::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BIDAR::
C.C. No.74/2017.
Date of filing: 17.10.2017.
Date of disposal: 15.10.2018.
P R E S E N T:-
(1) Shri. Jagannath Prasad Udgata, B.A., LL.B.,
President
(2) Shri. Shankrappa (Halipurgi),
B.A.LL.B.,
Member.
COMPLAINANT/S: 1. Sri.Md.Aslam S/o Md.Saber Munshi,
Age:34 years, Occ: Business,
R/o H.No.1/125, Khilla Galli, Basavakalyan,
Dist: Bidar.
( By Smt.Padma Maharaj.,Adv.)
VERSUS
OPPONENT/S: 1) Royal Sundaram Genenral Insurance
Above SBI Bank, Khuba Complex,
Triparat, Baswakalyan 585 327.
2) The MOD Assessments and Claims-Corporate.
Royal Sundaram General Insurance Co.Limited
(Formerly Known as Roaal Sundaram Alliance
Insurance Co., Ltd.) Vishranthi Melaram Towers,
No.2/319, Rajiv Gandhi Salai(OMR).
Karapakkam, Chennai-600097.
(By. R.2. V.M.Prakash., Adv
R.1. Ex[arte.)
:: J UD G M E N T ::
By Shri. Jagannath Prasad Udgata, President.
This case is a complaint of an Insured against the Insurer, failing/declining to pay Insurance claim of a vehicle damaged in an alleged accident u/s 12 of the Consumer Protection Act 1986. The gist of the complaint is as hereunder.
2. The complainant was owner of Ashok Leyland HGV. Bearing Regn. No. MH-46 F1065 with valid permit and had obtained valid Insurance policy bearing No.VGC 0420916000100 which was valid from 17.08.2016 to 16.08.2017 fromO.P.No.1 by paying premium of Rs.42,888-00. On 25.08.2016, while the vehicle was being driven on the highway, near Khalapur in Maharastra State, due to a sharp curve on the road, the Driver lost control, went off the road, fell down and got damaged. The Driver and cleaner of the vehicle jumped off the road and sustained injuries in the process.
3. The complainant raised a claim of Rs.14,38,500/- by submitting the photos of the capsized vehicle to the Insurer and had pursued the matter regularly. The Insurer in turn had appointed a surveyor Mr. Chandrasekhar Patil, who made inspection of the vehicle. Ultimately, the complainant receivd rebuttal letter from O.P.s declining the claim alleging mis representation of facts.
4. The complainant thereafter caused a legal notice to be served on the opponents on 18.09.2017 which was never replied, nor the claim settled. Instead, the opponents deputed another surveyor prolonging the matter still more. The claim having been denied by the opponents, the present complaint has been filed alleging deficiency of service.
5. Upon notice, O.P.No.2 only has participated in the proceeding and has filed versions. O.P.No.1 has been placed exparte choosing not to appear in the case.
6. The O.P.No.2 in its versions has raised an objection primarily on the aspect of territorial jurisdiction of this Forum, claiming that, the policy was sold by Chennai Head office and further that, the opponent Insurance company has no branch within the jurisdiction of this Forum. He has quoted few judgments of National Commiision and Hon’ble Supreme Court. Perusing the records and allied documents we observe that, the notice sent by Regd.Post with A.D. to the Branch office of the Insurer was delivered and duly acknowledged. Hence this line of approach of the Insurer is fallacious perse.
7. Next, the Insurer has tried to claim that, the policy was issued for Commercial purpose and the complainant is not a consumer within the definition of Section 2(1) (d) of the consumer Protection Act,1986. Here in we observe that, the complainant had obtained Insurance Policy for his own vehicle. The article or instrument was not for trade or gain, but to protect his assets. Hence, the purpose was never Commercial. Rather, providing Insurance policy was a service defined in Section 2(1)(0) of the Consumer Protection Act, 1986 and there is no merit in this submission of the opponent.
8. Then, the opponent canvasses that, the policy was obtained by the complainant in connivance with the agent and further that, the claim was intimated only on 31.08.2016, consequent upon which, one Sri. Chandrasekhar Patil, a licensed in dependent surveyor of I.R.D.A., who inspected the damaged vehicle on 04.09.2016 at the premises of M/s Ayyub Body Builder, Gulbarga and had assessed the damages at 3,82,000/-. The claim being a proximate one, the Insurer engaged another investigator M/S Soni and Associates to verify the veracity of the incident. The investigator has reported that, the accident was prior to the commencement of the policy, which fact was concealed, false claim was lodged with a fictitious date of accident. The revealations Correlate to the vehicle Inspection Report (Photographs) taken before the policy issuance. Another vehicle of same make and model was produced in place of the actual truck to be insured and fraudulently got the policy issued in favour of the accident vehicle in-connivance with the agent. It is further claimed in para-12 of the versions that the investigator has physically verified the Police records at Khalapur Police Station and had verified the F.I.R. register between 17.08.2016 and 29.08.2016 and found no complaint of the accident. There was further no positive confirmation upon local spot enquiry ad complainant has failed to establish the actual date of accident, or loss.
9. It is further avered that, as per the in formations obtained from the Insured, the accident took place while cement gunny bags were being carried from M/s Chettinad Cement Corpn. Ltd. to be delivered at M/S Tharwani Reality, Kalyan. Upon Scrutiny of the e-Sugam forms issued by the commercial Taxes Department of Government of Karnataka it was ascertained that, goods were loaded from the Kallur works of the cement company on 06.08.2016 at 06.14P.M.. The place of origin of loading and destination at Thane has a distance of 530K.m.s and takes around 18hrs to cover. The alleged place of accident is about 300K.M. from the place of loading, requiring about 7 hrs time to ply. Hence it is impossible tht, the goods were kept loaded till 26.08.2016 and the claim is fictitious, Further, the Driver failing to disclose the date of accident the matter becomes more suspicious.
10. The insurer further avers that, the implanation/ substitution of the motor vehicle subjected to inspection and the one meeting with accident and getting damaged, proves that, the damage took place much earlier and even from external appearance certain remarkable variants are evident. For all the contentions of the opponent, it is claimed fraud and justice never dwell together (fraus et jus nenquam Cohabitat) and the opponent seeks dismissal of the complaint with costs.
11. Both sides have filed evidence affidavits and written arguments and have submitted documents listed at the end of this order.
12. Considering the rival contentions of the parties at disputes, the following points arise for our considerations.
- Does the complainant prove that, he has an actionable claim against the opponents, denial of which has caused deficiency of service?
- What orders?
13. Our answers to the points raised are as following:-
- Negative.
- As per final orders owing to thefollowing:-
:: REASONS ::
14. Point.No.1: In the instant case, we are astounded by the lacklustre approach of the feuding parties and peculiar submissions made by them. Primarily, it is the bunden duty of the complainant to substantiate his/her allegation of deficiency of service with basic evidences and narrations. Here in, the contents of the complaint is vague and grossly inappropriate. No where in the complaint, the place of loading of the cement bags, time of commencement of journey, time of accident and place is ever mentioned. Only a tell tale mention is made that, the accident happened at Khalapur. Even the jurisdictional Police Stations’ name, District and State is no where mentioned. No explanation is available in the complaint as to why, when the vehicle capsized, driver ad cleaner sustained injuries a police complaint was not lodged. There is further no mention as to which hospital or medical practitioner treated the injured. Had there been a police investigation, drawal of a panchanama, inquest report, I.M.V. inspection etc. were likely to be followed, which would have been appropriate to ascertain the damages and consequential loss sustained.
15. Albeit, improvements of averments in the written arguments are noticed. In para-3 it is stated that, the loading took place at 3.00 a.m. of 25.08.2016 at Tandoor in A.P.. Accident took place in Khalapur Police Station limits and on information, the opponents persuaded the complainant not to file a police complaint apprehending dis-reputation of the Insurer. We feed this sort of plea is a made up one to derive undue advantage. Why at all a freak accident would call upon the reputation of the Insurer?
16. We also shall not appreciate the conduct of the opponents and their diligency in prosecuting the case properly and assisting this court to render justice.
17. The Insurer engaged a licensed Surveyor Sri Chandrasekhar Patil and his inspection report bears the date:04.09.2016. Inspection was done on 03.09.2016 at Ayyub body builder garage, Gulbarga and after depreciation, the loss was assessed at Rs. 3,82,000-00. On the first sheet of the surveyors’ report we observe appaling facts mentioned. Notwithstanding the wrong mentioning of the chassis number of the vehicle, the classification of the Ashok Leyland Lorry has been mentioned as L.M.V. and fuel used as petrol. Can it be accepted as a Credible evidence at all? So we analysed the report of the second surveyor M/s Soni and Associates.
18. The opponents with the versions had filed few black and white photographs which were quite indecipherable. Later, few color photographs were submitted with a memo (printouts taken on plain white papers). From out of the bunch, we fix our gaze on the first two color photos. The frontal appearances of the motor vehicle before the accident and after the accident (alleged) vary in many manners. In the side covers of the bonnet of the capsized vehicle, the symbol of the Sikhs are mission, from the windscreen “impression of Express” is missing, devider of both wind screens is different, the broken bracket and decorative fitting on the top of the drivers’ cabin is at variance, term All India Permit is blurred in the capsized vehicle and is different from the original impression. This deception, is sufficient to reason that, the complainant has planted a different capsized vehicle to recover insurance amount from the opponent Insurance company to have an undue gain.
19. Our perception is more fortified from another misfeasance of the complainant. When this case was posted for arguments, the complainant filed and I.A. u/o VII Rule 14 C.P.C. r/w Section 13(4)(II) of the Consumer Protection Act, 1986, seeking insertion of a document, an estimate of M/s Jaleel Body builder bearing date: 26.08.2016, assessing the repair charges at Rs.7,42,500/-. We were perplexed, as to how, when the damaged vehicle (alleged) was retained up to 03.09.2016 and was inspected by Mr.Chandrasekhar Patil, at M/s Ayyub body builder, Gulbarga, at all M/s Jaleel Body Builder from Basavakalyan could prepare an estimate. Further at the end of this document, we find a mention of “Amount 661000-00. GST 118980 Rs. Extra” in pencil. Is it conceivable that, in year 2016, G.S.T. could have been calculated? The document is fully fake and designed to bolster up the claim. Due to the reasons mentioned supra, we answer the point No.1 in the negative.
20. Before parting with the subject matter of the case to pass final order, we would like to the quote here a far fetching ratio of Lord Dennings reported in 1956 (1) Al E.R. 341-Lazarus v/s Beaslay which has been followed by the Hon’ble Apex Court in a pleathora of cases and the latest among them is the VYYAPAM case.
“No Court in this land would allow a person to keep an advantage which he has obtained by fraud. No judgement of a Court, no order of Minister Can be allowed to stand if it has been obtained by fraud. Fraud unravels everything”.
21. We therefore to proceed the following:-
ORDER.
- The complaint is dismissed as not due. There would be no orders as to costs as otherwise.
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
Documents produced by the complainant
- Annexure.A- Copy of road tax payment receipt M.V. MH 46F-1065.
- Annexure.B– Copy of certificate of fitness M.V. MH 46F-1065.
- Annexure.C- Copy of registration certificate M.V. MH 46F-1065.
- Annexures.D– Copy of repudation letter of O.P.No.2 date:21.02.2017.
- Annexure.E- Copy of certificate of insurance and policy schedule.
- Annexure.F- Office copy of legal notice date:18.09.2017.
- Annexure.G- Original estimate of labour and material charges date:26.08.2016 of Jaleel Body Builder of Basavakalyan..
Document produced by the Opponents.
- Annexure.R.1-Copy of certificate of insurance and policy schedule.
- Annexure.R.2- Copy of filled claim form.
- Annexure.R.3- Copy of private and confidential motor(final) servey
report date:04.09.2016 of M/s Chandrashekar Patil
Surveyor and loss assessor. - Annexure.R.4- Copy of investigation report of M/s Sony and
associate Automobile Surveyor loss assessor,
Valuers and investigators Mumbai. - Annexure.R.5- Copy of e-Sugam Form.
- Annexure.R.6-Copy of loading certificate (Partially legible).
- Annexure.R.7- Copy of repudiation letter date:21.02.2007.
- Annexure.R.8 R.23- Color photos of Motor Vehicle printed on plane papers.
Witness examined.
Complainant.
- P.W.1- Mohammed Aslam S/o Md.Saber Munshi.
Opponent.
- R.W.1- Leo John S/o Andrews V.L. official of Roayal Sundaram General Insurance Company Ltd, Annasalai Chennai.
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
