaint.

        It is true that the owner of the vehicle had informed in the Toll free number of the insurance company while making her claim that the accident had occurred while she was herself driving the vehicle......”

        The Complainant, as well as her witness Shri Sunil Rai, stated that the accident occurred due to the truck that came from another direction in speed as well as in a rash and negligent manner. But the Complainant as well as C.W. 2 Sunil Rai, do not know the registration number of said Truck. They also did not lodge any complaint against the said Truck.

24.    The witness of Opposite Party No. 1, filed his Evidence-on-Affidavit, Exhibit-R-12. At paragraphs 13, 14 and 15, the witness for Opposite Party No. 1 stated that the Opposite Party No. 1 vide email dated 03.03.2015 intimated by Regional Claims Manger, HDFC ERGO General Insurance Company, wherein the decision of their inability to accept liability towards the claim was decided due to suppression and misrepresentation of material facts. The vehicle was driven by the Complainant at the material time of accident as per the call centre intimation made by the Complainant but the license of Mr. Sunil Rai was submitted. Exhibit-R-9 also supported the above facts.
 

25.    The incident took place on 03.01.2015 at around 3.30 pm to 4 pm and immediately after the accident, the Complainant informed the officials of the Opposite Party No. 1 in the Toll free number as mentioned in the Policy over the mobile phone regarding the accident. The Complainant further informed that she was one who was driving the vehicle when the accident occurred. Later, the Complainant took the plea that she being in a state of shock and nervousness at that point of time, inadvertently informed the official that she was the one who was driving the vehicle when the accident occurred and that actually her driver Sunil Rai was driving the vehicle at the relevant point of accident. The General Diary was lodged after the delay of eighteen days i.e. on 22.01.2015. As per the Complainant, Exhibit-14 is the statement of Sunil Rai given before the Oath Commissioner at Gangtok, East Sikkim. However, Exhibit-14 is an attested copy, attested by SHO, Ranipool Police Station. There is no legible seal and signature. There is no date mentioned in Exhibit-14. As per the evidence of the Complainant and her witness Shri Sunil Rai, the same was prepared on 15.01.2015 i.e. after 12 days of the incident. Witness, Sunil Rai does not give any reason as to why he, instead of lodging FIR/General Diary before the Police Station, gave statement before the Oath Commission after 12 days of the accident.


26.    The cause of accident projected by the Complainant has not been established by the Complainant through cogent evidence. There are doubts regarding the cause of accident and also whether the authorized driver Shri Sunil Rai was driving the vehicle at that time.  The Complainant as well as her witness Shri Sunil Rai stated that the cause of accident was due to a Truck which was coming from opposite direction in a rash and negligent manner. They do not know the registration number and colour of the said Truck. The information was given to the police after a delay of eighteen days on 22.01.2015.  The Complainant gave different version. The Opposite Party No. 1 asked the Complainant to submit her Driving Licence several times. Exhibit R-4, Exhibit R-5, and Exhibit R-6 are the reminder letters issued by Opposite Party No. 1, vide which the Opposite Party No. 1 requested the Complainant to submit her Driving License. As per the recorded intimation given by the Complainant to the Opposite Party No. 1 at the call centre, she was driving the vehicle. Her Driving License was required to process the claim. But the Complainant failed to submit her Driving Licence to the Opposite Party No. 1.

27.    Ld. Counsel for the Complainant submits that the Complainant possessed a valid and effective Driving Licence, Exhibit-11 but despite of repeated requests made by the Opposite Party No. 1, she failed to submit the same. Hence, in view of the above discussions, the Complainant at the first instance i.e. immediately after the accident, gave different version to the Opposite Party No. 1 and later on she tried to improve her version by saying that due to nervousness she stated that she was driving the vehicle instead of saying that her driver Sunil Rai was driving the vehicle at that point of time.  Under such situation, there is no option for this Forum but to take a view that by suppression of material facts by the Complainant by stating different version in two different stages of time and by not submitting the Driving License despite of repeated requests to the Opposite Party No. 1, the Complainant has violated the terms and conditions of the Insurance Policy. Accordingly, the issue is decided against the Complainant.

28.     Therefore, the end result is that the case of the Complainant is to be dismissed. The Complainant is not entitled to any amount and the complaint filed by the Complainant is hereby dismissed.

        Pronounced in open Forum.


                   (Jyoti Kharka)                                                                                                               
               President, DCDRF,
           East Sikkim, at Gangtok.



  (C.N. Khanal)              (Janaki Pradhan)                                                                                                               
Member, DCDRF,            Member, DCDRF,                                                         
   East Sikkim                   East Sikkim
    at Gangtok.                     at Gangtok.

WITNESSES EXAMINED BY THE COMPLAINANT:

1.    CW-1        Smt. Chitra Kumari Rai.

2.    CW-2        Shri Sunil Rai.


DOCUMENTS EXHIBITED BY THE COMPLAINANT:


1.  Exhibit-1           Evidence-on-Affidavit of                         Complainant, Smt. Chitra                     Kumari Rai.
                   
2.  Exhibit-2         Evidence-on-Affidavit of                         Complainant's witness Shri                     Sunil Rai.

3.  Exhibit-3        Attested copy of Death                         Certificate of late Dashrath                     Rai.

4. Exhibit-4        Attested Copy of Birth                         Certificate of Holika Rai.

5. Exhibit-5        Birth Certificate of Pabika                     Rai.

6. Exhibit-6        Tax Invoice Bill                             dated 29.04.2014 issued by                     Denzong Automotive Sales &                     Services, 31-A NH Way,                         Metro Point, Tadong,                         Gangtok.

7. Exhibit-    7        Attested copy of Registration                     Certificate.

8. Exhibit-8          Copy of the payment of                         monthly installments.
    

9. Exhibit-9           Attested copy of Insurance                     Policy.                    
       
10. Exhibit-10          Attested copy of the                             Certificate of Insurance cum                     Policy Schedule.
 
11. Exhibit-11        Learner's Licence of the                         Complainant.

       12. Exhibit-12        Driving License of driver                         Sunil Rai.

       13. Exhibit-13        Authorization Letter.

       14. Exhibit-14        Attested copy of Statement of                     Sunil Rai.

15. Exhibit-15          Report dated 22.01.2015.
 
16. Exhibit-16        Letter dated 21.01.2015.

       17. Exhibit-17        Letter dated 28.01.2015.


       18. Exhibit-18        Copy of email dated                             03.03.2015.


WITNESSES EXAMINED BY OPPOSITE PARTY NO.1:

1. O. P. No. 1's Witness        Shri Pankaj                                 Kumar.


DOCUMENTS EXHIBITED BY OPPOSITE PARTY NO.1:  

                
1.  Exhibit-R-1
     (Colly)            Power of Attorney.        
                   
2.  Exhibit-R-2         Copy of Transcription.

3.  Exhibit-R-3        C.D.

4.  Exhibit-R-4        Reminder Letter dated                         05.01.2015.

5.  Exhibit-R-5        Reminder Letter dated                         06.01.2015.

6.  Exhibit-R-6        Reminder Letter dated                         12.01.2015.

7.  Exhibit-R-7        Letter dated 21.01.2015.
 
8.  Exhibit-R-8          Terms and Conditions of the                     Insurance Policy.

 9.  Exhibit-R-9       Letter dated 03.03.2015.                         
10.  Exhibit-R-10    Copy of the claim form                         containing the declaration                     and disclosers of the                         Complainant.
 
11.  Exhibit-R-11    Surveyor's Report dated                         09.01.2015.

12.  Exhibit-R-12    Evidence-on-Affidavit of                         Opposite No.1's Witness Shri                     Pankaj Kumar.


WITNESSES EXAMINED BY OPPOSITE PARTY NO.2: NIL


DOCUMENTS EXHIBITED BY OPPOSITE PARTY NO.2: NIL