BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
MAHARANA PARTAP BUS TERMINAL, 5TH FLOOR,
ISBT, KASHMERE GATE: DELHI-110006
No. DF(Central)/2015/ Dated:
Complaint Case No.13 of 2013
Sh. Satyander Singh
S/o Sh. H B Singh
R/o House No. 4045,
Durga Colony, Sehatpur Vistar
FARIDABAD Complainant
Versus
Cholomandalam MS General Insurance Co. Ltd.
Through its Divisional Manager
Situated at First Floor A-27,
Nehru Ground NIT
Faridabad – 121 001
Cholamandalam MS General Insurance Co. Ltd.
Plot No. 6, Pusha Road, Near Metro Pillar No. 81
New DELHI – 110 005. Opposite Parties
ORDER
Complaint under Sec.12 of the CPA 1986 as amended upto date
Per Sh. Rakesh Kapoor, President
The complainant is the owner of vehicle No. HR-38-R-9877 . He had purchased a policy of insurance in respect of the aforesaid vehicle from the OP for the period 27.6.2012 to 26.6.2013. It is alleged that the vehicle met with an accident on 24.9.2012. The Complainant had informed the OP about the loss wherein it had appointed a surveyor who had inspected the vehicle on 25.9.2012. It is alleged that at the time of inspection of the vehicle, the complainant had given the name of the driver as Bhola Singh Rathor but the surveyor had inadvertently noted down the name as Raju Mishra. It is also alleged by the complainant that he had spent a sum of Rs.44,054/- on the repair of the vehicle in question and had lodged a claim with the OP . The OP had however, refused to pay. He had also served the OP with a legal notice dated 17.10.2012 but to no effect. The complainant was therefore forced to approach this Forum with this complaint.
The OP has contested the complaint and has filed a W.S. It has denied any deficiency in service on its part and has claimed that the complaint is not maintainable and is liable to be dismissed. The OP has admitted that it had issued a policy of insurance in respect of the vehicle in question in the name of the complainant which was effective for the period 27.6.2010 to 26.6.2013. It has however claimed that the complainant was guilty of concealment/fraud and therefore his claim was rightly repudiated. Para 3 & 4 of the W.S. on merits are relevant for the purpose of the decision of this complaint and are being reproduced as under:-
Para 3 That the contents of para 3 are wrong and denied. The complainant has concealed from this Forum the fact as to when and where and in what circumstances the alleged accident took place. The complainant has concealed the fact as to for what purpose the vehicle was being used at the time of accident. The complainant has not stated if any police report was lodged by him in respect of the accident. The complainant has not stated the reason why he did not given opportunity to the respondents to inspect the vehicle at the spot of accident. As regards the name of the driver, the complainant is manipulating the facts. Atr the time of giving intimation of the loss to the OP at 10.23 a.m. on 25.9.2012 he had clearly stated that the name of the driver at the time of accident is Raju Mishra, but it appears that since Raju Misra does not have a current and valid driving license to drive the insured vehicle, the complainant became wise and as an afterthought stated to the surveyor that Bhola Singh Rathaur was driving the vehicle. This change of stance by the complainant is a fraud committed by the complainant and all benefits under the policy stand forfeited for this reason and the claim is not payable. A copy of the Motor Claim Intimation form is enclosed as Annexure R-2.
3.1 It is further submitted that the insured vehicle is a Commercial Vehicle and as such under the Limitations as to Use clause of the Policy it can be used only under a Permit within the meaning of the Motor Vehicles Act, 1988. It must also have a current and valid Fitness Certificate issued by Competent Authority. The complainant has not produced the Original Permit and Fitness Certificate for verification by the OP and hence is not entitled to the claim.
3.2 It is submitted that the Policy contains the Drivers clause as under which must be complied with before any claim can be considered:
“Driver Clause: Any person including insured provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license.”
3.3. It is submitted that the policy contains the following Exclusion Clauses:
“General Exceptions:
The Company shall not be liable in respect of:
- ……….
- ……….
- Any accidental loss damage and/or liability caused sustained or incurred whilst the vehicle insured herein is:
- Being used otherwise than in accordance with the Limitation as to Use or
- Being driven by or is for the purpose of being driven by him/her in the charge of any person other than a Driver as stated in the Driver’s clause.
- I) any accident loss or damage to any property whatsoever or any loss or damage or expense whatsoever resulting or arising there from or any consequential loss
4.That the contents of Para 4 are wrong and denied. Although the bill enclosed by the complainant with the complaint contains a large number of parts said to have been replaced, but all such parts were not damaged in the alleged accident. The surveyor has assessed the loss on the items which were found damaged and the loss, after applicable depreciation salvage and excess clause as per policy conditions, is found to be not more that Rs.28,303/-. A copy of the Surveyor’s report is enclosed as Annexure R-3.
4.1 The OP do not admit that the complainant has paid Rs.44504/- to the repairers as no cheque no. date and amount has been stated in the complaint, nor a receipt for the payment granted by the repairers has been produced.
We have heard arguments advanced at the bar and have perused the record.
The sole question for our consideration is as to whether the OP was justified in repudiating the claim lodged by the complainant. The Ld. Counsel for the OP has taken us through Annexure R-2 which is the MCIR dated 15.4.2013 vide which information had been given to the OP about the accident. Our attention has been drawn to the fact that this claim intimation form gives the name of the driver at the time of the accident as Raju Mishra. The Ld. Counsel has further drawn our attention to a letter dated 8.6.2012 which it had addressed to the complainant seeking the production of the photocopy of the original license of the said Raju Mishra for verification. The letter inter-alia reads as under:-
We refer to your claim intimation on 25 September, 2012. Please note that we are not able to proceed with the claim process, as following formality is still pending to be completed from your end:
- Please provide original license of MR. RAJU MISHRA as per intimation alongwith photocopy for verification.
As you would understand and agree with us that we would only be able to proceed with the claim on receipt of the aforesaid formality. Hence would request you to let us have the information at the earliest.”
The Ld. Counsel has contended that the insured is guilty of concealment/fraud in as much as he had first intimated to the OP that one Raju Mishra was driving the vehicle in question at the time of the accident but later on having realized that the said Raju Mishra was not holding a valid and effective driving licence had sought to represent that one Bhola Singh Rathaore was driving the vehicle in question at the time of the accident rather than the said Raju Mishra. The Ld. Counsel has contended that there is no document on record filed on the part of the complainant to show that the vehicle was actually being driven by Bhola Singh Rathore at the time of accident. Neither a copy of FIR nor copy of the MLC has been placed on record. We are in agreement with the Ld. Counsel for the OP and we hold that in the facts and circumstances of the case, the OP was justified in repudiating the claim. The complainant had disclosed the name of Raju Mishra to the OP in the claim intimation form. He had later on retracted to say that one Bhola Singh Rathaore was actually driving the vehicle in question. He had not replied to the letter dated 8.10.2012 written in this regard by the OP. He had also failed to place any evidence in support of his averment that one Bhola Singh Rathore was the actually driver. We, are therefore, see no merits in the complaint. The same is dismissed.
Copy of the order be made available to the parties as per rule. File be consigned to record room.
Announced in open sitting of the Forum on.....................
(NIPUR CHANDNA) (DR. VIKRAM DABAS) (RAKESH KAPOOR)
MEMBER MEMBER PRESIDENT
