DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA

C.C.No. 192 of 27-7-2018

Decided on : 12-7-2023

Amarjit Singh aged about 36 years S/o Gurcharan Singh R/o # 255, Kothe Maluane, Patti Sandli, Mehraj, Teh. Rampura Phul, Distt. Bathinda-151105.

........Complainant

Versus

1. The New India Assurance Co. Ltd., The Mall, Bathinda. Through its Divisional Manager.

2. HDFC Bank Ltd., 3027-B, Guru Kashi Marg, Bathinda. Through its Branch Manager

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Sh. Lalit Mohan Dogra, President

Sh. Shivdev Singh, Member

Present :

For the complainant : Sh. Sahil Bansal, Advocate.

For opposite parties : Sh. Vinod Garg, For OP No.1.

Opposite party No.2 Ex-parte.

ORDER

Lalit Mohan Dogra, President

1. The complainant Amarjit Singh (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against The New India Assurance Co. Ltd., and another (here-in-after referred to as opposite parties).

2. Briefly stated, the case of the complainant is that the Complainant is the Regd. Owner of the Vehicle Regd. No. PB-03-AF-9698 Model July 2014. The said Vehicle is hypothecated with opposite party No.2 and comprehensively insured (Package Policy) vide Insurance Cover Note No.290476 w.e.f. 07.07.2016 to 06.07.2017 with opposite party No.1. The opposite party No.1 issued only One Page Cover Note for the IDV of Rs.19,80,000/-. No Complete Policy or its terms and conditions supplied to the complainant till date by the opposite party No.l.

3. It is alleged that on 29.03.2017 at about 3.00 a.m. Des Raj driver of the complainant took said truck trolla from the workshop of Jarnail Singh Jaila, Opp. Khasla Market at Rampura Phul (New Baba Bhai Roop Chand Truck Body Repair Works) as the vehicle was repaired one day before the accident and started Journey to Pathankot for loading stones, early in the Morning on 29.03.2017. All of sudden near Radha Swami Dera of Rampura Phul, the driver of another truck going ahead of the truck of the complainant applied brakes as stray animal came in front of his vehicle, as such the vehicle of the complainant struck with the rear portion of the said ahead truck trolla and vehicle of the complainant was badly damaged in this accident. The driver of the complainant received injuries and he took treatment from Desi Vaid Gurdeep Singh Bhola of Mehraj (Bahia Ayurvadic Hospital). An intimation in this regard was given to the Police of P.S. Sadar Rampura, and opposite party No.1. The opposite party No. 1 appointed Spot Surveyor Mr. Raj Paul Singhal from Bathinda who visited the spot and surveyed the vehicle at Spot and under the under the instructions of the surveyor the opposite party No.1 the complainant shifted the vehicle with Gobind Motors (Tata Authorized Service Centre) at Opp. Radha Swami Satsang Bhawan, Bathinda Road, Rampura Phul.

4. It is further alleged that on 31.03.2017 the opposite party No.1 appointed Final Surveyor Er. A.S. Kapoor (Kapoor & Company) from Ludhiana and under his instructions M/s Gobind Motors (II) started repair of the vehicle and complainant spent Total Rs.10,55,343/- on the repair. New Cabin was also replaced under the supervision and instructions of Er. A.S. Kapoor by M/s Gobind Motors (H).

5. It is alleged that the vehicle was completely repaired under the supervision of Er. A.S. Kapoor surveyor of the opposite party No.1. . At the time of final survey the Surveyor of the opposite party No.1 obtained Signatures of the complainant on Blank Claim Form, different Five-Six Blank papers, Blank Vouchers, Blank Consent Form and Blank Full and Final Voucher and gave the assurance that the full claim will be paid as per IMT and only 15% Depreciation is applicable on Metal Parts and 50% on Rubber and 0% on Labour and Glass etc. The Complainant raised the objection with the opposite party No.1 for the payment as the insurance is cashless but the opposite party No.1 did not listen and harassing the complainant and are not ready to deliver the vehicle without payment.

6. The complainant alleged that thereafter the opposite party No.1 again appointed R.P. Kalotra of Ludhiana alleged to be investigator on the claim of the complainant who demanded the list of private witnesses and Police Verification as such the Police again issued one Police Report dated 17.04.2017 vide which they confirmed that the accident took place on 29.03.2017. The said alleged Investigator is neither having any License from IRDA nor the opposite party No.1 took any permission from the Controller as mandatory under Sec 64 UMG(3) of Insurance Act. The same is gross negligence and malafide intention of the opposite party No.1 and their surveyor and alleged investigator.

7. The complainant further alleged that now complainant received letter dated 26.09.2017 from opposite party No.1 vide which they illegally rejected the claim of the complainant with the remarks that on the basis of Investigation report and final survey report the claim of the complainant was repudiated. Hence Closed the file as No Claim, which is totally illegal. In the said letter the opposite party No.1 neither disclosed the specific reason of rejecting the claim nor attached the said Final Investigation and Survey Report which shows the malafide intention of the opposite party No.1.

8. It is also alleged that the surveyors and investigators of the opposite party No.1 are under the thumb of Insurance Co. and they cannot afford to disoblige their master i.e. opposite party No.1 from where he is to obtain business and payment so they are always to toe the dictates of the opposite party No.1 and they made the reports under the instructions of the Insurance Co. i.e. opposite party No.1. The Surveyors and investigators cannot be appointed by the Insurance without taking them on their panel as such there is no question of independent surveyor. The surveyor's, investigators and opposite party No.1 never sent any spot/final Survey reports and investigation report to the complainant till date, although the same is mandatory under the regulations of IRDA Rules.

9. It is also alleged that the complainant inquired many times regarding his claim from the office of the opposite party No.1 but the opposite party No.1 did not give any satisfactory reply till date and sitting over the claim of the complainant without any reason and issued the above said illegal No Claim letter dated 26.09.2017. Due to the non-payment of the claim i.e. Rs.10,55,343/-, the complainant has suffered mental agony and pains for which he claims compensation to the tune of Rs.1,00,000/-.

10. On this backdrop of facts, the complainant has prayed for directions to opposite party No.1 to pay loss amount of Rs.10,55,343/- along with interest @ 18% p.a. and Rs. 1,00,000/- as compensation and Rs.50,000/- as litigation expenses.

11. Registered A.D. Notice of complaint was sent to the opposite parties but none appeared on behalf of opposite party No. 2, as such, exparte proceedings were taken against opposite party No. 2.

12. Upon notice, opposite party No.1 appeared through counsel and contested the complaint by filing written written reply raising legal objections that intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the 'Act' and appropriate remedy, if any, lies only in the Civil Court. The complainant has concealed material facts and documents from this Commission as well as opposite party, therefore, the complainant is not entitled to any relief. The contract of insurance is that of uberima fides i.e. utmost good faith but the complainant has concocted the entire facts regarding accident and has created a false story with malafide mind which does not inspire confidence and appears to be false on the face of it. The complainant wants to get the claim one way or the other.

13. It has been pleaded that opposite party deputed Er. A.S. Kapoor and company, the surveyors to conduct survey and Krish Associates investigators to conduct investigation and the said investigation report and final survey report clearly established that material facts about accident have been concealed by the complainant in gross violation of terms and conditions of the policy. Hence, the claim was repudiated vide letter dated 26.09.2017. The complainant has alleged that his driver was bringing the vehicle in early hours at about 3.00 a.m. after carrying out repairs from the workshop which is impossible and no workshop is open at these hours as alleged by the complainant. The hitting impact was so great and high that the cabin, frontal mechanical portion were badly damaged and chassis frame too was badly bent and twisted. The complainant had alleged that the insured vehicle hit behind another truck and it was empty but the hitting impact was not due to the vehicle being in empty position which could bend the chassis frame to such an extent. Rather it was indicating that the vehicle was fully loaded at the time of accident. The complainant could not justify from which repairer the trolley of the vehicle was got repaired and even the recently carried out repair to the trolley was not shown to the surveyor nor supported with any bill of repair of trolley. The vehicle was easily moveable on wheels and the spot surveyor had also suspected that the place of accident had been changed as per his remarks at Sr. No.2 of foot note. Further, it was observed by the surveyors that apart from frontal hit on the cabin there was another hit on the left rear pillar of the cabin compressing the left side quarter penal as well as door of cabin. This kind of damage can possibly occur if the tractor/truck takes a rotary turn on its fifth wheel assembly after first hit and the left rear pillar of the cabin hit with the edge of its own trolley, but the insured has stated that some other vehicle had hit on the left rear edge of the cabin which is not practically possible. No workshop is generally open at 3.00 a.m. and the complainant could not show the urgency to take the vehicle from the alleged workshop at these early hours. The complainant stated that he picked up the vehicle from Khalsa Market, Rampura Phul and after covering a very small distance it met with an accident in empty condition. Firstly the vehicle cannot pick up much more speed in that case that could create a hitting impact which may cause such a severe damage to the vehicle since the definition of impact is mass X velocity. Since, the mass has been stated to be empty, the mass of empty vehicle was equal to unladen weight i.e. 12200 kilograms and the speed of vehicle might be limited to 40/50 k.m. per hour. Under such condition such kind of heavy impact and damage is impossible. The same shows that the vehicle was fully loaded at the time of accident. In such a heavy stated accident, trolley shown was not at all effected and further not at all demanded in estimate too causing suspicion on complainant's presentation of case. During investigation by Krish Associates of Ludhiana, the investigator discussed various aspects and statements and found the story created by the complainant regarding date, time and place of accident to be totally false and created. The driver stated that he turned the vehicle towards driver side to avoid the accident. Had it been so, the right front portion of the truck could have been saved from the damages but it was not so. Further the driver stated that another truck trolla was coming from the left side also struck in his truck due to which his truck was stuck in between two vehicles whereas there is no such mention or hitting of another truck with the truck of the complainant in the DDRs. The driver has further stated that he was stuck in between driver seat and steering of the truck and remained there as such for one and half hour in unconscious condition. The stomach and chest of the driver Des Raj was pressed and both legs were stuck whereas in the same statement the driver has mentioned that drivers of both the involved trucks saw him in that condition and thought him to be dead and fled away in dark night and he could not read the registration number of these trucks. Had he got unconscious how could he observe that both the drivers saw him in unconscious condition or fled away presuming him to be dead or he could not note registration numbers of vehicles. Further, the driver has stated that he does not know by whom he was taken out of truck and he does not know who informed the truck owner but in 4th Paragraph of his statement, he has stated that owner of truck reached the spot of accident. Had he been unconscious, how could he note that owner/complainant reached at the spot. The truck driver further stated that owner shifted him to the residence of Dr. Bhola near Canal, Rampura Phul and provided medicine. The doctor kept him for one hour for treatment as his stomach was pressed and legs stuck in truck. The investigation showed that the said doctor Gurdeep Singh Bhola is an ayurvedic doctor and he opens his clinic in routine at 9/9.30 a.m. but since the truck owner was calling him he opened his clinic at 7.00 a.m. and gave first aid to driver and after about half an hour he was discharged. The doctor also appeared to be tutored when he said that he gave first aid at 7.00 a.m. whereas the driver stated that he was taken to doctor at 5.00 a.m. The driver asked to provide his mobile call details but he did not provide the same. The physical investigation with the driver revealed that accident took place on 29.03.2017 and driver was physically inspected on 12.04.2017 after 15 days. The physical investigation revealed that even after lapse of 15 days the injury on legs appeared to be unhealed. As per version of the driver he was seriously injured and he should have been given treatment from a surgeon/medical officer whereas the treatment alleged to have been taken from an ayurvedic doctor who is not competent to give treatment to such a serious patient. From the photographs of spot it was observed that the vehicle at the time of report spot survey was not at its actual place where the alleged accident has taken, which was evident from the debris and other broken parts etc. In contradictions to the statement of driver the owner mentioned that on 29.03.2017 at about 3.45 a.m. he received a phone call from a local passerby that his truck met with an accident and he reached at the spot within 15/20 minutes from his residence. The complainant stated that after one hour of treatment at doctor's clinic he dropped the driver at his residence whereas the driver has stated he was given treatment in doctor's residence. The driver stated that another truck trolla from his left side struck in his truck whereas owner has not stated any such facts nor the same are mentioned in DDR. The complainant mentioned about Baljinder Singh and Jaspal Singh whose names are mentioned in the DDR but during investigation Baijinder Singh stated that he has not seen the occurrence but he simply saw the truck trailer standing on road during his morning walk. Both Baljinder Singh and Jaspal Singh refused to give anything in writing but denied having seen any such accident. No call records were provided even by the owner. The investigation further proves that extent of damage actually caused could not have taken place at all in the set up circumstances narrated by the complainant. The spot photographs showed that insured vehicle is struck in a standing strong edge poll whose impact is being seen up to the top level of driver side front right portion. The driver has given the version that ongoing truck trolla applied sudden breaks as a stray animal had come in front of said vehicle and the driver turned his truck trolla towards driver side. So, the right front portion was badly damaged. The said statement is false and manipulated which is clear from the fact that how the driver saw that a stray animal appeared in front of ongoing truck as there was dark night around 3.00 a.m. there is every possibility that even the driver name is also changed. The driver could not have got the injuries narrated by the driver and complainant as per the circumstances and extent of accident and damage. The investigator gave the expert opinion that the accident reported on 29.03.2017 at about 3.00 a.m. is not genuine, cause of loss is falsely stated, damages do not corroborate and correlate with the case of loss, spot of accident is changed from the actual one and the insured has not lodged the claim genuinely.

14. Further legal objections are that the complainant is not consumer. The complainant has no locus standi or cause of action to file the present complaint and that the present complaint is not maintainable in law and the same is liable to be dismissed.

15. On merits, opposite party No. 1 has reiterated its version as pleaded in legal objections and detailed above. After controverting all other averments of the complainant, the opposite party No. 1 prayed for dismissal of complaint.

16. In support of his complaint, the complainant has tendered into evidence his affidavit dated 27-7-2018 (Ex. C-1), affidavit dated 27-7-2018 of Baljinder Singh (Ex.C-18) and documents (Ex.C-2 to Ex.C-17 & Ex.C-19).

17. In order to rebut the evidence of complainant, the opposite party No. 1 has tendered into evidence affidavit of Sh. Raj Pal Singhal dated 3-10-2018 (Ex. OP-1/1), affidavit dated 3-10-2018 of Sh. Ashish Pal (Ex. OP-1/6), affidavit dated 1-10-2018 of Sh. R P Galhotra (Ex. OP-1/8) and documents (Ex. OP-1/2 to Ex.OP-1/5 and Ex. OP-1/7).

18. The learned counsel for the complainant has argued that vehicle of the complainant was insured with opposite party No. 1 with IDV of Rs. 19,80,000/-. During continuation of insurance, the vehicle of the complainant met with an accident on 29.3.2017 at 3.00 a.m. while being driven by driver namely Des Raj. The said vehicle started its journey from workshop of Jarnail Singh Jaila at Rampura Phul as the vehicle was repaired one day before the accident and the vehicle started journey to Pathankot for loading stone on early morning of 29-3-2017. All of sudden near Radha Swami Dera of Rampura Phul, the driver of another truck going ahead of the truck of the complainant applied brakes because a stray animal came in front of his vehicle. As such, vehicle of the complainant struck with the rear portion of the truck going ahead. Due to accident, vehicle of the complainant was badly damaged and driver received injuries who took treatment from Desi Vaid Gurdeep Singh Bhola. Intimation to the Insurance company was given who deputed surveyor Mr. Rajpal Singhal. The said spot surveyor conducted survey and thereafter vehicle was shifted to Gobind Motors. On 31-3-2017, opposite party No. 1 appointed Er. A S Kapoor for final survey who inspected the vehicle and complainant spent Rs. 10,55,343/- on repairs in the presence of said surveyor and cabin of the vehicle was also replaced. The surveyor obtained signatures of the complainant on various blank papers. It is further argued that instead of paying the claim, the opposite party No. 1 has repudiated the claim payable to complainant on false and flimsy grounds and accordingly, complainant is entitled to receive Rs. 10,55,343/- in addition to compensation for mental tension agony and harassment and on account of financial loss.

19. The learned counsel for the complainant has also relied upon the judgement of Hon'ble State Commission, Punjab, Chandigarh, in First Appeal No. 663 of 2018 decided on 17-7-2020 titled as Sanjay Kapoor Vs. Royal Sundaram Allianace Co. Ltd., and others; judgement of Hon'ble Punjab & Haryana High Court reported in 2017 (1) R.C.R. (Civil) 912; Order of Hon'ble State Commission, Punjab, Chandigarh, reported in 1998(1) CPC 192; Jugement of Hon'ble Punjab & Haryana High Court reported in 2002(1) RCR (Civil) 785; Judgement of Hon'ble Supreme Court reported in II (2010) CPJ 1 (SC); Order of Hon'ble State Commission, Punjab, Chandigarh, reported in I (1999) CPJ 73.

20. On the other hand, learned counsel for opposite party No. 1 argued that complainant has concealed material facts and documents from this Commission and the surveyors and investigator deputed by opposite party No. 1 found that complainant has concocted the entire facts regarding accident and has created a false story, as such the claim of the complainant was rightly repudiated vide letter dated 26.09.2017. It is further argued that in the complaint, claim & DDRs, there is no detail of other truck allegedly involved in the accident and the driver has not mentioned any reason why he could not note number of the truck going ahead. It is further argued that complainant has not been able to explain as to how driver of the truck took delivery of the truck at 3.00 a.m. after carrying out repairs. It is further argued that there is difference in destinations as in the complainant it is alleged that truck was to going to Pathankot for loading stones whereas in Ex C-5, it is mentioned that driver was going home after getting work done. Further in police report, it is mentioned that truck was coming from Bathinda to Rampura. The learned counsel for opposite party No. 1 further argued that damages were major in nature where trolley should have also got damaged. The hitting impact was so great and high that the cabin, frontal mechanical portion were badly damaged and chassis frame too was badly bent and twisted. It is further argued that complainant had alleged that the insured vehicle hit behind another truck and it was empty but the damages to the vehicle shows that hitting impact was not due to the vehicle being in empty position which could bend the chassis frame to such an extent. Rather it was indicating that the vehicle was fully loaded at the time of accident. The complainant could not justify from which repairer the trolley of the vehicle was got repaired and even the recently carried out repair to the trolley was not shown to the surveyor nor supported with any bill of repair of trolley. It is further argued that the vehicle was easily moveable on wheels and the spot surveyor had also suspected that the place of accident had been changed as per his remarks in survey eport at Sr. No.2 of foot note. Further, it was observed by the surveyors that apart from frontal hit on the cabin, there was another hit on the left rear pillar of the cabin compressing the left side quarter penal as well as door of cabin. It is further argued that this kind of damage can possibly occur if the tractor/truck takes a rotary turn on its fifth wheel assembly after first hit and the left rear pillar of the cabin hit with the edge of its own trolley but in the present case, the insured has stated that some other vehicle had hit on the left rear edge of the cabin which is not practically possible. It is also argued that no workshop is generally opened at 3.00 a.m. and the complainant could not show the urgency to take the vehicle from the alleged workshop at these early hours. It is argued that version of the complainant is that he picked up the vehicle from Khalsa Market, Rampura Phul and after covering a very small distance it met with an accident in empty condition. Firstly, the vehicle cannot pick up much more speed in that case that could create a hitting impact which may cause such a severe damage to the vehicle. It is also argued that in such a heavy stated accident, trolley shown was not at all affected and further not at all demanded in estimate too causing suspicion on complainant's presentation of case. During investigation by Krish Associates of Ludhiana, the investigator discussed various aspects and statements and found the story created by the complainant regarding date, time and place of accident to be totally false and created. It is further argued that version of driver regarding accident is contradictory to the one claimed by owner:

21. The learned counsel for opposite party No. 1 further argued that as per statement of driver, he turned the vehicle towards driver side to avoid the accident. Had it been, so the right front portion of the truck could have been saved from the damages but it was not so. Further the driver stated that another truck trolla was coming from the left side also struck in his truck due to which his truck was stuck in between two vehicles whereas there is no such mention or hitting of another truck with the truck of the complainant in the DDRs.

22. It is also argued by learned counsel for opposite party No. 1 that driver has also stated that he was stuck in between driver seat and steering of the truck and remained there for one and half hour in unconscious condition. The stomach and chest of the driver Des Raj was pressed and both legs were stuck whereas in the same statement the driver has mentioned that drivers of both the involved trucks saw him in that condition and thought him to be dead and fled away in dark night and he could not read the registration number of these trucks. Had he got unconscious, how could he observe that both the drivers saw him in unconscious condition or fled away presuming him to be dead or he could not note registration numbers of vehicles. Had he been unconscious how could he note that owner/complainant reached at the spot. The truck driver further stated that owner shifted him to the residence of Dr. Bhola near Canal, Rampura Phul and provided a medicine. It is further argued that the physical investigation with the driver revealed that accident took place on 29.03.2017 and driver was physically inspected on 12.04.2017 after 15 days. The physical investigation revealed that even after lapse of 15 days the injury on legs appeared to be unhealed. As per version of the driver he was seriously injured and he should have been given treatment from a surgeon/medical officer whereas the treatment alleged to have been taken from an ayurvedic doctor who is not competent to give treatment to such a serious patient.

23. The learned counsel for opposite party No. 1 further argued that from the photographs of spot, it was observed that the vehicle at the time of spot survey was not at its actual place where the alleged accident has taken place and there is also contradictions in the statement of owner and alleged eye witnesses. The version of the owner is that on 29.03.2017 at about 3.45 a.m. he received a phone call from a local passerby that his truck met with an accident and he reached at the spot within 15/20 minutes from his residence and after one hour of treatment at doctor's clinic he dropped the driver at his residence whereas the driver has stated he was given treatment in doctor's residence. It is also argued that complainant mentioned about Baljinder Singh and Jaspal Singh whose names are mentioned in the DDR but during investigation Baljinder Singh stated that he has not seen the occurrence but he simply saw the truck trailer standing on road during his morning walk. Both Baljinder Singh and Jaspal Singh refused to give anything in writing but denied having seen any such accident. It is argued that the investigation further proves that extent of damage actually caused could not have taken place at all in the set up circumstances narrated by the complainant. The spot photographs showed that insured vehicle is struck in a standing strong edge poll whose impact is being seen up to the top level of driver side front right portion. The driver has given the version that ongoing truck trolla applied sudden breaks as a stray animal had come in front of said vehicle and the driver turned his truck trolla towards driver side. So, the right front portion was badly damaged. It is argued that said statement is false and manipulated which is clear from the fact that how the driver saw that a stray animal appeared in front of ongoing truck as there was dark night around 3.00 a.m. It is also argued that there is every possibility that even the driver name is also changed. The driver could not have got the injuries narrated by the driver and complainant as per the circumstances and extent of accident and damage. It is also argued that the investigator gave the expert opinion that the accident reported on 29.03.2017 at about 3.00 a.m. is not genuine, cause of loss is falsely stated, damages do not corroborate and correlate with the case of loss, spot of accident is changed from the actual one and the insured has not lodged the claim genuinely. The learned counsel for the opposite party No. 1 further argued that claim of the complainant has rightly been repudiated and as such, present complaint be dismissed.

24. The learned counsel for opposite party No. 1 has also relied upon Judgement of Hon'ble Supreme Court reported in 1980 AIR 695 (SC); Order of Hon'ble State Commission, Punjab, Chandigarh, 2012 (2) CPJ 38; Judgement of Hon'ble National Commission, New Delhi, reported in 2022(1) DNJ 23; Judgement of Hon'ble National Commission, New Delhi reported in 2020 (2) CPR 569 & Judgement of Hon'ble Supreme Court in Civil Appeal No. 9050 of 2018 in case titled M/s Khatema Fibres vs New India Assurance Co. Ltd.,

25. We have heard learned counsel for the parties and gone through the the case law referred by learned counsel for the parties and the file carefully.

26. It is admitted fact that vehicle owned by complainant was insured with opposite party No. 1. It is further admitted fact that vehicle of the complainant was damaged in the accident and claim lodged by complainant stands repudiated vide letter dated 26-9-2017.

27. To prove his case, the complainant has placed on record his duly sworn affidavit, insurance cover note Ex. C-2, copy of R.C. Ex. C-3, copy of fitness of vehicle Ex. C-4, copy of permit Ex. C-5, copy of D.L. Of driver Des Raj Ex. C-6, affidavit of Jarnail Singh Ex. C-7, affidavit of Des Raj driver Ex. C-8, claim intimation Ex. C-9, copy of DDR Ex. C-10, repair estimate Ex. C-11, Tax invoices Ex. C-12 to Ex. C-15, affidavit of Sh. Dinesh Kumar Ex. C-16 and affidavit of Baljinder Singh Ex. C-18.

28. On the other hand, learned counsel for opposite party No. 1 placed on record repudiation letter Ex. OP-1/1, policy of insurance Ex. OP-1/2, spot report of Raj pal Singhal Ex. OP-1/3, final survey report of Kapoor & Company Ex. OP-1/5, report of Investigator Ex. OP-1/7 and affidavit of Investigator Sh R P Galhotra Ex. OP-1/8.

29. The arguments of learned counsel for opposite party No. 1 are that complainant has not been able to disclose the number of truck which was going ahead but this Commission is of the view that when the accident take place, in such eventuality, the number of the truck going ahead cannot be presumed to have been noticed by the driver of the truck of the complainant in every case. As such, argument of the learned counsel for opposite party No. 1 has no force. As far as the time of taking delivery of the truck i.e. at 3.00 a.m. is concerned, counsel for the opposite party has argued that no workshop is opened at 3.00 a.m. for repair of the vehicles. A perusal of complaint and evidence in the shape of affidavits proved that it is mentioned that truck had already been repaired one day before and driver of the complainant took truck from said workshop at 3.00 a.m. This Commission is in agreement with the plea of the complainant as it is general practice of the heavy truck drivers to start journey at early hours to avoid traffic etc., As far as next argument of learned counsel for opposite party No. 1 regarding difference in destination is concerned, it has been mentioned in DDR and affidavits that vehicle started its journey from Rampura Phul and minor contradictions regarding destination are of no affect to make a case to deny the claim.

30. The next argument of learned counsel for opposite party No. 1 is regarding nature of damages, this Commission is of the view that when accident takes places. the damages can be of any nature and it cannot be held that accident took place with some pillar when there is cogent evidence in the shape of DDR and affidavits of eye witnesses and driver of the vehicle that vehicle got stuck with the truck going ahead. Moreover, the opposite party No. 1 has also not placed on record any evidence to prove that accident took place with some pillar and report of surveyor and investigator are only hearsay evidence collected during the course of investigation without any documentary proof. As far as argument of the learned counsel for opposite party No. 1 regarding suffering injuries by driver is concerned, this Commission is of the view that it is not necessary in every accident that driver of the accidental vehicle should suffer major injury. Moreover, in the present complaint, the complainant has fully explained that driver Des Raj took treatment from Desi Vaid Gurdeep Singh Bhola, for minor injuries received by him and this fact is also confirmed by Investigator.

31. The learned counsel for opposite party No. 1 has also argued that there are major contradictions in the statement of owner and alleged eye witnesses and place of occurrence and name of driver were changed by the complainant to get claim from the opposite party in wrongful manner. This Commission is of the considered opinion that as per policy of insurance placed on record by opposite party No. 1, vehicle is insured from 7-7-2016 to 6-7-2016 and the accident took place on 29-3-2017 and counsel for opposite party No. 1 has not been able to explain as to what can be the reason for changing the place of occurrence and what advantage complainant shall get if he decides to change the place of occurrence as policy of insurance covers the accident which takes place at any public place. It is not the case of opposite party No. 1 that accident has not taken place at a public place. The accidental loss is duly proved by complainant through affidavits of Jarnail Singh Ex. C-7, affidavit of driver Des Raj Ex. C-8 and the counsel for opposite party No. 1 has not made any effort to get the said witnesses cross examined to come out of the small doubts created by the Investigator and surveyor. The accident took place on 29-3-2017 and intimation was promptly given to opposite party No. 1 on same day vide Ex. C-9 wherein name of driver and manner of accident was also mentioned. The said fact is also corroborated from the copy of DDR Ex. C-10. As such, this Commission is of the view that repudiation of claim by opposite party No. 1 on the basis of report of surveyor and investigator is totally unjustified. However, this Commission of the opinion that report of the surveyor cannot be thrown into the winds and ignored in its entity and as such, this Commission is of the view that surveyor has assessed the total payable amount to the complainant as Rs. 4,59,000/- as per his report Ex. OP-1/5.

32. Accordingly, present complaint is partly allowed against opposite party No. 1 and dismissed qua opposite party No. 2. The opposite party No. 1 is directed to pay Rs. 4,59,000/- to complainant as assessed by surveyor vide his report Ex. OP-1/5, alongwith interest @9% p.a. from the date of filing of complaint till realization.

33. The compliance of this order be made by opposite party No. 1 within 45 days from the date of receipt of copy of this order.

34. The complaint could not be decided within the statutory period due to heavy pendency of cases.

35. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room.

    Announced:-

    12-07-2023

     

    1. (Lalit Mohan Dogra)

    President

     

     

    (Shivdev Singh)

    Member