JUDGMENT Per Justice Sham Sunder , President This appeal is directed against the order dated 28.1.2009, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only),vide which it dismissed the complaint, but directed the complainant to pay Rs.10,000/- as costs to the OPs, for instituting false and frivolous complaint. . 2. TATA 2515EX, Goods Carrying Commercial Vehicle having Registration No. HR-37-B-9037 was purchased by the complainant(now appellant), and he got the same financed from Kotak Mohindra. This vehicle was insured for Rs.7.35 lacs, with the OPs (now respondents), for the period from 30.12.2006 to 29.12.2007, vide Policy Annexure C-3. Fitness Certificate and National Permit for plying the vehicle, anywhere in India, were also obtained by the complainant. The vehicle was sent to Calcutta on 21.9.2007, loaded with the medicines, from Zirakpur. It was driven by the driver namely Balwinder Singh S/o Dara Singh. It was stated that when Balwinder Singh reached Calcutta and unloaded the truck, the complainant received an order from Delhi Assam Roadways Corporation Ltd., to bring plastic material from Haldia to Nahan. Accordingly, the driver was instructed to load the vehicle with plastic material and deliver the same at Kala Amb. On such instructions, he got loaded the said material on 29.9.2007, and started moving back to Haryana. A phone call was received from the driver, that he had started journey from Calcutta for Kala Amb. When the Complainant did not receive any message from the Driver, for a couple of days, he started searching his vehicle and went to a number of places and checked the record of the barriers, in different States. Ultimately, he came to know, from the record of a barrier of the State of Uttar Pradesh, that the aforesaid vehicle entered Uttar Pradesh, but onwards, there was no trace of the same. The complainant entertained a suspicion that either his driver had run away with the vehicle, or something wrong had taken place, with the same. He reported the matter to Police Station Banur, Distt. Patiala, upon which, a DDR Annexure C-10, was recorded. The loss of the vehicle was intimated to the OPs, and the claim was lodged. The OPs asked for certain documents, which were duly supplied. Thereafter, the complainant visited the OPs, a number of times, but no heed was paid to his genuine claim. Vide letter dated 10.2.2008 (Annexure C-12), the claim of the complainant was repudiated by the OPs. It was stated that the aforesaid acts of the OPs, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant was not redressed, a complaint under Section 12 of the Consumer Protection Act,1986 (hereinafter to be called as the Act only) was filed. 3. The OPs, put in appearance, and filed a joint reply, wherein, it was admitted that the vehicle, in question, was insured with them, for the period from 30.12.2006 to 29.12.2007. It was stated that the vehicle had met with an accident on 27.8.2007, and it was not in pliable condition. It was further stated that the complainant reported the accident claim of the vehicle on 4.9.2007, to the OPs at their Khanna Office. It was further stated, that at that time, the vehicle was being repaired. It was further stated that after the accidental claim was passed by the OPs, they received a letter dated 28.2.2008 on 5.3.08 from the complainant , regarding the theft of the aforesaid vehicle on 29.9.2007. It was duly replied vide letter dated 10.3.2008. It was further stated that as the letter was received after five months of the loss/theft of the vehicle, when the Policy had already expired on 29.12.2007, as such, the claim of the Complainant was filed, as no claim, vide letter dated 22.5.2008. All other material, averments, were denied, being wrong. 4. The parties led evidence, in support of their case. 5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, dismissed the complaint, as stated above. 6. Feeling aggrieved, the instant appeal, was filed by the Appellant/Complainant. 7. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 8. The Counsel for the appellant, submitted that, the District Forum did not take into consideration Annexure A-9, untraced report, which clearly proved that the truck which was lost, was not traced. He further submitted that after the truck was repaired, it was reinspected by an authorized surveyor of the OPs, and thereafter, it became roadworthy, and undertook the journey to Calcutta, on 21.9.2007. He further submitted that, due to paucity of funds, the complainant could not make payment to the mechanic, who repaired the vehicle, which had met with an accident immediately and, made payment vide bills dated 4.10.2007 to 6.10.2007. He further submitted that Balwinder Singh, driver of the vehicle was missing, and, as such, the question of furnishing his affidavit did not arise at all. He further submitted that the District Forum, thus, gave a wrong finding that, in the absence of his affidavit , the version of the complainant could not be believed. He further submitted that repudiation of the claim was only on the ground of intimating the same(claim) after a long delay. He further submitted that when the truck was fully insured against the theft and loss, the OPs were duty bound to pay the insurance amount, but they illegally denied the claim. He further submitted that the order of the District Forum, being illegal, is liable to be set aside. 9. On the other hand, the Counsel for the respondents, submitted that the District Forum, took into consideration all the facts and circumstances, as also the evidence, produced by the parties, and came to the conclusion, that the complainant had filed a false and frivolous complaint, and dismissed the same, by burdening him with costs. He further submitted that the order of the District Forum, being legal and valid, is not liable to be set aside. 10. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons, to be recorded hereinafter. There is, no dispute, about the factum, that the complainant was the owner of the vehicle, referred to above. It is also admitted that the said vehicle was duly insured with the OPs, for the period from 30.12.2006 to 29.12.2007. The first question, that arises for determination, is, as to whether, the vehicle, in question, was stolen or not ? Balwinder Singh, driver of the complainant, who moved an application Annexure R-7, to the SHO Police Station, Mootha Padey, District Moradabad, claimed himself to be the owner of the vehicle. In that application, he stated that Truck No.HR 37B 9037 met with an accident on 27.8.007. Annexure R-9 to R-16 are the bills regarding repairs, which were submitted. These bills are from 4.10.2007 to 6.10.2007. The complainant admitted that the bills were submitted by him, for the repair of the Truck, which was insured with the OPs. In case, the truck had met with an accident on 27.8.2007, and remained under repairs, as per bills, up to 6.10.2007 , the question of plying the same, to Calcutta, on 21.9.2007, or having departed from there on 29.7.2007 for Kala Amb, did not at all arise. How the truck, which was under repair up to 6.10.2007, could be said to be roadworthy on 21.9.2007. This circumstance is sufficient to belie the version of the complainant, that the truck was stolen, when it was coming back from Calcutta. Such a false version was concocted by him just with a view to get insurance claim from the OPs. 11. Reliance was placed by the Counsel for the appellant on C-14 dated 10.11.2007 report of the surveyor. According to the report of the surveyor, the vehicle was re-inspected on 19.9.2007 at Rajpura in the presence of Mukhtiar Singh, after repair alongwith salvage of parts. The Counsel for the appellant submitted that when the vehicle was re-inspected on 19.9.2007 by the surveyor, it was fit for plying on the road, and, as such, the story set up by him, that the vehicle was lost on 29.9.2007 is correct. No affidavit of the surveyor, who allegedly inspected the vehicle at Rajpura, in the presence of Mukhtiar Singh, was produced on record. There is nothing, on record, to prove as to why the surveyor allegedly, gave the report on 10.11.10 i.e. after about two months of the alleged inspection. No plea, with regard to accident of the vehicle, and inspection on 19.9.07, by the surveyor was taken in the complaint. Under these circumstances, the contents of this document cannot be taken as correct, in the face of the repair bills R 9 to R 16 dated 4.10.2007 to 6.10.2007, submitted by the complainant himself, before the OPs. It was, under these circumstances, that this document was not relied upon, by the District Forum. 12. Not only this, Balwinder Singh, who was allegedly driving the truck, while coming from Calcutta, when it was allegedly lost, did not file an affidavit by way of evidence, to prove this factum. He could very well submit an affidavit to the effect, as to what were the circumstances, under which, the truck in question, was allegedly lost. If the complainant heard from some person that the truck had been lost, that could only be said to be hearsay evidence, and no reliance could be placed thereon. Even the source, from which he came to know, that the truck was lost, was not disclosed by the complainant. Even no evidence was produced that Balwinder Singh, driver of the truck, had been missing and, therefore, his affidavit could not be produced on record, by way of evidence. 13. Another glaring circumstance, which made the story, set up by the complainant, to be concocted, was to the effect, that according to the complainant, the truck was lost, when it was coming from Calcutta. However, Balwinder Singh, driver of the said truck, did not lodge FIR immediately, at the nearby Police Station, in regard to that incident. The complainant only felt satisfied, by lodging a DDR, regarding the loss of the truck at Police Station, Banur,District Patiala, that too on 22.10.2007, while it was allegedly lost on 29.9.2007, . The complainant very well knew that in case, the FIR was immediately lodged, in the Police Station, where the alleged incident took place, then the investigation will be conducted and the result would be unfavourable to him, because the truck had not actually lost, nor theft, in respect thereof, had been committed and only a false story had been concocted. Under these circumstances, the police was under no obligation to conduct any inquiry on the basis of such a belated DDR. This fact also clearly, makes the story of the loss of truck, set up by the complainant, to be unbelievable. 14. Not only this, the truck was allegedly lost on 29.9.2007, whereas the claim regarding the loss, was lodged by the complainant, with the OPs, on 28.2.2008 i.e. after about five months, and the same was repudiated vide letter dated 22.5.2008. In case, there was actual loss or theft of the truck, claim in respect thereof, was required to be lodged immediately thereafter, with the OPs, so as to enable them, to get the matter properly investigated through its surveyor or investigator, to find out, as to whether, the story set up by the complainant, was truthful or frivolous. When the claim was lodged after about five months of the alleged loss/theft of the vehicle, then it was not possible for the Insurance Company to properly investigate or inquire into the matter, so as to find out, as to whether, the claim lodged was false or true. Since the vehicle was under repair upto 6.10.2007, as is evident from the aforesaid bills, the complainant manoeuvred the date of loss of the said vehicle as 29.9.2007 on account of the reason, that the policy was going to expire in December,2007. It was, thus, a story which was nothing but a complete tissue of lies, on which the complainant grounded his claim, regarding the loss of truck. The District Forum was,thus, right in holding that the complainant with mala -fide intention did not disclose the factum of alleged theft of the vehicle on 29.9.2007 when he submitted the bills R-9 to R-16 regarding repairs from 4.10.2007 to 6.10.2007. The District Forum was also right, in coming to the conclusion, that since the complainant had filed false and frivolous complaint to extract money from the OPs, he was liable to pay the compensation. 15. The order passed by the District Forum does not suffer from any illegality or perversity, warranting the interference of this Commission. 16. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed with costs quantified at Rs.5000/-. The order of the District Forum is upheld. 17. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
