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2010 DIGILAW 188 (UTT)

NATIONAL INSURANCE COMPANY LIMITED v. MAYANK GOEL

2010-04-08

C.C.PANT, IRSHAD HUSSAIN

body2010
ORDER (Per : Justice Irshad Hussain, President) This is insurance company’s appeal against the order dated 09.10.2006 passed by the learned Members of the District Forum, Haridwar, allowing the consumer complaint No. 213 of 2003, so as to award sum of Rs. 2,20,000/- with interest @ 12% p.a. together with damages of Rs. 15,000/- for mental agony and further sum of Rs. 3,600/- as litigation expenses to the complainant, by way of indemnification of the loss occasioned due to accident of insured car (Fiat Uno ) No.UP-16-A-6931. The car was insured for sum of Rs. 2,20,000/- for the period 31.10.2002 to 30.12.2003 and according to the complainant, accident occurred in the night of 05.12.2002. The consumer complaint was dismissed by the learned President of the District Forum, Haridwar by order dated 09.10.2006, by accepting the plea of the insurance company that the highly delayed intimation of the accident to the insurance company on 24.01.2003 (after about 50 days) and other attending circumstances, sufficiently prove that the claim preferred was false and fabricated. The insurance company has repudiated the complainant’s claim on the basis of the investigation report of its surveyor S.K. Handa and Company, which affirmed that the complainant had concealed the material facts and had used the fraudulent means to take the claim, in violation of the policy terms and conditions. 2. Learned counsel for the insurance company persuasively argued that the complainant had failed to prove that the alleged accident had actually occurred on 05.12.2002; that the survey report and the attending circumstances proved that the accident of the vehicle at the alleged time and place was not possible; that the District Forum wrongly held that the report of the surveyor has not been proved by the affidavit of Sh. S.K. Handa of S.K. Handa and Company, surveyors, loss assessors, investigators and valuers and that the District Forum also failed to appreciate that there was no deficiency in service on the part of the insurance company in repudiating the claim. Learned counsel further urged that the view taken by the learned President of the District Forum was just and proper, being based on proper appraisal of the material on record and the learned Members of the District Forum have not given any reasons for differing with the view taken by the learned President in dismissing the consumer complaint. Learned counsel further urged that the view taken by the learned President of the District Forum was just and proper, being based on proper appraisal of the material on record and the learned Members of the District Forum have not given any reasons for differing with the view taken by the learned President in dismissing the consumer complaint. Per contra, learned counsel for the complainant supported the order impugned, by submitting that the District Forum rightly held that the affidavit of Sh. S.K. Handa did not prove the steps taken during the investigation of the claim by Sh. Mukul Handa of the surveyor S.K. Handa and Company and rightly accepted the contention of the complainant that the accident took place on 05.12.2002 and the delay in giving intimation to the insurance company was caused due to unavoidable circumstances, by reason of the fact that few of the close relatives of the complainant died during the period from 15.12.2002 to 15.01.2003. Leaned counsel also urged that the surveyor of the insurance company, which investigated the claim, drew incorrect inference that the claim was fabricated as the vehicle might have met with an accident some time back during the lapse of the previous policy and the complainant somehow managed to have the policy renewed in a hush-hush manner from 31.10.2002, although the previous policy lapsed on 19.05.2002. According to the learned counsel, the appeal lack merit and is liable to be dismissed with costs. 3. Having carefully considered the respective submissions of the learned counsel for the parties in the light of the facts, circumstances and legal aspects of the case, we may state at the outset that the submissions made on behalf of the insurance company carry conviction and, therefore, the appeal has merit and is fit to be allowed. 4. The reasons for our decision are that it was not in dispute that under the terms and conditions of the policy of insurance, notice was required to be given in writing to the insurance company immediately upon the occurrence of any accident and in violation of the terms and conditions of the policy, the intimation of the accident for the first time was given to the insurance company after a lapse of about 50 days on 24.01.2003. Complainant and his father, by their affidavits and three death certificates placed on record, tried to show that on account of death of their relatives on 15.12.2002, 17.12.2002 and 15.01.2003, the intimation of the occurrence of the accident could not be given to the insurance company. The explanation put forward was not at all convincing and the District Forum, in our view, was not at all justified in accepting the explanation and making an observation that the complainant was prevented by sufficient reasons from giving intimation to the insurance company of the occurrence of the accident. The reason being that there is nothing on record to indicate that the complainant or his father or other family members remained busy all the time while looking after their ailing relatives at Muzaffarnagar, Lucknow and Saharanpur and, therefore, by no reasoning, it could safely be accepted that the complainant or any of his family members could not spare time to give intimation of the accident to the insurance company. Complainant resides in Delhi and is employed with HCL, which had its office in Noida. Complainant has not alleged that after the accident, he remained on leave from his office in connection with the illness or ultimate death of his relatives. This indicate that he continued to lead his normal life and attended his office as usual without any break and this was also the reason that his father Sh. J.D. Goel gave statement to the investigator on 01.02.2003 that his son, the complainant had attended the office not only on 05.12.2002, but also on next day, i.e., 06.12.2002. Complainant and his father, both are literate persons, as is also evident from the written statement in English language, submitted to the investigator and they being literate persons, could have very well sent the intimation of the accident to the insurance company either by post or courier or telephone without expense of sufficient time. This having not been done, there can be no gain saying that the delay in giving intimation was, as argued, deliberate and designed one, so as to deprive an opportunity to the insurance company from conducting proper and quick spot survey of the vehicle and to immediately investigate the facts as regards the alleged accident of the vehicle. This having not been done, there can be no gain saying that the delay in giving intimation was, as argued, deliberate and designed one, so as to deprive an opportunity to the insurance company from conducting proper and quick spot survey of the vehicle and to immediately investigate the facts as regards the alleged accident of the vehicle. Under these circumstances, the learned counsel for the insurance company rightly placed reliance on a decision of the Hon’ble National Commission in the matter of Sapna Real Estate Vs. Lata Kishore Kharangate; III (2006) CPJ 289 (NC), in support of the argument that failure of the complainant to immediately report to the insurance company about the occurrence of the accident resulted in surveyor not being able to ascertain cause of accident and for this reason, the complaint deserve dismissal. The facts of the reported case were that there was delay of 58 days in reporting the incident to the insurance company despite the policy condition that it was incumbent upon the insured to report immediately any loss to the insurer. It was held that the failure of the complainant resulted in surveyor not being able to ascertain cause of loss and for that reason, the order of the State Commission dismissing the complaint, was upheld. On the similar principle, the instant complaint also deserve dismissal, as has rightly been done by the learned President of the District Forum, by observing that the claim made by the complainant was not genuine. 5. We may also advantageously refer to another decision of the Hon’ble National Commission rendered in the matter of National Insurance Co. Ltd. And another Vs. Yodeva Synthetic Private Ltd., IV (2006) CPJ 210 (NC) and wherein the insured took about 3½ months to inform episode of theft to the insurance company and it was held that the delay deprived insurer to appoint survey in time to carry out investigation of the loss on spot and there being negligence/deficiency on the part of the complainant, the complainant was liable to be dismissed. In that case, the Hon’ble National Commission set aside the order passed by the State Commission allowing the claim of the insured and the insured was directed to refund the amount already paid by the insurer. 6. In that case, the Hon’ble National Commission set aside the order passed by the State Commission allowing the claim of the insured and the insured was directed to refund the amount already paid by the insurer. 6. Considering the above legal aspect of the case in the face of the principle laid down by the Hon’ble National Commission, we are convinced that the insurance company was justified in repudiating the claim for not abiding by the policy terms and conditions and the learned Members of the District Forum have erred in not appreciating that the insurance company had rightly repudiated the claim. 7. In so far as the ground of suppressions and concealment of the correct facts was concerned, it need to be stated that the investigation made by the surveyor of the insurance company sufficiently indicated that no such accident as alleged, had actually occurred and the complainant tried to take benefit of some earlier accident, by fraudulently suppressing the correct facts. According to the complainant, the accident on 05.12.2002 with a truck coming from the opposite direction was, in fact, a collision “head-on” and after the accident, the truck ran away from the site of the accident. Complainant also disclosed to the investigator in writing per questionnaire that the accident took place much near to his home town Haridwar than Delhi. At the time of the accident, the complainant was driving the car and another occupant of the vehicle was his father and both of them allegedly suffered injuries. The complainant and his father left the vehicle at the site of the accident unguarded and left for Delhi by a bus and also by hiring a taxi considering the serious injuries suffered by the complainant. It does not stand to reason as to why the complainant’s father preferred to go to Delhi instead of their home town, which was much near than Delhi, as the accident occurred in between Gurukul Narsan and Manglour town on the main road while the complainant and his father were on way to Haridwar from Delhi. The complainant and his father claimed to have first visited the residential house in Delhi and then went for medical check-up and treatment in a hospital in Noida. The so-called medical examination report dated 06.12.2002 on record, does not reveal any serious injury on the person of the complaint. The complainant and his father claimed to have first visited the residential house in Delhi and then went for medical check-up and treatment in a hospital in Noida. The so-called medical examination report dated 06.12.2002 on record, does not reveal any serious injury on the person of the complaint. The report does not indicate that the injury was fresh or not. The report also does not indicate that it was prepared by a registered medical practitioner, who was duly qualified. Therefore, we have no hesitation in finding favour with the argument of the learned counsel for the insurance company that this medical report is a got up document and it can not be taken to support the allegation of the complainant that some accident took place on 05.12.2002 at 11:00 p.m. and the complainant suffered serious injuries in the accident. The fact that the complainant continued to attend his office on next day of the accident as stated above, also lent credence to the said inference that no such accident as alleged took place on 05.12.2002 and that a case had been set up to lay claim from the insurance company, taking benefit of the damage caused to the vehicle in some earlier accident and for that reason, delayed information was deliberately given to the insurance company. The conclusion in that regard also drawn by the investigator of the insurance company was based on proper appraisal of the attending circumstances as well as the condition of the vehicle, which was found badly rusted at the time of the inspection at the premises of the repairer M/s Hi-Tech Motors, Jwalapur Road, Haridwar. 8. The accident was alleged to have taken place on 05.12.2002 and the complainant and his father claimed to have left the vehicle unattended on the highway and the damaged vehicle got to be towed to the residence of the complainant’s father in Haridwar after two days. It does not stand to reason as to why the vehicle was shifted to the residence of the complainant’s father instead of the same being taken to any workshop and strangely enough according to the complainant, the vehicle was finally shifted to the repairer’s workshop on 16.01.2003. This was highly unusual and this also gave indication of falsity of allegations and claim made by the complaint had alleged that one of his close relatives had died on 15.01.2003 at Saharanpur. This was highly unusual and this also gave indication of falsity of allegations and claim made by the complaint had alleged that one of his close relatives had died on 15.01.2003 at Saharanpur. When according to the complainant, the damaged vehicle was lying at his Haridwar house, there appear to be no urgency to have the vehicle shifted to the repairer’s workshop on 16.01.2003. Alleged shifting of the vehicle on 16.01.2003, also belie the claim that the complainant and his father were, on account of death of relatives including the one who died on 15.01.2003, prevented from giving intimation in time of the occurrence of the accident to the insurance company. 9. Further, the investigator made local inquiries, which have also gone against the complainant and we can not lose sight of the fact that no independent evidence could be collected or found to support the allegation that the accident occurred on 05.12.2002, as alleged by the complainant. In the peculiar circumstances of the case, we see no merit in the argument of the learned counsel for the complainant that the renewal of the policy of insurance for the period 31.10.2002 to 30.10.2003 belie the conclusion of the investigator of the insurance company because the insurance cover was issued by the insurance company after the vehicle was inspected by its officials, say the Development Officer or the Agent at the time of taking the proposal of insurance from the complainant’s father. It is always very difficult to have direct evidence of fraud and attending circumstances and nature of the transaction on proper appraisal provide reasonable answer about exercise of fraud in respect of a particular transaction. Considering the peculiar facts of the case, as stated above, we have no hesitation in saying that the manner in which the alleged accident has been shown to have taken place, the inordinate delay in reporting the accident to the insurance company and other circumstances, support the conclusion of the investigator that vehicle might have met with an accident some time back during the period of more than five months, when the policy of insurance remained lapsed and finally got to be renewed at Haridwar w.e.f. 31.10.2002. At the risk of repetition, it may be pointed out that the rusting of the body of the vehicle, as has been noticed by the surveyor of the insurance company, amply supported the conclusion so drawn against the complainant. 10. The report of the investigator/surveyor was disbelieved by the learned Members of the District Forum simply on the ground that instead of Sh. Mukul Handa, who made the survey, the affidavit of Sh. S.K. Handa for proof of the report of the investigation and survey, was filed by the insurance company. The approach was not justified, keeping in view the fact that the survey was done by Sh. Mukul Handa on behalf of the surveyor – company and in the affidavit filed by Sh. S.K. Handa, it was specifically averred that the investigation of the case was conducted by him and investigation report dated 02.06.2003 on the record has been drafted and prepared by him and further that the survey report date d 29.07.2003 had also been drafted by him on behalf of the surveyor – company. Therefore, there was no legal lacuna in so far as the proof of the investigation as well as the final survey was concerned and these reports and evidence could not have been ignored while considering the merit of the case by the learned Members of the District Forum. 11. In view of the material on record and the discussion as made above, we reiterate our decision that the appeal has merit and is fit to be allowed. The order impugned dated 09.10.2006 of the District Forum is liable to be set aside and the consumer complaint is liable to be dismissed. 12. Appeal is allowed. Order impugned dated 09.10.2006 of the District Forum is set aside and consumer complaint No. 213 of 2003 is dismissed. No order as to costs.