Reliance General Insurance Co. Ltd. & Anr vs Pritesh Vijaykumar Bafna [Dead] Through Lrs

This appeal has been filed by the appellants, Reliance General Insurance Co. Ltd. & Anr. against the order dated 11.3.2015 passed by the State Consumer Disputes Redressal Commission, Maharashtra Bench at Aurangabad (for short, 'State Commission') in CC No.13/5.

Brief facts of the case are that on 24.10.2012 the insured truck met with an accident at Bhagodra (Gujarat State) at 1 a.m. in the night. The respondent informed the appellant. The Gujarat Office of the appellant had done spot survey of the accident. As per the report of investigator/Spy Venture Investigative Agency, the said driver informed that Mr. Sagar Kailas cleaner of the truck was on the driver's seat of the insured truck and therefore, he got injuries in the said accident. The surveyor met the doctor who also had confirmed that Mr. Sagar was injured in the accident and he was treated accordingly. The surveyor also obtained MLC from the doctor which confirmed the injury of Mr. Sagar/cleaner of the insured truck. On 31.1.2013 the appellant repudiated the claim of the respondent. As per the survey report, the loss caused to the truck is only for Rs.8,92,310/-. Even as per the panchnama made by the police, the amount of loss caused to the truck was Rs.10,00,000/- only. In January, 2013 the respondent filed a complaint bearing no.CC/13/5 before the State Commission at Aurangabad Bench. In the complaint, the respondent stated that on the date of accident Mr. Maruti Tribhuvan was driving the insured truck. They have claimed Rs.23,75,000/- towards the 100% loss of insured Truck and Rs.19,04,128/- towards other losses and damages. The appellant had filed its written statement in which the appellant has denied all the allegations against it. Mr. Sagar and Mr. Maruti had filed their affidavits before the State Commission. Mr. Sagar in his affidavit stated that on date of accident, Mr. Maruti was driving the truck. Both of them had not received any injury due to the accident. It was further stated in the affidavit that thereafter in December, 2012, Mr. Abhijt, representative of the insurance company met him and took his signature on few papers by saying that he will get the compensation from the insurance company regarding this accident and he is not aware what they have written on the papers. The appellant had also led evidence of investigator before the State Commission who stated on sworn affidavit that at the date of accident, Mr. Sagar was driving the insured truck. The appellant had also filed the affidavit of surveyor who also stated on oath that the liability of the insurance company is only to Rs.8,92,000/-. However, vide impugned order dated 11.3.2015 the State Commission held that Mr. Sagar has affirmed on oath and stated that the driver Maruti was only driving the vehicle at the time of accident and therefore the contentions of the appellant cannot be accepted as statement recorded by the surveyor is not admissible in evidence. It was further observed that the FIR and spot panchnama nowhere mentioned that cleaner was driving the insured vehicle. Therefore, vide impugned order dated 11.3.2015 the State Commission held that the insurance company was liable to pay the insured declared value (IDV) of the truck i.e. Rs.23,75,000/- with 6% interest p.a. from the date of the complaint.

Hence, the present appeal.

Heard the learned counsel for the parties and perused the record.

Learned counsel for the appellant insurance company stated that the insurance company appointed the investigator who had found that the truck was being driven by the cleaner at the time of accident and the cleaner did not have any valid driving licence to drive a heavy transport vehicle. Accordingly, the claim was repudiated by the insurance company. The investigator has also found that the cleaner was injured in the accident as he was on the driving seat. The investigator has also obtained the MLC in respect of the treatment of the cleaner. Even the cleaner has given a statement before the investigator duly signed by him that at the time of accident, he was driving the truck and not the driver Mr. Maruti, though the cleaner has later denied any injury or any medical treatment taken by him. He also categorically denied that he was driving the truck at the time of accident. Learned counsel argued that once there is a statement of the cleaner before the investigator, the State Commission should not have accepted the statement of the cleaner that the driver Mr. Maruti was driving the truck at the time of accident.

Further, it was stated by learned counsel for the appellant that the surveyor has assessed the loss only for Rs.8,92,310/-. Report of the surveyor cannot be discarded by a consumer forum until there are cogent reasons for doing the same. However, the State Commission has not given any reason for not accepting the report of the surveyor. Moreover, in the Panchnama also the loss of only Rs.10 lakhs is mentioned. Thus, in no case, the State Commission should have allowed more compensation than Rs.10 lakhs.

On the other hand, learned counsel for the LRs of the complainant stated that the investigator has got the signatures of the cleaner on a blank sheet of paper and later on filled up the statement. The State Commission has also observed that this type of statement cannot be accepted before a court. In fact, there is no mention that cleaner was driving the vehicle in the FIR or in the Panchnama. The State Commission has accordingly not accepted the contention of the insurance company that the vehicle was being driven by the cleaner and not by driver. Learned counsel referred to the following findings of the State Commission in this regard:

"13. While repudiating the claim insurance company proceeded only on the footing that the driver Maruti Tribhuvan was not driving the vehicle at the time of accident, but cleaner Sagar was driving the vehicle. In that respect insurance company relied on the statement recorded by Techno trax Detective Agency of Sagar. On the contrary, said Sagar affirmed on oath and stated that he was not driving the vehicle at the time of accident but the driver Maruti was driving the vehicle."

I have carefully considered the arguments of both the sides and have examined the material on record.

The FIR and the panchnama do not record the fact of cleaner driving the vehicle whereas these are the two documents which should have basically recorded the most proximate facts. Moreover, the cleaner has also filed an affidavit clearly stating that the driver Mr. Maruti was driving the vehicle and he was not treated for his injuries in the accident. On the basis of these documents, the State Commission has rightly concluded that it is not the case where the cleaner was driving the vehicle and therefore, has found the insurance claim as payable. However, on the other hand, it is seen from the judgment and order dated 11.3.2015 passed by the State Commission that the State Commission has not dealt with the report of the surveyor. Ordinarily, the report of the surveyor forms the basis of settlement of claim of the insurance. The Hon'ble Supreme Court in the case of Sri Venkateswara Syndicate vs. Oriental Insurance Company Limited &Anr., (2009) 8 SCC 507, has observed the following:-

"31. The assessment of loss, claim settlement and relevance of survey report depends on various factors. Whenever a loss is reported by insured, a loss adjuster, popularly known as loss surveyor, is deputed who assesses the loss and issues report known as surveyor report which forms the basis for consideration or otherwise of the claim. Surveyors are appointed under the statutory provisions and they are the link between the insurer and the insured when the question of settlement of loss or damage arises. The report of the surveyor could become the basis for settlement of a claim by the insurer in respect of the loss suffered by the insured.

There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them. We also add, that, under this Section the insurance company cannot go on appointing surveyors one after another so as to get a tailor-made report to the satisfaction of the officer concerned of the insurance company; if for any reason, the report of the surveyors is not acceptable, the insurer has to give valid reason for not accepting the report."

Based on the above authoritative judgment of Hon'ble Supreme Court , it can be said that the surveyors are appointed under the provisions of the Insurance Act, 1938 and their report cannot be brushed aside without any cogent reasons. In the present case, no reason has been given by the State Commission for not considering the report of the surveyor for settling the insurance claim. Even the Panchnama has mentioned loss to the tune of only Rs.10 lakhs, whereas the surveyor has assessed the loss to the tune of Rs.8,92,310/-. During the arguments also the learned counsel for the respondent/complainant did not raise any objection against the report of the surveyor and therefore, I do not find any reason why the report of the surveyor should not be accepted. Clearly, the State Commission has committed error in not considering the report of the surveyor.

Based on the above examination, in my view, the insurance company is liable only to the extent of assessment of loss given by the surveyor. The State Commission has wrongly allowed the claim of total IDV which is Rs.23,75,000/-. Accordingly, the appeal is partly allowed and the order of the State Commission is modified to the extent that the insurance company shall be liable to pay Rs.8,92,310/- instead of Rs.23,75,000/- as ordered by the State Commission. Rest of the order of the State Commission is maintained.

No order as to costs for this appeal.