ORDER

Complaint under  Sec.12 of the CPA 1986 as amended upto date

Ms. Nipur Chandna, Member

          The complainant is a policy holder of policy no 360400/31/11/6100013928 of Vehicle no. DL-4CAD – 5341 spark Model 2009.  He complainant vehicle met with an accident on 19.4.2012 at about 5.30 p.m., as a street dog had entered on to the road & to save it an oncoming scorpio lost control and there was head on collision between the scorpio and the complanant’s vehicle.  It is further alleged by the complainant that due to the said accident his vehicle was badly damaged from the front side.  The complainant lodged a report of the alleged accident with the OP on 23.4.2012.  It is further alleged by the complainant that when    he lodged the claim for reimbursement, the OP processed the claim vide their claim no. ODH 18023 dated 24.8.2012 and rejected the same on filmsy grounds which were based on presumptions and prepositions rather than valid and legally acceptable grounds.  The   complainant therefore, approached this Hon’ble Forum for the redressal of his grievance.

      The complaint has been contested by the OP .  The OP has denied any deficiency on his part. It would be of benefit to reproduce Para No. 7 and 8 of the preliminary objections of W.S. by the OP which read as under:-

7. That the violation of condition No. 1 of the terms and conditions of the policy as the complainant has not informed about the loss immediately after the accident.  As per claim of the complainant the accident took place on 19.4.2012 whereas the complainant has informed the company on 23.4.2012 i.e. after a period of 5 days.  Therefore, the claim is not maintainable and is liable to be dismissed.

8. That the true facts of the case are that a vehicle bearing No. DL-4CAD-5341 was insured with the respondent vide policy no. 361000/31/10/610009625/- in favour of the complainant alongwith terms and conditions.  The liability of the respondent, if any, is subject to terms and conditions of the policy.  On receiving the intimation of accident dated 19.4.2012 on 23.4.2012 the company appointed Sh. J S Macker, Surveyor and Loss Assessor, who submitted his report dated 18.5.2012 and assessed the loss of Rs.1,34,500/- on net loss basis subject to the proper investigation to be conducted about the accident.  Accordingly, the company

 appointed Sh. L N Tyagi to investigating into the matter who submitted his report dated 16.7.2012 in which he has specifically stated that “the complainant has tried to manipulate the facts about the accident and the name of driver.”  Even the complainant has not got the vehicle surveyed by surveyor at the place of accident as per the terms and conditions of the policy and has not immediately informed the accident after the accident.  The complainant and her husband destroyed the relevant evidence about the accident to manipulate the things.  Therefore, in view of the facts of the case and the survey and investigation report the competent official of the company applied its mind and repudiated the claim as NO CLAIM and which was duly informed to the complainant vide letter dated 24.8.2012. Therefore, the present complaint is not maintainable and is liable to be dismissed.

          Both the parties have filed their evidence by way of affidavits.

          We have heard the arguments advanced at bar and have perused the record.

          The counsel for the OP has contended that, the major accident involving had on collusion between the complainant vehicle with a scorpio shows that the complainant vehicle was substantially damaged resulting in total loss of the vehicle but still no FIR was lodged by the complainant.  It is further contended by the counsel for the OP that as per the version of the complainant her husband was driving the vehicle at the time of accident and he did not suffer any injury which is not possible as the accident was a major one, wherein the vehicle was damaged from the front side.  The counsel for  OP has placed on record the surveyor report in which the surveyor has assessed the loss   to the tune of Rs.1,35,000/- on net loss basis subject to the proper investigation to be conducted about the accident.  Counsel for OP has also placed on record the Investigation report of Sh. L N Tyagi in which he has specifically stated that “ the complainant has tried to manipulate the facts above the accident and the name of driver”.  It is further contended by the counsel for the OP that Luxman Singh Meena was not the driver at the time of alleged accident and some other person was driving the vehicle, whose name has not been disclosed by the owner intentionally and deliberately.

In United India Insurance Co. Ltd. v/s M K Corporation, III(1996) CPJ8 (SC), the Hon’ble Supreme Court held as under:-

“It is a fundamental principle of Insurance Law that utmost good faith must be observed by the contracting parties.  Good  faith forbids either party from concealing (non disclosure) what he privately knows, to draw the other into a bargain, from his ingnorance of that fact and his believing the contrary.  Just as the insured has a duty to disclose, “Similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge since obligation of good faith applies to them euqlly with the assured.

The duty of good faith is a continuing nature.  After the completion of the contract, no material alteration can be made in its terms except by mutual consent.

We have considered, the contention of the Ld. Counsel.  It is admitted by the parties that the Insurance Company had appointed Sh. J S Macker as a surveyor to assess the loss.  The surveyor has given special remark in his report towards the end.  The special remark reads as under:-

The reported driver (Husband of the insured) Sh.Laxman Singh Meena S/o Sh. Ganga Sahai Meena come to my office for showing original documents of the subject care and for when required about any injury to him in this aid accident he could not show any injury marks, but the nature of accident being a severe head on collision on driver side and blood marks in the car indicates injury to the driver.  The reported driver Sh. Laxman Singh Meena verbally accepted before me that he was not driving the subject car at the time of accident and have changed intentionally the name of driver in the claim form but was reluctant to gave the name of the actual driver for the reason best known to him.

The underwriter may investigate the before settling the claim.

The OP has also appointed Sh. L N Tyagi as an investigator, a copy of the report has also been placed on record.  The Investigator has also comes to the conclusion that Sh. Laxman Singh Meena was not present on the Spot at the time of the accident as he way to his village about 350 k.m. from the spot and was thus not driving the vehicle in question. The OP has also filed the affidavit of Sh. J S Macker & Sh. L. N Tyagi in support of their respective report.

We are therefore, convinced that Laxman Singh Meena was not driving the vehicle in question at the time of accident & that it was being driven by somebody else whose name has been withheld by the insured.

From the discussion above, we are convinced that the OP Insurance Company was justifying in repudiating the claim lodge by the complainant in the facts and circumstances of the case.  We see no merits in this case which is hereby 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.....................