Delhi

StateCommission

A/905/2014

PUSHP TRADERS - Complainant(s)

Versus

CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD. - Opp.Party(s)

16 Aug 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision:31.08.2018

 

First Appeal-905/2014

 (Arising out of the order dated 07.04.2014 passed in Complainant Case No. 639/2012 by the District Consumer Disputes Redressal Forum (East), Saini Enclave, Delhi)

 

Pushp Traders,

Through its Proprietor,

Sanjay Jain,

D-795, Gali No.8, Ashok Nagar,

Shahdara, Delhi-110 032.

…..Appellant

 

Versus

Cholamandalam MS General Insurance Co. Ltd.,

Branch Manager,

Plot No.6, First Floor, Metro Pillar No.81,

Karol Bagh, New Delhi.

 

Also at:

 

2^nd Floor, Dare House,

2NSC Bose Road, Chennai-600001.

 

.….Respondent

 

 

CORAM

 

Justice Veena Birbal, President

Salma Noor, Member

 

 

1.      Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

 

1. Aggrieved by the order dated 7.4.14 passed by the Consumer Disputes Redressal Forum (East), Saini Enclave, Delhi (in short, the “District Forum”) in Complaint Case No.639/2012 whereby the aforesaid complaint has been dismissed, the appellant/complainant has filed the present appeal.

 

2.       Briefly the facts are that the appellant herein i.e. complainant before the District Forum had filed a complaint under Section 12 of the Consumer Protection Act, 1986 (in short, the “Act”) stating therein that he was the owner of Tata 407 bearing registration No. DL ILM615.  The said vehicle was insured with respondent/OP for the period from 27.4.11 to 26.4.12 for an IDV value of Rs.5,64,300/-.  On 28.4.12, the aforesaid vehicle had met with an accident with DTC bus and was totally damaged.  FIR No.91/2012 was lodged with the concerned Police Station.  Insurance claim was also filed with respondent/OP. Requisite documents were also submitted.  The vehicle was got repaired by appellant/complainant and respondent/OP was asked to pay the repair bill of Rs.1,03,488/-.  Despite various reminders sent, respondent/OP did not process the claim.  Ultimately a complaint was filed before the District Forum for reimbursement of cost of repairs i.e. Rs.1,03,488/- with interest @ 24% p.a., Rs.50,000/- as compensation towards harassment and Rs.20,000/- towards cost of litigation.

3.       Respondent/OP had filed written statement wherein it was admitted that the vehicle in question was insured with them.  It was stated that FIR was lodged by the DTC bus driver, Shri Manjeet Singh with the allegation that DTC bus was hit from behind by the driver of appellant/complainant.  It was alleged that after the accident, the driver of insured vehicle had run away from the spot.  It was alleged that the owner of the vehicle, Mr. Sanjay Jain was caught at the spot by DTC driver who gave the name of his driver as Surender. A spot survey was done. Report was submitted by the surveyor giving details of damage caused to the vehicle.  It was alleged that the appellant/complainant had not provided the details of the driver and his driving license to the surveyor.  It was alleged that while intimating the appellant/complainant, respondent/OP had stated that one Jagdish was driving the vehicle.  The respondent/OP appointed investigator, namely, M/s. Technotech Engineers and Investigator for verification of details of driver.  The investigator had submitted a report dated 5.6.12.  As per said report, appellant/complainant had stated that Suresh Kumar Tyagi was driving the vehicle at the time of accident. It was alleged that appellant/complainant was playing hide and seek in the matter of stating name of person driving the vehicle as such was not entitled to claim the policy amount.  It was alleged that one Surender was driving the vehicle and whose driving license was not provided by appellant/complainant.

4.       It was further alleged that appellant/complainant had been giving different names of driver. At the time of accident, it was stated that one Surender was driving.  Thereupon name of Jagdish was given and lastly appellant/complainant had given the name of Suresh Kumar Tyagi.  It was also alleged that the original driving license of the person driving the vehicle was not provided as such the claim was not admissible under the policy.  It was alleged that appellant/complainant had produced false documents in support of his claim and hence was not entitled to the claim amount.  

5.       Rejoinder was filed by the appellant/complainant to the written statement of respondent/OP wherein the allegations made in the written statement were denied.  Appellant/complainant had reiterated stand taken in the complaint.

6.       Both the parties had filed evidence in the form of affidavits. After hearing the parties, the Ld. District Forum held that it was not established that Suresh Kumar Tyagi was driving the vehicle when accident took place.  Ld. District Forum held that different statements have been made by appellant/complainant in this regard.  He had tried to conceal the real man who was driving the vehicle at the time of accident as such it was  held that the appellant/complainant had violated the terms and conditions of the policy and was not entitled for any claim.

7.       Aggrieved with the aforesaid order, present appeal is filed.

8.       Ld. Counsel for appellant/complainant has submitted that District Forum did not appreciate the fact that Suresh Kumar @ Suresh Kumar Tyagi @ Surender is the same person.  Surender is the nick name of Suresh Kumar Tyagi who is known in his circle by the said name whereas his actual name is Suresh Kumar Tyagi.   It is contended that there is a deficiency in service on the part of respondent/OP as such complaint case has been wrongly dismissed by District Forum.

9.       On the other hand, Ld. Counsel for respondent/OP has submitted that impugned order is correct and has been passed after considering the relevant material on record. It is submitted that appellant/complainant had failed to produce the driver before the spot surveyor.  Even the details of driver and his license were also not provided.  It is contended that while intimating the occurrence to the respondent/OP, appellant/complainant had stated that one Jagdish was driving the vehicle at the time of accident whereas in the FIR, the name of driver recorded is Surender and before the Investigator, the name of Suresh Kumar Tyagi is given as the driver driving the vehicle in question.  It is contended that initially name of the person driving the vehicle given by appellant/complainant is Surender. It is further contended that since his license could not be produced, therefore, the name of Mr. Suresh Kumar Tyagi is given.  It is contended that it has been wrongly alleged that Surender is the nick name of Suresh Kumar Tyagi.

10.     We have heard the submissions made and perused the material on record.

11.     There is no dispute that the vehicle in question was insured with respondent/OP at the time of accident.  The factum of accident is also not disputed.  The only controversy is as to who was driving the vehicle at the time of accident. As per material on record, appellant/complainant was present at the time of accident.  FIR is lodged on the statement of the DTC bus driver, namely, Manjeet Singh who has given the details as to how the accident was caused by the vehicle of appellant/complainant with DTC bus being driven by him.  It is also recorded in the FIR that he had approached the owner Shri Sanjay Jain at the spot and the said owner had given the name of driver as Surender. It is also not denied by the appellant/complainant that the name of the driver given by him to DTC bus driver was Surender. It is also not denied that subsequently while lodging claim with respondent/OP, the name of Jagdish was given by the appellant/complainant as his driver.  It has also come on record that at the spot survey done by surveyor, name of the driver was not given as is evident from the survey report, Annexure-R-3 dated 4.4.12. At the time of verification done by the investigator, M/s. Technotech Engineers and Investigator report, Anneure-R-4 dated 5.6.12, the name of driver given by appellant/complainant is Suresh Kumar Tyagi and his license is also produced. Investigator has recorded statements of appellant/complainant, Jagdish and Suresh Kumar Tyagi in order to verify the name of driver and observed in the aforesaid report as under:

• “Finally, the undersigned met Mr. Sanjay Jain, Mr. Jagdish and Mr. Suresh Kumar Tyagi on dated 03.06.2012.

• Written statements were given by all personnels. (Original statements attached).

• Mr. Jagdish Kumar confirmed that the said vehicle was driven by Mr. Suresh Kumar Tyagi at the time of accident.

• Mr. Suresh Kumar Tyagi who gave his written statement as Surinder/Suresh Kumar, when grilled confessed that he is not Surinder.”

 

12.     The recommendations of investigator vide report Annexure-R-3 are as under:

 

“As per circumstantial evidence and the documents available, the driver at the time of accident was Mr. Surinder (As per FIR).

As per intimation to Insurers; the driver was Mr. Jagdish.

The licence impounded by police authorities, confirmed the driver was Mr. Suresh Kumar Tyagi.

As per the documents and written statements provided by the insured and co-drivers, Insured has failed to provide any concrete evidence of actual driver at the time of accident.

The said claim is not tenable.”

     

13.     The stand of appellant/complainant is that Suresh Kumar Tyagi and Surender is the same person.  His further stand is that surender is nick name being known in his circle as Surender whereas the real name is Suresh Kumar Tyagi. Respondent/OP has argued to the contrary.        

14.     From the material on record, it cannot be said that Suresh Kumar Tyagi and Surender is same person as is alleged. There is no evidence to show that Mr. Suresh Kumar Tyagi and Mr. Surender is one person. It is not stated by appellant/complainant before investigator that Suresh Kumar Tyagi and Surender is same person. Rather as per report dated 5.6.12 of investigator, Annexure-R-4, Suresh Kumar Tyagi on being questioned by investigator has stated that he is not Surender.  The report of investigator is not challenged in any manner by appellant/complainant. 

15.     The evidence on record establishes that appellant/complainant has falsely given the name of Suresh Kumar Tyagi as the person driving the vehicle. Actually Surender was driving the vehicle.  Since appellant/complainant could not provide his license, so name of Suresh Kumar Tyagi is given. It is not the case of appellant/complainant that driving license of Suresh Kumar Tyagi also mentions his alleged nick name alias Surender also.

16.     Ld. Counsel for appellant/complainant has contended that in Arrest Memo dated 29.4.12, Suresh Kumar @ Surender is mentioned.  Arrest Memo is dated 29.4.12 whereas investigator report, Annexure-R-4 is dated 5.6.12 wherein Suresh Kumar Tyagi himself has stated that he is not Surender. Further no reasoning is given by appellant/complainant as to why three different names were given by him at three different stages. The District Forum has also examined in this regard and has held as under:

 

“It is for the complainant to establish that person driving the vehicle at the time of accident was holding a valid license.  This is not established from the record that Mr. Suresh Kumar Tyagi was driving the vehicle when the accident took place.  The varied statement made by the complainant also confirms that complainant was trying to conceal the real man at the driving wheel.”

 

17.     We find no reason to disagree with the reasoning given by the District Forum. Agreeing with the finding of the District Forum that appellant/complainant has concealed about the real man driving the vehicle, the claim has been rightly dismissed by the District Forum.  

18.     No illegality is seen in the impugned order. Appeal stands dismissed.

19.     A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum for information.  The record of the District Forum be also sent back forthwith.  Thereafter the file be consigned to record room.   

 

 

 

(Justice Veena Birbal)

President

 

 

(Salma Noor)

Member