NATIONAL INSURANCE COMPANY LIMITED vs PHOOL CHAND

IN this appeal the validity of judgment and order dated 21.11.2000 passed by District Consumer Forum-I, Moradabad in Complaint Case No. 399/1998 has been challenged.

BRIEFLY stated the facts of the case are that the complainant Phool Chand, r/o Matipura, Tahsil : Hasanpur District : Jyotiba Phooley Nagar had purchased an Eicher Tractor No. UP 21/A-5048. The said tractor was insured with the opposite party, National Insurance Company Limited, Station Road, Moradabad and the insurance was valid from 8.2.1996 to 7.2.1997 for a sum of Rs. 1,20,000/-. The said tractor on 18.4.1996 suffered an accident and the report of the same was lodged with the Police Station Hasanpur. After the accident the complainant got his tractor repaired and various amounts of Rs. 99,000/-, Rs. 1,700/-, Rs. 39,446/- and Rs. 19,500/- were spent. The tractor in question was purchased by the complainant after taking loan from the State Bank of India, Hasanpur. The entire documents along with affidavits etc. had been submitted before the opposite party for claiming the amount of the insurance but till date of filing of complaint, the claim was not given by the Insurance Company. The complainant, therefore, lodged a claim before the District Consumer Forum for an amount of Rs. 1,59,736/- as the charges paid by him for repair of the tractor and an amount of Rs. 2,00,000/- was also claimed as compensation for physical and mental torture. In the written version before the District Consumer Forum, the opposite party, Insurance Company admitted the insurance of Rs. 1,20,000/- and alleged that the occurrence of the incident is also not denied. The expenditure for repairs given by the complainant is totally wrong and concocted and no compensation/damage is liable to be paid to the complainant. After considering each and every aspect of the matter the claim of the complainant has been repudiated and the information has been given to the complainant by the Insurance Company. It was alleged that as per the F.I.R. lodged by the insured, the tractor was driven by Sri Ram Veer at the time of the alleged incident while the insured has mentioned in the claim form that Sri Desh Raj s/o Mahesh was the driver of the tractor at the time of accident. Driving licence of Desh Raj was submitted by the complainant and not that of Ram Veer. When the complainant was asked to clarify the contradiction in the names of the driver then he filed an affidavit to the effect that Ram Veer whose name has been mentioned in the F.I.R. is also known as Desh Raj. On an investigation, it was found that Sri Desh Raj is not known by any other name. The Investigator also enquired from Desh Raj who confirmed that he was neither driving the alleged tractor nor met with any accident. Desh Raj had informed the Investigator that a copy of his driving licence was carried by some person which was misused by the complainant. The driver of the tractor had no valid driving licence at the time of accident and, therefore, the photocopy of the driving licence of Sri Desh Raj was misused to get the insurance claim and, therefore, the claim has been rightly repudiated.

The parties led their evidence before the learned District Consumer Forum and after hearing the case, the Forum partly decreed the claim of the complainant and directed the opposite party to pay to the complainant an amount of Rs. 22,814/- along with interest at the rate of 18% per annum from 18.12.1996 till the date of payment. A compensation of Rs. 4,000/- and cost of Rs. 1,000/- were also awarded to the complainant.

AGGRIEVED of this order the National Insurance Company Limited has come in this appeal. We have heard the arguments of the learned Counsels for the two parties. The learned Counsel for the appellant has argued that the terms and conditions of the policy were violated by the complainant himself as the tractor in question was being driven by the unlicensed person at the time of the alleged accident. It was also argued that the District Consumer Forum did not examine the Surveyor''s report in totality. In the F.I.R. the name of the driver was written as Ram Veer who was not holding the driving licence at all and instead while filing the claim the driving licence of the Desh Raj was given to the Insurance Company. Ram Veer and Desh Raj are not one and the same person and there has been no deficiency on the part of the Insurance Company.

THE learned Counsel for the respondent has argued that the driver at the time of accident was Desh Raj who is also known as Ram Veer and the burden is on the Insurance Company to prove that the two persons are different. THE appellant''s Counsel has also argued that the complaint is barred by limitation. On the other hand the learned Counsel for the respondent has argued that since repudiation has not been done limitation will continue. The main point involved in the dispute is whether the driver of the tractor in question was the same person whose driving licence was given by the complainant to the opposite party for staking his claim for insurance. A number of papers were filed before the District Consumer Forum by both the parties in support of their claim. We have seen the copy of the F.I.R. of the incident. In the F.I.R. it has been clearly stated that at the time of accident the tractor was being driven by Ram Veer. Nowhere there is the name of Desh Raj. In the claim form in Column No. 8 the name of the driver has been shown as Desh Raj. Form-6 which is the copy of the driving licence also clearly shows that the driving licence holder is Sri Desh Raj s/o Sri Mahesh. Thus a serious suspicion is cast on the claim made by the complainant. If Desh Raj and Ram Veer had been the same person then in the F.I.R. the name of Ram Veer could have been entered as Ram Veer @ Desh Raj. It was not there. Similarly it is not in the driving licence also. A perusal of the survey report also goes to show that the Surveyor who assessed the loss of Rs. 22,814/- because of accident has clearly observed that in the FIR lodged by the complainant the name of Ram Veer was entered and it was only at later stage when the claim was filed, the name of the driver Desh Raj was given by the complainant. Subsequently an Investigator was appointed by the Insurance Company. The report of the Investigator reveals that since Ram Veer was not holding a valid driving licence, therefore, the licence of Desh Raj was used to get the claim from the Insurance Company. The Investigator also went to the house of Sri Desh Raj and it was found that the Desh Raj is known as Desh Raj and not Ram Veer. The Investigator was also informed that the copy of driving licence of Desh Raj had been obtained and was misused by the complainant. The said Desh Raj had also given a statement before the Investigator that his name is not Ram Veer. He also stated that the affidavit earlier taken from him was wrong. A perusal of the judgment and order passed by learned District Forum goes to show that the due consideration was not given to the contents of the affidavit of the Senior Divisional Manager and the report of the Surveyor as well as that of the Investigator were not thoroughly examined. If in the FIR the name of Ram Veer @ Desh Raj had been entered then there was reason for the Forum to have come to the conclusion that these were no two persons. Even in the driving licence there is no alias, therefore, the entire case in regard to Ram Veer and Desh Raj being the same person takes a different turn and it is clearly established that Ram Veer and Desh Raj are two different persons and at the time of accident Ram Veer was driving the tractor and not Desh Raj. It was wrong on the part of the complainant to have submitted the driving licence of Desh Raj to get the claim. The complainant found that Ram Veer was not having valid driving licence then the driving licence of Desh Raj was submitted before the Insurance Company showing that he was Ram Veer @ Desh Raj. The complainant, therefore, made a breach of terms and conditions of the policy in order to get the claim amount by supplying false information.

IN the circumstances, the conclusion arrived at by the District Consumer Forum are not based on solid reasons and the judgment and order are liable to be set aside and the appeal is liable to be allowed. ORDER The appeal is allowed. The judgment and order of the learned District Consumer Forum are set aside and complaint is dismissed. There will be no order as to cost. Let copy of this order be made available to the parties as per rules. Appeal allowed.