STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

The Oriental Insurance Company Limited, Chandigarh through Sh. Ram Avtar, Deputy Manager, Regional Office, SCO No.109-110-111, Sector 17-B, Chandigarh duly constituted attorney

……Appellant/OP

V e r s u s

Parminder Singh Dhaliwal son of late Sh. Lakhpal Singh Dhaliwal, aged 41 years, H.No.103, A.K.S. Colony, Zirakpur, Punjab.

              ....Respondent/Complainant

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:     JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by: Sh. R.K. Bashamboo, Adv. for the appellant.

                   Sh. B.C. Saini, Adv. for the respondent.

PER  JAGROOP  SINGH   MAHAL, MEMBER

                   This appeal is directed against the order dated 22.9.2011, rendered by the ld. District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it allowed the complaint filed by the respondent/complainant and directed the appellant/OP as under :-

                   “8]     Under present circumstances, we find a definite act of deficiency in service on the part of the OP and direct them to release the amount due towards the CC on the basis of “Total Loss” as mentioned in the Claim Form Ann.R-1 on the “Insured Declared Value” of Rs.4 lacs [Rupees Four Lacs Only] as mentioned in the policy document, without deducting any amount for the loss of salvage.  This order of ours be complied within a period of 30 days from the date of receipt of its copy, failing which the OP shall be liable for an interest @18% p.a. on the amount due towards them from the 11.2.2009 i.e. after 6 months of lodging of claim with the OP till its realization. 

                             OP is also burdened with Rs 5,000 against cost of litigation. However, there is no order as to compensation. The complaint stands disposed of accordingly in the above terms.”

2.                     The facts of the complaint, in brief, are that the Rhino vehicle of the complainant, which was insured with the OP for the period from 31.7.2007 to 30.7.2008, met with an accident on 13.7.2008 near Galari Dhank Kali Mata Mandir Maryog, Distt. Solan (H.P.)  when it fell into the river (khud), it was badly damaged and also caught fire.  An FIR No.155 was registered at P.S. Solan Sadar (Distt. Solan) on 14.7.2008.  The complainant lodged a claim with the OP whereafter it appointed one Sh.Subhash Sood as Surveyor to do the spot Survey who submitted his Report dated 12.3.2009 along with few comments. Thereafter, the complainant received a letter dated 29.4.2009, seeking explanation from him about delay in intimating the happening of the accident of vehicle in question to the OP.  The complainant replied with a legal notice dated 31.7.2009 answering the queries of the OP.  He thereafter sent another letter dated 22.10.2009 to the OP, in reply to their letter dated 13.08.2009, explaining the entire sequence of events and stated that the question of delay in informing the OP did not arise at all because the Salvage of the damaged vehicle could not be retrieved, as it was swept away in the flash floods and requested the OP to sanction the claim.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) was filed.

3.                     In its written reply, the OP, at the outset took preliminary objection that the District Forum did not have any jurisdiction to try the present complaint.  On merits, the OP admitted that the vehicle met with an accident on 13.7.2008; that a claim was lodged with it; that they sent letter dated 29.4.2009 to the complainant and that they received a legal notice from him. However, it was stated that the intimation regarding the same was given after one month on 12.08.2009 (?). It was submitted that the claim was submitted incomplete and that the complainant did not complete the formalities despite requests.  It was alleged that the complainant violated the terms & conditions of the policy firstly by not informing the OP immediately on the occurrence of the accident and secondly by not submitting the complete information as required.  Pleading that there was no deficiency in service or unfair trade practice on its part, the OP prayed for dismissal of the complaint.

4.                     Parties led evidence in support of their contentions.

5.                     After hearing the ld. Counsel for the parties and on going through the evidence on record, the ld. District Forum allowed the complaint, as stated above.

6.                     Feeling aggrieved, the instant appeal has been filed by the appellant/OP.

7.                     We have heard the ld. Counsel for the parties and have gone through the evidence on record of the case carefully. 

8.                     The ld. Counsel for the appellant/OP has argued that the complainant had not lodged any report with the police about the alleged accident nor the appellant/OP was promptly intimated about it by the complainant. A perusal of the record shows that the FIR (Annexure C-2) was lodged by one Balwant Singh r/o Village Maryog, P.O Daro Devria, P.S. Sadar Solan, Distt. Solan (HP) and not by the complainant.  The contents of the FIR show that the vehicle fell down in the khud (gorge) and caught fire.  Many persons gathered there and were trying to find out if there was anybody inside the vehicle. People were searching for the occupants of the car but none was traced out, upon which Balwant Singh informed the Police Station, Solan on phone at about 9:30 p.m. and the police came to the spot.  They also tried to find out the injured but nobody was available.  It is most surprising that even after the accident, the complainant car driver or any of the occupants of the car did not inform the police, did not lodge the report, did not suffer injuries and did not approach any hospital.  If the car was moving at the time when it met with an accident, then certainly the driver and other occupant(s), if any, would be there in the vehicle who would get injured.  There is no allegation if anybody suffered injuries in that accident.  On the other hand, if the vehicle was stand still and caught fire, then there is no occasion for it to move from the place automatically to fall in the gorge.  It is not the case of the complainant if he or any other occupant of the car got burn injuries or was otherwise injured in that accident.  It is, therefore, most unnatural story in which the car is badly damaged, extensively burnt, and falls 300 meters down the gorge and, interestingly, there is no injury to any occupant thereof.  Annexure R-1 is the motor claim form submitted by the complainant in which also the column meant for the details of the accident is lying vacant.  There is another column regarding injury to driver/occupant, which also has not been filled up nor the names of the witnesses have been mentioned. Everything was kept in dark by the complainant even while submitting the claim application to the appellant/OP.  We are, therefore, of the opinion that the occurrence did not take place in the manner as alleged by the complainant that is why the complainant did not have the guts to report the matter to the police. 

9.                     The contention of the ld. Counsel for the appellant is that the occurrence is alleged to have taken place on 13.7.2008 but intimation to it was given on 12.8.2008.  On the other hand, the contention of the complainant is that he had informed the OP on the same day and thereafter intimation was given to its Solan office on 12.8.2008.  It is alleged that the surveyor had visited the spot and took photographs on the very next day of the accident which according to him proves that the intimation was given promptly to the OP.  These contentions are, however, denied by the appellant/OP.  The record also shows that there is no such document to suggest if the complainant had informed the OP about the accident on 13/14.7.2008 or before 12.8.2008.  When the OP enquired from the complainant, (vide Annexure R-3) as to why the intimation was delayed, the complainant did not produce any such evidence to suggest if the OP was informed by him promptly.  His allegation that the surveyor had inspected the spot and took photographs on 14.7.2008 is falsified from the report (Annexure R-2) given by the surveyor who, in para 6 of his report, mentioned that the case was allotted to him on 12.8.2008 and he conducted the survey on that day after 6:00 p.m. The surveyor submitted his affidavit in which also this fact was mentioned.  The contention of the complainant that the OP was informed before 12.8.2008, or that the surveyor had inspected the spot and took photographs before that date, is falsified by the testimony of the surveyor.

10.                  It is a case in which for full one month no intimation was given by the complainant to the police after the vehicle was damaged and allegedly burnt in the accident.  The complainant had not even informed the OP about the accident.  In such circumstances, the inordinate delay on the part of the insured disentitles him to claim compensation.  In this respect we may refer to the case New India Assurance Company Ltd. Vs. Trilochan Jane decided on 9.12.2009 by the Hon’ble National Commission.

11.                  Annexure C-12 is the reply dated 31.7.2009 submitted by the complainant to the OP, in para 3 of which it was intimated that the vehicle was lost due to floods the very next day. As against it, the testimony of the surveyor proves that he inspected the spot on 12.8.2008 and even on that day the vehicle was lying at the spot.  There is report dated 27.8.2009 (Annexure C-18) recorded (after more than 13 months of the accident) on the application of Mandeep Singh, who was driving the vehicle at the relevant time, mentioning that after the accident he had gone to the spot on 28.3.2009, i.e. after more than 6 months of the accident, and found that the vehicle has already been swept away by floods.  According to him, there were heavy rains in October/November (2008) due to which the vehicle was swept away. The police then went to the spot and on their return lodged a report (Annexure C-19) in which also a mention was made about the heavy rains in September/October (2008) which may have swept away the damaged vehicle.  There is no mention if there was rain on 13/14.7.2008 and if the vehicle was swept away on 14.7.2008 itself.  The complainant, therefore, has concocted a false story to cover up the delay not only in intimating to the police but in giving information to the OP/appellant about the accident.

12.                  The relevant portion of condition  No.4 of the insurance policy (Annexure R-4), which relates to the duty of the insured after the vehicle met with an accident is as follows :-

“…………….. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken  to prevent further damage or loss  and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.”

In the present case, the complainant did not take any precautions to prevent further damage or loss to the damaged vehicle, with the result that the same was swept away in heavy rains.  The accident had taken place on 13.7.2008. Annexure C-18 is the report lodged on the statement of driver which shows that thereafter he visited the site on 28.3.2009, i.e. after a gap of more than 8 months, and informed the police on 27.8.2009, i.e. after a delay of more than 13 months.  There is no evidence, adduced by the complainant, to suggest if any precautions were taken by him to safeguard the damaged vehicle from being washed away by the floods.  He did not bring the vehicle to the workshop for assessing the extent of damage to the vehicle and the amount which the insurer/OP may be liable to pay for getting it repaired.  The assessment of loss, therefore, could not be made due to inaction on the part of the complainant.  The damaged vehicle was also needed to assess the salvage value, in case it was a total loss.  We are, therefore, of the opinion that the complainant is not entitled to any compensation in view of violation of condition No.4 of the policy.

13.                  The facts of the case, therefore, suggest that neither the accident had taken place in the manner as alleged by the complainant, nor the complainant had intimated the OP immediately after the accident nor he took precautions to prevent further damage to the vehicle. The delay on the part of the complainant disentitles him to claim compensation. We are of the opinion that the complaint was liable to be dismissed on these grounds but has been wrongly allowed. 

14.                  We, therefore, accept this appeal, set aside the impugned order dated 22.9.2011 and dismiss the complaint.  Parties are left to bear their own costs.

15.                  A sum of Rs.25,000/- was deposited by the appellant  at the time of filing this appeal and a sum of Rs.3,03,213/- was deposited on 9.12.2011 in the District Forum-II in pursuance of the order dated 18.11.2011 passed by this Commission. The aforesaid amount was ordered to be deposited in the shape of FDR carrying interest.  After the expiry of the period for filing the revision, the aforesaid amounts of Rs.25,000/- and Rs.3,03,213/- alongwith interest, if any accrued thereon, shall be paid to the appellant, in case no stay order is received.

                   Copies of this order be sent to the parties free of charge.

Pronounced.

03.02.2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER