NEW INDIA ASSURANCE CO LTD., LUCKNOW vs SRI DHARAM SINGH, JAUNPUR

THIS appeal has been preferred by the New India Assurance Company Ltd., Divisional Office II Lucknow against the order dated 23-4-1992 passed by the District Forum, Jaunpur in Complaint Case No. 68/1991 Dharam Singh v. The New India Assurance Company Ltd., directing the appellant who was the opposite party in the case to pay Rs. 41000/- alongwith interest at the rate of 6% per annum from the date 7-4-1989 (date of accident) to the date of actual payment within a month from the date of order. The main grounds of the appeal are that the District Forum, Jaunpur has acted without jurisdiction since the claim was repudiated by the Insurance Company, that it had not appreciated the report of Sri S.S. Sahani so far as it relates to the accident of 7.4.1989 and that the claim of the respondent-complainant has wrongly been accepted without reliable and satisfactory evidence, while he is not the sole owner of the insured vehicle in question as well.

WE have heard Sri Bhanu Prakash Dubey, Advocate for the appellant and Mr. D.K. Upadhayay, Advocate for the respondent for quite some time and perused the record of the Complaint Case No. 68/1991 of the District Forum. The case in brief of the complainant-respondent is that his Motor Vehicle (a truck) No. UTO 4595 met with an accident earlier on 8.3.1989 and after getting it repaired worth plying on road and after having got its fitness certificate from the transport authorities, the same motor vehicle was got insured on 25.3.1989 and obtained an insurance policy No. 3142070401156 valid from 25.3.1989 to 24.3.1990 from the New India Assurance Company. But his vehicle met with an accident again on 7-4-89 at 5 a.m. on Jaunpur-Azamgarh Road, report of which was lodged with the police and the insurance company the same day. He also lodged a claim for indemnifying the expenditure to be incurred for the repairs of the damaged vehicle but his claim was not accepted and was repudiated saying that no such accident took place on 7.4.1989, and the insurance was got done by playing fraud and facts of the earlier accident dated 8.3.1989 were concealed. The complainant, therefore, filed this complaint with prayer to direct the Insurance Company to pay a sum of Rs. 41,000/- which was 50% of the amount of Rs. 82,000/- the expenditure, incurred on the repairs of the insured vehicle.

The New India Assurance Company Ltd. has denied in its written statement any compensation as claimed by the complainant saying that so such accident took place on 7.4.1994 but the truck in question had already met an accident on 8.3.1989 in Bihar and to cover up that accident, this false case of the second accident of 7.4.89 was fabricated and thereby played a fraud as was investigated on behalf of the insurance company on receipt of a complaint. This investigation was done by Sri Sahani who found the claim false and hence repudiated by the Insurance Company as no accident took place on 7.4.1989 and no damage was caused as well on that date. The insurance company also challenged the jurisdiction of the District Forum under the Consumer Protection Act saying that the claim which was once repudiated, can not be adjudicated in the Consumer Forum. In support of its case the Insurance Company has filed the affidavit of Sri Sahani along with his report dated 17.3.1995, and affidavits of Sri Dilip Kumar Dubey, Development Officer, Sri S.A. Khan, Divisional Manager of the Insurance Company, and copy of the proposal form for the insurance along with the supplementary affidavit dated 27.1.1992 of Sri Dubey, Development Officer. On the other hand the complainant has also filed his own affidavit dated 16.1.1992 and affidavit of Sri Dev Raj S/o Sunder Yadav, who was driving the vehicle on the date of accident on 7.4.1989 and that of Sri Kanta Prasad Tiwari who witnessed the damaged insured vehicle on spot on the date of accident of 7.4.1989 in} support of the complaint. The District Forum after examination and weighing of the evidence of both the parties has accepted the complaint and directed the Insurance Company to pay Rs. 41000/- to the complainant along with 6% interest thereon with effect from 7.4.1989.

THE Learned Counsel for the appellant .Sri B.P. Dubey has laid stress emphatically on the grounds firstly that the claim of the respondent-complainant was false as no accident took place on 7.4.1989 and as such his claim had already been repudiated on the basis of the report of Sri Sahani who was appointed by the Insurance Company on receipt of the complaint from one Daya Shanker Yadav in this connection and once the claim has been repudiated, District Forum has no jurisdiction under the Consumer Protection Act, 1986 and secondly that the District Forum has erred in not properly appreciating the evidence of the appellant and has accepted the claim of the complaint without any reliable evidence. As regards the findings of the District Forum under its order dated 23.4.1994 under challenge we do not find any error in appreciation of the evidence filed by both the parties. The District Forum has examined the report of the investigator, Sri Sahani appointed by the Insurance Company, after the spot survey and final survey reports submitted respectively by Sri Suresh Chandra Gupta and M/s. Rakesh Agarwal and Associates who were also appointed by the Insurance Company itself, were received by the Company. The District Forum has found that most of the report of Sri Sahani dealt with the earlier alleged accident dated 8.3.1989 but there was hardly any conclusive findings of Sri Sahani about the accident of 7.4.89 which could not be of any help in support of the case of the appellant-opposite party. We therefore find that the District Forum was justified to have ignored it because Sri Sahani has made passing remarks about some discrepancies in the report dated 10.4.89 of spot surveyor Sri Suresh Chandra Gupta and final report dated 14.4.89 of M/s. Rakesh Agarwal and Associates regarding the valuation in respect of the cost of parts and labour charges but could not give any satisfactory explanation to disbelieve or descared their reports. We also find that Sri Sahani''s report does not deny in clear terms the earlier reports of spot survey and final survey. Moreover it is surprising that Sri Sahani could not procure any written statement or affidavits from Sri Daya Shanker, Devraj driver and the owner of the alleged garage where the vehicle in question was kept after the first accident of 8.3.1989 although he (Sri Sahani) had interrogated them as mentioned in his report. The appellant-opposite party also failed to produce their affidavits to corroborate the report of Sri Sahani, investigator. On the other hand we find that the affidavits of Dev Raj who had driven the ill-fated vehicle on 7.4.1989, the date of accident in question and Kamta Prasad Tewari an eye witness have specifically supported the case of the complainant that the insured vehicle No. UTO 4595 met with accident on 7.4.1989 which finds support from spot survey and final surveys as mentioned in the report of Sri Sahani. It is again surprising that the insurance company has withheld the reports of spot and final surveys and not brought on the record of the complaint case before the District Forum. It appears that Sri Sahani, though in the end in his report assessed the damages and also the costs on account of replacement of the parts and labour charges for repairs of the vehicle, has tried unsuccessfully to sidetrack the issue of the accident of 7.4.89 by elaborately highlighting earlier accident of 8.3.89. The fitness certificate of the vehicle No. UTO 4595 before submission of the proposal for insurance and the first information report lodged with the Police Station Gaura Badshahpur in respect of the accident of 7.4.89 could not be discredited by Sri Sahani in his report while be verified then from the Transport Authorities and the station officer of the police station concerned. On the other hand the report of Sri Sahani on both the fitness certificate and first information report has strengthened the case of the complainant in respect of the accident of 7.4.89 as well as that the vehicle UTO 4595 was in fit condition when proposed for insurance. For these reasons as discussed above, we find that the finding about the report of Sri Sahani arrived at by the District Forum was correct and does not suffer from any error.

THE Learned Counsel for the appellant has tried to attach importance to the affidavits dated 9.1.92 and dated 23.1.92 of Sri D.K. Dubey, Development Officer of the Insurance Company who accepted the proposal of insurance of the vehicle UTO 4595 and insured it. In his first affidavit Sri Dubey admitted that he saw the vehicle in question which was brought to his house by Sri Dharam Singh, complainant but later on his supplementary affidavit dated 23.1.1992 changed his version saying that though he was shown the vehicle displaying the number plate having No. UTO 4595 but he was not shown its chassis number and engine number. THE statement given in his supplementary affidavit is an after thought. When a proposal was brought to him along with the vehicle having number plate of UTO 4595, he could have examined and inspected the chassis and engine numbers and, there was nothing to prevent him from such inspection for verification of the engine and chassis numbers. He can not be given any mileage for his lapse. Hence the later affidavit of Sri D.K. Dubey, Development Officer does not help the appellant on this count, too, because if be failed to discharge his duties, who else could be blamed for that failure on his part. THE answer is very simple that he himself or his company on whose behalf he had acted. THEre appears no suppression of any fact on the part of the complainant, as he showed the vehicle No. UTO 4595 at the time of submission of the proposal of the insurance by bringing the same to the house of Sri D.K. Dubey, Development Officer who admitted that he had seen it before accepting the proposal and thereby there appears to be no fraud on the complainant''s part. THE plea of fraud being played by the complainant has no force and has rightly been turned down by the District Forum. The learned Counsel for the appellant has vehementally pressed the point that once the repudiation of the claim has been made, the Consumer Forum under the Consumer Protection Act, 1986 has no jurisdiction to adjudicate upon it. In this connection he relied upon the decision given by the National Commission in M/s. Junta Machines Tools v. National Insurance Company, I (1991) CPJ. Page 234 (NC) but it is of no assistance to the appellant in view of the facts as discussed in foregoing paras in this present case. The second citation of the decision in Dr. (Mrs.) Tripta v. United India Insurance Company Ltd., (National Commission I (1991) CPJ 574) also does not help the appellant on the facts of this case. On the other hand the Learned Counsel for the respondent-complainant, Sri D.K. Upadhyay has referred to the case of Life Insurance Corporation of India v. Sri Bhagwan Sri Niwas Reddy decided by the National Commission on 5.6.1991 wherein it was held "that any unilateral repudiation of the contract by the insurance company on the allegations that there had been suppression of the relevant material by the insurer at the time of taking the policy of insurance, will not disentitle the policy holder from approaching the redressal forum constituted under the Consumer Protection Act seeking an adjudication of the question whether the said repudiation was justified in law. In such a case the Consumer Redressal Forum has not only the jurisdiction but also a duty to investigate into the question whether the charge made by the Insurance Company, on the basis of which the alleged repudiation was made is well founded on fact". In case it is found as a result of such investigation that the Insurance Company was justified in repudiating the contract, the complainant''s petition will have to fail, if on the other hand the Forum comes to the conclusion that the charge levelled by the insurance company is not substantiated and hence there was no jurisdiction for its purported action repudiating the contract of insurance, will be treated as subsisting and an enquiry will be conducted into the merits as to whether there was any deficiency in service on the part of the insurance company so as to entitle the complainant to grant relief under the Act."

ANOTHER case, relied upon by the Learned Counsel of the complainant in Appeal No. 151/1991 United India Insurance Company v. P.S. Mani decided on 23.4.1992 by the National Commission wherein it has been held that the repudiation of a claim by the Insurance Company is no bar to the institution of the complaint under the Consumer Protection Act, 1986 before the Consumer Disputes Redressal Forum. In this case the National Commission has discussed its various earlier decisions especially "Janta Machine Tools v. Oriental Insurance Company (I (1991) CPJ Page 234 (NC) referred to by the appellant in the presert case before us, and other cases like Sri Abdul Shakur v. State of Orissa and Others, II (1991) CPJ 202 (NC), Sushila Gautam v. National Insurance Company (F.A. No. 50/91) Life Insurance Corporation of India v. Shri Bhagwan Sri Niwas Reddy, II (1991) CPJ Page 189 (NC) and New India Assurance Co. v. Vipro Electronics Pvt. Ltd. I (1991) CPJ Page 335 (NC).

AS we have already discussed in the foregoing paras we have found that the District Forum has weighed the evidence of both the parties and have come to the conclusion that the accident has taken place on 7.4.1989 in which insured vehicle got damaged and that no material was suppressed at the time of the insurance thereof as the vehicle for which insurance policy was taken was shown to the Development Officer of the company who accepted the proposal of insurance. Our analysis of the evidence on which the findings of the Distt. Forum arrived at in its order dated 23.4.92 under appeal has answered and covered all those points about the repudiation of the contract of the insurance which lead to conclude that such repudiation by the appellant Insurance Company is not justified on facts and law in the present case and in the light of the above citations referred to by the learned Counsel of the respondent-complainant, the Consumer Forum has jurisdiction to investigate into the claim and such unfounded repudiation made by the appellant (the Insurance Company) is no bar and therefore the Distt. Forum was fully justified in accepting the complaint that appellantopposite party was negligent in discharge of its duty and service by refusing to indemnify the claim on account of the expenditure which was incurred for replacement of parts and repairs of the damaged vehicle in question and directing the appellant-opposite party to indemnify the loss suffered by the complainant due to the accident of the vehicle by making the payment to recoupe the expenditure of Rs. 41000/- with interest at 6% per annum in its order dated 23.4.92 and there appears no error which may warrant any interference in appeal. It has been pointed out by the learned Counsel for the appellant, that the complainant Dharam Singh alone can not file the complaint while the vehicle in question was in the joint ownership of Ram Awadh and Dharam Singh and insured as such. We do not see any force in the plea raised for the first time at the appeal stage. In the present case only a claim for recoupement of the charges amounting to Rs. 41000/- which is 50% of the actual charges of Rs. 82000/- incurred on repairs etc., has been made and that any of the partners who has paid the charges on the repairs of the damaged vehicle may approach the Consumer Disputes Redressal Forum for relief. Moreover, this objection can not be raised by the appellant at this stage in appeal. It was for the other partner Ram Awadh who could made objection if any before the Distt. Forum.

In the result, the appeal of the New India Assurance Company fails and is dismissed with costs which we assess at Rs. 2000/- which shall be paid by the appellant to the respondent-complainant within 30 days of this order. Copy of this order be made available to the parties in accordance with rules. Appeal dismissed.