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Judgment
Dr. Inder Jit Singh, Presiding Member
The present First Appeal (FA) has been filed by the Appellant against Respondent as detailed above, under section 19 of Consumer Protection Act, 1986, against the order dated 29.10.2016 of the State Consumer Disputes Redressal Commission, Chhattisgarh (hereinafter referred to as the ‘State Commission’), in Consumer Complaint No. CC/2016/16 inter alia praying to set aside the impugned judgment dated 29.10.2016 of the State Commission in Complaint No. CC/2016/16. While the Appellant was the Opposite Party, the Respondent was Complainant in the said CC/2016/16 before the State Commission.
Notice was issued to the Respondent on 12.01.2017 and operation of impugned order dated 29.10.2016 was stayed subject to Appellant depositing 50% of the awarded amount with upto date interest with the State Commission. Parties filed their written arguments/synopsis on 26.02.2018 (Appellant) and on 12.04.2023 & 24.07.2023 (Respondent). Delay of 12 days in filing the Appeal was condoned.
Brief facts of the case, as emerged from the FA, Order of the State Commission, and other case records are that: -
The complainant/Respondent obtained Insurance Policy No. 191300/31/2015/4264 from the Appellant/Insurance Company for his vehicle BMW X-3 RHD bearing Registration No. CG.04-KT-1431 for the period from 15.07.2014 to 14.07.2015. On 09.03.2015, while the complainant was returning from Nagpur, the vehicle met with an accident. Information regarding the accident was given by the complainant to the Insurance Company. On intimation, Surveyor was appointed who inspected the vehicle in question, thereafter the complainant got the vehicle in question repaired and the bill of the same was sent to the Insurance Company. The Insurance Company appointed Investigator. Being aggrieved due to non-payment one Mr. Akash Garg filed complaint before the State Commission.
Vide Order dated 29.10.2016, the State Commission has partly allowed the complaint and passed the following order:-
“(i) The O.P. (Insurance Company) will pay a sum of Rs.18,97,911/- (Rs. Eighteen Lakhs Ninety Seven Thousand Nine Hundred & Eleven), as assessed by the Surveyor, to the complainant within two months from the date of the order.
(ii) The O.P. (Insurance Company) will also pay simple interest @ 12% p.a. on Rs.18,97,911/- from the date of filing of the complaint i.e. 30.04.2016 till realization.
(iii) The O.P. (Insurance Company) will also pay a sum of Rs.10,000/- (Rs. Ten Thousand) to the complainant towards cost of litigation.”
Appellant has challenged the Order dated 29.10.2016 of the State Commission mainly on following grounds:-
i. The order of the State Commission is based on wrong observations, perverse findings, extraneous considerations against the material on the record of the case, non consideration and without appreciation of the evidence. The settled law is not considered by the State Commission and thus the impugned order is liable to be set aside.
ii. The State Commission failed to give any finding and based its order on conjecture and surmises over looking the terms and conditions of the policy and the relevant sections of the Policy etc.
iii. The State Commission has totally misconstrued the factual position and has been swayed by whims and fancies. The order of the State Commission order is based on conjecture and surmises and failed to consider that the Commission has no jurisdiction to hear the complaint of Akash Garg as he has no authority to file the instant complaint and no document has been filed to the effect that he is authorized to file complainant in respect of damages caused to the vehicle bearing registration No.C.G.04-KT-1431 in the accident or resolution dated 11.04.2016 is handwritten and it is not authentic document regarding the authority of Akash Garg. The authority letter filed is not to the effect that Akash Garg has to file complaint before the Commission, therefore, the averments of the Akash Garg has not been certified.
iv. The State Commission failed to consider that there is difference in signatures in the claim form submitted before the Insurance Company and in the complaint. The insurance policy in respect of the said vehicle was issued in the name of M/s Harishankar Commercial Pvt. Ltd. under terms and conditions of the insurance policy. A handwritten resolution has been filed on behalf of the complainant. The Akash Garg is not a consumer of the insurance company and policy has not been issued in favour of the complainant. No contract has been made by the Insurance Company with Akash Garg in respect of any service. As mentioned by Akash Garg in his complaint, the vehicle has been insured under the terms and conditions of the insurance policy in the name of M/s Harishankar Commercial Private Limited for the period from 15.07.2014 to 14.07.2015 under Private Car Package Policy. The model of the vehicle is mentioned as year 2013. No complaint has been filed by the insured Harishankar Commercial Private Limited before the Commission. Under the above insurance policy, claim was submitted before the Insurance Company by Harishankar Commercial Pvt. Ltd. which was settled by the Insurance Company. According to the claim form Harishankar Commercial Private Limited informed that the driver of the vehicle was Akash Garg Shukla and probably the complainant is driver. The complainant did not deliberately mention that who was driver of the vehicle. The complainant has deliberately suppressed the above fact. Therefore, the complaint of Akash Garg was liable to be dismissed with cost.
v. The State Commission failed to consider that Akash Garg did not mention that First Information Report No. 39/2015 has been registered by the Police Station Sakoli against Akash Garg and charge sheet was also filed against Akash Garg before Competent Court for offence under Section 279, 304-A of IPC and under Sections 134-A, B & 185, 146, 196 of the Motor Vehicles Act. The above fact has been concealed by the Akash Garg deliberately because in the police investigation it came to knowledge that Akash Garg was under the influence of liquor and was driving the vehicle rashly and negligent and committed accident. The insurance policy was issued under the terms and conditions of the Motor Vehicles Act and negligence was caused regarding security of the insured vehicle.
vi. The State Commission failed to consider that the intimation regarding damages caused to the insured vehicle has not been given to the Insurance Company immediately. The insured Harishankar Commercial Private Limited submitted claim form before the Insurance Company on 13.05.2015 for obtaining compensation and informed that the estimate cost of the repairing of the vehicle is Rs.10,35,094/-. It was submitted after lapse of more than 2 months from the incident. On 02.06.2015 service quotation and on 31.08.2015 additional service quotation was provided. Tax invoice dated 30.11.2015 was got prepared and the same was submitted by Harishankar Commercial Private Limited before the Insurance Company. The complainant filed money receipt dated 18.06.2015 for Rs.1,00,000/- in the case. According to documents of criminal case, the driver of the vehicle was under the influence of liquor and committed accident, which is violation of terms and conditions of the insurance policy as well as provisions of Motor Vehicles Act, hence the complainant is not entitled to get the above amount.
Heard counsel of both sides. Contentions/pleas of the parties, on various issues raised in the FA, based on their FA/Reply, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
6.1 Appellant in addition to repeating what has been stated under the grounds, has contended in its written arguments that one Akash Garg filed complaint before the state Commission seeking a claim of Rs.22,27,876/- for the damaged vehicle, demanding Rs.1.5 Lakhs parking charges Rs. 60,000/- per month (totaling Rs.6 lakhs) rentals borne by the complainant during that period. The State Commission in its order dated 29.10.2016 negate all the objections and grounds taken by the Insurance Company on most flimsy ground and wrong finding and partly allowed the complaint directing and ordering to pay to the complainant an amount of Rs.18,97,911/- within two months from the date of order. The settled laws is not considered by the State commission. The resolution dated 11.04.2016 is handwritten and it is not authentic document regarding the authority of Akash Garg. The authority letter filed is not to the effect that Akash Garg has to file complaint before the Commission, therefore the averments of Akash Garg has not been certified. Akash Garg is not ‘consumer’ of the insurance company and policy has not been issued in favour of the complainant. No contract has been made by the Insurance Company with Akash Garg in respect of any service. No complaint has been filed by the insured Harishankar Commercial Private Ltd. before the Commission. Accordingly to the claim form Harishankar Commercial Pvt. Ltd. informed that the driver of the vehicle was Akash Garg and probably the complainant is driver. The complainant did not deliberately mention that who was driver of the vehicle. The complainant suppressed the above fact. Therefore, the complaint of Akash Garg was liable to be dismissed. It did not mention that FIR No. 39/2015 has been registered by the Police Station Sakoli against Akash Garg and charge sheet was also filed against Akash Garg before Competent Court for offence under Section 279, 304-A of IPC and under Sections 134-A, B & 185, 146, 196 of the Motor Vehicles Act. This fact has been concealed by Akash Garg deliberately because in the police investigation it came to knowledge that Akash Garg was under the influence of liquor and was driving the vehicle rashly and negligently and committed accident. The intimation regarding damages has not been given to the Insured Company immediately. The insured Harishankar Commercial Private Limited submitted claim form before the Insurance Company on 13.05.2015 for obtaining compensation and informed that the estimate cost of the repairing of vehicle is Rs.10,35,094/-. It was submitted after lapse of more than 2 months from the incident. On 02.06.2015 service quotation and on 31.08.2015 additional service quotation was provided. Tax invoice dated 30.11.2015 was got prepared and the same was submitted by Harishankar Commercial Pvt. Ltd. before the Insurance Company. The complainant filed money receipt dated 18.06.2015 for Rs.1,00,000/- in the case. According to documents of criminal case, the driver of the vehicle was under the influence of liquor and committed accident, which is violation of terms and conditions of the insurance policy as well as provisions of Motor Vehicles Act.
6.2 On the other hand, the Respondent/complainant contended that On 09.03.2015, the insured vehicle met with an accident. Subsequently, an intimation regarding the accident was given by the complainant to the Appellant/Insurance Company. The Surveyor appointed by the Appellant assessed the loss to the tune of Rs.18,97,911/-. Thereafter, the complainant got the vehicle repaired at his own expenses and the bill of the same was sent to the Appellant/Insurance Company. Despite a lapse of more than 10 months from the date of sending bill of repairing to the Appellant, the same was not paid by the Appellant/Insurance Comp any. Hence, filed complaint before the State Commission and the State Commission has allowed the complaint. The State Commission has passed the order after going through the entire record of the case and a well-reasoned order has been passed. The State Commission has dealt with each and every objection raised by the Appellant along with judicial precedents and has passed the legal order which does not call for any interference. The objections taken by the Appellant in the Appeal are not correct. The State Commission has specifically discussed regarding Section 185 of the Motor Vehicle Act 1988. The Complainant has relied upon various judgments passed by this Commission in support of his contentions.
We have carefully gone through the orders of the State Commission, other relevant records and rival contentions of the parties. It is not in dispute that vehicle in question is registered in the name of Harishankar Commercial Pvt. Ltd., which is a company registered under the Companies Act and Mr. Akash Garg is one of its Directors. Insurance is also in the name of the Company, and as on the date of incident, there was a valid insurance in place. Initially the complaint before State Commission was filed by Mr. Akash Garg, but subsequently, on an application filed under Order 6 Rule 17 CPC, State Commission allowed amendment of the Complaint and the Complainant’s name was changed to that of the Company. Mr. Akash Garg has filed the complaint in the capacity of Director of the Company. Certificate of incorporation of the Company was filed along with resolution dated 11.04.2016, and memorandum & Articles of Association of the Company, as per which there are only two Directors of the Company, including Mr. Akash Garg. After taking note of various documents placed before it, the State Commission has rightly concluded that Mr. Akash Garg is a Director of the Company, he is duly authorized by another Director of the said Company to file this complaint, hence he is competent to file the complaint on behalf of said company and the complaint is maintainable. We are in agreement with these findings of the State Commission.
OP/Insurance Company has contended that at the time of accident, Mr. Akash Garg was driving the vehicle, and was under the influence of alcohol, an FIR No. 39/2015 was registered. Charge sheet has been filed U/s 279, 304A of IPC and U/s 134-A,B and U/s 185, 146 of Motor Vehicle Act. State Commission has considered the issue whether Mr. Akash Garg had consumed alcohol as mentioned in Section 185 of Motor Vehicle Act, 1988 and has observed that OP has not filed any document, which indicated that Mr. Akash Garg has been convicted for offence U/s 185 of Motor Vehicle Act, stating further that even the OP has not filed any medical report in respect of Mr. Akash Garg to prove that Mr. Akash Garg was examined by doctor and the doctor found that Akash Garg was under the influence of alcohol while driving the vehicle in question, therefore, for want of medical report, merely on the basis of the investigation report of investigator, it cannot be held that Mr. Akash Garg was under intoxication and he had consumed alcohol above prescribed limit. Even the OP has not filed any document to show that Akash Garg was convicted by the competent court for offence U/s 185 of the Motor Vehicle Act, 1988. Relying on judgment of this Commission in M. Raja Gangu, M. Sujatha Vs. Life Insurance Corportion of India, I (2015) CPJ 676 (NC), the State Commission observed that OP has not been able to prove that Mr. Akash Garg was under influence of alcohol and it would not be sufficient to prove the fact that accident has taken place because of fault of Mr. Akash Garg due to consumption of alcohol. During the final arguments, OP/Petitioner herein has not brought any new facts/evidence to show whether Mr. Akash Garg was under the influence of alcohol while driving and whether he committed any offence U/s 185 of Motor Vehicle Act, except pleading that Mr. Akash Garg did not disclose that FIR 39/2015 was registered by Police against him and charge sheet was also filed against Mr. Akash Garg before competent Court for offence U/s 279, 304-A IPC and U/s 134-A, B & 185, 146, 196 of Motor Vehicle Act. Petitioner further contends that in police investigation it came to know that Mr. Akash Garg was under the influence of liquor and was driving the vehicle rashly and negligently and committed accident and therefore, charge sheet has been submitted against him U/s 185 of Motor Vehicle Act. However, Petitioner has not placed on record any updated status of the case as to whether Mr. Akash Garg has been convicted U/s 185 of M.V. Act by the competent Court, rather the Respondent contends that he has been acquitted by the Court. Respondent in its written arguments have specifically mentioned that Ld. Civil Judge, Jr. Dn. & J.M.F.C. Sakoli acquitted the accused Akash Garg in the C.A. No. 39/022 from all the charges made against him u/s 279/304(a) IPC and U/s 134(a)(b), 146/196 and 185(a) of Motor Vehicle Act. Hence, we tend to agree with the findings of State Commission on this count also.
As regards compensation, State Commission has observed that the Surveyor appointed by OP has assessed the loss to the tune of Rs.18,97,911/-. Relying on various judgments of this Commission, the State Commission has observed that Surveyor’s report is an authentic document and on the basis of Surveyor’s report Complainant is only entitled to Rs.18,97,911/-. State Commission declined relief sought by complainant of Rs.1.50 lakh towards parking charges and Rs.6.00 lakh towards hiring charges of another vehicle stating that complainant has not been able to prove that he hired another vehicle and paid Rs.6.00 lakh towards hire charges and that he paid Rs.1.5 lakh towards parking charges.
In view of the foregoing, we are of the considered view that State Commission has passed a well-reasoned order and we find no reasons to interfere with the same. We find no illegality or material irregularity in the order of the State Commission, hence the same is upheld. Accordingly, First Appeal is dismissed.
The pending IAs in the case, if any, also stand disposed off.