Chandigarh

DF-I

CC/226/2018

Harmeet Kaur Walia - Complainant(s)

Versus

Bajaj Allianz General Insurance Co. Ltd. - Opp.Party(s)

Deepak Aggarwal

28 Jul 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I, U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/226/2018
Date of Institution	:	17/05/2018
Date of Decision	:	28/07/2020

 

Harmeet Kaur Walia wife of Gursimran Singh, resident of House No.523, Sector 36-B, Chandigarh.

… Complainant

V E R S U S

1. Bajaj Allianz General Insurance Company Limited through its Director, SCO No.14, 4^th Floor, Urban Estate, Sector 5, Panchkula (Haryana).
2. Lally Automobiles (P) Ltd. through its Director, Plot No.6, Industrial Area, Phase-1, Chandigarh 160002.

… Opposite Parties

CORAM :	SHRI RATTAN SINGH THAKUR	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                

ARGUED BY	:	Sh. Deepak Aggarwal, Counsel for complainant
	:	Sh. Rajesh Verma, Counsel for OP-1
	:	None for OP-2

 

Per Rattan Singh Thakur, President

1.      The averments in brief are, complainant is the owner of a Honda City car bearing registration No.CH-01-AU-0600 which was comprehensively insured with OP-1 for IDV of Rs.9,67,278/- on payment of premium of Rs.33,612/- through OP-2 and the insurance was valid w.e.f. 14.1.2015 to 13.1.2016.  Her case is, on 28.10.2015 during the currency of the insurance policy, the said vehicle while being driven by one Sh. Gursahib Singh Sidhu (family friend of the complainant and having valid driving licence), met with an accident and had turned turtle at Kashmir Gardens on Khanna-Doraha Road. A case for rash and negligent driving was registered against Gursahib Singh Sidhu and investigated by the police and chargesheet was put up.  Claim was submitted to OP-1 through OP-2 and certain documents were demanded and were also investigated into by the surveyor of OP-1/insurer. However, the claim was repudiated on the ground learned JMIC, Barnala had held Gursahib Singh Sidhu was not driving the vehicle in question on the material date and there was delay in intimation. The vehicle was total loss. Hence, the complainant filed the present consumer complaint for directing the OPs to pay IDV of Rs.9,67,278/- alongwith interest, compensation of Rs.2.00 lakhs and Rs.65,000/- as litigation expenses. 
2.     OP-1 contested the consumer complaint, filed its written reply and, inter alia, raised preliminary objections of consumer complaint being not maintainable.  The matter was processed as per the terms and conditions and it was found by the criminal court, Gursahib Singh Sidhu was not driving the vehicle and he was acquitted on this ground.  There was delay of 51 days in sending intimation by the complainant regarding the loss caused to the vehicle. Maintained the claim was rightly repudiated.  On these lines, the cause is sought to be defended.
3.     OP-2 filed its separate written reply and claimed the insurance was facilitated through it from OP-1/insurer. As such, the facilitator cannot be burdened with the claim as it was processed by OP-1/insurer and the premium was also received by it. On these lines, the cause is sought to be defended.
4.     Rejoinder was filed and averments made in the consumer complaint were reiterated.
5.     Parties led evidence by way of affidavits and documents.
6.     We have heard the learned counsel for the parties and gone through the record of the case. After scanning of record, our findings are as under:-
7.     The admitted facts, which emerges per pleadings of the parties and the evidence led, are the vehicle in question was insured with OP-1 on receipt of premium and it had met with an accident during the validity of the insurance cover.  There is no dispute with regard to these facts at all.
8.     OP-1 has also submitted reply as well as led evidence that on receipt of intimation, the vehicle was got inspected from the surveyor and the photostat copy of its report is Annexure R-3.  Its perusal shows damage caused to the vehicle was assessed at Rs.8,47,060.03 after evaluating the parts, amount of labour as well as depreciation amount from the date of the insurance policy and the date of accident caused. The difference between date of policy was that of nearing nine months and there was depreciation of the insured declared value due to its user during this span of time. Thus, admittedly the vehicle of the complainant was damaged in totality and it is also undisputed fact that he had extensively used the vehicle for nine months as well as there was reduction in the insured declare value as on 14.1.2015 till 28.10.2015 i.e. the date of accident on which the damage to the vehicle was caused. 
9.     The learned counsel for the complainant argued the report is not supported with affidavit of the surveyor, but, certainly there is affidavit in support of the documents produced by OP-1.  This fact cannot be lost sight of judicial notice that there had to be depreciation on the date of insurance cover and the date of accident as the vehicle was used and the complainant has not brought in any evidence to show that there was minimal use of the vehicle so as to say its value was not depreciated as was assessed by the surveyor of OP-1. Thus, the case of the complainant is just, genuine and truthful with regard to the damage caused to the vehicle.
10.     In the situation when we have arrived at a finding claim of the complainant is truthful on point of damage sustained to the vehicle, delay of 51 days in reporting the matter to the insurer is not of greater importance as the very object to immediately intimate the insurer is that the matter is not fabricated and manufactured one with a view to submit fake claim on point of damage to the vehicle.  We have also perused the copy of the judgment of learned JMIC in which Gursahib Singh Sidhu stood up for trial for the commission of offence under Sections 279,304-A,337,338 & 427 of the IPC, as is evident from the photocopy of the order (Annexure R-4).  Besides it, there is also a claim petition preferred by Charanjit Kaur etc. against Gursahib Singh Sidhu as well as Bajaj Allianz claiming compensation and on 24.10.2016 it was allowed by learned Motor Accident Claims Tribunal, Barnala and Gursahib Singh Sidhu, present complainant, driver and the insurance company i.e. OP-1 were directed to pay compensation quantified at Rs.4,45,000/- to claimant No.1 alongwith interest. Thus, this further shows case of the complainant is genuine one and, therefore, chances of concoction and fabrication of facts is ruled out.
11.     The other point of defence raised by OP-1 is learned JMIC through its order dated 17.3.2016 (Annexure R-4) had held, Gursahib Singh Sidhu was not proved to have been driving the vehicle and the identity of the driver was not established, therefore, he was acquitted. It is not the case of the OP somebody else, who was not in possession of driving licence, was driving the vehicle at the relevant point of time. It is a question of standard of proof that the state could not establish to the hilt Gursahib Singh Sidhu was driving the vehicle and it was a criminal offence and the proof beyond reasonable doubt was required before Gursahib Singh Sidhu was held guilty and convicted for the act of rash driving. Even otherwise, criminal and civil proceedings or to say the quasi judicial proceedings which are being held by this Forum are separate, distinct and independent in its nature and does not make out under what rule of evidence contained in the Evidence Act, 1872 this judgment of criminal court can be used for the purpose of debarring the complainant for maintaining the instant consumer complaint against the Insurance Company. The judgment operates as a res judicata or to say the second trial of criminal offence on the same facts is barred and not a civil suit likewise that of the present consumer complaint. It is well-settled that a decision by a Criminal Court does not bind the Civil Court. Here we place reliance on the judgment of the Hon’ble Apex Court in case titled “Vishnu Dutt Sharma Vs. Smt. Daya Sapra”, Civil Appeal No.3238 of 2009 wherein it was held as under:-

“29. If judgment of a civil court is not binding on a criminal court, it is incomprehensible that a judgment of a criminal court will be binding on a civil court. We have noticed hereinbefore that Section 43 of the Evidence Act categorically states that judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant in some other provisions of the Act, no other provisions of the Evidence Act or for that matter any other statute had been brought to our notice.

30. Another Constitution Bench of this Court had the occasion to consider the question in Iqbal Singh Marwah & Anr. vs. Meenakshi Marwah & Anr. [(2005) 4 SCC 370]. Relying on M.S. Sheriff (supra) as also various other decisions, it was categorically held:

"32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given."

 

12.     In view of the authoritative pronouncement of the Hon’ble Apex Court, judgment of the criminal court is not binding upon the civil court and, therefore, is irrelevant in the present scenario to non petition the complainant.
13.     The matter was also carried for claiming compensation by the LRs of the deceased or the injured before the learned Motor Accident Claims Tribunal in which it was held, Gursahib Singh Sidhu was driving the vehicle. This further supports our reasoning, judgment of criminal court is not binding even on the Tribunal or to say Consumer Forum or the civil court for the purpose of claiming compensation. It only operates as second trial on the same facts is barred and could be looked into to the extent that the accused was acquitted of the offence. In a criminal case, proof beyond reasonable doubt is expected before the accused is taken to the gallows or to say drag him in the noose of law while before the Tribunal or say civil court or quasi judicial authority, which adjudicates the civil suit, the said judgment is not in any way could be looked into to oust the claim of the complainant.
14.     In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. OP-1 is directed as under :-

1. to pay Rs.8,47,060.03 (as assessed by the surveyor) to the complainant alongwith interest @ 9% per annum from the date of repudiation i.e. 26.7.2016 till realization subject to the condition that the complainant will get the RC of the vehicle transferred in the name of OP-1 for its salvage value or get it cancelled plus the fact that it is not misused.
2. to pay an amount of Rs.20,000/- to the complainant as compensation for causing mental agony and harassment to her;
3. to pay Rs.10,000/- to the complainant as costs of litigation.

15.     This order be complied with by OP-1 within thirty days from the date of receipt of its certified copy, failing which, it shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
16.     Since no deficiency in service or unfair trade practice has been alleged or proved qua
    OP-2, therefore, the consumer complaint qua it stands dismissed with no order as to costs. 
17.     Certified copies of this order be sent to the parties free of charge. The file be consigned.

 

	Sd/-	Sd/-	Sd/-
28/07/2020	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Rattan Singh Thakur]
hg	Member	Member	President