KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO.819/06
JUDGMENT DATED 14.11.2011
PRESENT:
SHRI. M.V. VISWANATHAN -- JUDICIAL MEMBER
SHRI.M.K.ABDULLA SONA -- MEMBER
E.P.Jacob,
S/0 A.C.Paulose,, Edakkara House,
Pralayakad, Thuruthy, -- APPELLANT
Perumbavoor, Ernakulam.
(By Adv.Alexander Joseph.M & Ors.)
Vs.
1 HDFC Chubb General Insurance Company Ltd. reptd. by its Managing Director,
5th Floor, Express Tower,
Nariman Point, Mumbai. -- RESPONDENTS
2. The Manager, HDFC
Chubb General Insurance Company Ltd.
Kurisupally Road, Ravipuram,
Ernakulam.
3. Kotak Mahindra Primus Ltd.,
Reptd. by its Managing Director,
Thadikkarn Centre,
Palarivattom, Ernakulam.
(R1 & 2 by Adv.A.R.George and
R3 by Adv.Joseph)
JUDGMENT
SHRI.M.V.VISWANATHAN,JUDICIAL MEMBER
Appellant is the complainant and respondents 1 to 3 are the opposite parties 1 to 3 in CC.138/06 on the file of CDRF, Ernakulam. The complaint was filed alleging deficiency in service on the part of the opposite parties in issuing the policy for the vehicle bearing registration No.KL 17- 3366. The opposite parties 1 to 3 entered appearance before the Forum below and filed written versions. The opposite parties 1 to 3 justified in their action on the ground that the complainant had suppressed material fact and that he submitted proposal for insuring his vehicle as a private vehicle and thereby the Insurance Company issued the policy insuring a private vehicle. In fact, the insured vehicle was a commercial vehicle and plying as a taxi car. It was further contended that at the time of the accident, the vehicle has been using as a taxi vehicle. So, the opposite parties 1 and 2 prayed for dismissal of the complaint filed against them. The third opposite party also filed written version denying the alleged deficiency in service. They prayed for dismissal of the complaint filed against them.
2. Before the Forum below, the complainant was examined as PW1 and a witness for opposite parties 1 and 2 was examined as DW1. Exts.A1 to A12 documents were marked on the side of the complainant and B1 to B5 from the side of opposite parties 1 and 2. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 11.8.06 dismissing the complaint. Hence the present appeal by the complainant therein.
3. We heard the learned counsel for the appellant/complainant and respondents 1 and 2 (opposite parties 1 & 2). There was no representation for the third respondent/third opposite party. The counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He vehemently disputed the issuance of B4 proposal and submitted that there is nothing on record to show that B4 proposal was signed and submitted by the complainant. On the other hand, respondents 1 & 2 supported the impugned order passed by the Forum below. The counsel for the respondents 1 & 2 much relied on B5 photographs of the insured vehicle and argued for the position that the insured vehicle has been used as a private vehicle and that the complainant/insured was fully aware of the fact that the vehicle is having only an insurance policy as that of a private car. Thus, the respondents 1 and 2 prayed for dismissal of the present appeal.
4. The appellant/complainant is the registered owner of the car bearing registration No.KL 17 - 3366. The said vehicle was insured with the respondents 1 & 2 (opposite parties 1 & 2) namely; HDFC Chubb General Insurance Company Ltd. Admittedly, the said vehicle was insured as a private car. At the same time, the vehicle was registered as a commercial vehicle (taxi car). Ext.A1 is copy of the RC book of the said vehicle. It would show that the vehicle is a commercial vehicle. It is the definite case of the respondent/opposite party/Insurance Company that the policy for the vehicle was issued on basis of the proposal submitted by the complainant. Ext.B4 is the proposal said to have been submitted by the complainant.
5. The crucial aspect for consideration is as to whether the appellant/complainant submitted B4 proposal for getting the vehicle insured as a private car. It is true that the complainant as PW1 has denied submission of B4 proposal. The complainant as PW1 has categorically disputed the signature in B4 proposal. But, the Forum below has not considered that aspect with the aid of expert evidence. In fact, there was no attempt on the part of the Forum below to ascertain as to whether B4 proposal was submitted by the appellant/complainant and accepted by the respondent/opposite party insurance company. There can be no doubt about the fact that the burden is upon the opposite party/insurance company to prove execution of B4 document by the complainant/insured. But, the opposite party/Insurance Company/HDFC Chubb Insurance Company Ltd; failed to substantiate their contention that B4 proposal was submitted by the complainant and that it is based on B4 proposal they issued the subject policy insuring the vehicle bearing registration No. KL 17 - 3366 as a private car.
6. Respondent/opposite party insurance Company is bound to prove execution of B4 proposal by the complainant. The opposite party/Insurance Company can be given an opportunity to substantiate their contention that B4 proposal was submitted by the appellant/complainant. The Insurance Company can also move the Forum below to get an expert opinion regarding the handwriting and signature in B4 document. For that purpose, the matter is to be remitted back to the Forum below. The appellant/complainant will also be at liberty to adduce further evidence in support of his case. Thus, the impugned order passed by the Forum below is set aside for the purpose of affording further opportunities to both parties as to whether B4 proposal was submitted by the appellant/complainant. So, the matter is remitted back to the Forum below for fresh consideration and disposal of the same on merits.
7. In the result, appeal is allowed. The impugned order passed by the Forum below is set aside to the extent that the matter is remanded to the Forum below for fresh consideration and disposal of the same on merits. It is made clear that the parties to the complaint in CC.138/06 will be given further opportunity to adduce evidence in support of their respective pleadings. The Forum below is also directed to consider the genuineness and correctness of B4 proposal and to pass an order accordingly.
The parties are directed to appear before the Forum below on 30.12.11. There will be no order as to costs.
M.V. VISWANATHAN -- JUDICIAL MEMBER
M.K.ABDULLA SONA -- MEMBER
