NATIONAL INSURANCE CO LTD vs AJAY KANWAR

DR. P. D. Shenoy, Presiding Member-It is the say of the complainant that he bought an Opel Astra car bearing registration No. DL-2ch-7302. The said car was insured with the petitioner-Insurance Company on 22. 11. 2004 for a period of one year for a sum of Rs. 3,50,000. While he was on way from Jalandhar to his village, his car met with an accident near Bhogpur with a truck at 11. 30 p. m. on 18. 1. 2005 due to dense fog. The truck driver ran away from the place of the scene. The complainant informed the Branch Manager of the Insurance Company on phone. The car was towed to Dada Motors, Jalandhar for repairs.

M/s. Arun Kumar and Company were appointed as Surveyors and Loss Assessors by the Insurance Company. It is contended by the respondent that though he fulfilled all the formalities for getting the insurance amount/claim, the Insurance Company delayed the matter and finally repudiated the claim through its letter dated 12. 7. 2005. Therefore, he had to file a complaint before the District Forum. That complaint was contested by the Insurance Company though the company admitted that the car was insured by it. The Insurance Company contended that intimation of the accident in writing was given to the former 14 days later. The Surveyor appointed by them assessed the loss at Rs. 2,15,756 on repair basis and Rs. 1,89,000 on the basis of salvage as per its report dated 18. 4. 2005. The Surveyor concluded that settlement of loss on repair basis was not at all economical and reasonable in comparison with other modes. However, insurer may settle the loss on net of salvage loss basis for Rs. 2,65,000 less salvage value of the damaged vehicle assessed at Rs. 75,000 = Rs. 1,90,000. The Insurance Company subsequently appointed Secret Bureau of Investigation to investigate this claim. The Investigator recommended repudiation of the claim stating that the claim was not genuine.

The District Forum held that though Mr. K. S. Mehta, Branch Manager had denied the telephone call received from the insured/complainant, he had not filed an affidavit in support of this contention. As there was no other evidence about the loss other than the loss assessed by the Surveyors, M/s. Arun Kumar and Company, the District Forum directed that the opposite party (petitioner here) shall pay Rs. 2,65,000 with interest @ 9% p. a. from the date of the complaint, i. e. , 30. 3. 2006 till the date of payment, with Rs. 2,000 as cost of litigation with further direction to the complainant to handover the salvage to the opposite party against receipt. If the complainant did not handover the salvage to the opposite party against receipt. If the complainant did not handover the salvage to the opposite party within the stipulated time, the opposite party will pay Rs. 1,90,000 to the complainant along with interest and costs.

AGGRIEVED by the order of the District Forum, the Insurance Company filed an appeal before the Punjab State Commission, Chandigarh. The State Commission in its judgment and order dated 7. 9. 2007 observed: "learned Counsel for the appellant argued that the Surveyor had noticed some discrepancies in the claim i. e. , the insurance was obtained after the occurrence of accident and the complainant informed the Insurance Company after 14 days of the accident, therefore, he advised the matter to be investigated by the (Investigator ). On the advice of the Surveyor, the investigation was made by M/s. Secret Bureau of Investigation who found that the claim was not genuine. We do not find any merit in the contention of learned Counsel for the appellant. The Insurance Cover Note for the period 22. 11. 2004 to 21. 11. 2005 has been placed on record as Ex. R-1 which clearly shows that on the date of accident i. e. , 18. 1. 2005 the car was duly insured. "

The State Commission did not find any infirmity in the impugned order and dismissed the appeal with cost. The State Commission also observed: "the amount deposited by the appellant while filing the appeal may be remitted by the Registry to the respondent-complainant by way of crossed bank draft/cheque after 45 days. The balance amount be remitted by the appellant to the respondent-complainant as per the order of the District Forum. "

DISSATISFIED with the order of the State Commission, the Insurance Company has filed this revision petition before us. Learned Counsel for the revision petitioner submits that the insured has not observed the following procedure laid down for claiming insurance benefits: (a) He has not informed the Insurance Company in writing immediately after the accident. (b) He has not filed an FIR with the Police Authorities. (c) There are may discrepancies in is statements of claim.

Learned Counsel also read out the report of the Investigator in extension who inter alia has observed that the insured has purchased a 2nd hand luxury car from Delhi which was without insurance coverage. Insured projected himself as an N. R. I. having lived in the U. S. A. for about 6 years. People living in such countries are more conscious of such matters and do not allow the insurance coverage to lapse. He did not contact the Police after the accident. Mr. K. S. Mehta, Branch Manager of the Insurance Company had denied that insured has informed him about the accident on phone. The time of the accident was stated to be midnight which is quite abnormal. Though photographs of the damaged car were submitted to the Insurance Company, the occupants did not suffer injuries. There is inconsistency about the place where the insurance agent had seen the car while providing insurance cover. There is discrepancy in the statement about the date of deposit of the premium, i. e. , 22. 11. 2004 or on the next date as stated by the agent. Receipt of towing charges were not filed. Details of the other vehicle/truck are not given, etc. Each one of the above contentions is analysed below: the Branch Manager has not filed affidavit to disprove the contention of the complainant that the complainant had informed him on phone about the accident. The complainant contended that as there was no injury or death to any of the occupants of the car and as it was midnight and the truck had fled away, he could not notice the number of the truck. As he felt that it would be a futile exercise to file an FIR without these details, it was not done. The insured has stated that he deposited the premium amount on 22. 11. 2004. The documents before us show that the car was insured by the petitioner for the period from 22. 11. 2004 to 22. 11. 2005 for a sum of Rs. 3,50,000. Hence, the factum of insurance is not in doubt. The insured is not responsible for the oral statement made by the Insurance Company''s agent, if any, recorded by the Investigator that the agent had deposited the amount on 23. 11. 2004.

ACCIDENTS can take place at any time of the day or night. Hence the observation that accident taking place at midnight is abnormal, that too by a Bureau of Investigation headed by a retired Superintendent of Police, appears to be perverse. The Investigator notes that the occupants of the car did not suffer any injury and this was cast doubt on the veracity of the averments of the insured though he does not dispute the fact that there was extensive damages to the car. This is a strange statement. The Investigator expects that the occupants should be injured to claim insurance cover of the vehicle. Purported statement of the agent about the place he saw the car before he gave the Cover Note cann''t also be held against the insured.

LEARNED Counsel for the petitioner, Ms. Verma submitted that as directed by this Commission on 29. 1. 2008 the requisite amount was deposited with the District Forum. She further submitted that the complaint was filed even before the Insurance Company had repudiated the claim of the complainant. However, para 5 of the affidavit filed by the Divisional Manager of the Insurance Company reads as follows : "that as the claim of the complainant has been repudiated by replying opposite party much prior to the filing of the present complaint and its due information has been given to the complainant by post hence there is no deficiency in service on the part of the opposite party hence the present complaint is not maintainable in the eye of law and deserves to be dismissed. "

Thus, there is an apparent contradiction in the submission made by the learned Counsel for the petitioner and the affidavit filed by the Divisional Manager. Further, though the complainant has submitted in his complaint that he had telephonically intimated the Branch Manager of the Insurance Company soon after the accident who had directed him to get the vehicle towed to the repair shop whereas, it is the Divisional Manager who submitted in his affidavit that such a telephonic intimation was not given to him. The Branch Manager was right person to file affidavit denying such a telephonic intimation which has not been done. The Divisional Manager''s affidavit can at best be construed as a hearsay.

In these days of telecom revolution, mobile phone has become a handy tool. Hence, it is not surprising that the insured has intimated the Branch Manager about the accident on his mobile phone, which is the quickest means of communication. In fact, he has followed it up by a written communication. Accordingly, a Surveyor and Loss Assessor has been appointed by the Insurance Company. The Insurance Act permits appointment of surveyors and they are licensed by the Insurance Regulatory Development Authority whereas appointment of an "investigator" is neither backed by any statute nor are they licensed by any Regulatory Authority. Yet, keeping in view the principles of natural justice and equity, we have considered the report of the Investigator in detail and we have found that it does not in anyway reduce the importance of the observations made by the Surveyor and the conclusions drawn by him. Insured has also provided photographs of the car which was damaged in the accident.

IN view of the foregoing analysis, we come to the irresistible conclusion that there is no legal infirmity of jurisdictional error in the orders passed by the Fora below. Therefore, this revision petition is dismissed. The petitioner shall pay Rs. 10,000 as cost to the respondent. R. P. dismissed.