Santosh Maheshwari vs Oriental Insurance Co. Ltd.

THIS appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 31st July, 2001 in Complaint No. 341/1999 by the District Consumer Disputes Redressal Forum, Durg (hereinafter called the ''District Forum'' for short), dismissing the complaint of the complainant/appellant.

THE facts not in dispute are that the complainant owns a Tata Truck 407, registered as MP-24-C-3000. THE said vehicle was comprehensively insured with the respondent/insurer for a sum of Rs. 2,75,000/-. Risk was covered by the said insurance for the period from 27.3.1999 to 26.3.2000. According to the complainant, the said vehicle met with an accident on 29.3.1999 near village Hirri, near Bilaspur. The complainant intimated the respondent''s Bilaspur office about the incident upon which Surveyor Shri V.K. Daniel was appointed by the respondent. The complainant also lodged report of the incident with Police Station, Hirri on 30.3.1999. A spot inspection was held by the Surveyor, whereafter, the complainant had towed away the vehicle to Durg. Another Surveyor Shri S.C. Nanda was also appointed by the respondent. However, the claim of the complainant under the insurance policy was repudiated by the respondent/insurer by their letter dated 29.6.1999. The complainant, therefore, lodged complaint in the District Forum claiming total sum of Rs. 21,246.60 paise, towards repair charges, interest, loss of income and compensation for delay in payment of his claim.

The complaint was resisted by the respondent/insurer. According to the respondent, no accident took place on 29.3.1999. It was also alleged that possibly, the vehicle met with an accident before the complainant obtained the insurance policy and that the complainant in order to seek compensation for the loss, got it insured at a later date and laid claim before the respondent. According to the respondent, the claim of the complainant was rightly repudiated.

THE learned District Forum, in the impugned order held that it appears that the complaint is false and that the complainant has not approached the District Forum with clean hands and has suppressed material facts. Accordingly, the complaint was dismissed. Learned Counsel for the complainant/appellant submitted that the vehicle was insured after the same was physically inspected by the Competent Authorities of the respondent/insurer. It was submitted that the police investigation as well as the Surveyor''s report clearly indicated that the accident occurred as alleged by the complainant. It was, therefore, contended that there was no justification for the respondent/insurer to repudiate the claim and that the complainant is entitled to receive the compensation in accordance with the Surveyor''s report.

LEARNED Counsel for the respondent/insurer, however, supported the impugned order. It was submitted that the learned District Forum after detailed examination of the facts and circumstances of the case; had recorded a correct finding that there was no accident during the period in which the policy was in force. It was also submitted that the repudiation was justified and called for no interference as has been rightly held by the District Forum. As noticed earlier, it is not in dispute that the vehicle of the complainant/appellant was comprehensively insured for the period from 27.3.1999 to 26.3.2000. The accident, according to the complainant occurred on 29.3.1999 near village Hirri while the respondent''s averment is that the accident might have taken place prior to the above date and did not occur during the period for which the policy covered the risk. The question, therefore, that needs consideration is as to whether the complainant''s vehicle met with an accident on 29.3.1999, as alleged by him?

IT may be noticed in the above context that the complainant had paid the premium for issuance of the policy and receipt dated 26.3.1999 was issued to him by the insurer. As noticed earlier also, the period of coverage of risk under the policy was from 27.3.1999 to 26.3.2000. The complainant in his affidavit has stated that the accident took place on 29.3.1999. The incident was reported by the complainant to the respondent/insurer immediately. IT would appear that the Surveyor Shri V.K. Daniel inspected the vehicle on the spot and submitted his report on 8.4.1999. He had also taken photographs of the accidented vehicle. He had found that the vehicle had dashed against a tree on the left side of the road. IT is mentioned in the said report that the bill of the diesel produced by the complainant was not issued on 29.3.1999 and the copy of the bill of the sale of tomatoes alleged being carried in the said vehicle did not mention the number of the vehicle. IT was also found that there was some discrepancy regarding the cause of accident as mentioned in the F.I.R. and the cause thereof as disclosed by the insured. The Surveyor in his report expressed his opinion that the date of accident is doubtful.

HOWEVER, the above material itself referred by the Surveyor was not sufficient to reach the conclusion that the accident did not take place on 29.3.1999. In fact, the Surveyor Shri V.K. Daniel also did not specifically conclude so, but only expressed his doubt about the date of accident in this regard. It may be noticed in the above context that an F.I.R. was also lodged on 30.3.1999 regarding the accident. The police registered an offence and made inquiries. It would appear from the F.I.R. and material placed on record that some other vehicle had dashed against the insured vehicle and that the driver of the other vehicle had taken away the documents from the driver of the insured vehicle. The report of Surveyor does not disclose that he tried to ascertain the particulars of the other vehicle, dashing against the insured vehicle. The Surveyor has also not taken the statement of driver of the other vehicle or any other persons present at the time of accident. In fact, he has mentioned in his report that other persons contacted by him could not give any useful information. In the circumstances, the doubt expressed by the Surveyor about the date of accident is not substantiated by reliable material. The learned District Forum has tried to assess the genuineness and the cause for the accident and has observed that if the right tyre of the vehicle was burst as reported by the complainant, then the vehicle would not have swerved to the left side of the road. However, it may be noticed that the complainant himself was not present at the time of the accident and, therefore, his version by itself could not be put to close scrutiny, and on that basis, it could not be concluded that the accident did not take place on the date stated by the complainant. It may be noticed here that there is no dispute that the vehicle of the complainant did meet with an accident and the question to be considered is as to on what date the accident occurred? As already noticed, the Surveyor should have examined and recorded the statement of the driver or other persons sitting in the other vehicle with which the complainant''s vehicle dashed. Such evidence would have satisfactorily and conclusively, established the date of accident. However, this was not done. The learned District Forum has also observed that the complainant has failed to show as to what action was taken against the complainant''s driver. However, it may be noticed that undisputably, the complainant''s conductor of the insured vehicle has lodged the report of the incident on 30.3.1999 with the police. It was for the insurer to prove the action taken by the police in that regard. Therefore, even if the complainant had not produced any material, to show as to what action was taken about the insured''s truck driver, no adverse inference against the complainant can be drawn.

In view of the above, it appears that the insurer has failed to produce and substantiate its stand that the vehicle did not meet with an accident on 29.3.1999 or had been accidented prior to the date of issuance of policy. In the above regard, it may also be noticed that before issuing the comprehensive policy, the Competent Authority of the insurer should have properly inspected the vehicle and the proposal for insurance should have been accepted only after feeling satisfied that the vehicle was fit and deserved to be insured. This must have, presumably, been done by the insurer. If, however, it did not do so, it has to suffer the consequences.

IN view of the above, in our opinion, the insurer has failed to discharge its burden of proving that the accident did not occur on 29.3.1999 as alleged and reported by the complainant to the insurer or to the police. IN view of the above, the finding of the learned District Forum that the complainant''s accident did not take place on 29.3.1999, cannot be sustained. It is, therefore, clear that the complainant/appellant is entitled to get compensation under the insurance policy. It is clear from the report of Shri S.C. Nanda, Surveyor that the loss to the vehicle was assessed by him at Rs. 26,238/-. The above amount deserves to be awarded to the complainant under the insurance policy.

ACCORDINGLY the appeal is allowed. The impugned order is set aside. It is directed that the respondent/insurer shall pay to the complainant/appellant a sum of Rs. 26,238/- with interest @ 9% per annum from the date of complaint till payment. The respondent/insurer shall also pay the costs of the litigation to the complainant/appellant which is quantified at Rs. 1,000/- (Rupees one thousand only). Appeal allowed with costs.