BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Complaint  Case No : 1434 of 2009

Date   of  Institution :    22.10.2009

Date   of  decision   :    27.01.2010

Gias Ram son of Sh.Madho Ram, Resident of VPO Karasan, Teshil Naraingarh, Distt. Ambala City.

….…Complainant

V E R S U S

1]     The Oriental Insurance Co. Limited, Regd. & HO Oriental House, A-25/27, Asaf Ali Road, New Delhi 110 002 through Managing Director

2]     The Oriental Insurance Co. Ltd., RO : SCO #109-111, Surendra Building, Sector 17-D, Chandigarh through Authorized Officer.

.…..Opposite Parties

CORAM:    SH.JAGROOP SINGH MAHAL       PRESIDENT

                DR.(MRS) MADHU BEHL              MEMBER

Argued by:        Ms.Poonam Verma, Advocate for complainant.

Sh.D.C.Kumar, Adv. for OPs.

PER SH.JAGROOP SINGH MAHAL, PRESIDENT

                The vehicle of the complainant bearing Regd. No.HR-37-B-6376 duly insured with OP Insurance Company vide Ann.C-1 met with an accident on 2.8.2008 while it was being driven by the complainant himself, who was holding a valid driving licence (Ann.C-3) at that time.  The accident was reported to police and FIR ann.C-4 was lodged.  OP Insurance Company was also intimated and necessary survey was done.  All the necessary papers as desired by the OP Insurance Company were supplied to them and there after a claim was filed but the same was illegally & arbitrarily rejected vide Ann.C-5 on the ground that the vehicle was being used for commercial purpose inspite of the fact that the said vehicle was duly insured as commercial one and premium charged thereof was also at commercial rate.  It is averred that the OP has also wrongly mentioned that the vehicle in question was being driven by one Sanjeev Kumar whereas the FIR (Ann.C-4) confirms that it was being driven by the complainant himself.  The complainant personally visited the OP to settle his claim but in vain.  Therefore, the present complaint has been filed alleging the above repudiation as gross deficiency in service due to which the complainant had to suffer mental agony, physical harassment and financial loss.  

2]             OPs filed joint reply and admitted the factual matrix of the case.  It is denied that the complainant was using the vehicle for his personal use.  It is also denied that the complainant was driving the vehicle on 2.8.2008 at the time of accident.  It is stated that during investigation of the claim (Ann.R-2) it has come on record that one Sanjeev Kumar son of Sh.Jai Kumar was driving the vehicle at the time of accident and the vehicle was being used as commercial vehicle.  Moreover, the complainant has not submitted the Driving Licence of Sanjeev Kumar, who was driving the vehicle at the time of accident.  It has been denied that the OP charged the premium for commercial vehicle.  The vehicle was registered as non-transport vehicle and premium was charged accordingly.  The claim was rejected as per terms & conditions of the policy.  Denying rest of the allegations, it is prayed that the complaint be dismissed.

3]             Parties led evidence in support of their contentions.

4]             We have heard the ld.Counsel for the parties and have perused the record. 

5]             It is argued by the Learned Counsel for the OP that the vehicle was insured at Dera Bassi, where the branch office of the OP is located and this Forum therefore has no jurisdiction to entertain and try this complaint.  On the other hand the contention of the complainant is that the case was being dealt by the branch of the OP at Chandigarh.  The letter of repudiation Annexure C-5 was issued from Chandigarh. The investigation regarding the accident was ordered by the OP at Chandigarh and the investigation report Annexure R-2 was also submitted at Chandigarh.  It is therefore not a case, the record of which is available at some far away place or the OP is asked to defend the case at a place where they have no record. Admittedly the entire record regarding the claim and the insurance is available with the OP at Chandigarh.  This Forum therefore would have the jurisdiction to try this complaint.

6]             The claim was repudiated by the OP on the ground that the vehicle was being used for commercial purpose and secondly that it was being driven by Sanjeev Kumar whose driving licence has not been produced by the complainant.  As regards the first contention, the Learned Counsel argued that at the time of accident there were 12-13 passengers in the vehicle.  After the accident took place, FIR, copy of which is Annexure C-4 was lodged by Beant Kaur, who was one of those occupants. In the FIR, it is mentioned that the girls used to go to the factory in a vehicle which went out of order and they were waiting for some vehicle but in the mean time the vehicle in question happened to pass that way and they asked the driver of this vehicle to take them to the factory.  The driver is said to have agreed to transport them but on the way this vehicle met with an accident.  In the FIR, Beant Kaur has not stated if they paid any hire charges or fare to the driver of the vehicle.  The affidavit of none of the said occupants, some of whom were injured in the accident, has been placed on file.  The result is that there is no evidence produced by the OP to prove that the vehicle was being used for hire or reward.

7]             The Learned Counsel has also referred to Annexure R-2, which is the investigation report given by the investigator mentioning that the vehicle was being used for hire and reward.  Alongwith it the statements Annexure R-3, R-4/1 to R-4/5 have been attached to suggest that they were travelling in the said vehicle. It may be mentioned that these statements cannot be taken into consideration because the evidence before this Forum is to be led by affidavits, which have not been filed. Even if these statements are taken into consideration, these do not prove, if the driver charged any amount for transporting the said persons in the vehicle.  In this manner the contention of the Learned Counsel for the OP that the vehicle was being used for commercial purpose is not proved.

8]             It is also argued that the vehicle was being driven by Sanjeev Kumar but his driving licence has not been produced for verification.  The investigator recorded the statement of one Sanjeev Kumar Annexure R-3 but it cannot cannot be taken into consideration because only an affidavit can be considered to prove this fact. When the investigator recorded the statement of Sanjeev Kumar, he could have very well obtained the affidavit from Sanjeev Kumar if the statement given by him was correct but it was not done for the reasons best known to him. We are of the opinion that Annexure R-3 or the report of the investigator cannot be taken into consideration to prove that vehicle was being driven by Sanjeev Kumar.

9]             There is yet another document to suggest that the contention of the OP is not correct. Immediately after the accident, FIR Annexure C-4 was lodged with the police by Beant Kaur in which she mentioned that the said vehicle was being driven by Gias Ram alias (Sonu). The complainant has filed his affidavit alleging that he was driving the vehicle. As against it, there is no evidence to show that the vehicle was not being driven by Gias Ram or it was being driven by Sanjeev Kumar.

10]            Annexure R-5 is the motor survey report showing that the complainant was entitled to a sum of Rs.26,105/-.  The present complaint therefore succeeds.  The same is allowed.  The OP is directed to pay to the complainant a sum of Rs.26,105/- alongwith interest @9% p.a. since 18.05.09 (one month after the submission of motor survey report Annexure R-5) alongwith litigation costs of Rs.2200/- within 30 days from the date of receipt of the copy of the order failing which the OPs would be liable to pay the entire amount alongwith penal interest @12% p.a. since the filing of the present complaint i.e. 22.10.2009, till the amount is actually paid to the complainant.

                Certified copies of this order be sent to the parties free of charge.  The file be consigned.