SHRI. M.V. VISWANATHAN: JUDICIAL MEMBER
The appeal preferred from the order dated 30th March 2009 of the CDRF, Alappuzha in CC No. 27/2008.
2.The appellants were the opposite parties and respondent was the complainant in CC No. 27/2008 on the file of CDRF, Alappuzha. The above complaint was filed alleging deficiency of service on the part of the opposite parties in repudiating the insurance claim preferred by the complainant with respect to the insured vehicle (Mercedes Benz Car) bearing Reg. No. KL 5 T 5555. The complainant claimed a sum of Rs. 13,97,654.25 towards the repair charge including labour charge and cost of spare parts with respect to the insured vehicle, which was damaged in a road traffic accident. The complainant has also claimed compensation for deficiency of service on the part of the opposite parties.
3.The opposite parties entered appearance before the Forum below and filed version denying the alleged deficiency of service. They justified their action in repudiating the insurance claim. They also contended that the Forum below is not having the territorial jurisdiction to entertain the complaint in CC No. 27/08 as no part of the cause of action has arisen within the jurisdiction of the CDRF, Alappuzha. It is also contended that the complainant suppressed and misrepresented material facts regarding the place of accident and the driver who drove the vehicle at the time of the accident; that the complainant filed a claim form stating false case regarding the place of accident and the driver of the vehicle at the time of the accident; that the investigation conducted by the opposite parties revealed that the accident occurred at North Paravur and the vehicle was driven by a middle aged man; that the complainant was driving the vehicle at the time of the accident without a valid and effective driving licence to drive the vehicle; that the case of the complainant that the vehicle was driven by Mr. A.B. Benoy is not correct. The opposite parties also challenged the correctness of the claim for Rs. 13,97,654.25 preferred by the complainant. Thus, the opposite parties prayed for dismissal of the complaint.
4.The opposite parties filed a verified petition as IA 145/08 to hear the question of maintainability of the complaint as a preliminary issue. The complainant filed objection to the said IA stating that part of the cause of action has arisen within the jurisdiction of CDRF, Alappuzha as the Development Officer of the opposite party Mr.P.J. Mathew and the agent came to the residence of the complainant at Alappuzha and collected the premium for the insurance policy. Thus, the complainant prayed for upholding the maintainability of the complaint in CC No. 27/08. The Forum below after hearing both sides passed the order dated 16th August 2008 on IA 145/08 and thereby it was found that the Forum below has territorial jurisdiction to entertain the complaint in CC No. 27/08.
5.Thereafter the complainant and opposite parties adduced both oral and documentary evidence in support of their respective pleadings. The complainant was examined as PW1 and 4 witnesses were examined on his side as PWs 2 to 5. Exts. A1 to A4 documents were also marked on the side of the complainant. From the side of the opposite parties the approved Surveyor who filed B6 survey report has been examined as RW1. The then Branch Manager of United India insurance Company, Kalamassery was examined as RW2 and that the private investigator who filed B9 investigation report was examined as RW3. Exts. B1 to B9 documents were also marked on the side of the opposite parties. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 30-03-2009 allowing the complaint and thereby directing the opposite parties to pay Rs. 8,18,688.59 to the complainant with interest at the rate of 9% per annum from the date of repudiation (30-11-2007) with cost of Rs. 2,000/-. Aggrieved by the said order, the present appeal is filed by the opposite parties therein.
6.We heard both sides. The learned Counsel for the appellants/opposite parties submitted his argument based on the grounds urged in the memorandum of the present appeal. He argued for the position that the Forum below was not having jurisdiction to entertain the complaint in CC No. 27/08, that the complainant is not succeeded in establishing his case that at the time of accident the insured vehicle was driven by Mr. A.B. Benoy. He much relied on B1 letter dated 14-09-2006 issued by the aforesaid Benoy with signature of the complainant as a witness and B5 claim form submitted by the complainant. He further relied on the testimony of RW3, the investigator who submitted B9 investigation report and argued for the position that the complainant deliberately suppressed material facts regarding the place of accident and also regarding the identity of the driver who was driving the insured vehicle at the time of accident. He pointed out the admission made by PW4 that the complainant himself came to the branch office and submitted Ext.B5 claim form dated 06-08-2006. The appellants justified their action in issuing B4 repudiation letter dated 30-11-2007. It is further submitted that the Forum below failed to appreciate the evidence on record in its correct perspective. Hence the appellants requested for setting aside the impugned order passed by the Forum below and to dismiss the complaint in CC No. 27/2008. On the other hand, the learned Counsel for the respondent/complainant supported the impugned order passed by the Forum below. He pointed out the admission made by PW4 regarding collection of insurance premium from the complainant at his residence in Alappuzha and thereby argued for the position that CDRF, Alappuzha was having the jurisdiction to entertain the complaint in CC No. 27/2008. It is further submitted that the fact regarding issuance of the comprehensive policy with respect to the damaged vehicle is admitted and also the fact that the complainant being the insured and owner of the damaged vehicle incurred expenses for repairing the said car as per A4 series of bills issued by the authorized dealer-cum-repairer of Benz vehicles. It is also submitted that the complainant has given the explanation for the mistake in stating the place of accident and also the fact that the complainant gave the clarification to the Insurance Company for the aforesaid mistake. He vehemently argued for the position that the complainant was definite on his stand that PW2 Benoy was driving the vehicle at the time of accident and the fact that the complainant was not having valid driving licence at the time of accident was immaterial for allowing the insurance claim which was preferred by the complainant. Thus, the respondent prayed for dismissal of the present appeal.
7.The points that arise for consideration are:
1. Whether the CDRF, Alappuzha was having territorial jurisdiction to entertain the complaint in CC No. 27/08?
2. Whether the respondent/complainant has succeeded in establishing his case that Mr. A.B. Benoy was driving the insured vehicle bearing Reg. No. KL 5 T 5555 at the time of accident?
3. Whether the appellants/opposite parties can be justified in issuing Ext.B4 repudiation letter dated 30-11-2007?
4. Whether the Forum below can be justified in awarding a sum of Rs. 8,18,688.59 by way of insurance amount with interest at the rate of 9% per annum and cost of Rs. 2,000/-?
5. Is there any sustainable ground to interfere with the impugned order dated 30-03-2009 passed by CDRF, Alappuzha in CC No. 27/08?
For the sake of convenience, the parties to this appeal will be referred to according to their rank and status before the Forum below in CC No. 27/08.
8.Point No. 1: Appellants/opposite parties have got a case that CDRF, Alappuzha was not having territorial jurisdiction to entertain the complaint in CC No. 27/08, as no part of the cause of action has arisen within the territorial jurisdiction of CDRF, Alappuzha. The opposite parties (appellants) also filed IA 145/08 to consider the maintainability of the complaint as a preliminary issue and thereby the Forum below passed the order dated 16-08-2008 on the said IA 145/08. It was held that CDRF, Alappuzha is having the territorial jurisdiction to entertain the complaint in CC No. 27/08. The Forum below much relied on Section 11(2) of the Consumer Protection Act, 1986 which deal with the territorial jurisdiction to entertain a complaint against opposite party or opposite parties who actually or voluntarily resides or carries on business or having branch office or personally works for gain within the local limits of the jurisdiction of a particular Consumer Forum. We can also see a similar provision u/s 17(2) of the CP Act. Those provisions are with respect to the territorial jurisdiction of State Commissions. The provisions of Section 11(2) and 17(2) of the CP Act would show that a Consumer Forum or State Commission will be having the territorial jurisdiction to entertain a complaint against opposite party or opposite parties who have a branch office within the territorial jurisdiction of the Consumer Forum or State Commission. But, the Honble Supreme Court had occasion to consider the aforesaid amendment introduced to Section 11(2) and 17(2) of the CP Act, 1986 and it has been held that the expression âBranch Officeâ would mean branch office where the cause of action has arisen. The Honble Supreme Court has also considered the plain and literal meaning of the words introduced by the aforesaid amendment of Section 11(2) and 17(2) of the CP Act, 1986. It is observed by the apex Court that âno doubt this would be departing from the plain and literal words of Section 17(2)â. It was further held that the aforesaid interpretation is to be given to avoid absurdity otherwise it would lead to absurd consequences of bench hunting [Sonic Surgical Vs. National Insurance Company Ltd. reported in IV (2009) CPJ 40 (SC) Para 8]. The aforesaid decision rendered by the Honble Supreme Court will be an answer to the finding of the Forum below on IA 145/2008 in CC No. 27/08. It is to be borne in mind that in the light of the aforesaid decision rendered by the Honble Supreme Court, the earlier decisions rendered by the Honble National Commission and the State Commissions including this State Commission would become unacceptable. If that be so, the mere fact that the opposite party United India Insurance Company Ltd. is having branch office or branch offices in Alappuzha District cannot be taken as a ground to hold that the Forum below had the jurisdiction to entertain the complaint in CC No. 27/08.
9.The complainant has got a case that the Development Officer of the opposite party United India Insurance Company, Branch Office, Kalamassery came to the residence of the complainant at Alappuzha and collected the premium for the insurance policy. Ext.B8 is the private car package policy issued to the complainant as insured with respect to his vehicle bearing Reg. No. KL 5 T 5555 for the period from 28-04-2006 to 27-04-2007. The then Development Officer of the 3rd opposite party (United India Insurance Company Ltd , Branch Office, Kalamassery) has been examined on the side of the complainant as PW4. It is true that PW4, P.J. Mathew, the then Development Officer of the United India Insurance Company, Kalamassery Branch has deposed that he went to Alappuzha to collect the premium for the policy â $] *HU[D IM1UdTC[ !LUBT^and !:a:IfU[NL KL 5 T 5555 *TLU[NL '=VAUB^ *J*apa [/Ba8UeWtaand 2TN #DgWK EkT7a '=VAUB^ *J*apa [/Ba88aâ. But, there is no supporting document to show that PW4, the Development Officer collected the premium from the complainant at the residence of the complainant in Alappuzha. No receipt is seen issued by PW4 for acceptance of the premium for the policy. He has not stated about the date on which he collected the premium. PW4 has not spoken to anything about the location of the residence of the complainant in Alappuzha. But, at the same time B8 insurance policy would show that the said policy was issued to the complainant Mr. Sulaiman M.M. in his address at Kottayam. In B8 insurance policy the address of the complainant is shown as Kalarickal House, Velloor (P.O), Kottayam, Kerala. There is nothing on record to show that during April 2006 the complainant was having a residence in Alappuzha District. No piece of paper is forthcoming from the side of the complainant to support the case of PW4 that the insurance premium was collected from the complainant from his residence at Alappuzha.
10.The complainant as PW1 has deposed that from 2004 onwards he is residing in Alappuzha â2004 AW8O #DgWKBUO 8TAHUdWkWâ. He further deposed that during 2006 he was having residence in Alappuzha and Kottayam. But, no document is forthcoming to show that during 2006 or from 2004 onwards the complainant was having residence in Alappuzha district. On the other hand, the evidence available on record would show that the complainant has been residing in Kottayam during 2006 and prior to 2006. Issuance of B8 policy to the complainant in his residential address at Kottayam would negative the case of the complainant that he was having residence in Alappuzha during 2006. Another important aspect to be noted at this juncture is A1 letter dated 22-11-2007 issued by the complainant to the grievance cell of United India Insurance Company Ltd. In A1 letter dated 22-11-2007 the address of the complainant is shown as Kalarickal House, Velloor P.O., Kottayam. It is also to be noted that the complainant had submitted so many other letters on 22-11-2007. Those letters were addressed to United India Insurance Company Ltd. In those letters the residential address of the complainant is shown as Kalarickal House, Velloor P.O., Kottayam. Another aspect to be noted at this juncture is the letter dated 03-12-2007 issued to the complainant from United India Insurance Company Ltd. in his residential address at Kottayam. Ext.A3 repudiation letter dated 30-11-2007 was also addressed to the complainant in his residential address at Kottayam. Ext.A4 series of estimates, bills, receipts etc. were also issued to the complainant in his residential address at Kottayam. There is no piece of paper available on record to support the case of the complainant that he was having residence in Alappuzha during 2006.
11.Ext.B2 is copy of the driving licence which was renewed on 02-02-2007. The address of the complainant in B2 driving licence is that of his residential address at Kottayam. Ext.B3 is the driving licence particulars of the complainant. In B3 also the permanent address of the complainant is shown as Kalarickal House, Velloor, Kottayam and the temporary address is shown as Flat No. 8E, Cotton Hill Heights, Vazhuthacaud, Thiruvananthapuram. Nowhere it is stated that the complainant was having a residence at Alappuzha. Ext.B5 is the motor claim form dated 06-08-2006 submitted by the complainant. PW4, Development Officer also admitted the fact that B5 claim form was submitted by the complainant. In B5 claim form the address of the complainant is shown as Kalarickal House, Velloor P.O., Kottayam. Thus, there is no scrap of paper available on record other than the complaint in CC No. 27/08. It is only in the complaint it is stated that the complainant is residing at Kannarayil, Near Valiyachudukadu, Pazhaveedu P.O., Alappey. It can be seen that the case of the complainant that he was having a residence in Alappey has been developed only from the date of institution of the complaint in CC No. 27/08. The complainant could not produce any cogent and acceptable evidence to substantiate his case that he was having residence in Alappuzha District during 2006. In the absence of any such cogent evidence, it is highly improbable to believe that the complainant was having residence in Alappey District and that PW4 the Development Officer collected the insurance premium from the complainant at his residence in Alappuzha. The oral testimony of PW4 cannot be believed or accepted without any supporting evidence. The conduct of the complainant would show that the complainant was very much interested in preferring the complaint before CDRF, Alappuzha. This circumstance would remind the warning given by the Honble Supreme Court that the provisions of Section 17(2) would lead to absurd consequence of âbench hunting.
12.Admittedly, all the opposite parties 1 to 3 are carrying on business within the territorial jurisdiction of CDRF, Ernakulam. The insured vehicle which sustained damage in a road traffic accident got repaired from Rajasree Motors, Ernakulam. The accident involving the insured vehicle owned by the complainant occurred at North Paravur within the local limits of CDRF, Ernakulam. The insurance policy (B8) was issued from Kalamassery Branch of United India Insurance Company Ltd. Even according to the complainant, the driver of the vehicle Dr Benoy was residing in Ernakulam at the time of the accident. Thus, in all respects it can be concluded that the entire cause of action for the complaint in CC No. 27/08 had arisen within the territorial limits of CDRF, Ernakulam. It would also show that no part of the cause action has arisen within the territorial jurisdiction of CDRF, Alappuzha.
13.The oral testimony of PW4 would give an indication that he was having long acquaintance with the complainant being the customer of United India Insurance Company Ltd. According to PW4, he went to Alappuzha to collect the insurance premium from the complainant. It is pertinent to note that PW4 has no case that the complainant was having a residence in Alappuzha. It is only stated by PW4 that he collected the premium from Alappuzha. So, the mere collection of the premium by the officer of the opposite party/Insurance Company cannot be taken as a ground to hold that any part of the cause of action has arisen within the jurisdiction of CDRF, Alappuzha. The aforesaid collection of the premium from Alappuzha can be treated as sending of the premium by money order from a post office in Alappuzha or sending cheque or DD for insurance premium from a bank in Alappuzha. But, the complainant or PW4 has no case that the receipt issued for acceptance of premium was from Alappuzha. It is only be from Ernakulam. It is a settled position that sending money from a bank or post office at a distant place will not confer territorial jurisdiction on a Court or Consumer Forum where the bank or post office is located. It is the place at which the money was accepted and the receipt for the said money was issued will give cause of auction or territorial jurisdiction. In other words, the place or places from which the money or moneys have been sent will not constitute cause of action or territorial jurisdiction for the said transaction or transactions. Thus, the mere fact that the Development Officer collected the premium from the complainant from Alappuzha will not constitute a cause of action or confer jurisdiction for the complaint before the CDRF, Alappuzha. Therefore, it can very safely be concluded that the CDRF, Alappuzha was not having the territorial jurisdiction to entertain the complaint in CC 27/08. The impugned order dated 16-08-2008 passed by the Forum below on IA 145/08 is legally unsustainable. This State Commission have no hesitation to set aside the aforesaid order passed by the Forum below on IA 145/08. This issue is found infavour of the appellants/opposite parties.
14.Point Nos. 2 to 5: There is no dispute that the complainants vehicle bearing Reg. No. KL 5 T 5555 was inured by the 3rd opposite party/United India Insurance Company from their branch at Kalamassery vide B8 policy. The said policy was effective from 28-04-2006 to 27-04-2007. The aforesaid insured vehicle met with an accident on 28-07-2006. The opposite parties have also admitted the fact that the insured vehicle sustained damage in a motor vehicle accident, which occurred on 28-07-2006.
15.After the accident which occurred on 28-07-2006, complainant submitted B5 claim form. The complainant as PW1 denied his signature affixed on B5 motor claim form. According to the complainant the claim form was submitted by PW2, Dr. Benoy. PW2 is the nephew of the complainant. But, PW2 has not denied the genuineness and correctness of B5 motor claim form. It is to be noted that the complainant has no case that he submitted any other claim form before the opposite parties for the purpose of getting the insurance claim with respect to the damage sustained to the insured vehicle KL 5 T 5555. Moreover, PW4 the then Development Officer of the Insurance Company who was examined on the side of the complainant has admitted that B5 is the claim form submitted by the complainant. As per B5 claim form the place of accident is shown as Palarivattom near St. Martin Church. It is also mentioned in B5 claim form that the accident was reported before the Edappally Police Station. It is also reported that the accident occurred on 28-07-2006 at 4.45 am and at the time of the said accident the insured vehicle KL 5 T 5555 was driven by Benoy (PW2). As per B5 claim form dated 06-08-2008 the place of accident is at Palarivattom near St. Martin Church and the date and time of accident is reported as 28-07-2006 at 4.45 am. But, in the complaint in OP 27/08 the place of accident is shown as Paravur at 4.45 am on 28-07-2006, while the complainant was going to Calicut Airport Via Kodungalloor along with his nephew Mr. Benoy. It is also stated that at the time of accident the vehicle was driven by Mr. Benoy. Thus, the place of accident has been drastically shifted from Palarivattom in Ernakulam town to North Paravur on the way to Calicut Via Kodungalloor. A very pertinent question that would emerge from this situation is as to why the complainant made such a shifting of the place of accident from Palarivattom to North Paravur.
16.The complainant filed the motor claim form on 06-08-2006. Thereafter, the complainants nephew Dr. A.B. Benoy issued B1 letter dated 14-09-2006. In the said B1 letter the complainant has also affixed his signature as a witness. The complainant as PW1 has admitted the issuance of B1 letter by Dr. A.B. Benoy with the signature of the complainant as a witness to the said letter. PW1 categorically admitted his signature in B1 letter. As per B1 letter dated 14-09-2006 the aforesaid Dr. Benoy has reiterated the fact that there occurred an accident to vehicle KL 5 T 5555 on 28-07-2006 and that the said accident occurred at Palarivattom when the vehicle was driven by the said Benoy from West to East along Kaloor â Palarivattom road. It is also stated in B1 letter that the accident occurred due to the sudden peddaling of the road by a cyclist in front of St. Martin Church at Palarivattom. It is also stated in B1 letter that the insured vehicle went out of control and hit against the central median at the eastern side of the road junction at Palarivattom; that the complainant Mr. M.M. Sulaiman, Kalarickal House, Velloor, Kottayam was also traveling in the said car along with Benoy and that Dr. Benoy at wheels. It is to be noted that the aforesaid Dr. Benoy who issued B1 letter was examined before the Forum below as PW2. He categorically admitted the issuance of B1 letter and the facts stated in the said letter. But, PW2 Dr. Benoy has taken a deviation from B1 letter while filing B5 claim form regarding the place of accident. It is the case of PW2 that the accident involving the insured vehicle KL 5 T 5555 occurred while he was driving the vehicle from Ernakulam to Kozhikode and B1 letter was given as instructed from the Insurance Company. It is further stated that the accident occurred at Paravur and that the place of accident was shown as Palarivattom as instructed from the Insurance Company. But, PW2 categorically admitted the fact that there is no document to show that such a false statement regarding place of accident was given at the instance of the Insurance Company. It is to be noted that PW2 has not specified the name of the person at the Insurance Company who gave such an instruction to shift the place of accident. So, the case of PW2 that the place of accident was falsely mentioned in the claim form and in B1 letter at the instance of the Insurance Company cannot be believed for a moment.
17.PW1 has deposed that B1 letter was issued as instructed by the Insurance Officer by name Baby. But in the complaint there is no such mention of name of the Insurance Officer, Baby. On the other hand, the case of the complainant in his written complaint was that the accident was reported to Mr. P.J. Mathew, the Development Officer of the Insurance Company and at the instance of the aforesaid Development Officer the accident was reported at the Police Station and GD Entry was made. There is no mention about the so called Insurance Officer Baby. So, the name of the Insurance Officer Baby can be treated as a discovery or invention of the complainant. Moreover, there is no evidence on record to show that any such Insurance Officer by name Baby was functioning at Branch Office of the United India Insurance Company or in any of the offices of the Insurance Company functioning in Ernakulam District. On the other hand, RW2 the then Branch Manager of Kalamassery Branch of United Indian Insurance Company has categorically deposed that he was working as Branch Manager of the Kalamassery Branch Office of United India Insurance Company. No question was put to RW2 about the so called Insurance Officer, Baby. RW2 has categorically deposed that the complainant and his nephew made a false representation about the place of accident. Thus, it can very safely be concluded that the complainant and his nephew Benoy made a false statement about the place of accident with ulterior moti ve. Ext.B1 letter and B5 claim form submitted by the complainant along with his nephew Benoy would make it abundantly clear that the complainant suppressed material fact regarding the place of accident. The materials on record would show that the complainant deliberately made false representation regarding the place of accident. There can be no doubt about the fact that the place of accident is a very important and crucial aspect in the case of an insurance claim. So, the place of accident can be treated as a material fact as far as the insurance claim preferred by the complainant is concerned.
18.The case of the complainant is that the insured vehicle was driven by his nephew Dr. A.B. Benoy at the time of the accident. The aforesaid Dr. Benoy has been examined as PW2. PW2 admitted issuance of B1 letter and B5 motor claim form. In B1 letter his definite case was that the accident occurred at Palarivattom and at that time he was driving the vehicle. He has no case that he was driving the vehicle when the accident occurred at North Paravur. The case of the complainant and PW2 that such a wrong statement was given at the instance of the Insurance Officer cannot be believed for a moment. As per the written complaint the claim was preferred on the advice of PW4 P.J. Mathew. But, PW4 has no case that the place of accident was shifted at his advice or instruction. It is to be noted that PW2 is a doctor (Dentist) by profession.
19.According to the complainant the GD Entry was got entered at the instance of PW2. It is an admitted case that there is a GD Entry and as per the GD Entry the accident occurred at Palarivattom while the insured vehicle was driven by PW2. PW2 has categorically deposed that the GD Entry is the only evidence to establish the case of the complainant that at the time of the accident the vehicle was driven by PW2 Benoy. But, the GD entry is to the effect that the accident occurred at Palarivattom while the vehicle was driven by PW2 Benoy. So, the aforesaid GD Entry would not establish the case of the complainant that insured vehicle met with an accident at North Paravur and at the time of the said accident PW2 Benoy was driving the vehicle. It is further to be noted that PW2 was clever enough to shift the place of accident and to create a false entry in the General Diary maintained by the Police. So, PW2 cannot be believed for a moment. The materials on record would show that PW2 is up to anything. He has no reluctancy or hesitation to submit a false case before the authority like Police. He was dare enough to issue B1 letter stating utter falsehood. The character and conduct of PW2 would show that he is an unworthy witness and he cannot be believed by a Court of law. PW2 had gone to such an extent for the purpose of getting the insurance claim infavour of his uncle M.M. Sulaiman. So, the case of PW2 that he was driving the vehicle at the time of accident cannot be accepted. The Forum below has gone wrong in relying on the testimony of PW2.
20.The complainant as PW1 has also deposed falsehood before the Forum below. He also shifted the place of accident with some ulterior motive. There was no need or necessity for the complainant or his nephew Benoy to submit a false case before the Police and before the insurance people. The case of the complainant as PW1 that he was not in station for three weeks cannot be believed without any supporting material. The evidence of PW4 would belie the case of the complainant regarding the absence of the complainant as he was in Mumbai for three weeks from the date of accident. PW4 categorically deposed that B5 motor claim form was submitted by the complainant Sulaiman. It is in clear terms deposed by PW4 that the complainant Sulaiman himself came to the branch and submitted B5 claim form. â'?TwUO HW[[DATN [*TtW[dT3WdWk [*cBU^T^ $8W8[kBT7aâ.
The aforesaid testimony of PW4 would show that the complainant himself was present and that he in collusion with his collusion PW2 submitted a false case regarding the place of accident. So, the testimony of PW1 that PW2 was the driver of the vehicle at the time of the accident cannot be accepted.
21.The Forum below miserably failed in appreciating the evidence available on record. The Forum below has come to the conclusion that the complainant was traveling in the insured vehicle along with his nephew and his nephew happened to drive the vehicle at the time of the accident. The aforesaid conclusion or inference made by the Forum below is without any basis or supporting material. No independent witness has been examined on the side of the complainant to prove the fact that PW2 was driving the vehicle at the time of the accident. The Forum below shifted the burden of proof on the part of the opposite party/Insurance Company to establish that the complainant was the driver of the vehicle at the time of the accident. It is to be borne in mind that it is for the complainant/insured to substantiate his case regarding the accident and the person who drove the vehicle at the time of the accident. In the ordinary course there will be FIR lodged by the Police or some other witness to the accident. Atleast there will be GD Entry evidencing the fact of the accident and the involvement of the insured vehicle and also the details regarding the driver of the insured vehicle at the time of the accident. But, in the present case on hand, the GD Entry would not establish any of these facts. Admittedly, as per the GD Entry the accident place itself is at Palarivattom. So, no reliance can be placed on the GD Entry to substantiate the case of the complainant. The evidence available on record would show that the complainant as PW1 cannot be believed. The complainants nephew who was examined as PW2 is also not trustworthy. There is no independent witness available on record to show that the accident occurred while the vehicle was driven by PW2. Thus, the complainant miserably failed in establishing his case.
22.The available circumstance and the materials on record would show that at the time of the accident the vehicle was driven by the complainant himself. It would show that there was nobody else in the insured vehicle at the time of the accident. The very purpose of shifting the place of accident from North Paravur to Palarivattom was to conceal the fact that the vehicle was driven by the complainant who was not having a valid and effective driving licence at the time of accident. Ext.B2 licence issued in the name of the complainant and B3 driving licence particulars with respect to the licence of the complainant would make it clear that at the time of the accident the complainant Mr. Sulaiman was not having a valid driving licence. His licence had expired in the year 2005 and the same was renewed only on 02-02-2007. So, on the date of the accident ie, on 28-07-2006 the complainant was not having a valid driving licence. It is only because of that fact the complainant with the assistance of his nephew Benoy (PW2) shifted the place of accident from North Paravur to Palarivattom and PW2 Benoy came to the picture with the label of driver of the vehicle KL 5 T 5555 at the time of the accident. The available evidence would only show that PW2 was not the driver of the insured vehicle at the time of the accident.
23.RW3, the private investigator who submitted B9 investigation report has spoken to about the investigation conducted by him. A perusal of B9 report submitted by RW3 would speak volumes about the false case set up by the complainant for the purpose of getting the insurance claim with respect to the insured vehicle. In B9 investigation report, the names of the persons who were questioned by the investigator (RW3) have been mentioned. The complainant has not preferred to take steps to get any one of them examined on his side to substantiate his case that at the time of accident PW2 was the driver of the vehicle. It is to be noted that the burden is upon the complainant to substantiate his case that at the time of accident PW2 was the deriver and that the driver was having a valid driving licence at the time of the accident. But, the complainant did not make any such attempt to prove his case. He simply relied on his own interested version and the interested version of his nephew who was examined as PW2. On the other hand, the documentary evidence and other circumstantial evidence would belie the case of PWs 1 and 2. It is to be borne in mind that witness may lie but circumstances wont lie. The complainant could not give any reasonable explanation for filing a false statement regarding the place of accident. A reading of B9 report with that of the oral testimony of RW3 would show that at the time of accident the complainant alone was in the insured vehicle and that the complainant himself was driving the vehicle at the time of the accident. It is an admitted fact that the complainant was not having a valid driving licence at the time of the accident. So, the opposite party United India Insurance Company is perfectly justified in issuing B4 repudiation letter dated 30-11-2007 repudiating the insurance claim preferred by the complainant. The opposite parties are succeeded in establishing the misrepresentation and suppression of material facts by the complainant regarding place of accident, driver etc. We have no hesitation to rely on the testimony of RW3 and Ext.B9 report submitted by RW3.
24.It is now well settled by the decisions rendered by the Honble Supreme Court that the insurer (Insurance Company) can very well avoid the liability to indemnify the insured for violation of the policy conditions. The policy conditions incorporated in B8 insurance policy would make it abundantly clear that the driver of the insured vehicle must hold a valid and effective driving licence at the time of the accident. The complainant who was driving the vehicle at the time of the accident was not having a valid driving licence. So, the appellants/opposite parties (Insurance Company) are well justified in repudiating the insurance claim. The Honble National Commission in a recent judgment in New India Assurance Company Ltd. Vs. Hariyana State Agricultural Marketing Board reported in IV (2010) CPJ 37 (NC) has held that the Insurance Company will be having no liability to indemnify the insured in the event it is found that the driver of the insured vehicle was not having valid driving licence at the time of the accident. The Apex Commission has also referred to the decision rendered by the Apex Court in the case of New India Assurance Company Ltd. Vs Suresh Chandra Agarwal IV (2009) CPJ 14 (SC) and also the decision of the Honble Supreme Court in National Insurance Company Ltd. Vs. Jarnail Singh and others reported in Jt 2001 II (SC) 218. In so many other decisions also it has been held that the Insurance Company can very well repudiate the insurance claim for violation of the policy conditions like not having valid driving licence for the driver of the vehicle at the time of accident. Thus, the Forum below had gone wrong in allowing the complaint in CC No. 27/2008. We have no hesitation to set aside the impugned order passed by the Forum below. Hence we do so. These points are answered accordingly,
In the result, the appeal is allowed. The impugned order dated 30-03-2009 passed by CDRF, Alappuzha in CC No. 27/2008 is set aside. The parties to this appeal are directed to suffer their respective costs throughout.