Uttarakhand

StateCommission

A/117/2022

Go Digit General Insurance Co. Ltd. - Complainant(s)

Versus

Prabhulal Rawat - Opp.Party(s)

Smt. Anjali Gusain

25 Feb 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND

DEHRADUN

 

FIRST APPEAL NO. 117 / 2022

 

Go Digit General Insurance Limited

Corporate Office: Atlantis, 95

4^th Floor, B Cross Road, Koramangala Industrial Layout

5^th Block, Bengaluru – 560095, Karnataka

through its Manager

…… Appellant / Opposite Party

 

Versus

 

Sh. Prabhu Lal Rawat

109, Ballupur, Near Shiv Mandir, Kaulagarh Road

Dehradun

…… Respondent / Complainant

 

Smt. Anjali Gusain, Learned Counsel for the Appellant

Sh. Suresh Gautam, Learned Counsel for Respondent

 

Coram: Hon’ble Mr. Justice D.S. Tripathi, President

               Mr. Udai Singh Tolia,                         Member-II

                                   

Dated: 25/02/2023

ORDER

(Per: Justice D.S. Tripathi, President):

 

This appeal under Section 41 of the Consumer Protection Act, 2019 has been preferred against the impugned judgment and order dated 04.05.2022 passed by the District Consumer Disputes Redressal Commission, Dehradun (in short “The District Commission”) in consumer complaint No. 443 of 2020; Sh. Prabhu Lal Rawat Vs. Go Digit General Insurance Company Limited, by which the consumer complaint was allowed and the appellant – opposite party was directed to pay sum of Rs. 6,22,026/- to the respondent – complainant towards claim amount together with Rs. 25,000/- towards mental agony and Rs. 5,000/- towards litigation expenses, within a period of 30 days’, failing which the respondent – complainant was also held entitled to interest @9% p.a. on the above amount from the date of institution of the consumer complaint till payment.

 

2.       Facts giving rise to this appeal, in brief, are that according to the consumer complaint, the respondent – complainant is the registered owner of Mahindra and Mahindra Bolero / Pick Up Van bearing registration No. UK07-CB-6279, which was comprehensively insured with the appellant – opposite party (insurance company) for the period from 29.06.2019 to 28.06.2020 at an IDV of Rs. 6,22,025/-.  During the currency of the insurance policy, the subject vehicle met with an accident on 06.09.2019 in Himachal Pradesh, while the same was being driven by its driver – Sh. Manchhavan from Meenus to Guma.  In the said accident, the vehicle was totally damaged.  The salvage of the vehicle is lying at accident site.  The intimation of the accident was given to the insurance company, who appointed investigator.  The investigator visited the site and found that the vehicle was totally damaged.  The complainant submitted all the requisite documents with the insurance company and completed all the required formalities.  The complainant received a letter dated 11.11.2019 from the insurance company, wherein it was stated that the vehicle was driven by some unknown person, which fact has been concealed by the complainant.  By the said letter, contact details and address of Sh. Manchhavan S/o Sh. Rafi as well as some other documents were called for.  The desired information was duly supplied by the complainant.  The insurance company has taken a wrong stand that the vehicle was driven by some unknown person, whereas in the FIR lodged by a local resident, the name of the driver was clearly mentioned as Sh. Manchhavan.  Since the insurance company did not settle the claim, notice dated 05.09.2020 was sent by the complainant through his counsel to the insurance company, which was not replied by the insurance company.  Thereafter, alleging deficiency in service on the part of the insurance company, the consumer complaint was filed by the complainant before the District Commission.

 

3.       The appellant – insurance company filed written statement before the District Commission, wherein it was pleaded that intimation regarding accident dated 06.09.2019, was given to the insurance company on 07.09.2019.  As per the complainant, at the time of accident, the vehicle was being driven by Sh. Manchhavan, who ran away from the site.  In the said accident, two persons, namely, Sh. Yasin S/o Sh. Yusuf and Sh. Gulam Navi S/o Sh. Lal Hussain died at the spot.  After taking into consideration the manner and place of loss as well as photographs of damaged vehicle, it is quite unnatural that the driver could survive in the accident and escape unhurt.  The complainant did not allow the investigator appointed by the insurance company to meet the alleged driver – Sh. Manchhavan and did not co-operate with the insurance company and also did not submit required documents, which amounts to violation of terms and conditions of the insurance policy on his part.  Letter dated 11.11.2019 was issued to the complainant, seeking clarification on certain points, in response to which, no clarification was submitted by the complainant, hence the claim was repudiated through letter dated 11.12.2019 for want of co-operation on complainant’s part and by doing so, no deficiency in service was committed by the insurance company.

 

4.       After giving opportunity of hearing to the parties, the consumer complaint has been decided by learned District Commission vide impugned judgment and order dated 04.05.2022, thereby allowing the consumer complaint in the above terms.  Feeling aggrieved, the appellant – insurance company has preferred the instant appeal.

 

5.       We have heard rival arguments advanced by learned counsel for the parties and perused the record.

 

6.       There is no dispute with regard to the insurance of the vehicle as well as the vehicle having met with an accident during the subsistence of the insurance policy.  The main stand / ground taken by the insurance company is that at the time of accident, the vehicle was being driven by some unknown person.  It has been submitted on behalf of the insurance company that per letter dated 11.11.2019, clarification as well as documents were sought from the complainant, which he failed to submit, with the result that the claim was rightly turned down by the insurance company.

 

7.       The complainant has come up with a specific case and has specifically stated in paragraph No. 2 of the consumer complaint that at the time of accident on 06.09.2019, Sh. Manchhavan was driving the vehicle.  In the FIR, it was clearly mentioned that the vehicle was being driven by Sh. Manchhavan.  The accident was reported to the police by Sh. Rattan Singh, local resident of Village Rohana, P.O. Bohar, Nerwa, District Shimla (Himachal Pradesh).  The insurance company has appointed Sh. Himanshu Sharma as investigator, who has submitted his report dated 11.02.2020 to the insurance company, stating therein that the police investigation is pending against Sh. Manchhavan (so called driver).  At page No. 2 of the investigation report, it has been mentioned that one unknown person came on the spot and identified the deceased persons and also disclosed the name of alleged driver Sh. Manchhavan, but the alleged driver was not there.  At page No. 6 of his report, the investigator has stated that the accident was reported to Police Station Nerwa, District Shimla (Himachal Pradesh) by Sh. Rattan Singh S/o Sh. Tulsi Ram, whereupon case was registered against Sh. Manchhavan.

 

8.       Thus, from the documentary evidence available on record, it is duly proved that at the time of accident, the vehicle was being driven by Sh. Manchhavan and the insurance company has taken a wrong stand that the vehicle was being driven by some unknown person.  Even otherwise, the burden to prove that the vehicle was not being driven by Sh. Manchhavan, was lying upon the insurance company, which has not been discharged by the insurance company by producing cogent and reliable evidence in that regard. 

 

9.       The insurance company has also wrongly stated that at the time of accident, three persons were travelling in the insured vehicle against the permitted seating capacity of two persons.  There is no dispute that in the fatal accident, two persons – Sh. Yasin and Sh. Gulam Navi died.  On behalf of the complainant, it has been stated that one of the deceased persons – Sh. Gulam Navi came in contact of the vehicle and died on account of grievous injuries and in fact, he was not travelling / sitting in the vehicle at the time of the accident.  The said stand finds support from perusal of M.A.C.T. Case No. 45 of 2019; Sh. Lal Hussain Vs. Sh. Manchhavan and others, filed before learned District Judge / Motor Accident Claims Tribunal, Dehradun, for grant of compensation on account of death of Sh. Gulam Navi.  In the said claim petition, in column No. 10, it was specifically stated that the deceased was not travelling in the vehicle.  In the said claim petition, Sh. Manchhavan was also impleaded as driver of the vehicle.  Thus, it is clearly proved from the evidence available on record that at the time of accident, Sh. Manchhavan was driving the vehicle.  It is pertinent to mention here that on the one hand, the insurance company has stated that the vehicle was not being driven by Sh. Manchhavan and he was not there and on the other hand, the insurance company has stated that at the time of accident, three persons were travelling in the vehicle.  The insurance company can not be allowed to blow hot & cold at the same breath.

 

10.     It would not be out of place to mention here that there is no dispute with regard to the validity of the driving licence of Sh. Manchhavan.  Even otherwise, the investigator has stated that the driving licence of Sh. Manchhavan was got verified from Licensing Authority, Dehradun and found valid on the date of accident and the driving licence was also endorsed for hill roads.

 

11.     During the course of arguments, in view of the sufficient material / evidence on record, learned counsel appearing on behalf of the insurance company did not press the issue of driver and in fact, conceded that it is borne out from record that the vehicle was being driven by Sh. Manchhavan.

 

12.     So far as quantum is concerned, in paragraph No. 2 of the consumer complaint, the complainant has specifically stated that in the accident, the vehicle was totally damaged.  The insurance company in paragraph No. 12 of the written statement, has partially admitted contents of paragraph No. 2 of the consumer complaint and has not specifically stated that it is not a case of total loss.  The investigator has stated in his report that the vehicle had fallen down into 500 mt. deep ditch.  As is stated, two persons died in the accident.  The photographs of the vehicle on record also show that the vehicle was extensively damaged and it can safely be concluded that it is a case of total loss.

 

13.     It has come on record that no surveyor was appointed by the insurance company to assess the loss.  Learned counsel for the insurance company submitted that the complainant could have also appointed surveyor to assess the loss.  In this regard, it is worth mentioning that no reasoning has been given by the insurance company for not appointing the surveyor in this case.  The complainant has specifically stated in paragraph No. 2 of the consumer complaint that till date, the salvage of the vehicle is lying on the spot.  As is stated above, the said paragraph of the consumer complaint has not been specifically denied by the insurance company.  On behalf of the insurance company, Insurance Regulatory and Development Authority of India (Insurance Surveyors and Loss Assessors) Regulations, 2015 were submitted to show that the surveyor and loss assessors shall be appointed either by insurers or insured to assess loss under a policy of insurance in respect of motor insurance above Rs. 50,000/-.  The said Regulations do not say that the surveyor should compulsorily be appointed by the insured.  Even otherwise, the insurance company has not stated as to why they did not appoint surveyor for assessment of loss.  It would not be out of place to mention here that in case the complainant would have submitted survey report of his appointed surveyor, in such an eventuality, the insurance company would have said that since it is the report of complainant’s own surveyor, the same is not binding on them.  Irrespective of above, since the photographs show that the vehicle was extensively damaged, there was nothing wrong on the part of the District Commission in taking the present case as a case of total loss.

 

14.     For the foregoing reasons, we are of the view that the impugned judgment and order passed by learned District Commission is based on proper appreciation of evidence and cogent reasoning and the same does not suffer from any illegality, warranting interference by this Commission.  The appeal being devoid of any merit, is liable to be dismissed.

 

15.     Appeal is dismissed.  No order as to costs.        

 

16.     A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019.  The Order be uploaded forthwith on the website of the Commission for the perusal of the parties.

 

 

(U.S. TOLIA)                            (JUSTICE D.S. TRIPATHI)

               Member-II                                                President

 

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