AI Structured Summary
Not yet generated for this judgment
Judgment
M. Shreesha, J
The Complainant in Consumer Complaint No. 15 of 2008 is the Revision Petitioner, challenging the order dated 18th October, 2011 passed by the Tamil Nadu State Consumer Disputes Redressal Commission (in short "the State Commission") under Section 21(b) of the Consumer Protection Act, 1986 (in short "the Act"). By the impugned order the state Commission has allowed the Appeal preferred by the Insurance Company and set aside the order of the District Consumer Disputes Redressal Forum, Salem (in short "the District Forum), thereby dismissing the Complaint.
The facts in brief are that the Complainant purchased Harvester Tractor and got it insured by the Opposite Party ( hereinafter referred to as "the Insurance Company") covering the period from 20th January, 2017 to 19th January, 2008. While so, on 1st April, 2007, when the Complainant's driver Mr. Ramesh drove the said Harvester Tractor, the chimney of the Tractor came into contact with an electric wire on account of which the Tractor was completely burnt, despite the efforts of the driver and others who tried to put off the fire. It was immediately intimated to the Insurance Company on the very next day i.e. on 2nd April, 2007, and a Surveyor was appointed to inspect the premises. It is averred that on 3rd April, 2007 when the Complainant approached the Insurance Company, the concerned officer advised the Complainant to take back the vehicle from the accident spot and park it before the dealer shops, where he had purchased the said Tractor. It is averred that an amount of Rs. 7,000/- was spent for the recovery van and a claim form was submitted on 6th April, 2017 giving the detailed estimate of the loss. Despite repeated requests and also a legal notice which was issued on 21st November, 2007, there was no response from the Insurance Company in settling the claim. Hence this complaint before the State Commission seeking the direction to the Insurance Company to pay a sum of Rs. 9,30,000/- towards total loss together with 12% interest, compensation of Rs. 5,00,000/- and other costs.
The Insurance Company filed their Written Version admitting to the issuance of the Policy, the period of coverage, but stated that the driver of the said Harvester by name Mr. Sakthivel and Mr Suresh are not having effective driving licence as on the date of fire accident, which is in violation of the Policy conditions. It is further averred that Insurance Policy does not cover the use of the vehicle for hire or reward but the Complainant hired the Harvester for harvesting paddy crops in the agricultural field of Sivashanmugam of Neduncherri village. As per the RC and Policy the sitting capacity is only for one driver, whereas the Complainant states that it was driven by both driver Sakthivel and Suresh. It was further stated that this Harvester Tractor was exempted from payment of tax under Section 21 of Tamil Nadu Motor Vehicle Transport Act, as long as the vehicle was used for agricultural purposes only. Despite this exemption the Harvester was used for harvesting crops for others. The exhaust pipe of the Tractor coming into contact with the electric line thereby leading to burst of the Diesel Tank is only on account of the negligence and carelessness of the drivers and therefore it cannot be said that the fire was caused due to any natural cause. Moreover, the electric shock was caused on unprotected electric line of the landlord, who was not made a party.
Spot surveyor inspected the site and the final survey was done through M/s. Sekar Associates, who assessed the loss suggesting three methods of calculation:
a) On Repair Basis - Rs. 8,25,956.60
b) On Total Loss Basis - Rs. 6,52,900.00
c) On Salvage Loss Basis - Rs. 6,00,000.00
Spot Surveyor raised the doubt about the identity of the driver as the press report which indicated that no such person by name Mr. Ramesh has driven the Tractor. A detailed inspection was also done through Shri A. Madeshwaran, who stated that the Complainant engaged Mr. Suresh s/o Srinivasan and Mr. Sakthivel for operating the Tractor at the time of cause of action as there was no driving licence, a Complaint was not registered until 2nd April, 2007 and only after getting the confirmation that Mr. Ramesh was holding a licence, an FIR was registered falsely stating that he is a driver and the same is confirmed by Mr. Suresh who was the actual driver at the time of the accident. Hence the claim was repudiated on 10th June, 2008. It is further averred that the insured has met Sivashanmugam, the owner of the harvest land to give a Complaint to the police that it was Mr. Suresh who drove the Tractor. The police colluded with the owners of the land and the Harvester and did not properly investigate only with the view to assist the insured to get the claim. It is pleaded that the Police ought to have cited Mr. Suresh an eye-witness to speak about the cause of accident but on the other hand the police has cited above Mr. Suresh as hearsay witness. Mr. Sakthivel sustained burn injuries and died on 11.04.2007 and no effort was made by the police to take the dying declaration of Mr. Shakthivel and hence the repudiation is justified.
The District Forum based on the evidence adduced allowed the Complaint directing the Insurance Company to pay an amount of Rs. 7,44,000/- towards loss of the vehicle, Rs. 2,50,000/- towards compensation and Rs. 5,000/- towards costs with the default clause of 9% interest if the amount is not paid within 6 weeks from the date of receipt of a copy of the order.
Aggrieved by the said order the Insurance Company preferred an Appeal before The State Commission which while allowing the appeal has observed as follows:
"While considering both sides rulings relied upon the appellants / opposite parties mostly relied on the basis of the surveyor's report the claim was repudiated as the actual driver having valid licence alleged to have driven the vehicle of the complainant was not established and for the purpose of claim amount falsely it is alleged by the appellant that the complainant set up some other person having valid driving licence as the driver of the vehicle was present at the time of accident was not having licence and manipulating the same in the FIR for the purpose of claiming insurance amount by substituting name of the person having valid licence. But the respondents /complainant contended since the FIR was lodged immediately and the name of the driver was also clearly mentioned as Ramesh and having claimed the insurance in a lawful manner the repudiation by the opposite parties not justifiable. The District Forum after considering the same allowed the complaint. In this regard as the complainant got the vehicle insured for Rs. 9,30,000/- as per Exhibit A1 by paying premium of Rs. 7,990/- and in the circumstances when the claim is made as per the terms and conditions of the policy the claim to be entertained and in Exhibit B1 recording the terms and conditions of the policy under the covers of policy it is stated if the vehicle is used for higher or reward the policy does not cover for the same and any person driving holds an effective driving licence at the time of accident and has not disqualified from holding or obtaining such a licence, then only titled for claim of the policy. In our case these two things are doubtful in nature and the complainant cannot be considered as proved the same without any doubt as the appellant contended that the vehicle was taken to one Sivashanmugam's land at Neduchery Agraharam for the purpose of harvest on hire basis and the very same Sivashanmugam has given the complaint as per Exhibit A2 in which it is stated that the vehicle came for the purpose of harvesting the crops and at the time, occurrence was taken place and one Ramesh was the driver on the vehicle. The occurrence said to have taken place on 1.4.07 at 12 hours. But the fire was registered on 2.4.2007 at 11:00 a.m. and thereby the allegation of the opposite party that for the purpose of manipulating the name of the driver having valid licence in order to claim insurance amount that FIR was delayed and this contention cannot be brushed aside as the FIR was lodged only on next day of occurrence and in view of the detailed investigation report filed by the Surveyor of opposite parties as Exhibit B4 which substantiates the contentions of the opposite party. The complainant of the opposite parties have not find any of the other criminal court records relating to the charge sheet regarding the offence committed by the driver whose details of name driving licence etc., and in those circumstances we are of the view that those things are to be proved only before the proper forum by adducing oral and documentary evidence and which are not capable to be decided by the Consumer Forum under the circumstances we are of the view that the rapudiation of the opposite party regarding the claim on the basis of investigation report Exhibit B4 and as per repudiation letter Exhibit B7 that there cannot be any negligence of deficiency in service on the part of the opposite parties and the District Form without going into the deep of materials erroneously allowed the complaint which is liable to be set aside, in view of the reasons adduced and discussions made as above."
(Emphasis Supplied)
First we address ourselves to the observations made by the State Commission that the FIR was lodged belatedly thereby giving an opportunity to the Complainant to have manipulated the name of the driver having valid licence. It is an admitted fact that the incident occurred at 12 noon on 01.04.2007, as can be seen from the documentary evidence, an FIR was lodged at 11:00 a.m. on 2nd April, 2007 which is cannot be stated to be an inordinate delay viewed from any angle specially keeping in view the fact that an employee was severely injured. We find force in the contention of the Complainant that the injured was first taken to the government hospital then shifted to a private hospital and that the police station was 8 km away and therefore the FIR was lodged on the very next day in the morning. It is also relevant to mention that the spot Surveyor Mr. Madheshwaran in his report dated 04.04.2007 stated that the name of the driver was S. Ramesh having valid driving licence. It is relevant to reproduce the portion of the Survey Report, which addresses to the Drivers licence:
"Note: It is observed from FIR copy and the Driver statement, in the Driver of the insured vehicle at the time of accident was Mr. S. Ramesh. But he was not injured in this accident and one person name N. Shakthivel was injured in this accident. It is learnt from Daily thanthi paper dated 03.04.2007, the driver of the insured vehicle at the time of accident was Mr. N. Sakthivel (injured person). Proper investigation to be arranged for the correct driver details and the claim admissibility is subject to the discretion of the insurers."
(Emphasis Supplied)
From the aforenoted report given by the Spot Surveyor it can be safely construed that the Surveyor has assumed that Mr. Ramesh did not drive the said vehicle only on the assumption that he was not 'injured in the accident'. Learned Counsel appearing for the Insurance Company vehemently contended that actually Mr. Suresh was driving the Tractor and it was only to get the insured claimed that Mr. Ramesh' s named who had a valid driving licence was included in the FIR. We are of the considered view that this contention is untenable keeping in view the report of the police which clearly stated that it was Mr. Ramesh who had a valid driving licence was driving the vehicle. It is significant to mention that the Insurance Company has cast aspersions on the police, the procedure followed for investigation, the registration of the FIR, the statement of the Tehsildar without any substantial grounds. Hence, we are of the considered view that there is absolutely no documentary evidence on record to substantiate the plea taken by the Insurance Company that it was one Mr. Suresh, who was driving the vehicle and not Mr. Ramesh. Further, the investigation report does not even remotely suggest as to how the investigator had arrived at the sequence of events despite the fact that he himself has noted in the report that several sources confirmed that vehicle was driven by Mr. Ramesh.
Now we address ourselves to the contention of the Insurance Company that the vehicle was taken on hire. To avoid its liability towards insured, the Insurance Company has to prove that the insured had taken the Harvester on hire for reward and that the breach of the Policy was so fundamental in nature to repudiate the claim. The State Commission has observed that "in our case these two things are doubtful in nature and the Complaints cannot be considered as proved the same without any doubt". The Hon'ble Supreme Court in catena of cases held that the onus shifts on the Insurance Company to establish that there was a breach on the part of the Policy holder, which, at the cost of repetition, it has failed to discharge. Keeping in view the aforenoted reasons, we are the considered view that the repudiation of the claim by the Insurance Companies unjustified and this Revision Petition is allowed and we find it a fit case to direct the Insurance Company to pay an amount of Rs. 6,52,900/- assessed by the Surveyor towards total loss. Though the District Forum has awarded an amount of Rs. 7,44,000/- which is the purchase value of the vehicle, we are of the considered view that since the vehicle was purchased on 28th January, 2006 and the incident has occurred on 1st April, 2007, we are not agreeable with the direction of the District Forum to have awarded the entire invoice value of the vehicle. To meet the ends of justice, an amount assessed by the Surveyor towards total loss that is Rs. 6,52,900/- is directed to be paid by the Insurance Company with interest @ 9% per annum from the date of repudiation i.e. 10th June, 2018 till the date of realisation together with costs of Rs. 20,000/-. Time for compliance is four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 12% per annum for the same period.
In the result, this Revision Petition is allowed to the extent indicated above.