Complainant Janak Raj Mahajan vide the present complaint filed U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short The Act) for issuance of the necessary directions to the titled opposite party to pay repair amount of Rs.69,029/- alongwith interest @ 18% from the date of accident till realization, besides to pay Rs.25,000/- for mental harassment, agony and unnecessary suffering by him and any other relief which the Hon’ble Forum deems fit may be granted.

2. The case of the complainant in brief is that he is proprietor of M/s.B.V.Foods and is earning livelihood by way of self-employment manufacturing trading and supply of Rusks, Bakery and food items. He purchased a vehicle i.e. small carriage Alfa Plus (L5N) of Mahindra & Mahindra Company bearing Reg. No.PB-35Q 6436, Engine No.A4G0829219, Chassis No.MA1LV2FYJE5G26183, Model-2014, vide sale invoice No.INV15A000344 dated 1 Oct 2014 and the same got insured with the opposite party vide policy No.14010331140100003666, commencing from 29.09.2014 upto 28.09.2015, for IDV value of Rs.1,65,127/-. He deployed a driver named Kewal Singh for driving the vehicle. He has next pleaded that on 27.7.2015 his vehicle was en-route to Milwan Tehsil Indora Distt.Kangra for supply of goods and the vehicle was driven by driver Kewal Singh. Suddenly fire broke out in the engine due to short circuit, consequently vehicle got damaged due to fire, however, luckily the driver and helper did not sustain injuries. The matter was reported to local police and DDR No.11 dated 27.07.2015 was recorded at Police Chowki Thakur Dwara Distt.Kangra (HP). Prompt information regarding abovesaid accident was given to opposite party, who stated to have deputed some surveyor for spot survey. Despite of his various requests and reminders, the opposite party failed to settle his claim and kept on lingering the matter for about nine months and finally issued a letter dated 8.3.2016 declaring his claim as no claim alleging that he has not arranged required documents/clarifications in respect of the abovesaid claim. He has further pleaded that he got served a legal notice dated 04.09.2015 upon the opposite party and further supplied all the necessary documents and clarifications to opposite party but despite that they failed to release the necessary claim. He had to get the vehicle repaired on his own and had paid Rs.69,029/- to the authorized dealer/workshop. Thus the opposite party is liable to pay Rs.69,029/- to him. Hence this complaint.

3. Upon notice, the opposite party insurer appeared through its counsel and filed its written version taking the preliminary objections that the present complaint is not maintainable against opposite party and the vehicle was being driven by Sudarshan pal at the material time when the vehicle met with the occurrence on the fateful day as stated to police by Sudershanpal Driver in his own statement and had reported the matter to the police station and thus one cannot now resile from the true facts and statement as reported to police at the time of incident and any improvement or any modification regarding the occurrence thereafter is an after thought in order to get claim or compensation by filing false frivolous, bogus and baseless claim regarding the vehicle by distorting the facts by the claimant to get claim alleging that Kewal Singh was driving the vehicle on day of occurrence, but actually in fact Sh.Sudershan Pal was driving the vehicle and stated further that he is working as a driver with complainant firm for the last about one year and as such sole evidence is sufficient to file the claim as no claim. It is made clear that on the day of occurrence Kewal Singh was not driving the vehicle but complainant firm had tried to manipulate record to show Kewal Singh as driver but had utterly failed to do so thus the complaint is not maintainable. On merits, it was submitted that Kewal Singh was not driving the vehicle as per Ist FIR given to the P.S.Thakur Dwara. However, after receiving information spot survey was done and thereafter even loss of damage if any, was also carried by Sanjiv Gupta and Associates Surveyor, Loss Assessors and Valuers vide their report dated 3.10.2015 which is not final and company is not bound by it as other conditions are also to be fulfilled. S.A. Investigating the consulting Agency was also appointed to re-investigate the matter who had also submitted his report to the company based on his inquery conducted with regard to occurrence who had given his detailed report on 18.1.2016 and Addendum to report on 14.2.2016, he had conducted a threadbare inquiry and had also collected vital information and record under RTI Act also and submitted the record and reports to the opposite party, who after affording full opportunity to supply D.L. of Sudershan Pal and had duly informed the complainant to submit documents etc vide letter dated 19.1.2016 and 8.2.2016 and finally the competent authority after due application of mind had found the claim not payable and closed the file or repudiated the claim and duly informed insured/complainant vide letter dated 8.3.2016. He after getting the letter had now filed the present complaint but the same is not maintainable and liable to be dismissed. Opposite party has next submitted that Kewal Singh had been implanted as a driver as Sudershan Pal was not having any driving license to drive the vehicle as he was not holding or having any D/L thus to get compensation introduced Kewal Singh driver and also prepared false record manipulated and prepared to get claim and thus claim was found not payable and was an after thought as per detailed through Investigation mentioned above. Opposite party has further submitted that notice had got no legal validity sanctity and enforceability or legal force and is not binding on the opposite party. However the complainant never submitted Driving License of the Driver Sudershan Pal who was driving the vehicle at the relevant time of occurrence but he was having no valid driving license and complainant in spite of demand verbal as well as written could not supply driving license as infact Sudershan Pal alleged driver was not possessing or having any driving license as such the claim was not maintainable. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

4. Counsel for the complainant tendered into evidence affidavit of complainant Ex.C1 along with the other documents exhibited as Ex.C2 to Ex.C23 and closed the evidence.

5. On the other hand, counsel for the opposite party tendered into evidence affidavit of Sh.Natha Ram, Asst. Divisional Manager Ex.OP1, and of Sarv Daman Bhala Investigator Ex.OP-2 alongwith other documents Ex.OP3 to Ex.OP-38 and closed the evidence.

6. We have carefully examined all the documents/evidence produced on record and have also judiciously considered and perused the arguments duly put forth by the learned counsels along with the incidental scope of adverse inference for some documents that have been somehow ignored to be produced by the contesting litigants. We observe that the prime dispute prompted at the impugned repudiation of the complainant’s accident-claim (as No-Claim) of his fully insured but accidented (fire-burnt) vehicle on 08.03.2016 by the OP insurers alleging subrogation of the driver actually driving the vehicle at the time of the fire-accident causing the loss in question. As per the report of the OP Insurers’ Investigator, one Sudarshan Pal (whose DL could not be produced) was driving the Vehicle at the time of ‘fire-accident’ (as also stated in ‘one’ police DDR) whereas the complainant side has repeatedly asserted that Kewal Singh (Permanent Driver to the vehicle in question) has been driving the ill-fated vehicle (as usual) on the day of occurrence as is evident on ‘other’ DDR (Sic!) and further evidenced by the Gate Vehicle Record Register. Naturally, it certainly led to intent reexamine and re-peruse of the documented evidence as produced/ available on the record proceedings. We find that the one and the only point of contention (and also for statutory adjudication) between the present litigants has been the issue of ‘de-facto’ driver at the then material point of time of accident (fire-incident).

7. We find that the complainant has duly deposed (affidavit Ex.C1) that Kewal Singh has been the permanent Driver whereas Sudarshan Pal has been employed as only a Helper. On the date of accident 27.07.2015, the vehicle was driven by Kewal Singh with Sudarshan Pal as Helper who stayed back with the accidented Vehicle (on the road) whereas Kewal Singh was summoned back to the Unit. However, Sudarshan Pal was later instructed to file the requisite police complaint in the nearby Post/ Station and he was named as Driver of the Vehicle by the DDR recording police official that was duly got rectified in the subsequently amended DDR. Further, the documents exhibited here such as: Ex.C4, Ex.C7 to Ex.C9, Ex.C13 to Ex.C16, Ex.C21 and Ex.C23 do substantially support the contents of the herein-above referred complainant’s deposition.

8. We find that the OP Insurers’ above version of substitution of ‘driver’ finds its somewhat little support of whatsoever through the DDR Ex.OP6 and Investigator’s Report Ex.OP29 (based on accumulated ‘hearsay’ evidence only) whereas many of its own filed/ produced documentary evidence itself do not support the same such as: Ex.OP17, Ex.OP18 to Ex.OP23, Ex.OP25 to Ex.OP28 and Ex.OP34. Thus, we find that the OP Insurers have failed to put forth/ produce some definite pieces of cogent evidence in support of its allegation of ‘substitution’ of driver and as such the same amounts to merely a ‘bald’ statement, unfit for judicial acceptance.

9. The complainant has also produced Ex.C13 & Ex.C14 the paid-up Invoices for the repairs carried out @ Rs.69,030/- to his accidented vehicle but somehow he has neither contested the Surveyor’s Assessment (Ex.OP29) of Loss nor he has produced any technical expert opinion or other cogent evidence to prove that the amount spent on the repairs was indeed requisite to have repaired the damage caused to the insured vehicle by the instant accident and as such the OP insurers payment of the claim as per the Surveyor’s assessment shall be deemed to have been legal and in order.

10. In the light of the all above, we are of the considered opinion that the present complaint shall be best disposed of by directing the OP insurers to pay the impugned insurance claim as per the Surveyor’s Final Report Ex.OP29 assessing the accidented loss @ Rs.60,629/- within 30 days of the receipt of the copy of these orders otherwise the aggregate awarded amount shall attract interest @ 9% PA from the date of filing of the complaint till actually paid. The parties shall however bear their own costs, here.

11. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

(Naveen Puri)

President

Announced: (Jagdeep Kaur)

June 07, 2016 Member

*MK*