- Court
- High Court of Punjab and Haryana
- Decided
- 27 August 2024
- Bench
- Vinod S. Bhardwaj
- Case no.
- CWP 21391/2018
Judgment
VINOD S. BHARDWAJ, J. (ORAL) Challenge in the petition is to the Award dated 30.05.2018 (Annexure P-1) passed by respondent No.2- Permanent Lok Adalat (Public Utility Services), Bhiwani Camp Court at Jind, by virtue whereof, the petitioner-Insurance Company has been directed to pay a sum of Rs.35,00,000/- alongwith interest @ 12% per annum from the date of accident till its realization alongwith Rs.5,500/- as litigation expenses to respondent No.1. Briefly summarized, the facts of the present case are that respondent No.1 got his LMV Toyota/Land Cruiser bearing registration No.HR-66-2508 insured with the petitioner-Insurance Company vide policy cover note No.3001/107096063/00/B00 for an IDV of Rs.31,18,058/- for the period from
22.09.2015 to 21.09.2016 subject to the terms and conditions of the insurance policy. It was alleged that on 19.09.2016 i.e. two days before expiry of
the policy, while the respondent No.1 was coming to Haryana State from Khayada Sirshod, District Shivpuri (MP), he met with an accident against a bridge/culvert while avoiding a Nilgai and the car caught fire. The incident was informed to the petitioner-Insurance Company and a Rapat Rojnamcha dated
19.09.2016 was also got registered with regard to the above accident at Police Station Sattanbara, District Shivpuri (MP) and DDR was also entered on the same date. A spot survey was got conducted by the petitioner-Insurance Company from M/s Assay Associates, which visited the accident spot and submitted that there was no bridge/pulia at the spot/ location of the accident which could have caused the claimed impact on the insured vehicle, as per the narration given by respondent No.1. It was also mentioned that three samples of vehicle ashes available at site were also collected in the presence of the representative of the insured and submitted the same for hydrocarbon test. As per the FSL, report pertaining to the manner and nature of the accident, the same did not take place in line with the narratives set forth by respondent No.1. The petitioner-Insurance Company also appointed surveyors and loss assessors to ascertain the loss to the vehicle in question. A detailed report was submitted by the surveyors and the loss assessors as well. The petitioner-Insurance Company sent a letter to respondent No.1 on 25.10.2016 for supplying the necessary documents to examine the validity of its claim. The petitioner-Insurance Company also considered the report submitted by M/s Assay Associates and appointed ICS Assure Services Ltd. to furnish a detailed report, after carrying
out all necessary tests and forensic examinations. A report dated 07.02.2017 was, thereafter, submitted by the ICS Assure Services, attached as (Annexure P-11) with the present writ petition. The said exhaustive report clearly concluded that an incorrect description of the manner and cause of accident have been given by respondent No.1-claimant and that the spot inspection report, analysis of the site as well as the forensic reports were considered for coming to the said conclusion. It is contended that notwithstanding the spot analysis, the fire pattern forensic analysis, the spot inspection and other aspects, the Permanent Lok Adalat (Public Utility Services), Bhiwani Camp Court at Jind allowed the application submitted by respondent No.1 and passed the impugned Award under Section 22-C(8) of the Legal Services Authorities Act, 1987, compelling the petitioner-Insurance Company to approach this Court. Counsel for the petitioner-Insurance Company refers to the operative part of the Award whereby the objections raised by the petitioner-Insurance Company have been dealt with. The relevant part of the same reads thus: "13. From the report Ex.P2 it is established on record that investigation carried out at the instance of the respondent was carried out on the basis of presumption that before getting the vehicle fire, it dashed against bridge whereas according to the Petitioner when Petitioner tried to save the cow which suddenly came before the vehicle the vehicle stood imbalanced and struck against the Pulia(culvert).
When culvert cannot be considered to be the bridge certainly the investigation reports of the Respondent are based on the theory of making mountain out of a molehill. In the investigation report and conclusion No. 10 of Ex. R2 the vehicle was damaged due to frontal sharp impact and not due to the bridge. In this conclusion the frontal sharp impact is being admitted and as such, it is established on record that before getting fire the vehicle dashed its frontal portion against the pulia (culvert) as claimed.
14. If above noted 15 differences are taken into consideration one may say that pulia is underground structure and as such there is no possibility of striking a vehicle against the pulia but this conclusion is not logical conclusion because every user of the road is conversant with the fact that safety/indicator/protection wall on both corners of the culvert is raised to the height varying between 2-3 feet. The purpose of raising safety/indicator/protection wall is meant for the simple reason that users of the road may notice the presenceof culvert as on both ends of culvert the Brim of the road is always lowered because on both sides of the culvert brim level is to be kept at level of floor of the culvert. In case no such safety/indicator/protection wall is raised there are chances of accident as in case for any reason the user of the road is to take his vehicle on Kacha portion (Brim) of the road can met with an accident if lower portion of the brim on both sides of the culvert is not provided with an indication and as such for safe use of the road a wall is raised for safety/indication/protection so that users of the road may pet indication that Kacha portion of the road beyond the safety/indication/protection wall is deep having
15. Now in the given scenario it is to be seen as to whether the vehicle can be damaged by striking against a pulia as so claimed by petitioner. When sides of the culvert are always protection/safety/indication wall on both ends of the metal certainly the frontal impact by that wall is possible when the vehicle chances to struck against the wall of the culvert and as such when petitioner is claiming that vehicle struck against the pulia, certainly vehicle got frontal sharp impact as safety wall on both ends of the culvert ,s part and parcel of the structural construction of the culvert. In these circumstances the claim that the vehicle dashed against pulia is the genuine version as when a vehicle chances to struck against the safety wall of She culvert in lay man's language such a version is to be claimed as striking against the culvert (pulia).
16. In investigation reports again it is being claimed that according to fire pattern forensic fire originate due to the external source of fire and not due to any electrical/mechanical failure and as per the fire pattern forensic the fire would have not originate in the engine compartment as the multiple point of origin of fire observed during investigation of the vehicle. There is no denial of the fact that fire pattern may differ on account of blowing of the direction of the wind at the time of accident and the conclusion that according to fire patten the fire would not have originate in the engine compartment as multiple point of fire was observed is concerned again such a conclusion cannot be termed to be logical and it is not the case of the claimant that the fire was noticed inside the vehicle and according to application sparking of fire were noticed in the engine. As a known fact and human tendency when the occupant of the vehicle recovers from the trauma due to accident certainly the occupier would see towards the side of impact resulting into accident and as such if sparking was noticed towards engine side it
cannot be claimed that fire incident did not take place due to the incident. The investigation report Ex.P2 to P4 are not from the government agency and as a known fact the private experts duefavour the party engaging them. When investigation was carried out on the presumption that there was no bridge certainly no weightage can be given to such investigation as dashing of the vehicle against culvert (pulia) was verified by the police vide Ex. P7 when matter was reported. In the written statement, it is being claimed that damage to the vehicle appears to be manipulated but such a version is not appealable to reason or logic as no one is supposed to cause total damage to his vehicle having value of approximately Rs.35,00,000/- . Such a manipulation can only be there if the occupant of the vehicle intended to cause disappearance of the evidence of criminal offence and when no objectionable items were found inside the vehicle, certainly no inference of manipulation can be raised. The man may resort to the manipulation of fire incident if some contraband is to be destroyed and one may again put the vehicle to fire if a dead body after having committed murder is to be destroyed so as to cause disappearance of the evidence. After reporting the matter vide Ex P6 to the police, the police authorities verified the incident and nothing objectionable could be traced in the burnt vehicle. In case the vehicle got fire after striking against the culvert certainly the fire may originate from the electrical wirings of the vehicle and again it cannot be claimed that the fire will originate only at one place because when the wirings got fire after the accident, the other wires may also react in the similar pattern and there may be multiple point of origin of fire because the wiring
mechanism of the vehicle is there from the fro- to the back of every vehicle.
17. Now in totality of circumstances, no weightage can be given to the investigation reports Ex. R2 to R4. Ex. R2 is the basic report whose conclusion is have been juxtaposed above. Ex. R3 is based on scientific conduct of analysis of detention of Hydrocarbons. Ex. R4 is concluding that cause of loss did not match with the sustain damages of the vehicle. In Ex. R3 again investigation was carried out while considering the culvert as road side bridge while translating the statement of the insured and mentioned at page 3. When the investigation report Ex. R2 to R4 are based on the presumption that there was no bridge at the place of accident certainly no weightage to such reports can be given as existence of the bridge at theaccident side is imaginary version of the investigators. When culvert was translating to mean bridge, certainly the investigations were carried out while presuming that cause of accident was dashing of the vehicle against the bridge, whereas as already discussed Pulia (culvert) cannot be interpreted as bridge and as such when culvert was translated as bridge certainly a certainly a mountain was made out of a molehill.
18. Resultantly in view of the discussion above made and for the 8 g reasons, the application deserves acceptance, because the repudiation vide Ex. P5 could not be proved to be based on sound and logical reasons rather repudiation is proved to be based on whimsical/erroneous conclusions as the conclusions of the investigation reports are themselves whimsical as discussed. Hence the application is hereby accepted with costs and an award executable under Section 22-E of the Act is passed in favour of the applicant against the respondent as under:-
i) Respondent company is directed to pay Rs.35,00,000/- along with interest at the rate of Rs.12?/- per annum from the date of accident till its realization.
ii) To pay Rs. 5,500/- as litigation charges,"
Learned counsel for the petitioner has vehemently argued that the respondent No.1 had got the DDR recorded on 19.09.2016 by averring that on his way to Haryana, a Neelgai came in front of his car and that in order to save the same, there was an imbalance and the car hit against a pulia on the road, due to which sparks came out of the engine resulting in the car catching the fire. The copy of the DDR regarding first version is extracted as under: "Report regarding fire: Complainant Sombir Singh son of Shri Hari Ram, Jatt age 50 years, near National automobiles Hero Agency, District Jail, Gohana, Rohtak Road bypass, Jind Thana, Jind District Jind, Haryana near Hall Krishi Farm Kayawda Sirsoda District Shivpuri has come to Thana to give oral report. I had come to see my land. Today on 19.09.2016 at night I was coming alone in my car number HR 66 2508 from Kaywda, Sirsoda District Shivpuri, Haryana driving myself. At night at about 12:15 p.m. when I reach near A B Road Kuldeep Dhaba (Mamoni Stanbara) then at night one cow came in front of me in order to save the same my car became imbalanced and hit a pulia on the road due to which sparks came out from the engine and the car caught fire. I sounded an alarm "run my car has caught fire" and on hearing my voice two people came out running from Kuldeep Dhaba who tried a lot to extinguish the Fire. But the fire kept increasing then with the help of Dhaba persons, fire brigade was called on the phone by the time fire brigade vehicle came the car fire had been spread thereafter
fire brigade with the help of Hotel people extinguish the fire but the vehicle had been burnt and nothing was saved in the same. My car was of Toyota company Land Cruiser was of the value of about 35 lacs. In this incident no life has been lost. Then at night I went to Shivpuri and after talking to my family members I am lodging this report action be taken. ......."
A similar statement was also made by the respondent No.1 during the initial survey by M/s Assay Associates. Thus, the mode and manner and the location of the accident was not disputed by the claimant. The ICS Assure Services Pvt. Ltd. was appointed by the petitioner-Insurance Company, which carried out the necessary tests and prepared the Motor Fire Forensic and Reconstruction report, which is attached with the present petition as Annexure P-11.The spot photographs have also been attached as part of the said report. Spot photograph as Image No.3 is available at page No.104 of the paper book. The ocular version of the spot is recorded therein and is extracted as under: "Burnt vehicle lying on the spot just besides (sic) the road. There is no any road side bridge present at the spot" The damage analysis alongwith photographs has been attached at page No.106 of the paper book, which is extracted as under: "IV front upper LHS bonnet and LHS fender majorly damaged and bent due to frontal impact. There is no impact on the frontal lower side of the IV. (Red arrow indicating the direction of impact force and dotted line showing the crushed damage portion."
The fire pattern forensic analysis was examined at Point No.7 of the abovesaid report. The relevant part thereof reads thus: "As per the fire patterns observed on front portion of the IV its
(sic) observed that the fire originate at the frontal bumper portion and propagates towards the engine compartment. XXX XXX XXX As per the fire pattern observed on the rear portion of the IV its
(sic) observed that the fire originate and propagates from rear compartment to outside the IV. XXX XXX XXX As per the fire patterns observed on the LHS rear portion of the IV it's observed that the Fire originate at the frontal bumper portion and propagates towards the engine compartment and also fire originate and propagates from rear compartment to outside the IV. XXX XXX XXX As per the fire patterns observed on the rear LHS portion of the IV its (sic) observed that the fire originate inside rear compartment and propagates outside the IV through the windows. XXX XXX XXX As per the fire patterns observed that the fire originate in the rear compartment. And also Fire originate at the frontal bumper portion and propagates towards the engine compartment. Based on the fire patterns analysis fire occurred due to multiple point origination of fire." A detailed analysis of the source of fire and the fire pattern was also examined. The relevant part thereof reads thus: "Following are the two possible source of the fire in the automobile
A) Automobile Internal electrical/Mechanical source of fire. B) External source of fire. A) Automobile Internal electrical/Mechanical source of fire. If we consider the Fire originate in the engine compartment due to electrical/Mechanical failure then there will be interpretation of fire pattern from engine compartment towards the passenger compartment and then towards rear compartment. XXX XXX XXX Whereas no such fire pattern observed on the Burnt IV. Also there is no fire pattern observed on the vehicle battery area. As per the fire pattern forensic analysis above the fire occurred due to multiple point origination of fire specifically front bumper portion, rear portion and top portion of the IV and fire pattern interpretation observed for the same. Hence, the fire would have not occurred due to automobile internal electrical/Mechanical source. B) External source of fire. As per the fire pattern forensic analysis above the fire occurred due to multiple point origination of fire specifically front bumper, rear portion and top portion of the IV. In this case Multiple point origin of fire can happen only due to external source of fire in the automobile. XXX XXX XXX As per the fire patters observed on the rear portion and engine compartment of the IV its (sic) observed that the fire original and propagates from rear compartment to outside the IV. Hence the fire would have occurred due to external source of fire."
The lab test for hydrocarbon was also got conducted on the ash samples by using GC-MS (gas Chromatography-Mass Spectroscopy) for qualitative analysis of the samples and based on the scientific analysis of the vehicle; the fire pattern forensics; the ash forensics and the accident site scenario analysis. It was recorded that the damage was caused due to frontal sharp impact and not due to fire or in the manner as alleged, since there was no impact on the frontal lower side of the insured vehicle, which would have naturally occurred in the event the vehicle would have dashed into a bridge/ culvert/pulia. The impact only on the bonnet and not on the lower frontal side of the vehicle ruled out the possibility of the vehicle being hit against a culvert/pulia. The detailed forensic analysis also showed that the fire pattern and ash analysis reflected that the fire originated due to external source of fire and not from the internal combustion as was claimed. The impact of fire originating from the engine compartment towards the passenger compartment and then towards the air compartment would be entirely different as per the fire pattern forensic examination. The conclusion of the abovesaid report are extracted as under: "Based upon the scientific analysis of the IV damages, accident site scenario, fire pattern forensic analysis and Ash sample analysis in our opinion that 1)k IV damaged due to frontal sharp impact and not due to the bridge. 2)k Insured scenario proved wrong as there is no such bridge present at the spot.
3)k As per the fire pattern forensic fire originate due to the external source of fire and not due to any electrical/ Mechanical failure. 4)k Also as per the fire pattern forensic the fire would have not originated in the engine compartment as the multiple point of origin of fire observed on the IV. 5)k As per the ash forensic analysis external hydrocarbon is the source of fire. Hence, IV caught fire due to the artificial attempt of fire whereas insured is misrepresenting the facts." [Emphasis Supplied]
Relying on the same, learned counsel for the petitioner contends that the Permanent Lok Adalat (Public Utility Services), Bhiwani Camp Court at Jind conveniently chose to ignore the said overwhelming evidence which was available on record, and that the same had not been countered by leading any convincing or credible evidence by respondent No.1-applicant. Any brushing aside of the admissible scientific evidence, without any cogent evidence to dispel the conclusion, and merely on the basis of conjectures was not a proper way to discard the value of such a detailed investigation. Counsel for the respondent No.1-applicant has reiterated its submission and the stand already noticed by the Permanent Lok Adalat (Public Utility Services), Bhiwani Camp Court at Jind. He contends that all the said objections have already been considered by the Permanent Lok Adalat (Public Utility Services), Bhiwani Camp Court at Jind and it is pointed out that the aspects regarding construction of a bridge and/or a culvert were specifically
noticed. Once the objections have already been dealt with by the Permanent Lok Adalat (Public Utility Services), Bhiwani Camp Court at Jind, the High Court would not ordinarily interfere with the findings recorded by the Permanent Lok Adalat (Public Utility Services), Bhiwani Camp Court at Jind and against a discretion exercised in favour of an insured. I have heard the learned counsel for the respective parties and have gone through the documents and record available on case file with their able assistance. It is evident from a perusal of the abovesaid report, which was duly placed on record before Permanent Lok Adalat (Public Utility Services), Bhiwani Camp Court at Jind that an exhaustive and extensive investigation including forensic analysis had been undertaken by the petitioner-Insurance Company. No cogent or convincing evidence to counter the findings recorded by the surveyor through the forensic analysis had been led by the respondent No.1-applicant. Besides, there is not even a prima facie suggestion or finding recorded by the Permanent Lok Adalat (Public Utility Services), Bhiwani Camp Court at Jind that such findings of the report of the surveyor/ investigator suffered from any illegality or as to why the same would not be admissible. The site analysis and the pictorial as well as diagrammatic representative of the site show that even the culvert was not there. Besides, there is a detailed description that had the vehicle suffered any damage on account of having hit against a culvert, the rear frontal bumper portion would also have suffered a damage, whereas the same was intact and the damage was caused to the bonnet only. Besides, the fire
pattern as well as sample analysis of the ashes reflected presence of hydrocarbon on the external surface and the pattern as well as the fire forensic scientific examination suggested that in the event of the fire having occurred in the frontal engine chamber, the fire pattern would been entirely different. The presence of fire origination at multiple points as well as the presence of external hydrocarbon in the ash content was a sufficient prima-facie material available on file to hold that rejection/repudiation of the claim of the respondent No.1-applicant may not be without any valid basis. The Permanent Lok Adalat (Public Utility Services), Bhiwani Camp Court at Jind has merely acted on conjectures and surmises and did not deal with the objective and scientific evidence adduced by the petitioner-Insurance Company before discarding the same or not accepting the said report. The findings recorded in the Award are not based on objective assessment and appreciation of the evidence that was available on record. There is no counter expert examined by the respondent No.1-applicant nor has any evidence been led by him on the basis whereof, the expert report/evidence could have been said to be incorrect or could be ignored in its entirety. I am also of the opinion that such intricate questions in relation to determination of liability and ascertaining the actual circumstances, in which the fire had broken out, would have required a detailed examination of the experts as also their cross-examination by the respective parties and such proceedings/claim could not have been decided in a summary manner as has
been done by the Permanent Lok Adalat (Public Utility Services), Bhiwani Camp Court at Jind. Faced with the above, counsel for the respondent No.1-applicant submits that he may be permitted to approach the Competent Authority/ Civil Court to lead his evidence in support of his claim so that he may establish the legality of his claim against the petitioner-Insurance Company. The prayer appears to be reasonable. Accordingly, the present writ petition is allowed after noticing that the impugned Award suffers from non-appreciation of the evidence available on record thus leading to an erroneous final conclusion and analysis by the Permanent Lok Adalat (Public Utility Services), Bhiwani Camp Court at Jind rendering the impugned Award liable to be set aside. Accordingly, the impugned Award dated 30.05.2018 passed by the Permanent Lok Adalat (Public Utility Services), Bhiwani Camp Court at Jind in Application No.254 of 2017 titled as 'Sombir Versus ICICI Lombard General Insurance Company' is hereby set aside. The respondent No.1-applicant shall, however, be at liberty to institute appropriate proceedings before the concerned Civil Court for establishing his claim in accordance with law. Needless to mention that in the event of the respondent No.1-applicant approaching the competent Civil Court, the period spent by him in pursuing his remedies before the Permanent Lok Adalat (Public Utility
Services), Bhiwani Camp Court at Jind as well as before this Court shall be taken into consideration while computing limitation. Petition stands allowed accordingly.
(VINOD S. BHARDWAJ)
27.08.2024. JUDGE
Case details
Parties and counsel
IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH 206 CWP-21391-2018 Date of Decision: 27.08.2024 ICICI LOMBARD GENERAL INSURANCE CO. LTD. ... Petitioner VERSUS SOMBIR AND ANOTHER ... Respondents CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ. Present: Ms. Manvi Verma, Advocate for Mr. Rajneesh Malhotra, Advocate for the petitioners. Mr. Madan Pal, Advocate and Mr. Sanjiv Sheoran, Advocate for respondents No.1. 0000
Source: High Court of Punjab and Haryana, through the eCourts High Court services, via the Indian High Court Judgments open dataset by Dattam Labs (CC BY 4.0). Text was extracted from the official PDF and may contain conversion errors. Check the official PDF before relying on it.