JAGANNATH BAG, MEMBER
The present appeal is directed against the Order, passed on 13.01.2014 , by the Ld. District Consumer Disputes Redressal Forum, Burdwan, in DF Case No. 126 of 2012 whereby the complaint has been allowed on contest with cost.
The complaint case, in brief, was as follows:
The Complainant took an insurance policy for his vehicle bearing the registration No. JH-10W-2938. The policy was valid from 22.05.2010 to 21.05.2011 covering the sum insured of Rs. 4,94,338/- . The vehicle met with an accident on 07.03.2011 on Bagicha Katona Road and was totally damaged. The accident was reported to Mallaipur P.S. vide G.D. No. 112/11 dated 07.03.2011. The OP Insurance Company was also informed of the accident . One Surveyor was appointed by the OP Insurance Company . The estimate for cost of repair was Rs. 3,64,651/- which was prepared by Rudra Automart (p) Ltd, Asansol. Inspite of getting report from the Surveyor , the OP did not settle the claim of the Complainant. Lastly on 15.11.2011 , the Complainant sent a registered letter to the OP requesting them to settle the claim, but to no effect. The Complainant paid a sum of Rs. 3,64,651/- to the said Rudra Automart Pvt. Ltd., Asansol, towards the cost of repair of the damaged vehicle. The Insurance Company having failed to settle the claim , the Complainant , alleging deficiency in service and unfair trade practice on the part of the OP , filed the complaint case with prayer for direction upon the OP Insurance Company to pay Rs. 3,64,651/- towards the cost of repair of the damaged vehicle and a sum of Rs. 50,000/- as compensation towards mental pain, agony and harassment , apart from payment of Rs. 10,000/- as litigation cost.
The complaint has been contested by the OP by filing W.V . In their W.V. any deficiency or negligence in service has been denied. It has been asserted that though the vehicle was hypothecated to the financier , the financier has not been made a party. It has also been contended that there was suppression of material fact by the Complainant. The OP Insurance Company contended that after the alleged accident , the Complainant’s son lodged a G.D. before the Mallaipur P.S. and it was stated in the said G.D. entry that he, namely, Anil Gope was driving the vehicle at the material time of the accident, while the claim form stated that one Kanaiya Ram was the driver of the vehicle. The Complainant was asked to produce the valid driving licence of the son of the Complainant before the Ld. Court, but that was not carried out . Allegedly, the name of Kanaiya Ram has been put in the claim form in place of the name of the son of the Complainant. The OP, therefore, repudiated the claim of the Complainant and intimated the same to the Complainant. The Complainant was not entitled to get any claim and the case was liable to be dismissed.
Ld. Forum below perused the entire record , documents, evidence etc., submitted by both parties and heard Ld. Advocates of both parties. It has been observed , inter alia, that the dispute was ‘existing within a short compass as to the extent that out of two copies of G.D. entries which one is authentic’. Ld. Forum below observed that in the G.D. entry as filed by the OP the entry number, the date, signature and the date on the stand are written with the original ink ,but the Complainant filed the original Xerox copy of the G.D. entry. Ld. Forum below observed that the copy filed by the Complainant bears much sanctity in the eye of law and as such accepted the copy filed by the Complainant and rejected the other. Having observed as stated and relying upon the surveyor’s report , Ld. Forum below allowed the compliant . The OP was directed to pay a sum of Rs. 2,39,000/- towards the repairing cost of the damaged vehicle within 45 days failing which a penal interest @ 10 % p.a. shall have to be paid by the OP Appellant , apart from compensation of Rs. 2000/- and litigation cost of Rs. 1000/- to the Respondent Complainant.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below , the OP-turned-Appellant has come up before this Commission with a prayer for direction to set aside the impugned order.
The memorandum of appeal has been filed together with copies of the impugned order, copies of two G.D. entries bearing the same number and date purportedly issued by the Mallaipur Police Station , the certificate-cum-policy schedule, the estimate for repair and other documents including the letter dated 04.06.2011 issued by the Deputy Manager, Motor Claim of the Appellant/Insurance Company addressed to the Complainant , the evidence on affidavit by the Complainant and also the evidence on affidavit by the Insurance Company.
Ld. Advocates appearing for both the Appellant and the Respondent have been heard.
Ld. Advocate appearing for the Appellant submitted that the Ld. Forum below failed to appreciate the fact that the Respondent/Complainant did not approach the Forum below with clean hands. The moot point to be decided by the Ld. Forum below was who was driving the vehicle at the material time of the alleged accident. Two G.D. entries of the same number and date being produced . Ld. Forum below relied upon the G.D. entry filed by the Complainant, while the copy of the G.D. Entry filed by the OP was different. The name of the driver as noted in the GDs was not provided in the claim form .In one G.D. entry it was stated that the Complainant’s son Anil Gope was driving the vehicle when the accident took place , but in another copy of the G.D. entry , the name of the Complainant himself was noted as the driver of the vehicle. Ld. Forum below wrongly relied upon the G.D. entry submitted by the Respondent / Complainant . Ld. Advocate asserted that in neither of the papers submitted to be the true copy of the original G.D. entry , the name of Kanaya Ram was included as driver of the vehicle. In that case, Ld. Forum below ignored the fact of misrepresentation by the Complainant/ Respondent as regards name of the actual driver in the claim form which shows that the Respondent/Complainant did not approach the trial Forum with clean hands. In fact, the name of Kanaiya Ram as driver has been put in the claim form in a motivated way to avoid submission of the driving licence of the Complainant’s son or the Complainant himself . This is a serious lapse and suppression of fact by the Complainant. Referring to the decision of the Hon’ble National Disputes Consumer Redressal Commission in RP/3251 of 2013 , it was submitted that if the story regarding accident is different in FIR, claim form and other documents, it may be construed that the Complainant has not approached the Consumer Forum in clean hand. As the Respondent Complainant violated the policy condition of providing the valid licence of the driver who actually was in the drivers seat at the time of accident, an adverse presumption emanates and on that ground the impugned order is erroneous and liable to be set aside.
Ld. Advocate appearing for the Respondent/Complainant submitted that the driver of the vehicle which met with the accident at the material point of time was Kanaiya Ram and by mistake the name was not noted in the G.D. entry but the name was provided in the claim form which was duly enquired into by the Surveyor . In his survey report it has been categorically mentioned that the driver was Kanaiya Ram and his driving licence was valid when he was driving the vehicle that met with the accident. Ld. Forum below rightly adjudicated the complaint and held the OP Insurance Company liable for payment of compensation and repairing cost of the vehicle. There is no question of setting aside the impugned order.
Decision with Reasons:
The point for consideration is whether the impugned order suffers from material irregularity or legal infirmity.
There is no dispute that the vehicle was insured with the Appellant / Insurance Company and it met with an accident during the currency of the Insurance Policy.
Two copies of G.D. entries bearing the same number, i.e., 112 and the same date, i.e., 07.03.2011 appear to have been produced before the Ld. Forum below . Both the G.D. entries have been written in Hindi and English translation of both the G.D. entries appear to have been made by the translator High Court , O.S. Calcutta . The contents of those two G.D. Entries are same except the name of the person filing the G.D. before the Officer-in-Charge of Mallaipur Police Station. In one G.D. entry the name of the driver is Anil Gope who is son of Bino Gope and in another copy such name is Bino Gope, son of Tefan Gope . It is very much peculiar and beyond comprehension as to how this could have happened in making a single G.D. about the accident of the vehicle. There is enough reason to doubt about the purpose of filing such compliant to the Officer-in-Charge, Mallaipur P.S. Ld. Forum below appears to have given no serious consideration about the misleading nature of the statement about the name of the actual driver in the G.D. Ld. Forum below relied upon the G.D. filed by the Complainant where the name of the Complainant was written as the driver of the vehicle at the material time of accident. It has been rightly pointed out by the Ld. Advocate appearing for the Appellant that in any case , the name of another person, rather a 3rd person , i.e., Kanaiya Ram can under no circumstances , be put in the claim form as the driver of the vehicle . There is a gross mistake by the Ld. Forum in accepting the name of Kanaiya Ram as the driver of the vehicle. We are not inclined to hold that the Complainant/Respondent approached the Forum below with clean hands which the Ld. Forum below failed to consider . In the result, the appeal succeeds . Hence,
Ordered
That the appeal be and the same is allowed . The impugned order is set aside. Consequently, the complaint stands dismissed . There shall be no order as to cost.
