State Consumer Disputes Redressal Commission
Sh. Anuj Kumar. vs United India Insurance Co. Ltd. on 7 May, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 63/2018
Date of Presentation: 28.03.2018
Order Reserved on : 26.12.2018
Date of Order : 07.05.2019
......
Anuj Kumar son of Shri Bal Krishan resident of Village & P.O.
Dehlan Tehsil and District Una (H.P).
...... Appellant/Complainant
Versus
United India Insurance Company Ltd. near Bus Stand Una
District Una (H.P) through its Branch Manager.
......Respondent /Opposite party
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Amit Sawhney Advocate.
For Respondent : Mr. Vivek Negi 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 15.02.2018 passed by Learned District Forum in consumer complaint No.147/2015 titled Anuj Kumar Versus United India Insurance Company Ltd.
1 Whether reporters of the local papers may be allowed to see the order? Yes.
Anuj Kumar Versus United India Insurance Company Ltd. F.A. No.63/2018 Brief facts of consumer complaint:
2. Shri Anuj Kumar filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is registered owner of vehicle Mahindra Zylo Car No.HP-72A-1960. It is pleaded that vehicle in question was duly insured with opposite party w.e.f. 19.09.2013 to 18.09.2014 and premium to the tune of Rs.15275/-(Fifteen thousand two hundred seventy five) was paid to opposite party. It is pleaded that on dated 08.01.2014 at about 12.40 P.M vehicle in question met with accident at village Udheypur District Una (H.P). It is further pleaded that vehicle in question rolled down in a gorge resulting into death of driver and cleaner. It is pleaded that vehicle in question was completely damaged. It is pleaded that Rapat No.7 dated 08.01.2014 was registered with police of P.P. Santokhgarh. It is pleaded that claim was submitted before opposite party but opposite party repudiated the claim. Complainant sought relief of payment of Rs.600000/-(Six lac) as O.D claim of vehicle in question. In addition complainant sought relief of payment of Rs.40000/-(Forty thousand) as loss of business.
In addition complainant sought relief of payment of Rs.20000/-(Twenty thousand) as compensation. In addition complainant sought litigation costs to the tune of Rs.10000/- 2
Anuj Kumar Versus United India Insurance Company Ltd. F.A. No.63/2018 (Ten thousand). Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party pleaded therein that complainant has suppressed the material facts from the opposite party. It is pleaded that complainant presented a false and fabricated Insurance policy of Reliance General Insurance Company Ltd. to waive and escape from physical inspection of vehicle in question. It is pleaded that accident took place much prior to the purchasing of Insurance policy from United India Insurance Company Ltd. It is pleaded that complicated questions of law and facts are involved in present consumer complaint. Prayer for dismissal of consumer complaint sought.
4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. Learned District Forum dismissed consumer complaint. Feeling aggrieved against order passed by Learned District Forum complainant 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.
3
Anuj Kumar Versus United India Insurance Company Ltd. F.A. No.63/2018
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal and whether genuine claim could be repudiated by Insurance company?
2. Final order.
Findings upon point No.1 with reasons:
7. Complainant filed affidavit of Shri Bal Krishan annexure-C1 in evidence. There is recital in affidavit that complainant is registered owner of Mahindra Zylo Car No.HP-
72-A 1960. There is recital in affidavit that vehicle was duly insured with opposite party w.e.f. 19.09.2013 to 18.09.2014 and premium to the tune of Rs.15275/-(Fifteen thousand two hundred seventy five) was also paid to the Insurance company. There is recital in affidavit that on dated 08.01.2014 at about 12.40 P.M vehicle in question met with accident at Village Udheypur District Una (H.P). There is recital in affidavit that vehicle fell down in a gorge and was completely damaged. There is recital in affidavit that Rapat No.7 dated 08.01.2014 was also registered in police post Santokhgarh. State Commission has carefully perused all the annexures filed by complainant.
8. Opposite party filed affidavit of Shri Balkar Singh Branch Manager United India Insurance Company Ltd. There is recital in affidavit that at the time of purchasing Insurance 4 Anuj Kumar Versus United India Insurance Company Ltd. F.A. No.63/2018 policy complainant presented false and fabricated Insurance policy issued by Reliance General Insurance Co. Ltd. to waive and escape from physical inspection of vehicle. There is recital in affidavit that accident took place much prior from taking Insurance policy from United India Insurance Company Ltd. There is recital in affidavit that complicated questions of law and facts are involved in present consumer complaint and complainant be relegated to civil court.
9. Insurance company also filed affidavit of Shri Amrik Singh private investigator. There is recital in affidavit that deponent is retired inspector of police and is working as private investigator. There is recital in affidavit that United India Insurance Company Ltd. had deputed deponent to investigate the accident. There is recital in affidavit that deponent investigated the episode and found that Insurance policy of Reliance General Insurance Co. Ltd. submitted by Shri Anuj Kumar to United India Insurance Company Ltd. was fake.
10. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for O.D claim is decided accordingly. It is proved on record that Insurance company appointed Shri Vinod Kumar Surveyor cum Loss Assessor licensed under SLA. Shri Vinod Kumar Surveyor cum Loss Assessor has specifically mentioned in his 5 Anuj Kumar Versus United India Insurance Company Ltd. F.A. No.63/2018 report that when insured alongwith his father's friend driver were going to Santokhgarh via Una then truck came from opposite side very rashly and while saving the truck driver of vehicle in question steered the vehicle to left side and vehicle hit to road side and sustained damage. Surveyor cum Loss Assessor licensed under SLA has recommended payment to the tune of Rs.408000/-(Four lac eight thousand) only on net of salvage basis. State Commission is of the opinion that report submitted by Surveyor cum Loss Assessor licensed under SLA is substantial piece of evidence. State Commission is of the opinion that Insurance company could not be allowed to disbelieve the report of its own Surveyor cum Loss Assessor appointed under statutory Act i.e. Insurance Act 1938. See 2012(1) CPJ 420 NC H.C Saxena Versus New India Assurance Company Ltd. See 2012(4) CPJ 103 NC National Insurance Company Ltd. Versus Jyothi Tobacco Traders. See 2009(3) CPJ 194 NC Nand Kishore Jaiswal Versus National Insurance Company Ltd. See 2009(1) CPC 166 NC Pradeep Kumar Versus National Insurance Company Ltd. See 2010(3) CPJ 401 NC New India Assurance Company Ltd. Versus Pushpa Chhabra. See 2010(1) CPC 696 NC Champa Lal Verma Versus Oriental Insurance Company Ltd.
11. Submission of the learned Advocate appearing on behalf of complainant that complainant is legally entitled for 6 Anuj Kumar Versus United India Insurance Company Ltd. F.A. No.63/2018 Rs.40000/-(Forty thousand) as loss of business is decided accordingly. Complainant has not filed earning details from business. It is held that in view of the fact that complainant did not file earning details of business and did not file proof of profits from business complainant is not legally entitled for amount claimed for loss of business.
12. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for Rs.20000/-(Twenty thousand) as compensation is decided accordingly. State Commission is of the opinion that Insurance company did not pay claim to complainant as per recommendation submitted by Surveyor cum Loss Assessor licensed under Insurance Act 1938. It is held that Insurance Act 1938 is a statutory Act and report submitted by Surveyor cum Loss Assessor appointed under section 64UM(2) is a relevant and substantial report and Insurance company could not be allowed to disbelieve the report of Surveyor cum Loss Assessor appointed under statutory Insurance Act 1938. It is held that complainant is entitled for reasonable compensation for mental agony and harassment.
13. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for litigation costs to the tune of Rs.10000/-(Ten thousand) is decided accordingly. It is proved on record that complainant 7 Anuj Kumar Versus United India Insurance Company Ltd. F.A. No.63/2018 has engaged Advocate before learned District Forum and has also paid litigation costs. It is held that complainant is entitled for reasonable litigation costs.
14. Submission of learned Advocate appearing on behalf of Insurance company that complainant presented false and fabricated Insurance policy of Reliance General Insurance Company Ltd. to waive and escape from physical inspection of vehicle in question and on this ground appeal filed by complainant be dismissed is decided accordingly. State Commission is of the opinion that Insurance company did not send any interrogatories to complainant relating to information of Reliance General Insurance company Ltd. State Commission is of the opinion that Insurance company was under legal obligation to physically inspect vehicle at the time of issuance of Insurance policy. State Commission is of the opinion that Insurance company could not be allowed to take benefit of its own laxity and non action because Insurance company has received premium for O.D claim from complainant qua vehicle in question and Insurance company is under legal obligation to indemnify the complainant.
15. Submission of learned Advocate appearing on behalf of Insurance company that accident took place much prior to purchase of Insurance policy from United India Insurance Company Ltd. and on this ground appeal filed by 8 Anuj Kumar Versus United India Insurance Company Ltd. F.A. No.63/2018 complainant be dismissed is decided accordingly. Insurance company did not file affidavit of any eye witness on record in order to prove that accident took place much prior to issuance of Insurance policy by United India Insurance Company Ltd. In the absence of affidavit of eye witness it is held that plea of Insurance company is defeated on the concept of ipse dixit (An assertion made without proof).
16. Submission of learned Advocate appearing on behalf of Insurance company that complicated questions of law and facts are involved in present consumer complaint and complainant be relegated to civil court is decided accordingly. State Commission is of the opinion that as per section 2(o) of Consumer Protection Act 1986 any service rendered by Insurance company falls within the jurisdiction of Consumer Protection Act 1986. State Commission is of the opinion that present consumer complaint could be disposed of properly and effectively under Consumer Protection Act 1986. State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to relegate the complainant to civil court.
17. Submission of learned Advocate appearing on behalf of Insurance company that in view of report submitted by Shri Amrik Singh private investigator annexure-R19 dated 19.09.2014 present appeal filed by complainant be dismissed 9 Anuj Kumar Versus United India Insurance Company Ltd. F.A. No.63/2018 is decided accordingly. State Commission is of the opinion that when there is conflict between report of Surveyor cum Loss Assessor appointed under statutory Insurance Act 1938 and Private Investigator then report submitted by Surveyor cum Loss Assessor appointed under statutory Insurance Act 1938 should prevail over the private investigator because report submitted by Surveyor cum Loss Assessor appointed under Insurance Act 1938 is a statutory report and same should not be disbelieved unless cogent and positive evidence is placed on record. State Commission is of the opinion that Sh. Amrik Singh Invesigator and Sh. Balkar Singh Branch Manager have filed affidavits on the basis of derived knowledge only because Sh. Amrik Singh and Sh. Balkar Singh are not eye witnesses of the incident and they were not present at the spot when vehicle in question met with accident on dated 08.01.2014 at village Udheypur District Una (H.P). Shri Amrik Singh and Shri Balkar Singh are also not eye witnesses of prior accident alleged by Insurance company. It is held that present claim is genuine claim and it is not expedient in the ends of justice and on the principle of natural justice to defeat genuine claim of accident. See 2019(1) CPR 471 NC titled ICICI Lombard General Insurance Company Ltd. Versus Honest Bio-vet Pvt. Ltd. In view of above stated facts point No.1 is decided accordingly. 10
Anuj Kumar Versus United India Insurance Company Ltd. F.A. No.63/2018 Point No.2: Final Order
18. In view of findings upon point No.1 above appeal filed by complainant is partly allowed. Order of learned District Forum is set aside. It is ordered that Insurance company shall pay O.D claim of vehicle in question to complainant to the tune of Rs.408000/-(Four lac eight thousand) on net of salvage basis alongwith interest @ 9% per annum from the date of institution of complaint till actual payment as recommended by Surveyor cum Loss Assessor appointed under Insurance Act 1938.
19. It is further ordered that in addition Insurance company shall pay compensation to complainant for mental agony and harassment to the tune of Rs.20000/-(Twenty thousand). It is further ordered that Insurance company shall pay litigation costs to complainant to the tune of Rs.10000/-(Ten thousand). Other reliefs sought by complainant declined in the ends of justice and on the principle of natural justice.
20. Report of Surveyor cum Loss Assessor Shri Vinod Kumar dated 19.02.2014 annexure-R3 submitted under section 64UM(2) of statutory Insurance Act 1938 and Insurance policy annexure-C2 issued by United India Insurance Company Ltd. in favour of complainant shall form part and parcel of order. File of learned District Forum 11 Anuj Kumar Versus United India Insurance Company Ltd. F.A. No.63/2018 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 Sunita Sharma Member 07.05.2019 KD* 12