Punjab

Sangrur

RBT/CC/18/419

Om Parkesh - Complainant(s)

Versus

The New India Assurance Co. - Opp.Party(s)

Rakesh Malhotra

19 Oct 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SANGRUR .

          

                                                                         RBT Complaint No. 419

 Instituted on:  18.10.2018

                                                                          Decided on  :   19.10.2023      

Shri Om Parkash (now deceased) son of Late Sh. Ladu Ram resident of House no.486, Mohalla Dogran Wala, Patiala, through his LRs

1. Sheela Rani widow of Sh. Om Parkash resident of House no.486, Dogra Mohalla, Safabadi Gate, Patiala.
2. Manoj Kumar Son of Late Sh. Om Parkash resident of House no.486, Namdar Khan Road, Safabadi Gate, Patiala
3. Rajesh Kumar(now deceased) son of Late Sh. Om Parkash, through his LRs:

1.Ranju widow of Rajesh Kumar resident of House no.486, Namdar Khan Road, Safabadi Gate, Patiala.

2.Mansi Sukheja daughter of Late Sh. Rajesh Kumar resident of House no.486, Namdar Khan Road, Safabadi Gate, Patiala.

3.Dhreeraj Sukheja minor son of Late Sh. Rajesh Kumar through her mother and natural guardian Smt. Ranju resident of House no.486, Namdar Khan Road, Safabadi Gate, Patiala.

4. Kiran Rani Wife of Ravinder Kumar daughter of Late Sh. Om Parkash resident of House No.380, sector 25-C, street no.1, Dashmesh Colony, Mandi Gobindgarh, Fatehgarh Sahib.
5. Shakuntla Devi wife of Nand Kishore daughter Late Sh. Om Parkash resident of Dashmesh Nagar, Ward no.5, Bhawanigarh, Sangrur.

                                                   …. Complainant.  

 

                                     Versus

 

1. The New India Assurance Company Limited, Patiala DOII(36150) Opp. Income Tax Office, Leela Bhawan, Patiala, through its Senior Divisional Manager.                                                              

      ….Opposite party. 

QUORUM                                        

JOT NARANJAN SINGH GILL: PRESIDENT

SARITA GARG                          :  MEMBER

KANWALJEET SINGH             : MEMBER

 

          For the complainant  : Shri Rakesh Malhotra, Adv.

For the Ops              : Shri D.P.S.Anand,Adv.

 

ORDER BY

KANWALJEET SINGH, MEMBER.

As per orders of the Hon'ble State Commission, vide Endst.No 10226 dated 26.11.2021, the present file received by transfer from District Consumer Disputes Redressal Commission, Patiala vide receipt no.481 dated 30.11.2021 to this Commission.

1. During the pendency of the complaint the complainant was expired on 05.11.2018. An application dated 14.11.2019 for impleading the LRs is allowed vide separate order dated 05.12.2019 by the predecessor.
2. Complainant has alleged in the complaint that complainant is registered owner Mahindra Bolero Pickup Number PB-11BR-0974. The complainant got his vehicle insured from Op vide policy number 3615003116030009919 w.e.f. 10.12.2016 to 09.12.2017 for a sum insured of Rs. 3,50,000/-. As such, the complainant is a consumer of the Op. The above said vehicle was being used for earning the livelihood of the complainant. Complainant has kept Harpreet Singh as driver of the vehicle, who brings the vegetables from Himachal Pradesh and used to supply the same in Punjab & Haryana. Harpreet Singh is having a valid driving license to ply the vehicle. On 05.10.2017 the vehicle number PB-11BR-0974 driven by Harpreet Singh was involved in an accident with the tractor trolley number PB-31-C-6289. An FIR number 185 dated 05.10.2017 was lodged with the Police Station Sadar, Sirsa u/s 279, 304-A IPC. The matter was reported to the Op and they deputed the surveyor. The complainant completed all the formalities as desired by the surveyor and all original claim papers are in the custody of the Op. The complainant received a letter dated 10.08.2018 issued by the Op, vide which the Op has repudiated the genuine claim of the complainant.  Complainant approached to the Officials of the Op and requested them to reconsider his claim. The Op has not paid the genuine claim of the complainant and has refused his claim on flimsy and untenable grounds. The Op is indulged in malpractice and unfair trade practice. As such, there is clear cut deficiency in service on the part of Op and lastly prayed that the complaint may kindly be allowed and Op be directed to pay the sum insured value of the vehicle i.e. Rs. 3,50,000/- alongwith interest @12% p.a. from the date of accident till its actual realization and damages of Rs. 50,000/- for causing mental tension and agony alongwith Rs. 22,000/- as costs of litigation expenses and counsel fee.
3. Upon notice, Op has appeared and filed written reply and taking preliminary objections that the present complaint is not maintainable. As the claim of the complainant has already been repudiated on 10.08.2018 on the ground that the driver of insured vehicle has been changed. The name of the driver Harpreet Singh has been manipulated by the complainant as he was not on the wheels of the insured vehicle at the time of alleged accident. The insurance is a contract of indemnity and it is normal contract as per the Indian Contract Act and any violation of the insurance contract by the parties then it becomes void. In such, an event the insurance company is not liable to answer the claim to other party. The complaint does not qualify the ingredients of a valid complaint as define in section 2(1)(c) of the Consumer Protection Act.  On merits, Op has issued commercial vehicle enhancement cover policy for the vehicle of the complainant. It is denied that Harpreet Singh was driving the insured vehicle at the time of alleged accident, which occurred on 05.10.2017. It is however, stated that on receipt of intimation of loss on 28.02.2018 the Op has immediately deputed approved IRDA surveyor and loss assessor Sh. Yogesh Kochhar, of Ludhiana to assess the loss, who in his report dated 24.07.2018 assessed the loss to the tune of Rs. 2,69,500/- and further mentioned therein that the loss has been reported after 5 months of accident and the name of the driver has not being mentioned in the FIR on the pretext that he ran away after the accident and he further mentioned that the claim form is partially filled and insured filed affidavit on 18.04.2018 as there is abnormal delay in filling of the claim . The claim of the complainant was repudiated on 10.08.2018 and he was informed accordingly. The insurance company has got investigated through Royal Associate Investigating and detective Agency, Kurkshetra, who in his report dated 20.06.2018, found that the driver of the insured vehicle was not Sh. Harpreet Singh as projected by the complainant and he has been manipulated after words. The investigator has recorded the statements of the insured, his son, his partner and Sh. Harpreet Singh, alleged driver and found that Harpreet Singh was not on the wheels of the vehicle at the time of alleged accident, who has been changed due to contradicted statements made by them.  The claim was rightly rejected under the terms and conditions of the policy. All the remaining allegations are denied by the Op and prayed that the complaint may kindly be dismissed with costs.
4. Complainant has tendered into evidence Ex. CA affidavit of the complainant alongwith documents Ex.C-1 to Ex.C-06 and closed the evidence. Similarly, Op tendered into evidence Ex. OPA affidavit of Smt. Gurveen Kaur, Sr. Division Manager, Ex. OPB affidavit of Sh. Yogesh Kochhar, Ex.OPC affidavit of Shri Kashmir Singh alongwith documents Ex. Op-1 to Op-6 and closed the evidence.
5. We had heard the learned counsel of both the parties and gone through the record file carefully with the valuable assistance of the learned counsels for the parties. During arguments the contentions of the learned counsel of both the parties are similar to their respective pleadings. So, there is no need to reiterate the same to avoid repetition. Now come to major controversy whether the complainant is liable for relief as claimed by them in his prayer or not?
6. No doubt, it is admitted fact that the Op has issued commercial vehicle enhancement cover policy bearing number 36150031160300009919 for the period of 10.12.2016 to 09.12.2017 for Mahindra Bolero pickup bearing registration number PB11-BR-0974 for a sum of Rs. 3,50,000/-. Ex.C-3 is a certificate of registration. Ex.C-4 is a Motor Vehicle Cover note issued by Op with regard to registration of vehicle number PB11-BR-0974 in the name of complainant. Complainant had paid Rs. 13,334/- as insurance premium to the Op. Ex-C4 is a policy schedule cum certificate of insurance depicts the previous policy number 215392 Ex.C-6 is a repudiation letter dated 10.08.2018 repudiated the claim on the ground that as per investigator opinion that at the time of accident, the name of driver as Harpreet Singh seems to be not correct and UMR (Former) Manipulating thing and name of driver also manipulated.
7. Per contra, Ex.Op-1 is a repudiation letter from the perusal of Ex.Op-2 Motor (Final) Survey report dated 24.07.2018 of surveyor Yogesh Kochhar. In this documents IDV mentioned of the vehicle as Rs.3,50,000/- Ex.Op-3 is an investigation report for OD claim of vehicle PB11-BR-0974 and mentioned the account of Mr. Om Prakash (New deceased). From the perusal of opinion of investigation report, Op admitted that date, time and place of accident seems to be genuine and cause of accident was also found genuine. One person sitting on tractor died in this accident. The name of driver as Harpreet Singh seems to be not correct, because, the statement of insured and driver are contradictory. It shows that Harpreet Singh was not driving the insured vehicle at the time of accident.
8. This Commission has minutely examined the photocopy of First Information Report. The Fifth line shown the name of driver is unknown in the FIR. We have examined the document Ex.Op-4 which is an affidavit of complainant, In para number 5 & 6 of the affidavit, Complainant had stated that he is a heart patient and he is under treatment of G.P. PANT Hospital, New Delhi. He further stated, that due to treatment of heart, he was unable to submit his document to the insurance company. This Commission has observed that the stand of Op is not believable. On this ground, that the investigation conducted by police and found that Harpreet Singh driver is wrongdoer. As per important document Ex.C-A affidavit of complainant, Para no.3 mentioned that FIR no. 185 dated 05.10.2017 was lodged u/s 279, 304-A IPC. Ex.C-5 is Final Police report/Challan, Ex.Op.3 investigation report, At page number 3 findings it is clear cut mentioned that Mr. Harpreet Singh was working as driver. Ex.Op.4 affidavit of complainant, Para number 2 also depicted that my driver Harpreet Singh was driving the truck number PB11-BR-0974. As per Ex.Op.5 is loss/damage intimation letter had depicted the name of driver as Harpreet Singh. "A Man can lie, but document can't" From this angel, the stand of Op with regard to that driver namely Harpreet Singh was manipulated by complainant is falsified. We feel that the investigation conducted by the investigation officer of police in FIR (supra) is genuine one. The investigation conducted by police officials neither rebutted by Op nor challenged the FIR/Challan, which is Ex.C-5 before any competent court that the driver of the vehicle Harpreet Singh was manipulated by the complainant. No cogent evidence on record to prove this version produced by Op that the driver of the vehicle Harpreet Singh was not the original driver at the time of accident (Supra). This Commission has not hesitation to hold that the investigation conducted by the Police officials to trace out the real wrongdoer and driver Harpreet Singh impleded as an accused in criminal case vide FIR number 0185 dated 05.10.2017 as per Ex.C-5 at page number 4 is genuine one. It is well established Principal of criminal Law is that " Let the hundred guilty persons escape, but one innocent person should not be punished. If the driver Harpreet Singh is not the genuine culprit at the time of accident (supra) occurred than it is not possible for the driver to face the criminal case/conviction, if any unnecessarily. We feel that the stand of Op is not believable.  Moreover, no rebuttal evidence produced on record by Op against Ex.C-5. It is well established principal of law is that "The person who seeks equity, must do equity " As per Ex.C-4 complainant had paid Rs. 13,334/- as premium against policy in question and the policy is legal one at the time of accident occurred as discussed above. We feel that an insurance contract is known as a Contract of "Uberrima fides" based on "utmost good gaith" which is fully applicable in the present complaint. As per Ex.OP.2 motor Final Survey Report dated 24.07.2018 on last page the relevant portion is reproduced as under :-

The liability on the repairs basis has exceeded 75% of IDV. As the vehicle is under legal case and has been released on Supardari, RC cannot be transferred in the name of insurers and the vehicle has to be left to the insured only for current market value of vehicle/wreck Rs. 1,35,000/-(with RC). The claim cannot be settled at non other mode of settlement accept on NOS basis (With RC) for Rs. 2,14,500/- where the vehicle is to be left with the insured only.

9. Resultantly, keeping in view the facts and circumstances of the present complaint in hand, we partly allow the complaint of the complainants and direct the Op to pay Rs. 2,14,500/- alongwith interest @7% per annum from the date of filing of the complainant till realization to the complainants in equal share. However, if any of the complainants/Legal heir is a minor then the share amount of the minor shall be kept in the shape of FDR till he/she attains majority.  Further, the Op is directed to pay consolidated sum of Rs. 10,000/- as compensation and litigation expenses.  
10. This order be complied by Op within a period of 45 days from the date of receipt of order.
11. The complaint could not be decided within the statutory time period due to heavy pendency of cases.
12. The file be return to the District Consumer Commission, Patiala. The Copy of this order be supplied to the parties as per rules by the District Consumer Commission, Patiala .       

                                        Announced.

                                        19^th October, 2023.

 

( Kanwaljeet Singh)    (Sarita Garg)  (Jot Naranjan Singh Gill)

    Member                        Member                  President