ORDER (ORAL) 1. Although an application is moved for condoning the delay of 23 days but we have heard the arguments on the merits of the case. 2. Brief facts of the case are that the complainant Neelam Thakur had purchased a vehicle No.DL 8 CL-5914 which was insured with the petitioner. During the valid insurance policy the vehicle met with an accident on 9th December, 2015. The case of the complainant was that the vehicle went off the -2- road about 23 ft. deep while being driven by her husband Raghubir Singh Guleria. He escaped unhurt. The vehicle was damaged badly. Vehicle was parked with Kangra Herbs Premises who was also claiming parking charges @ 10,000/- per month. Her claim was that the petitioner had failed to settle her claim. She had claimed the IDV of Rs.11 lakhs alongwith interest @ 18% and damages to the tune of Rs.5 lakhs for deficiency in service and Rs.20,000/- for not making the payment. She has also claimed litigation expenses to the tune of Rs.50,000/-. 3. Her claim was contested by the petitioner on several counts. The admitted facts are that the said vehicle was insured with the petitioner. The petitioner had appointed a Surveyor/Investigator Mr. Manoj Kukreja. The petitioner also appointed a spot surveyor Mr. Acharya who after examining the spot gave the finding that there was no possibility for the driver to open the car from inside as the car could not be opened while being driven. He also opined that there was a gorge outside and had the driver jumped from the moving vehicle he would have fallen into gorge and it was not possible for driver to escape unhurt. He also gave the report that there was no witness to the accident and the claim is concocted. The claim was repudiated vide letter dated 4.5.2016 i.e. after the filing of the complaint by the respondent. -3- 4. Parties led their evidences before the District Forum. After perusing the evidences on record and hearing the arguments of learned counsel for the parties, the District Forum reached to the conclusion that the rejection of the claim was unjustified and granted the following reliefs:- Accordingly, the complaint is partly allowed. The opposite parties are directed to pay Rs.11,10,995/- minus Rs.2000/- on account of compulsory deductibles i.e. Rs.11,08,995 to the complainant alongwith interest @ 12% per annum from the date of complaint till realization. The complainant is also directed to deposit the salvage of the vehicle with the opposite parties against proper receipt within 45 days from today. The complainant is held entitled to Rs.10,000/- as compensation towards mental harassment etc. and Rs.5,000/- towards litigation charges. A copy of this order be sent to the parties as per Rules and the file after its due completion consigned to the record room.” 5. The order of the District Forum was impugned before the State Commission. The State Commission concurred with the finding of the District Forum and dismissed the appeal vide order dated 2.4.2018. This order is impugned before us. 6. It is argued by learned counsel for the petitioner that the claim of the respondent was false and that they had themselves pushed the vehicle and the accident was not natural. It is further submitted that this fact is clear from the findings of the spot surveyor Mr. Acharya, who inspected the vehicle at spot and opined that the story of accident as set out by the complainant that as the -4- vehicle was going down the hill, the driver jumped from the vehicle in order to save himself is concocted one. It is submitted that at the place where he is alleged to have jumped from the car, there was a gorge and he could have fallen into the gorge if he had jumped from the moving car. It is further argued that the surveyor has also opined that the driver could not have opened the door from inside when the vehicle was moving. It is argued that both these facts conclude that the story of accident was false and it was concocted by the complainant. It is submitted that the Fora below have wrongly rejected these reports of Mr. Acharya and Mr. Manoj. Kukreja. It is further submitted that the email dated 3.9.2016 on which the Fora below have relied upon, were not supported by any evidence and were simple an email. 7. We have given thoughtful consideration to the arguments of learned counsel. Admittedly, the accident had taken place during the existence of the insurance policy. Admittedly the reports of Mr. Acharya and Mr. Manoj Kukreja have no technical knowledge as to the functioning of the Volkswagen. Their opinion that the door of the car could not have been opened from inside when the vehicle is moving, is not based on any technical knowhow. They have also not mentioned any document wherein this fact is mentioned. Their opinion is thus based on conjectures & surmises. On the other hand, the complainant/ respondent has relied upon the email received from the manufacturer of the car -5- and they have certified that the door of the car can be opened from the inside even when it is running or moving. It is also a fact that the petitioner i.e. insurance company has never objected to the filing of this document by the complainant and they had thus accepted the correctness and truthfulness of this document. To say at this stage that the Fora below have wrongly relied upon this document is of no consequence. The Foras below have also rightly rejected the argument that since there was a gorge and if the driver would have fallen from the moving car, he would have fallen in the gorge. There are concurrent findings of Foras below on these issues. District Forum has held as under: - “8. Admittedly as per Motor (Sport) survey report Annexure OP1&2-3, the spot was inspected by the surveyor Mr. Vishan Acharya on 10.12.2015. Per him, the vehicle was inspected by him at the spot of mishap and the damages were carefully noted. The insured car fell about more than 250 meters in gorge causing sever multiple damages to the insured vehicle. Per him the matter was also reported to the police vide GD entry No.023 dated 10.12.2015. The particulars of insurance policy, RC and DL were checked and found in order. Per him the insured representative told him that the driver jumped from the car during mishap. However, there is no possibility of jump as the vehicle Vokswagen Passat remains locked during driving. It is not explained by him in his report how he jumped to the conclusion that the vehicle Volkswagen Passat remained locked during driving. If a person who is driving the vehicle suffers no injury in the accident, it would not mean that there was no accident and that the claim is fraudulent. Further, we have gone through the report of Investigator Mr. Manoj K. Kukreja dated 18.2.2016 (Annexure OP1&2-3) which is based on circumstantial evidence. -6- 9. It is pertinent to mention here that during the pendency of the complaint, the complainant placed on record copy of E-mail addressed to Jatin Bahri, an employee of Volkswagen Company by his son Mr. Harjeet Guleria seeking clarification from technical team of Vokkswagen to let him know whether door of Volkswagen Passat can be opened from the inside in moving motion. The said query was answered by Mr. Jatin Bahri technical employee of Volkswagen, who specifically stated that it is possible to open doors of Passat while running/moving condition at second tug. Copy of this mail was also sent to the representative of the opposite parties i.e. Mr. Abhishek Rastogi. That being so, version of the opposite parties that the Volkswagen Passat remained locked while running/moving condition cannot be accepted as correct. Further we fail to understand that why the complainant’s driver will throw his vehicle into gorge when its value was more than Rs.11.00 lacs as is evident form copy of insurance policy Annexure C-1. We are of the opinion that opposite parties illegally and arbitrarily refused to pay the legitimate claim of the complainant and this act of the opposite parties in our considered opinion amounts to deficiency in service.” 8. The similar contention as raised before us was also dealt with by the State Commission. It has held as under: - “13. Submission of learned Advocate appearing on behalf of insurance company that there was no possibility of driver namely R.S. Guleria jumping out from the car at the time of accident because vehicle Volkswagen passat remain locked in moving position and on this ground appeal be allowed is decided accordingly. State Commission has perused the email report submitted by Jatin Bahri employee of manufacturing company placed on record. Jatin Bahri employee of manufacturing company has specifically mentioned in the report that it was possible to open door of Passat vehicle while in running/moving condition at second tug. State Commission is of the opinion that email report Tata AIG Gen. Insurance Co. Ltd. & Anr. Versus Neelam Thakur submitted by Jatin Bahri could be used as -7- corroborative evidence. Onus was upon the insurance company to prove that there was no possibility of driver jumping out from vehicle because vehicle remained locked in moving condition. Insurance company did not file affidavit of any employee of manufacturing company in order to prove that door of vehicle would remain locked in moving condition of vehicle. Hence plea of insurance company that door of vehicle would remain locked during moving condition of vehicle is defeated on the concept of ipse dixit (An assertion made without proof). 15. Submission of learned Advocate appearing on behalf of insurance company that on the basis of report submitted by Mr. Vishal Acharya surveyor cum loss assessor appeal be allowed is decided accordingly. State Commission has carefully perused the report of surveyor cum loss assessor namely Vishal Acharya. Shri Vishal Acharya has mentioned in damage report that 44 items of vehicle were damaged. Report of Vishal Acharya surveyor cum loss assessor that 44 items of vehicle were damaged remained unrebutted on record. Vishal Acharya recommended the case for further investigation. Thereafter further investigation was conducted by Shri Manoj K. Kukreja. Manoj K. Kukreja surveyor cum loss assessor has submitted the report that if vehicle was driven and was got slipped at the time of accident then there was no possibility that driver could jump out of the car. Shri Manoj K. Kukreja has submitted the report that insurance company is not liable. We have carefully perused the report submitted by Manoj K. Kukreja. State Commission is of the opinion that report submitted by Manoj K. Kukreja is not reliable & trustworthy because Sh. Manoj K. Kukreja did not obtain opinion of mechanic expert of manufacturing company. No reason assigned by Manoj K. Kukreja as to why he did not obtain the opinion of mechanic expert of manufacturing company prior to submitting the report to insurance company. Shri Manoj K. Kukreja has received consideration amount from insurance company and State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to rely upon the report of Manoj K. Kukreja because he did not obtain the report of mechanic expert of manufacturing company relating to locking system. -8- 16. On the contrary corroborative report has been submitted by Jatin Bahri employee of manufacturing company of vehicle that it was possible to open the door of Passat vehicle while in moving stage at second tug. State Commission is of the opinion that report submitted by Jatin Bahri could be used for corroborative purpose by the State Commission. Shri Vishal Acharya and Sh. Manoj Kukreja are not the eye witnesses of the incident and they have submitted report on the basis of evidence collected by them at the subsequent stage of the incident. Surveyors cum loss assessors did not obtain report of mechanic expert relating to locking of door of driver side during moving condition of vehicle. 9. The findings are based on cogent evidence. We find no illegality or infirmity in the impugned order. The revision petition has no merit and the same is dismissed with no order as to cost. | 
