BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSIONAT HYDERABAD.
F.A. 535/2008 against C.C. 82/2007, Dist.. Forum, Kadapa.
Between:
K. Narayana Naidu,
S/o. Venkataramaiah
Age: 48 years,
Pullampet, (Post & Mandal)
Kadapa Dist. *** Appellant/
Complainant.
. And
1. The New India Insurance Company Ltd.
Rep. by its Branch Manager
19/91, 1st Floor, Madras Road
Kadapa.
2. Sundaram Finance Ltd.
Rep. by its Deputy Manager (SBS)
21, Patullos Road,
Chennai-600 002. *** Respondents/
Ops.
Counsel for the Appellants: M/s. Kalpana Kilaru
Counsel for the Resps: Smt. I. Mammuvani.
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
MONDAY, THIS THE SIXTEENTH DAY OF AUGUST TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) Appellant is unsuccessful complainant.
2) The case of the complainant in brief is that he got his Toyota Qualis vehicle insured with R1 for an amount of Rs. 6 lakhs commencing from 17.00 hours of 14.7.2004 to midnight of 21.5.2005. It was purchased under hire purchase agreement with R2. However, he could not renew the policy on 21.5.2005 and on 22.5.2005 being Sunday he renewed it on 23.5.2005 by paying the required premium at 3.00 p.m. and the policy was renewed with effect from 15.00 hours of 23.5.2005. While so, he met with accident on 23.5.2005 at 5.45 p.m. near Rapur village of Nellore district while giving side to opposite vehicle near Anjaneyapuram situated 3-1/2 KMs from Rapur village due to which the vehicle turned turtle and fell in the pit. The vehicle was damaged in the accident. This was intimated to R1 insurance company which had deputed a surveyor who conducted survey and assessed the loss at Rs. 5,25,972/-. When claim was made R1 repudiated it on 18.1.2006 alleging that the policy was renewed after the accident by managing the claim records as well as hospital records. The repudiation was unjust and therefore claimed the amount assessed by the surveyor together with compensation of Rs. 50,000/- and costs.
3) The respondent insurance company resisted the case. The earlier policy which was expired on 21.5.2005 was issued by another insurance company viz., United India Insurance Company. The said policy was not renewed. After the accident on 23.5.2005 the complainant has falsely obtained a cover note from it, with specific commencement time at 3.00 p.m. on 23.5.2005. It was issued in good faith. The fact that the complainant and his family members were returning from Penchalakonda met with accident on 23.5.2005 was published in newspapers. Later he got the records manipulated. In the causality register six persons names were entered and the admission time was noted at 6.00 p.m. The police intimation slip discloses that it was at 2.00 p.m. Later they altered the police intimation time from 2.00 p.m to 6.00 p.m. On receipt of intimation a surveyor was appointed. The facts gathered by the surveyor undoubtedly disclose that there was no valid policy at the time of accident. Instead of renewing the existing policy, he got a cover note with it with a specific time commencing at 3.00 p.m. after the vehicle met with accident. The claim was fraudulent. It was repudiated on 18.1.2006. The surveyor appointed by it assessed the loss at Rs. 3,14,000/- on net loss basis. In fact he gave a consent letter stating that M/s. Radha Madhav Automobiles, Vijayawada estimated the repairs at Rs. 6 lakhs however he would not go for repairs and agreed to receive Rs. 3,14,000/- as assessed by the surveyor. These facts were suppressed in the complaint. Therefore it prayed for dismissal of the complaint with costs.
4) R2 financier equally resisted the case stating that the complainant had entered into a loan agreement with it on 21.7.2004 for a sum of Rs. 4,32,950/- repayable in 35 monthly instalments commencing from 22.8.2004 and ending by 22.6.2007. One Mr. Madu stood as guarantor. The vehicle was hypothecated to it. In view of the loan it is for R1 to settle the claim, and it has no concern and prayed for dismissal of the complaint against it with costs.
5) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to 10 marked while the insurance company examined RW1 Dr. Syed Rafi Khan and filed Exs. B1 to B8. Exs. C1 to C3 were marked at the instance of Dist. Forum.
6) The Dist. Forum after considering the evidence placed on record opined that the complainant has manipulated the record, and suppressing the accident, he took the cover note at 3.00 p.m. Believing his version without verifying the vehicle, it has issued the policy. Therefore it opined that the claim was unjust and dismissed the complaint.
7) Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen that evidence of RW1 medical officer proves beyond doubt that they were admitted at 6.00 p.m.. The policy was issued after verification of the vehicle. In the light of these facts the complaint ought to have been allowed and prayed that appeal be allowed, consequently the complaint.
8) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
9) It is not in dispute that the complainant got his Toyota Qualis vehicle insured with United India Insurance Company for an amount of Rs. 6 lakhs commencing from 17.00 hours of 14.7.2004 to midnight of 21.5.2005 evidenced under Ex. A1. The averment made by the complainant that the policy issued under Ex. A2 was a renewal of earlier policy is patently false. However, he could not renew the policy. Therefore he took another policy from the respondent New India Assurance Company. It has nothing to do with earlier policy. He got a cover note on 23.5.2005 by paying the required premium at 3.00 p.m.
10) Obviously the complainant intends the Dist. Forum to consider it as renewal instead of fresh policy under Ex. A2 with R1. However, we may clarify and even clear from perusal of Ex. A1 & A2 that the earlier policy taken from United India Insurance Company under Ex. A1 was expired by 21.5.2005 and the said policy was never renewed. A fresh policy was taken from R1 New India Assurance Company commencing from 15.00 hours of 23.5.2005 and tentatively a cover note under Ex. A2 was issued. All this assumes importance in view of the fact that admittedly the accident took place to the vehicle on 23.5.2005 near Rapur of Nellore district wherein the inmates of the vehicle including the complainant had sustained injuries . While the complainant alleges that the vehicle met with accident around 5.45 p.m. and they were admitted in the government hospital at 6.00 p.m. and therefore the policy having come into effect at 3.00 p.m. entitled to the amount towards damages to the vehicle. The insurance company contends that the accident took place at about 1.00 p.m while they were travelling in the vehicle and the S.I and Excise Constables who were passing on the said road immediately admitted them in the government hospital at Rapur at 2.00 p.m. Therefore the issuance of cover note under Ex. A2 commencing the risk from 15.00 hours of 23.5.2005 could not have been given but for suppression of fact. The officer who issued Ex. A2 did not verify the vehicle nor find out whether it was involved in any accident. Without verifying the vehicle cover note under Ex. A2 was issued.
11) In the light of conflict in versions it has to be seen whether the complainant has managed to see that Ex. A2 was issued without getting his vehicle verified taking the officials of the insurance company into confidence. To unravel the question whether the accident took place at 1.00 p.m. as alleged by the insurance company or at 5.45 p.m. as contended by the complainant, the record placed by the parties would be of great help.
12) Cousin sister of the complainant Smt. Abburi Krishnaveni gave a report to the police Ex. A3 registered as a case in crime No. 20/2005 u/s 337 IPC alleging that on 23.5.2005 she along with complainant and others went to Sri Lakshmi Narasimha Swamy brahmostavams at Penchalakona in the vehicle belonging to the complainant in the early hours and while they were returning to their village Pullampet when they came near Rapur village at 5.00 p.m. the driver drove the vehicle in a rash and negligent manner, and he lost control of the vehicle and it turned turtle and fell into a pit, due to which they have sustained injuries. The police investigated into the offence, filed charge sheet Ex. B1 against the driver of the vehicle. The complainant was shown as LW7 in the list of witnesses. In the charge sheet there was a categorical mention that he also went along with injured to Penchlakona . There was also a mention that LW7 is an eye witness and the owner of the vehicle. It was further mentioned that LW1 to LW6 received injuries and they were admitted in government hospital at Rapur by LW7. In the memo of evidence there was a mention that LW7. “To speak about the offence and shifted injured person to Govt. Hospital, Rapuru.”
13) We reiterate that Ex. A2 cover note was issued at 3.00 p.m. The complainant was all through with them. They sustained injuries at about 5.00 p.m. She never stated that the vehicle was taken to Rajampet where cover note was given. The complainant did not dispute the investigation made by the police wherein the complainant was arrayed as an eye witness and also the person who travelled along with them. It looks as though the complainant did not sustain any injury and the other inmates about six persons had sustained injuries evidenced from Ex. B8, FIR, charge sheet and other material placed on record. The police in the charge sheet evidently did not mention the time at which the accident took place. In the FIR it was mentioned that the accident took place at 17.45 hours. In view of the fact that they were taken to the government hospital and were admitted, RW1 the medical officer noted their admission into hospital and treatment.
14) The insurance company appointed Sri P. Subrahmanyam an investigator to investigate into the incident. On his verification he found that the accident took place at 1.00 p.m and the injured were admitted at 2.00 p.m., and that the entire register maintained by the hospital was tampered. He informed the said fact to the insurance company for its repudiation vide his report Ex. B5. In the light of his observation that the record was tampered, it was summoned and marked as Ex. C3 as court exhibit. Ex-facie Ex. C3 carbon copy of police intimation slip the time was corrected from 2.00 p.m to 6 p.m. It is seen naked to the eye. The names of six injured were mentioned at Sl. No. 1557 to 1562. It was written as 6 p.m.. This was interpolated with some other pen. Against the above numbers the time originally mentioned as 3.05 p.m. was altered to 6.05 p.m. So also S.No. 1564 the time was altered from 3.10 p.m. to 6.10 p.m. Exs. A6 to A10 are the wound certificates issued by RW1 medical officer mentioning that the examination was commenced from 6.00 p.m. onwards. RW1 medical office who is the custodian of the record categorically admitted in the cross-examination “ The entire text of Ex. C3 police intimation slip was a carbon copy. It is true that the date and time was found originally as 23.5.2005 at 2.00 p.m. It is also true that time 2.00 p.m. was altered as 6.00 p.m. with a ball pen. It is true that the said correction or alteration is not endorsed by any officer or person who made the alteration or correction. I am the medial officer at Rapoor government hospital as on 23.5.2005. It is true that for the S.No. 1553, 1554, 1555, 1556 the time of admission of the respective patients was not mentioned in Ex. C2. It is true that in Ex. C2 the S.Nos. 1557 to 1562 including the words of MLC are written with one ball pen and the time which was written as ‘6.00 p.m.’ was written with some other ball pen.”
15) He also admitted that “it is true that the time mentioned against S.No. 1563 was originally written as 3.05 p.m. which was altered as 6.05 p.m. so also against S.No. 1564 the time was originally written as 3.10 p.m. which was altered as 6.10 p.m. Against S.No. 1565 the time was mentioned as 4.10 p.m. this was altered as 6.10 p.m.” When questioned as to who made the corrections, he answered ‘I do not know who made alteration of timings’. Evidently he did not issue any memo to the staff calling for explanation as to know who made the corrections, despite the fact the surveyor questioned him. He also admitted that one Dr. Vijaya Lakshmi was the Head of the institute at that time. Despite this controversy brought to him, he did not report the matter to her. When the Dist. Forum questioned, why he did not report, he did not answer. The complainant despite his cross-examination could not prove as to how such discrepancy did occur. The only conclusion one could arrive is that he was instrumental for creating false evidence at the behest of the complainant.
16) The Dist. Forum in the light of above corrections concluded that since the earlier policy was ended on the midnight of 21.5.2005, and he did not get it renewed, and obviously in order to avoid verification of the vehicle got the cover note under Ex. A2 from the insurance company officials. It seems that the officer who issued the cover note was later transferred. In the light of overwhelming evidence when the cover note was issued without verification of the vehicle and on the false declaration submitted by him, the Dist. Forum has rightly denied the amount payable under the policy.
17) The learned counsel for the appellant relying a decision in Kochar Woolen Mills Pvt. Ltd. Vs. United India Insurance Company reported in 2007 (2) CPR 288 (NC) contended that the National Commission time and again has deprecated the practice of appointing surveyor after surveyor till such time the insurance company got a favourable report. Therefore the report of the investigator cannot be believed. The facts are besides the point.
18) The ‘cover’ means an insurance contract whether in the form of policy or a cover note or a certificate of insurance to evidence the existence of an insurance contract. It should be given based on the proposal submitted by the insured or its authorized agent or its authorized representative as per GR2 of Indian Motor Tariff and Section 5 of the Indian Motor Tariff.
19) The insurance company did not file the proposal form and therefore it cannot be constructed that the vehicle was seen or that there was suppression of material fact in regard to the same. The proposal form as specified in Section 5 of the India Motor Tariff is required to be submitted by the insured to the insurer before the commencement of cover and at renewal in case of material alteration. For change of IDV at each renewal, however, a fresh proposal is not necessary. Such changes may be advised by the insured to the insurer by a letter signed by the insured/insured’s authorized signatory and sent to the insurer by recorded delivery. In case of change of insurer, a fresh proposal is required to be submitted to the new insurer. The insurers may include additional questions in the proposal form for the information and use.
20) A perusal of Ex. A2 shows that on the very same day cover note was issued mentioning the time at 3.00 p.m. By no stretch of imagination the vehicle could have been insured at 3.00 p.m when it met with accident at 1.00 p.m. The injured were admitted in the hospital at 2.00 p.m. In the light of irrefutable evidence Ex. C3 hospital medical record when it met with accident at 1.00 p.m. it could not have been covered by an insurance policy commencing from 3.00 p.m. We do not agree with the contention of the complainant that the accident took place at 5.45 p.m. The record was tampered in order to get compensation. This conclusion is arrived at not only from entries in Ex. C1 to C3 hospital record but also in the light of evidence of RW1 medical officer. The Dist. Forum has rightly dismissed the complaint. We do not see any merits in the appeal.
21) In the result the appeal is dismissed with costs computed at Rs. 2,000/-.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 16. .08. 2010.
*pnr
