STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 14.06.2018
Date of final hearing: 06.10.2023
Date of pronouncement: 02.11.2023
First Appeal No.767 of 2018
IN THE MATTER OF:-
- Reliance General Insurance Co. Ltd. through the General Manager, Reliance Center, South Wing, 4th Floor, Western Express Highway, Santa Cruz East Mumbai – 400055.
- The Branch Manager, Reliance General Insurance Co. Ltd. C-1, IIIrd Floor, New Krishna Park, Beside Janakpuri, West Metro Station, New Delhi-110018.
- Reliance General Insurance Co. Ltd., Regional Office SCO No. 212-214, Sector 34-A, Chandigarh through its Regional Manager.
- Reliance General Insurance Co. Ltd. through its Agent Rajesh 14A, 25273 Rajesh and intermediary Contract No. was 9467640064 office near Kosli Court Complex, Tehsil and Distt. Rewari.
Appellants No. 1 to 4 above, through their authorized signatory, Reliance General Insurance Co. Ltd., Regional Office, SCO 145-146, 2nd Floor, Sector 9C, Madhya Marg, Chandigarh-160009. ....Appellants
Versus
- Man Singh S/o Sh. Ranjeet Singh R/o Village Kanhora, Tehsil and District Rewari.
- HDFC Bank through its Branch Manager, Near bus stand Kulana District Jhajjar through Rewari Branch HDFC Bank, Shiv Chowk, Model Town, Rewari. …..Respondents
CORAM: Naresh Katyal, Judicial Member
Argued by:- Sh. Satpal Dhamija, counsel for appellants.
Sh. Vishal Aggarwal, counsel for respondent No. 1.
Sh. Bhawan Deep Jindal, counsel for respondent No.2.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Challenge in this appeal No.767 of 2018 is invited by Reliance General Insurance Company Ltd./insurer to the legality of order dated 30.04.2018 passed by District Consumer Disputes Redressal Forum-Rewari (In short “District Commission”) in complaint case No.505 of 2016, vide which complainant’s complaint has been allowed.
2. Complainant alleged that: his second hand purchased Mahindra Quanto C8 car No. HR-76B-3046 purchased from Shri Ram Finance Company, in auction for Rs.3,75,000/-; insured with OPs No.1 to 4/appellants and financed by OP No.5-HDFC Bank with amount of Rs.4,53,000/-, had met with accident on 29.04.2016 due to sudden appearance of a wild cow. While saving wild cow; vehicle turned turtle in roadside ditch and caught fire. FIR was lodged promptly on same day. Fire Brigade came there, but car burnt badly. Insurance company was informed telephonically. On 01.05.2016 and on 15.05.2016; vehicle was inspected by surveyors’ of insurance company, who also visited place of occurrence; required documents were submitted but, complainant’s claim was repudiated by OPs No. 1 to 4/appellants vide letter dated 23.08.2016, wrongly and illegally. Complainant sent legal notice on 29.09.2016. Act and conduct of OPs amount to deficiency in their service. He suffered physically, economically and mentally. He had to face financial loss due to paying of installments. Car has burnt and is of no use. By filing complaint; he sought direction against OPs no. 1 to 4 to pay him insured amount of Rs.7,62,000/- under policy, interest @24% p.a. on compensation be also paid; special cost of Rs.50,000/- as compensation for harassment, mental agony, litigation expenses including notice fee of Rs.2100/- be also paid.
3. OPs No. 1 to 4/insurer/appellants in their joint defence submitted that: on receipt of intimation on 29.04.2016, matter was investigated by Forensic Investigation Agency to ascertain exact cause of fire of vehicle and investigating agency observed that: fire has not been caused by mechanical/combustion failure, electric short circuit or due to spillage of fuel. It was observed that there was presence of wide range of inflammable organic compounds inside vehicle and fire started with human intervention. Vehicle was damaged intentionally by complainant to take benefit out of insurance and thus it is a violation of policy condition of utmost good faith. Also act of self destruction is not covered under policy’s terms and condition No.1 and 8. Claim was rightly repudiated vide letter dated 23.08.2016. There was no deficiency in service of insurer. Being a suspicious case; it was forwarded to investigation agency to identify true facts. After obtaining samples of vehicle; same were sent to independent agency: Spectro Analytical Lab Ltd. to find out reason of fire; whether fire was self suffered or fire was caught due to fault or defect. The conclusion of report reads:
“On the basis of facts and circumstances of the case discussed herein above I am of the view that this is a false case of fire of the vehicle on the basis of so called accident and there are prudent reasons to believe that vehicle was set on fire for some extraneous consideration.”
Dismissal of complaint has been prayed on above pleas.
4. OP No. 5/Bank in their defence has pleaded that: there is no cause of action against it. No relief has been sought against it. There is no averment in complaint that OP No. 5 has committed any deficiency in service. Complainant got financed the vehicle, under loan facility and availed loan of Rs.4,59,532/- from bank, vide loan account No. 32771072. Amount was to be returned in 60 monthly installments @Rs.10,933/- along with tax and other charges as per repayment schedule. He paid only eight installments in time. Remaining eight installments were paid at irregular interval and even his installments were bounced. Complainant is not a consumer and complaint is no maintainable. Complainant cannot get over, from terms of higher purchase agreement. As per statement of account; there is overdue amount of Rs.47,595.46/- towards complainant as on 07.03.2017 and despite that, he is under obligation to pay 29 remaining installments.
5. Parties led evidence. On analyzing rival submissions and pleas; learned District Consumer Commission-Rewari vide order dated 30.04.2018 has allowed the complaint, thereby directing OPs No.1 to 4/insurer/appellants to pay Insured Declared Value (IDV) of Rs.7,60,000/- to complainant with interest @ 9% p.a. from the date of filing of complaint, till payment, maximum within period of 45 days and to pay Rs.5500/- for compensation along with litigation expenses.
6. Feeling aggrieved there from; OPs-appellants/insurer has preferred this appeal.
7. Learned counsel for appellants/insurer has urged that: impugned order dated 30.04.2018 is erroneous on all fronts. Learned District Consumer Commission has ignored surveyor’s report dated 16.08.2016-Ex.OP-5 which speaks that it was false case of fire and car was set on fire for extraneous consideration. It is urged that by ignoring surveyor’s report; gross, obvious and manifest injustice has been caused to insurer/appellants. Even from forensic report Ex.OP-3, it has been identified from the samples taken from debris of burnt portion of engine; samples taken from debris of burnt portion of driver and co-driver seat; sample taken from debris of burnt portion of passenger seat driver or co-driver seat of vehicle, that: there was presence of heavy petroleum distillates. It is urged that this forensic report has not been rebutted by complainant. It has not been considered at all and impugned order dated 30.04.2018 has been passed. It is urged that an application has also been filed along with appeal supported by affidavit to place on record; enclosure part of investigation report (Annexure A-3) which could not be placed on record due to inadvertence/bona fide mistake, though report has been duly exhibited as Ex.OP-3 before learned District Consumer Commission.
8. Refuting appellant’s contentions on merits of appeal, learned counsel for respondent No. 1/complainant has contended that: impugned order dated 30.04.2018 passed by learned District Consumer Commission-Rewari is justified on given facts and evidence and same does not warrant any interference in this appeal. It is urged that forensic report Ex.OP-3, as well as surveyor’s report Ex.OP-5 will not sub-serve any cause of appellants. Vehicle turned turtle and fell in road side ditch because of imbalance, due to sudden appearance of cow on road, in an attempt to save the animal. Fire brigade came on spot and extinguished the fire. Vehicle suffered total damage, being fully burnt due to fire, which was not intentional. Insurer has failed to prove that complainant was at fault in causing fire. There could not be any mala fide intention, ill motive, on the part of complainant to cause damage to his own vehicle. While urging on appellant’s/insurer’s application for leading additional evidence; it is contended that appellant/insurer is trying to fill lacuna in its case, through above mode and application deserves dismissal.
9. This Commission has critically and subjectively analyzed rival submissions put before it. There is no denying fact that vehicle suffered fire. Also there is no denying that appellants are insurer of damaged/burnt vehicle and it was financed by OP No.5. Also currency of insurance policy is an admitted fact and it is further admitted that the fire upon vehicle had resulted during currency period of insurance which is from 07.05.2015 to 06.05.2016. As per complainant’s case, vehicle in question, was purchased, second hand for Rs.3,75,000/- in cash from Shri Ram Finance Company, in auction. RC was transferred in complainant’s name in November-2014. Finance amount was Rs.4,59,532/-, to be repaid in 60 monthly installment, each of Rs.10,933/-.
10. The only poser before this Commission is to adjudicate upon moot question: As to whether fire on vehicle on 29.04.2016 had resulted accidently, or it was intentionally caused by complainant?
11. Complainant gave given information Ex.C-9 to police on 29.04.2016 stating that: “when he was returning from Gudyani and at about 10:40 near Jakhala Mearupur Road; then suddenly a cow appeared on road. His vehicle became imbalanced and fell in ditch on road side. Because of this, due to short circuit, vehicle suddenly caught fire. Immediately fire brigade at Kosli was intimated which reached at spot and controlled the fire. By that time, the vehicle was fully burnt.” Complainant has also relied upon photographs of burnt/damaged car Ex.C-11/A to Ex.C-15. Glance at these photographs reflect that the vehicle was fully burnt. Ex.C-10 is the receipt showing that Rs.1100/- was charged by Municipal Committee-Rewari for extinguishing fire with help of fire brigade. Ex.C-2 is legal notice and Ex.C-1 is complainant’s duly sworn affidavit dated 23.11.2016. Mainly through above quality documentary evidence, complainant has tried to stimulate his cause.
12. Learned District Consumer Commission has observed that: there is no evidence on file to show that the vehicle was set ablaze, intentionally by complainant. It has also observed that: neither report of forensic investigating agency, nor any affidavit has been placed on record. This observation is blatant ignorance of status of evidence, so available in record of complaint case file. Forensic investigation report has been exhibited as Ex.OP-3 on 23.11.2017 (pages 131 to 145 on record) before learned District Consumer Commission. It is under the hand of Sh. S.K. Peshin, Zonal Head-North, Fourth Force, New Delhi. Sh. S.K. Peshin has also appeared in the witness box on 23.11.2017 and submitted his duly sworn affidavit Ex.OP-2, thereby fortifying his report. Specific order too has been passed on 23.11.2017 by learned District Consumer Commission. Hence it is established that despite OPs/appellants, having led their express and specific evidence, oral as well as documentary to prove its pleaded case; the same has not been considered at all, on illegal and erroneous notion that: neither report of forensic investigating agency, nor any affidavit has been placed. By not considering above documentary evidence, in form of forensic investigation report-Ex.OP-3, which has been proved on record by OPs/appellants by leading admissible evidence, in form of duly sworn affidavit Ex.OP-2 of S.K. Peshin-Author of said report (who also appeared in witness box); the impugned order dated 30.04.2018 of learned District Consumer Commission-Rewari is found faulty, at legal pedestal. What for the evidence of OPs/appellants/insurer was led, when it was not to be considered? Approach of learned District Consumer Commission is wholly unjust.
13. Adverting to integral part of report Ex.OP-3. Under its head: Collection of Samples and Report of Lab: it recites that: five samples were collected/lifted from site of inspection by team including S.K. Peshin, which pertain samples from engine, driver - Co-driver seat, passenger seat in middle portion, two back seats and four Tyres and Stepney portion. These were divided in two parts. First part of each was marked as S-1 to S-5 and second part of each was marked as S1/1 to S5/1. These were sent to Spectro Analytical Labs, New Delhi for opinion: As to whether these contain traces of Hydro Carbon in the form of Alcohol, Petrol, Kerosene etc. explosive substances like Potassium Nitrate etc. Report Ex.C-3 recites that: vide opinion dated 11.07.2016; the lab has confirmed presence of Heavy Petroleum Distillates in samples marked S1, S2 and S3. The Heavy Petroleum Distillates are nothing, but presence of diesel. The vehicle in question runs on diesel and thus opinion on sample marked S1 has no bearing of whatsoever nature in our case. The vehicle runs on diesel and in presence of diesel in engine debris is must.
14. Report Ex.OP3 also recites that: however, the most intriguing aspects relates to presence of diesel on sample marked as S-2 and S-3. S-2 and S-3 are samples of the debris on driver and co-driver seats as well as passenger seat behind driver and co-driver seat. In ordinary course of running the vehicle, there cannot be presence of diesel on samples marked S-2 and S3. The diesel goes to the engine from the fuel tank through a pipe which is below the floor of the vehicle and as such cannot be present in debris S2 and S3. Thus, presence of diesel in debris collected from driver, co-driver seat and passenger seat behind this seat, clearly points to some extraneous circumstances under which vehicle gutted in fire after so called claim of vehicle having turned turtle, three times, before stopping at present place (which is a normal position) while falling in a gorge 25 feet below from road is only a hoax one.
15. Collectively, because of above factors; the phraseology of report is to the effect that: presence of diesel as hydro carbon in sample S2 and S3 leads to strong suspicion on some extraneous taken during this time, which resulted in fire. The position of vehicle, as well as, approach road to the spot where vehicle was found in normal position after fire cast strong suspicion relating to theory of accident.
16. Since, report Ex.OP-3 is very comprehensive, explicit and unambiguous and same majestically covers all relevant arenas of probe; therefore, this Commission holds that report Ex.OP-3 has formed a formidable and acceptable base. There are absolutely no reasons before this Commission to discard this report, particularly when, as observed above it has been proved by leading evidence. Nowhere, complainant has led any evidence, to rebut the credibility flowing from report Ex.OP-3. On the foundation of this report; appellant’s surveyor, vide his final report Ex.OP-5 dated 16.08.2016 has given remarks that “this is a false case of fire of vehicle and on the basis of so-called accident and there are prudent reasons to believe that vehicle was set on fire for some extraneous considerations as enumerated in details as RCO report enclosed.” Eventually, the insurer has rightly repudiated the claim vide its letter dated 23.08.2016-Ex.OP-4 as there are adequate and well reasoned justifications before it.
17. Ratio of law laid down by Hon’ble Apex Court in case titled as “Anil Rishi Vs. Gurbax Singh” 2006(2) PLR 775 has to be borne in mind in the backdrop of above facts and evidence. Therein, the Apex Court has held that: “there is an essential distinction between the concept ‘burden of proof and onus of proof’. Burden of proof lay upon a person, who has to prove the fact and which never shifts, whereas, onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. The elementary rule of Section 101 of Evidence Act is inflexible. In terms of Section 102 of Evidence Act; the initial burden is always on the plaintiff. If the plaintiff discharge that onus and makes out a case, which entitles him to relief, then onus shifts upon the defendant to prove those circumstances, which would dis-entitle the plaintiff to the same.”
18. If the insurer/appellant herein has pleaded its exclusion from policy Ex.C-4 then it has to lead positive evidence in that regard as per mandate above quoted ratio of law. Report Ex.OP-3, being un-rebutted and duly proved on record, through testimony of its Author, would fully exonerate the insurer/appellants, from any ensuing liability under policy Ex.C-4. More so, it has also be borne in mind that: “direct evidence” proving complainant’s act of self causing fire to his own vehicle is not possible. His intention and mens rea in that regard can only be inferred and gathered from collective chain of circumstances, surrounding the incident of fire on his vehicle which took place on 29.04.2016. These attending circumstances are:
(a) vehicle in question was purchased, second hand in open auction by complainant for Rs.3,53,000/-;
(b) RC was made in complainant’s name in November-2014;
(c) Complainant raised loan of Rs.4,59,532/- from OP No. 5/HDFC Bank. Monthly installment of repayment of loan is/was Rs.10,933/- to be repaid in 60 installments.
(d) As per affidavit Ex.OP-5 of Mohinder Sharma-Manager Legal of HDFC Bank; as on 21.11.2017 overdue balance against complainant was Rs.1,52,714.15/- which he has to pay with interest and other charges, along with remaining 31 future installments.
(e) Foreclosure amount is Rs.4,45,473.32/-. There is default in repayment of loan amount on the part of complainant.
These attending facts might be weighing in the realm of complainant’s mind at every time. Above chain of circumstances points finger towards dubious and suspicious act on the part of complainant, which are indicative of fact that: incident of fire took place on 29.04.2016 only at his behest. Collectively, these circumstances establish that burning of vehicle in fire was self created by complainant, palpably, to thwart the entire process of recovery of loan, by Op-5/HDFC Bank, in which he was a defaulter, and in turn to secure wrongful gain for himself from OPs/appellants/insurer, on the pedestal of car insurance policy Ex.C-4, wherein IDV value of burnt vehicle is Rs.7,60,000/-. Complainant carrying such like mischievous and mala fide intention, cannot be allowed to succeed. He is accordingly non-suited by this Commission.
19. The finding of learned District Consumer Commission-Rewari in its order dated 30.04.2018 (Impugned herein) by observing therein that: rejection of genuine claim of complainant by insurance company on flimsy ground is not sustainable at all in the eyes of law. It is legally and factually erroneous. This being so, it is held that impugned order dated 30.04.2018 passed by learned District Commission-Rewari suffers from perversity as material evidence led by OPs/appellants/insurer which has direct bearing to discard claimant’s case has been overlooked and totally ignored. Accordingly, impugned order dated 30.04.2018 passed by learned District Commission-Rewari is set aside by accepting this appeal. As a legal corollary, so flowing; complainant’s complaint is dismissed as Complainant’s complaint filed before District Consumer Commission-Rewari was nothing, but an abuse of process of Law.
20. Keeping in view the dubious, mischievous and ill motivated conduct of complainant; this Commission, while non-suiting him, also impose exemplary cost on him. Misuse of Consumer Protection Act cannot be allowed as misuse would hinder the very purpose of Act. Accordingly, this Commission imposes exemplary cost of Rs.25,000/- upon complainant/respondent No.1-Man Singh S/o Sh. Ranjeet Singh, to be deposited by him, within 60 days from date of receipt of this order. District Consumer Commission-Rewari would take appropriate steps to facilitate recovery of cost amount (Rs.25,000/-) from complainant, which shall, on being deposited with it by complainant, be kept in Legal Aid Account, maintained by this Commission.
21. The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants/insurer against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.
22. Application of appellants/insurer filed along with this appeal for leading additional evidence is disposed of with observation that: since forensic investigation report Ex.OP-3 in already on record of complaint, as evidence led by appellants/insurer before it, and same has now being considered by this Commission, while deciding this appeal; no further order on application is required.
23. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
24. File be consigned to record room.
Date of pronouncement: 02nd November, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
