State Consumer Disputes Redressal Commission
Bajaj Allianz General Insurance Co. ... vs Sh. Rajesh Kumar. on 5 December, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 142/2017
Date of Presentation: 08.02.2017
Order Reserved on : 04.08.2017
Date of Order : 05.12.2017
......
Bajaj Allianz General Insurance Company Limited SCO No.139-
140 Sector 8-C 1st Floor Chandigarh through its Manager (legal)
Bajaj Allianz General Insurance Company Limited SCO No.156-
159 2nd Floor Sector-9C Chandigarh 160009.
...... Appellant/Opposite Party
Versus
Rajesh Kumar son of Shri Sant Ram resident of Danda Pagar
Tethsil Paonta Sahib District Sirmaur H.P.
......Respondent /Complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Meena Verma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Jagdish Thakur Advocate.
For Respondent : Ms. Neelam Sharma vice Mr.
Saurav Rattan 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 19.11.2016 passed by Learned District Forum in consumer 1 Whether reporters of the local papers may be allowed to see the order? Yes. Bajaj Allianz General Insurance Co. Ltd. Versus Rajesh Kumar (F.A. No.142/2017) complaint No.43/2012 title Rajesh Kumar Versus The Bajaj Allianz General Insurance Company Ltd. Brief facts of consumer complaint:
2. Rajesh Kumar filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is owner of vehicle tractor Sonalika bearing registration No.HP-17B-1706. It is pleaded that tractor of the complainant met with accident on 28.04.2010 and vehicle of complainant was totally damaged. It is pleaded that vehicle was insured with opposite party at the time of accident w.e.f. 24.03.2010 to 23.03.2011. It is further pleaded that opposite party also appointed surveyor cum loss assessor. It is pleaded that claim was filed before insurance company but insurance company did not pay the amount and repudiated the claim. Complainant sought relief for payment of Rs.3.00 lac (Three lac). In addition complainant sought relief of Rs.50000/-(Fifty thousand) alongwith interest @ 12% per annum for mental torture.
3. Per contra version filed on behalf of opposite party pleaded therein that opposite party did not commit any deficiency in service. It is pleaded that vehicle was plied in violation of terms and conditions of insurance policy. It is pleaded that tractor was registered as transport vehicle with sitting capacity of one and driver did not possess valid driving licence. It is further pleaded that two persons were travelling 2 Bajaj Allianz General Insurance Co. Ltd. Versus Rajesh Kumar (F.A. No.142/2017) in tractor in violation of terms and conditions of insurance policy. It is further pleaded that complainant did not complete formalities and did not respond to the queries raised by insurance company. It is further pleaded that insurance company did not commit deficiency in service. Prayer for dismissal of complaint sought.
4. Learned District Forum allowed the complaint and ordered opposite party to pay a sum of Rs.222661/-(Two lac twenty two thousand six hundred sixty one) alongwith interest @ 9% per annum from the date of filing of complaint till payment within 45 days. Learned District Forum further ordered opposite party to pay a sum of Rs.10000/-(Ten thousand) to complainant on account of mental agony and harassment. In addition learned District Forum ordered opposite party to pay a sum of Rs.5000/-(Five thousand) as litigation costs. Feeling aggrieved against order passed by Learned District Forum opposite party filed present appeal before State Commission.
5. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
6. 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.3
Bajaj Allianz General Insurance Co. Ltd. Versus Rajesh Kumar (F.A. No.142/2017)
2. Final order.
Findings upon point No.1 with reasons:
7. Rajesh Kumar filed affidavit in evidence. There is recital in affidavit that deponent is registered owner of vehicle bearing No.HP-17B-1706. There is recital in affidavit that insurance policy was issued by opposite party which was operative w.e.f. 24.03.2010 to 23.03.2011. There is further recital in affidavit that vehicle met with accident on 28.04.2010 in the evening when the vehicle was approaching towards Nanidhar. There is recital in affidavit that vehicle was damaged and pedestrian namely Jagat Singh died. There is further recital in affidavit that insurance company repudiated the claim illegally and committed deficiency in service.
8. Opposite party filed affidavit of Shri Navjeet Singh Assistant Manager Legal in evidence. There is recital in affidavit that insurance company did not commit any deficiency in service. There is recital in affidavit that sitting capacity of vehicle was one person but two persons were travelling in the vehicle at the time of accident. There is further recital in affidavit that driver was not holding valid and effective driving licence at the time of accident. There is recital in affidavit that insurance company did not commit any deficiency in service.
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Bajaj Allianz General Insurance Co. Ltd. Versus Rajesh Kumar (F.A. No.142/2017)
9. Opposite party also filed affidavit of Inder Dev surveyor cum loss assessor. There is recital in affidavit that deponent conducted survey and assessed the loss. There is further recital in affidavit that deponent has assessed loss to the tune of Rs.190000/-(One lac ninety thousand).
10. Submission of learned Advocate appearing on behalf of insurance company that driver was not holding valid and effective driving licence at the time of accident and on this ground appeal be allowed is decided accordingly. We have carefully perused registration certificate of vehicle No.HP-17B-1706. As per registration certificate of vehicle the unladen weight of vehicle was 3480 Kg. As per section 2(21) of Motor Vehicles Act 1988 LMV vehicle means a transport vehicle or omnibus the gross unladen vehicle weight of which does not exceed 7500 kilograms. In the present case unladen weight of vehicle was 3480 Kg. It is held that vehicle falls within the definition of LMV vehicle. The driver was possessing driving licence for motorcycle WG and LMV and tractor. Licence for non-transport vehicle was valid till 06.09.2013 w.e.f. 24.07.2000. It is well settled law that driver having LMV licence can drive LMV transport vehicle. See 2017(8) SCC 590 Apex Court titled Sant Lal Versus Rajesh and others. It is held that driver was holding valid and effective driving licence at the time of accident. 5
Bajaj Allianz General Insurance Co. Ltd. Versus Rajesh Kumar (F.A. No.142/2017)
11. Submission of the learned Advocate appearing on behalf of insurance company that two persons were travelling in the vehicle against the capacity of one person and on this ground appeal be allowed is decided accordingly. It is well settled law that in overloading case claim should be settled on the basis of non-standard basis. See 2006(II) CPJ 144 NC titled New India Assurance Company Ltd. Versus Narayan Prasad Appaprasad Pathak Also see 2010(4) SCC 536 Apex Court Amalendu Sahoo Versus Oriental Insurance Company Ltd. Insurance company did not adduce any evidence that there was direct nexus between overloading and accident. It is true that insurance company is liable to pay damaged amount as assessed by surveyor cum loss assessor.
12. Submission of learned Advocate appearing on behalf of insurance company that learned District Forum did not grant salvage to the insurance company and on this ground appeal be allowed is decided accordingly. It is held that compensation was granted to complainant by learned District Forum on repair basis and learned District Forum has held that compensation on the basis of repair basis is beneficial to complainant. It is held that in repair basis payment insurance company is not legally entitled for salvage value. It is held that surveyor cum loss assessor was appointed by insurance company and surveyor assessed the loss and insurance company cannot be allowed to flout the 6 Bajaj Allianz General Insurance Co. Ltd. Versus Rajesh Kumar (F.A. No.142/2017) damage assessment report submitted by surveyor cum loss assessor appointed by insurance company. It is well settled law that report submitted by surveyor cum loss assessor is a substantive piece of evidence. See 2012(1) CPJ 420 NC H.C Saxena Versus New India Assurance Company Ltd. See 2009(3) CPJ 194 NC Nand Kishore Jaiswal Versus National Insurance Company Ltd. See 2012(4) CPJ 103 NC National Insurance Company Ltd. Versus Jyothi Tobacco Traders.
13. Submission of learned Advocate appearing on behalf of appellant that excessive amount to the tune of Rs.10000/-(Ten thousand) has been granted to complainant for mental agony and harassment is decided accordingly. We are of the opinion that complainant has to file consumer complaint and complainant has to engage advocate and complainant has also spent money upon litigation charges. It is held that an amount of Rs.10000/-(Ten thousand) awarded by learned District Forum is reasonable in nature and is not excessive in nature.
14. Submission of learned Advocate appearing on behalf of insurance company that learned District Forum has awarded litigation costs to the tune of Rs.5000/-(Five thousand) on higher side is also decided accordingly. We are of the opinion that reasonable litigation costs has been granted to complainant by learned District Forum. We are of the opinion that it is not expedient in the ends of justice to 7 Bajaj Allianz General Insurance Co. Ltd. Versus Rajesh Kumar (F.A. No.142/2017) interfere in the litigation costs order passed by learned District Forum.
15. Submission of learned Advocate appearing on behalf of complainant that order passed by learned District Forum is in accordance with law and in accordance with proved facts is decided accordingly. It is held that order passed by learned District Forum is strictly in accordance with law and is in accordance with proved facts. It is held that it is not expedient in the ends of justice and on principle of natural justice to interfere in the order passed by learned District Forum. In view of above stated facts point No.1 is decided accordingly.
Point No.2: Final Order
16. In view of findings upon point No.1 above appeal is dismissed. Order passed by learned District Forum in consumer complaint No.43/2012 dated 19.11.2016 title Rajesh Kumar Versus The Bajaj Allianz General Insurance Company Ltd. is affirmed. Damage assessment report submitted by surveyor cum loss assessor namely Inder Dev will form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. 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 8 Bajaj Allianz General Insurance Co. Ltd. Versus Rajesh Kumar (F.A. No.142/2017) 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 Meena Verma Member 05.12.2017.
KD* 9