State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd. vs Sh. Lait Kumar. on 27 February, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 164/2018
Date of Presentation: 15.03.2018
Order Reserved on : 27.09.2018
Date of Order : 27.02.2019
......
The New India Assurance Company Limited Bhagra Niwas The
Mall Shimla-1 through its Divisional Incharge (Officiating) The
New India Assurance Company Limited Divisional Office 3rd
Floor Block No.7 SDA Complex Shimla H.P. -171009
...... Appellant/Opposite party
Versus
Lalit Kumar s/o Shri Mohan Singh r/o Village Halogh Post
Office Khaneri Tehsil Rampur District Shimla H.P.
......Respondent/Complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Jagdish Thakur Advocate
For Respondent : Mr. P.S. Chandel Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 22.01.2018 passed by Learned District Forum in consumer complaint No.15/234 titled Lalit Kumar Versus New India Assurance Co. Ltd.
1Whether reporters of the local papers may be allowed to see the order? Yes.
New India Assurance Co. Ltd. Versus Lalit Kumar (F.A. No.164/2018) Brief facts of Matter:
2. Complainant Lalit Kumar filed consumer complaint under Section 12 of Consumer Protection Act 1986 pleaded therein that complainant is owner of vehicle No. HP-06A-4287. It is pleaded that vehicle was duly insured with insurance company w.e.f. 25.04.2014 to 24.04.2015. It is further pleaded that premium was also paid by complainant to Insurance Company. It is further pleaded that on dated 19.07.2014 at about 6:00PM at place Rattanpur-
Majhewali Road PS Jhakri Tehsil Rampur District Shimla accident took place and vehicle was damaged. It is further pleaded that police report was also filed and intimation was also given to the Insurance Company. It is further pleaded that Insurance Company did not settle the claim and repudiated the claim and committed deficiency in service. Complainant sought relief of payment of Rs.225000/- (Two lac twenty five thousand) alongwith interest @18% per annum from the date of accident till payment. In addition complainant sought relief of payment of Rs.50000/- (Fifty thousand) as damages. In addition complainant sought relief of payment of Rs.20000/- (Twenty thousand) for non- corporation and adamant attitude of the Insurance Company. In addition complainant sought relief of payment of Rs.11000/- (Eleven thousand) as litigation costs. Prayer for acceptance of consumer complaint sought.
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New India Assurance Co. Ltd. Versus Lalit Kumar (F.A. No.164/2018)
3. Per contra version filed on behalf of opposite party pleaded therein that three persons were travelling in the vehicle at the time of accident who have died. It is pleaded that vehicle was overloaded at the time of accident. It is further pleaded that driver of the vehicle was under the influence of Alcohol at the time of accident. It is further pleaded that driving licence submitted by complainant is fake driving licence. It is further pleaded that driver was not holding valid and effective driving licence at the time of accident. It is further pleaded that complainant has violated the terms and conditions of the Insurance policy. It is further pleaded that Insurance company did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint.
5. Learned District Forum allowed the complaint and directed the Insurance Company to pay OD claim of vehicle to the tune of Rs.245340/- (Two lac forty five thousand three hundred forty) to the complainant alongwith interest @9% per annum from date of filing complaint till payment. In addition learned District Forum ordered that Insurance Company would pay sum of Rs.10000/- (Ten thousand) on account of harassment and mental agony. In 3 New India Assurance Co. Ltd. Versus Lalit Kumar (F.A. No.164/2018) addition Learned District Forum ordered that Insurance Company would pay amount of Rs.5000/- (Five thousand) to the complainant as litigation costs.
6. Feeling aggrieved against the order passed by learned District Forum Insurance Company filed present appeal before State Commission.
7. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
8. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
Findings upon point No.1 with reasons:
9. Complainant filed affidavit in evidence. There is recital in the affidavit that complainant is owner of vehicle No. HP-06A-4287. There is further recital in affidavit that vehicle was duly insured with Insurance Company w.e.f. 25.04.2014 to 24.04.2015. There is further recital in affidavit that premium was also paid by complainant to the Insurance 4 New India Assurance Co. Ltd. Versus Lalit Kumar (F.A. No.164/2018) Company. There is further recital in affidavit that on dated 19.07.2014 at about 6:00PM at place Rattanpur-Majhewali Road PS Jhakri Tehsil Rampur District Shimla accident took place and vehicle was damaged. There is further recital in affidavit that police report was also filed and intimation was also given to the Insurance company but Insurance company repudiated the claim in illegal manner and committed deficiency in service.
10. Complainant also filed affidavit of Mahinder Singh in evidence. There is recital in the affidavit that on dated 19.07.2014 at about 4:45 PM to 5:00 PM deponent alongwith local residents were waiting for bus/lift at place Rattanpur.
There is further recital in affidavit that vehicle bearing No. HP-06A-4287 crossed over towards Majheoli and after some distance due to narrow road and due to stray animals on the road the driver of vehicle in question completely stopped the vehicle. There is further recital in affidavit that there was no negligence on the part of the driver of vehicle No. HP-06A- 4287. There is further recital in affidavit that when vehicle was in stationary condition then a heavy goods vehicle came from Majeoli side to Rattanpur in a very high speed and same was driven in a rash and negligent manner by the driver and same dashed with the stationary vehicle No. HP-06A-4287 and due to which vehicle rolled down in the deep river. 5
New India Assurance Co. Ltd. Versus Lalit Kumar (F.A. No.164/2018)
11. Complainant also filed affidavit of Raj Kumar in evidence. There is recital in the affidavit that deponent is owner of Bharat Motor Works and deals in all types of repair. There is further recital in affidavit that repair of vehicle No.HP-06A-4287 was carried at the workshop of deponent. There is further recital in affidavit that vehicle was mechanically damaged. There is further recital in affidavit that deponent received Rs.20000/- (Twenty thousand) by way of cash vide bill No. 3540 on dated 15.04.2015 for repair work of damaged vehicle.
12. Complainant also filed affidavit of Mohan Lal in evidence. There is recital in the affidavit that deponent is owner of Mohan Dhiman Works. There is further recital in affidavit that vehicle No. HP-06A-4287 was brought to the workshop of deponent through crane for repair works. There is further recital in affidavit that vehicle was badly damaged. There is further recital in affidavit that deponent received Rs.19500/- (Nineteen thousand five hundred) vide bill No.604 dated 15.04.2015 from the complainant.
13. Complainant also filed affidavit of Raj Kumar in evidence. There is recital in the affidavit that deponent is owner of Raj Kumar Body Maker and Specialist in Pick UP Three Wheelers, Truck, Bus, Tata 407, Mazda and welding works. There is further recital in affidavit that vehicle No. 6 New India Assurance Co. Ltd. Versus Lalit Kumar (F.A. No.164/2018) HP-06A-4287 was brought to the workshop of deponent by Lalit Kumar on dated 24.04.2015. There is further recital in affidavit that body of vehicle was totally damaged. There is further recital in affidavit that deponent received Rs.42000/- (Forty two thousand) from the complainant vide Bill No.101 dated 25.04.2015.
14. Complainant also filed affidavit of Satnam Singh in evidence. There is recital in the affidavit that deponent is owner of Walia Motors. There is further recital in affidavit that owner of vehicle No. HP-06A-4287 purchased Bollero Cell and back Tube for his vehicle because vehicle was badly damaged. There is further recital in affidavit that deponent received amount of Rs.77500/- (Seventy seven thousand five hundred) vide bill No.25 from the complainant.
15. Complainant also filed affidavit of Vikas in evidence. There is recital in the affidavit that deponent is owner of Monika Automobiles. There is further recital in affidavit that owner of vehicle No. HP-06A-4287 purchased two tyres with tubes from the deponent in consideration amount of Rs.15000/- (Fifteen thousand) vide bill No. 02011000581.
16. Opposite party filed affidavit of Kamal Narain in evidence. There is recital in the affidavit that deponent is 7 New India Assurance Co. Ltd. Versus Lalit Kumar (F.A. No.164/2018) retired HPS Officer and after retirement deponent is performing the work of investigation. There is further recital in affidavit that deponent inspected the vehicle No. HP-06A-4287 and submitted his report on dated 25.11.2014.
17. Opposite party also filed affidavit of Dinesh Kumar Surveyor-cum-Loss Assessor in evidence. There is recital in the affidavit that deponent is duly authorized licensed Surveyor and Loss Assessor having licence No. SLA- 3325. There is further recital in affidavit that deponent conducted the survey of vehicle and submitted report. There is further recital in affidavit that contents of report are true and correct and nothing has been concealed therefrom.
18. Opposite party also filed affidavit of Prashant Kumar Sood Surveyor-cum-Loss Assessor in evidence. There is recital in the affidavit that deponent is duly authorized licensed Surveyor and Loss Assessor having license No.73847. There is further recital in affidavit that deponent undertook the spot survey of accidental vehicle No. HP-06A- 4287 and submitted his report on dated 27.07.2014. There is further recital in affidavit that report is true and correct.
19. Submission of learned advocate appearing on behalf of Insurance Company that deceased driver of vehicle namely Amer Singh was not possessing valid and effective 8 New India Assurance Co. Ltd. Versus Lalit Kumar (F.A. No.164/2018) driving license the time of accident and on this ground appeal filed by Insurance Company be allowed is decided accordingly. State Commission is of the opinion that onus was upon the Insurance Company to prove that the driver was not holding valid and effective driving license at the time of accident. Insurance Company did not file affidavit from licensing authority in order to prove that the deceased driver was not holding valid and effective driving license at the time of accident. Plea of Insurance Company that driver was not holding valid and effective driving license at the time of accident is defeated on the concept of ipse-dixit (An assertion made without proof).
20. Submission of learned advocate appearing on behalf of Insurance Company that there was alcohol in excessive quantity in the blood of the driver and on this ground appeal filed by Insurance Company be allowed is decided accordingly. Insurance Company did not file affidavit of Medical Officer who has conducted the postmortem of the deceased driver namely Amer Singh. Insurance Company has filed Photostat copy of State Forensic Science Laboratory report signed by Dr. V.S. Jamwal Assistant Director. State Commission has carefully perused the Photostat report of State Forensic Science Laboratory signed by Dr. V.S. Jamwal placed on record by Insurance Company.
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New India Assurance Co. Ltd. Versus Lalit Kumar (F.A. No.164/2018)
21. In the report PMR/MLC number has been kept blank by Dr. V.S. Jamwal Assistant Director State Forensic Science Laboratory. It is proved on record that at the time of accident three persons were travelling in the vehicle namely Amer Singh deceased Driver, Ved Prakash and Mast Ram and it is also proved on record that above stated three persons died in the accident. It is proved on record that postmortem of three persons namely Amer Singh, Ved Prakash and Mast Ram were conducted. It is also proved on record that blood samples were sent to State Forensic Science Laboratory. In the absence of PMR/MLC number in the report of State Forensic Science Laboratory Junga State Commission is of the opinion that report of State Forensic Science Laboratory is defective report in nature. It is well settled law that PMR/MLC number should be mentioned in the report of State Forensic Science Laboratory in order to connect blood sample of individual deceased. State Commission is of the opinion that in the absence of PMR/MLC number in the report of State Forensic Science Laboratory qua individual deceased it is not expedient in the ends of justice to rely upon the report of State Forensic Science Laboratory Junga.
22. Admittedly report of State Forensic Science Laboratory is a documentary evidence and as per Section 13(4)(ii) of the Consumer Protection Act 1986 documentary evidence could be produced under Consumer Protection Act 10 New India Assurance Co. Ltd. Versus Lalit Kumar (F.A. No.164/2018) 1986 which is producible as evidence. It is held that documentary evidence is producible as evidence in Consumer Protection Act 1986 by way of Primary Evidence or by way of Secondary Evidence. It is well settled law that primary documentary evidence means documents itself produced for the inspection of District Forums, State Commissions and Hon'ble National Commission and secondary documentary evidence means (i) Certified copy of document (ii) Copy made from original document by mechanical process and compared with original document. The document in question is Photostat document and there is no certificate that copy has been made with original document by mechanical process and has been compared. It is held that above stated document does not fulfill the requisite requirement of Section 13(4)(ii) of Consumer Protection Act 1986. It is well settled law that proceedings under Consumer Protection Act 1986 are quasi- judicial proceedings.
23. It is well settled law that public document could be produced in quasi-judicial proceedings by way of certificate given by custodian of original document that contents of document are true contents of original document. In the present matter no certificate has been given by the custodian of original document that contents of present document are true contents of original document. In the absence of PMR/MLC number in the report submitted by State Forensic 11 New India Assurance Co. Ltd. Versus Lalit Kumar (F.A. No.164/2018) Science Laboratory State Commission is of the opinion that it is not expedient in the ends of justice to connect the present alcohol report with the driver namely Amer Singh. There is no recital in SFSL report that report No.1485 is relating to deceased Amer Singh driver. Name of deceased driver Amer Singh is also missing in the report submitted by State Forensic Science Laboratory. FIR number is not sufficient because three postmortems were conducted of three persons namely Amer Singh, Ved Prakash, Mast Ram individually in FIR No.41 of 2014.
24. On the contrary eye-witness namely Mahinder Singh has stated in a positive manner that accident took place when vehicle No.HP-06A-4287 was in stationary condition. Accident was caused by third vehicle i.e. Truck when vehicle No. HP-06A-4287 was in stationary condition. Insurance Company did not file interrogatories to Mahinder Singh. Hence adverse inference is drawn against Insurance Company for non filing interrogatories to eye-witness namely Mahinder Singh.
25. Submission of learned advocate appearing on behalf of Insurance Company that report submitted by SFSL is per se admissible under Section 293 of the Code of Criminal Procedure 1973 and on this ground appeal filed by Insurance Company be allowed is decided accordingly. As per Section 293 of the Code of Criminal Procedure 1973 report submitted by SFSL may be used as evidence in inquiry, trial 12 New India Assurance Co. Ltd. Versus Lalit Kumar (F.A. No.164/2018) or other proceedings pending under Code of Criminal Procedure 1973. It is held that SFSL report is per se admissible in evidence only in criminal proceedings initiated under Code of Criminal Procedure 1973. It is held that Consumer Protection Act 1986 is a Special Act enacted by Parliament of India for the welfare of the Consumers. It is held that proceedings under sections 12, 13 and 14 of the Consumer Protection Act 1986 are not criminal proceedings but are purely Civil Proceedings. It is held that Code of Criminal Procedure 1973 is operative only upon execution proceedings filed under Section 27 of Consumer Protection Act 1986 for limited purpose only. Admittedly present matter does not relate to execution proceedings under Section 27 of Consumer Protection Act 1986 but relates to main proceedings of sections 12, 13 and 14 of the Consumer Protection Act 1986. Hence it is held that provisions of section 293 of Code of Criminal Procedure 1973 would not operate upon proceedings initiated under sections 12, 13 and 14 of Consumer Protection Act 1986. It is held that proceedings under sections 12, 13, 14, 15 of Consumer Protection Act 1986 are purely civil proceedings in nature.
26. Submission of learned advocate appearing on behalf of Insurance Company that seating capacity of the vehicle was two persons as per RC and three persons were travelling in the vehicle at the time of accident who have died 13 New India Assurance Co. Ltd. Versus Lalit Kumar (F.A. No.164/2018) and on this ground appeal filed by Insurance Company be allowed is decided accordingly. State Commission has carefully perused the RC of vehicle. In the RC there is positive recital that seating capacity of vehicle was two persons. It is proved on record that three persons were travelling in the vehicle at the time of accident namely Amer Singh deceased driver, Ved Prakash and Mast Ram who died in the accident. It is proved on record that vehicle was Light Goods Vehicle. State Commission is of the opinion that Insurance Company is liable to pay the OD damage claim to the complainant on the concept of non-standard basis. See 2006 (II) CPJ 144 NC titled New India Assurance Company Ltd. Versus Narayan Prasad Appaprasad Pathak. See 2008 (IV) CPJ 1 SC titled National Insurance Company Limited Versus Nitin Khandelwal. See 2010 (II) CPJ 9 SC titled Amalendu Sahoo Versus Oriental Insurance Co. Ltd.
27. Submission of learned advocate appearing on behalf of Insurance Company that excessive interest has been ordered by learned District Forum and same be reduced is decided accordingly. State Commission is of the opinion that reasonable rate of interest has been given by learned District Forum and it is not expedient in the ends of justice and on the principles of natural justice to reduce the rate of interest.
28. Submission of learned advocate appearing on behalf of complainant that order passed by learned District 14 New India Assurance Co. Ltd. Versus Lalit Kumar (F.A. No.164/2018) Forum is in accordance with law and in accordance with proved facts and on this ground appeal filed by Insurance Company be dismissed is decided accordingly. State Commission is of the opinion that three persons were travelling in the vehicle at the time of accident exceeding seating capacity. State Commission is of the opinion that Insurance Company is liable to pay the OD claim to the complainant on non-standard basis as per damage report submitted by Surveyor-cum-Loss Assessor namely Dinesh Kumar and in view of rulings cited supra. It is held that report of Surveyor-cum-Loss Assessor is trustworthy, reliable and inspires confidence of State Commission. Complainant did not file any counter Surveyor-cum-Loss Assessor report duly licensed under Insurance Act 1938. Damage assessment report submitted by Dinesh Kumar Surveyor-cum-Loss Assessor remained unrebutted on record. Point No.1 is decided accordingly.
Point No.2: Final Order
29. In view of findings upon point No.1 above appeal filed by Insurance Company is partly allowed. Order of learned District Forum that Insurance Company would pay OD claim to the tune of Rs.245340/- (Two lac forty five thousand three hundred forty) alongwith interest @9% per annum from the date of filing complaint till payment is modified to the extent that Insurance Company shall pay 70% 15 New India Assurance Co. Ltd. Versus Lalit Kumar (F.A. No.164/2018) (Seventy percent) of the OD claim as assessed by Surveyor- cum-Loss Assessor namely Dinesh Kumar alongwith interest @ 9% per annum from the date of filing complaint till payment.
30. Order of learned District Forum that Insurance Company would pay amount of Rs.10000/- (Ten thousand) to the complainant on account of mental agony and harassment is affirmed. Order of learned District Forum that Insurance Company would pay amount of Rs.5000/- (Five thousand) to the complainant on account of litigation costs is also affirmed. Order of learned District Forum is modified accordingly. Report of Surveyor-cum-Loss Assessor namely Dinesh Kumar dated 14.10.2014 Annexure R-4 shall form part and parcel of order. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 27.02.2019.
*GUPTA* 16