icici Lombard General Insurance Co. Ltd. and Others Vs. Pawan Kumar - Court Judgment

SooperKanoon Citationsooperkanoon.com/1145209
CourtNational Consumer Disputes Redressal Commission NCDRC
Decided OnMay-29-2014
Case NumberRevision Petition No. 4166 of 2011
JudgeK.S. CHAUDHARI, PRESIDING MEMBER & THE HONOURABLE DR. B.C. GUPTA, MEMBER
Appellanticici Lombard General Insurance Co. Ltd. and Others
RespondentPawan Kumar
Excerpt:
k.s. chaudhari, presiding member this revision petition has been filed by the petitioners against the order dated 31.08.2011 passed by the himachal pradesh state consumer disputes redressal commission, shimla (in short, the state commission) in appeal no. 302 0f 2009 “ pawan kumar vs. icici home finance ltd. and ors. by which, while allowing appeal, order of district forum dismissing complaint was set aside. 2. brief facts of the case are that complainant/respondent was owner of vehicle hp 37 a 8213, which was insured from op/petitioner for a period of one year from 12.12.2006 to 11.12.2007.  on 29.9.2007, at about 2.30 a.m., when complainant was on en-route from kullu to hoshiarpur, vehicle met with an accident and suffered damage.  police report was lodged in p.s. hoshiapur and intimation was also given to op.  ops surveyor inspected vehicle on 11.10.2007 and assessed loss of rs.3,54,661/-. complainant submitted claim with the op, but op refused to settle the claim.  alleging deficiency on the part of op, complainant filed complaint before district forum.  op resisted complaint and submitted that at the time of accident, vehicle was being driven by one sunny s/o sh. bihari lal, who was not holding a valid driving licence.  complainant has not come with clean hands and suppressed material facts. it was further submitted that news about accident was also published in local punjabi newspaper (ajit). it was further submitted that 3 persons sitting in the vehicle received serious injuries and only rapat roznamcha was made in police station hoshiarpur on 10.10.2007 and no fir was lodged. it was further submitted that as complainant was not sitting/driving the vehicle at the time of accident, he did not receive any injury and claim was rightly repudiated and prayed for dismissal of complaint. learned district forum after hearing both the parties, dismissed complaint, as driver sunny was not holding valid driving licence. appeal filed by the complainant was allowed by learned state commission vide impugned order and state commission directed op to pay rs.2,16,650/- along with 9% p.a. interest against which, this revision petition has been filed. 3. heard learned counsel for the parties and perused record. 4. learned counsel for the petitioner submitted that inspite of proof that sunny, who was driving vehicle at the time of accident was not holding valid driving licence, learned state commission committed error in allowing appeal and setting aside reasoned order of district forum; hence, revision petition be allowed and impugned order be set aside. on the other hand, learned counsel for the respondent submitted that order passed by learned state commission is in accordance with law, hence, revision petition be dismissed. 5. it is not disputed that complainants vehicle was insured by op and during currency of insurance policy; vehicle met with an accident and suffered damage. 6. the core question to be decided is whether complainant was driving the vehicle or sunny was driving vehicle at the time of accident and whether complainant breached terms and conditions of the policy or not? 7. as per complaint, complainant himself was driving the vehicle, whereas as per written statement, sunny was driving the vehicle. it is not disputed that 3 persons were in the vehicle at the time of accident and all the persons sustained injuries. learned counsel for the petitioner submitted that no injury report of complainant has been produced and in such circumstances, it can be inferred that complainant was not driving vehicle at the time of accident. on the other hand, learned counsel for the respondent submitted that as complainant sustained minor injury, injury report was not placed on record. perusal of survey report of sukhvinder singh notra reveals that steering and dash board pushed and touched with the driver seat and it is impossible that driver will remain unhurt in this type of accident. this report makes it crystal clear that at the time of accident, complainant was not driving the vehicle. had he been driving the vehicle, he must have sustained serious injuries as other occupants of the vehicle sustained. in such circumstances, learned district forum did not commit any error in holding that complainant was not driving the vehicle, but sunny was driving the vehicle at the time of accident. learned state commission set aside this finding only on the assumption that sometimes in accident cases driver does not sustain injuries and sometime he sustains minor injury, which cannot be upheld. looking to the extensive damage to the vehicle and steering and dash board pushing and touching with the driver seat, it cannot be imagined that driver will not sustain serious injuries. admittedly, complainant has not produced driving licence of sunny and complainant has purposely introduced himself as driver instead of sunny, which is palpable false story and in such circumstances, as complainant has not come with clean hands, revision petition is to be allowed in the light of judgment of this commission in r.p. no. 110/2013 “ jaspreetsingh vs. icici home finance co. ltd., jalandhar and icici home finance co. ltd., mumbai decided on 8.8.2013. 8. admittedly, complainant has not lodged fir with police station, but only rapat roznamcha has been placed on record, which is dated 11.10.2007, i.e. after 13 days of accident and intimation to the insurance company was also given on 10.10.2007, i.e. after 12 days of the accident. as per terms and conditions of the policy, complainant was under an obligation to lodge report with police station and give intimation in writing to insurance company immediately so that insurance company may also get it investigated. it appears that purposely, no report was lodged with the police station and intimation to insurance company was also given after 12 days so that insurance co. may not get the matter investigated. this commission in r.p. no. 899 of 2007 “ oriental ins. co. ltd. and anr. vs. rohtassingh has held that on account of delay, insurance company was deprived of an opportunity to investigate the incident and thus violated terms of the policy and insurance company cannot be saddled with the liability to pay compensation. 9. in the light of above discussion, it becomes clear that as driver of the vehicle sunny was not holding a valid driving licence at the time of accident and there was delay in intimation to insurance co. and not lodging fir, complainant violated terms and conditions of the insurance policy and learned district forum rightly dismissed complaint, but learned state commission committed error in allowing appeal, which order is liable to set aside. 10. consequently, revision petition filed by the petitioner is allowed and impugned order dated 31.08.2011 passed by the state commission in appeal no. 302 0f 2009 “ pawan kumar vs. icici home finance ltd. and ors. is set aside and order of district forum dismissing complaint is affirmed with no order as to costs.
Judgment:

K.S. Chaudhari, Presiding Member

This revision petition has been filed by the petitioners against the order dated 31.08.2011 passed by the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla (in short, the State Commission) in Appeal No. 302 0f 2009 “ Pawan Kumar Vs. ICICI Home Finance Ltd. and Ors. by which, while allowing appeal, order of District Forum dismissing complaint was set aside.

2. Brief facts of the case are that complainant/respondent was owner of vehicle HP 37 A 8213, which was insured from OP/petitioner for a period of one year from 12.12.2006 to 11.12.2007.  On 29.9.2007, at about 2.30 a.m., when complainant was on en-route from Kullu to Hoshiarpur, vehicle met with an accident and suffered damage.  Police report was lodged in P.S. Hoshiapur and intimation was also given to OP.  OPs surveyor inspected vehicle on 11.10.2007 and assessed loss of Rs.3,54,661/-. Complainant submitted claim with the OP, but OP refused to settle the claim.  Alleging deficiency on the part of OP, complainant filed complaint before District Forum.  OP resisted complaint and submitted that at the time of accident, vehicle was being driven by one Sunny S/o Sh. Bihari Lal, who was not holding a valid driving licence.  Complainant has not come with clean hands and suppressed material facts. It was further submitted that news about accident was also published in local Punjabi newspaper (Ajit). It was further submitted that 3 persons sitting in the vehicle received serious injuries and only Rapat Roznamcha was made in Police Station Hoshiarpur on 10.10.2007 and no FIR was lodged. It was further submitted that as complainant was not sitting/driving the vehicle at the time of accident, he did not receive any injury and claim was rightly repudiated and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, dismissed complaint, as driver Sunny was not holding valid driving licence. Appeal filed by the complainant was allowed by learned State Commission vide impugned order and State Commission directed OP to pay Rs.2,16,650/- along with 9% p.a. interest against which, this revision petition has been filed.

3. Heard learned Counsel for the parties and perused record.

4. Learned Counsel for the petitioner submitted that inspite of proof that Sunny, who was driving vehicle at the time of accident was not holding valid driving licence, learned State Commission committed error in allowing appeal and setting aside reasoned order of District forum; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law, hence, revision petition be dismissed.

5. It is not disputed that complainants vehicle was insured by OP and during currency of insurance policy; vehicle met with an accident and suffered damage.

6. The core question to be decided is whether complainant was driving the vehicle or Sunny was driving vehicle at the time of accident and whether complainant breached terms and conditions of the policy or not?

7. As per complaint, complainant himself was driving the vehicle, whereas as per written statement, Sunny was driving the vehicle. It is not disputed that 3 persons were in the vehicle at the time of accident and all the persons sustained injuries. Learned Counsel for the petitioner submitted that no injury report of complainant has been produced and in such circumstances, it can be inferred that complainant was not driving vehicle at the time of accident. On the other hand, learned Counsel for the respondent submitted that as complainant sustained minor injury, injury report was not placed on record. Perusal of survey report of Sukhvinder Singh Notra reveals that steering and dash board pushed and touched with the driver seat and it is impossible that driver will remain unhurt in this type of accident. This report makes it crystal clear that at the time of accident, complainant was not driving the vehicle. Had he been driving the vehicle, he must have sustained serious injuries as other occupants of the vehicle sustained. In such circumstances, learned District Forum did not commit any error in holding that complainant was not driving the vehicle, but Sunny was driving the vehicle at the time of accident. Learned State Commission set aside this finding only on the assumption that sometimes in accident cases driver does not sustain injuries and sometime he sustains minor injury, which cannot be upheld. Looking to the extensive damage to the vehicle and steering and dash board pushing and touching with the driver seat, it cannot be imagined that driver will not sustain serious injuries. Admittedly, complainant has not produced driving licence of Sunny and complainant has purposely introduced himself as driver instead of Sunny, which is palpable false story and in such circumstances, as complainant has not come with clean hands, revision petition is to be allowed in the light of judgment of this Commission in R.P. No. 110/2013 “ JaspreetSingh Vs. ICICI Home Finance Co. Ltd., Jalandhar and ICICI Home Finance Co. Ltd., Mumbai decided on 8.8.2013.

8. Admittedly, complainant has not lodged FIR with Police Station, but only Rapat Roznamcha has been placed on record, which is dated 11.10.2007, i.e. after 13 days of accident and intimation to the Insurance Company was also given on 10.10.2007, i.e. after 12 days of the accident. As per terms and conditions of the policy, complainant was under an obligation to lodge report with Police Station and give intimation in writing to Insurance Company immediately so that Insurance Company may also get it investigated. It appears that purposely, no report was lodged with the Police Station and intimation to Insurance Company was also given after 12 days so that Insurance Co. may not get the matter investigated. This Commission in R.P. No. 899 of 2007 “ Oriental Ins. Co. Ltd. and Anr. Vs. RohtasSingh has held that on account of delay, Insurance Company was deprived of an opportunity to investigate the incident and thus violated terms of the policy and insurance company cannot be saddled with the liability to pay compensation.

9. In the light of above discussion, it becomes clear that as driver of the vehicle Sunny was not holding a valid driving licence at the time of accident and there was delay in intimation to Insurance Co. and not lodging FIR, complainant violated terms and conditions of the Insurance policy and learned District forum rightly dismissed complaint, but learned State Commission committed error in allowing appeal, which order is liable to set aside.

10. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 31.08.2011 passed by the State Commission in Appeal No. 302 0f 2009 “ Pawan Kumar Vs. ICICI Home Finance Ltd. and Ors. is set aside and order of District Forum dismissing complaint is affirmed with no order as to costs.