State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd. vs Sh. Vikas Kumar. & Anr. on 13 November, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 09/2018
Date of Presentation: 03.10.2017
Order Reserved on : 26.07.2018
Date of Order : 13.11.2018
......
The New India Assurance Company Limited Bilaspur H.P. Main
Market Sankhayan Complex Tehsil Sadar District Bilaspur H.P.
Hospital Road Mandi H.P. through its Senior Divisional
Manager New India Assurance Company Limited Divisional
Office 3rd Floor Block No.7 SDA Complex Kasumpti Shimla-9
H.P.
...... Appellant/Opposite Party No.1
Versus
1. Vikas Kumar s/o Shri Rattan Chand r/o Jhabola Tehsil
Jhandutta District Bilaspur H.P.
.......Respondent/Complainant
2. Dinesh Kumar Surveyor-cum-Loss Assessor 3 Red Cliff
Bawa Estate Shimla H.P.
.......Respondent/Opposite party No.2.
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 No.1 : Ms. Manjula Kumari Advocate.
For Respondent No.2 : Ex-parte.
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 21.07.2017 passed by Learned District Forum in consumer 1 Whether reporters of the local papers may be allowed to see the order? Yes. New India Assurance Company Limited Versus Vikas Kumar & Anr. (F.A. No.09/2018) complaint No.128/2012 titled Vikas Kumar Versus The New India Assurance Company Limited & Anr.
Brief facts of Consumer Complaint:
2. Complainant filed consumer complaint under Section 12 of Consumer Protection Act 1986 pleaded therein that complainant is owner in possession of Truck bearing registration No. HP-24C-4483. It is pleaded that vehicle was plied to earn livelihood by complainant. It is further pleaded that vehicle was insured with insurance company w.e.f. 02.07.2011 to 01.07.2012. It is further pleaded that vehicle met with accident on dated 29.02.2012. It is further pleaded that when vehicle was coming from Una (H.P.) side to Bangana side loaded with sand then near site of accident suddenly animals came from RHS in front of vehicle then driver of vehicle applied brakes but vehicle was dragged, struck with parapet wall of small bridge and overturned and damage was caused to vehicle. It is further pleaded that factum of accident was intimated to insurance company and insurance company appointed surveyor-cum-loss assessor to conduct the spot survey. It is further pleaded that complainant submitted claim before insurance company but insurance company did not settle the claim and committed deficiency in service. Complainant sought relief of payment of Rs.920000/- (Nine lac twenty thousand) alongwith interest 2 New India Assurance Company Limited Versus Vikas Kumar & Anr. (F.A. No.09/2018) @18% per annum. In addition complainant sought relief of payment of Rs.500000/- (Five lac) as damages for non-plying the vehicle. In addition complainant sought compensation to the tune of Rs.100000/- (One Lac). In addition complainant also sought relief for harassment, mental pain and agony alongwith costs of litigation to the tune of Rs.50000/- (Fifty thousand). Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party No.1 pleaded therein that complainant has no cause of action.
It is pleaded that District Forum has no jurisdiction to entertain and decide the present consumer complaint. It is further pleaded that complainant has no locus-standi to file the present consumer complaint. It is further pleaded that complicated questions of law and facts are involved in the present consumer complaint. It is further pleaded that insurance company deputed surveyor namely Shri H.P. Singh to assess the loss and it is further pleaded that insurance company also asked the complainant to complete all codal formalities. It is further pleaded that insurance company also deputed Shri Dinesh Kumar to conduct the final survey. It is further pleaded that Shri Dinesh Kumar submitted final survey report on dated 14.08.2012. It is further pleaded that surveyor-cum-loss assessor namely Shri Dinesh Kumar 3 New India Assurance Company Limited Versus Vikas Kumar & Anr. (F.A. No.09/2018) assessed net loss to the tune of Rs.271883/- (Two lac seventy one thousand eight hundred eighty three) after deducting salvage value of Rs.15000/- (Fifteen thousand) and less excess policy clause of Rs.1000/- (One thousand). It is further pleaded that insurance company did not deny the claim and it is further pleaded that complainant did not complete the codal formalities. It is further pleaded that insurance company did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
4. Learned District Forum proceeded ex-parte against opposite party No.2.
5. Learned District Forum allowed the complaint and ordered insurance company to pay Rs.870000/- (Eight lac seventy thousand) to the complainant alongwith interest @9% per annum from the date of filing of complaint i.e. 18.09.2012 till the said amount is paid or realized. In addition learned District Forum ordered insurance company to pay punitive compensation of Rs.10000/- (Ten thousand) for deficiency in service and in addition learned District Forum also ordered insurance company to pay litigation costs to the tune of Rs.5000/- (Five thousand) to the complainant.
6. Feeling aggrieved against order passed by Learned District Forum Insurance Company filed present appeal before State Commission.
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New India Assurance Company Limited Versus Vikas Kumar & Anr. (F.A. No.09/2018)
7. We have heard learned advocates appearing on behalf of appellant and respondent No.1. Respondent No.2 was proceeded ex-parte by State Commission.
8. Following points arise for determination in present appeal.
1. Whether appeal filed by Insurance Company 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 Ex.C-18 in evidence.
There is recital in affidavit that deponent is owner in possession of Truck bearing registration No.HP-24C-4483. There is further recital in the affidavit that vehicle was plied to earn livelihood by deponent. There is further recital in the affidavit that vehicle was insured with insurance company w.e.f. 02.07.2011 to 01.07.2012. There is further recital in the affidavit that that IDV of vehicle was Rs.920000/- (Nine lac twenty thousand). There is further recital in the affidavit that deponent paid premium to the tune of Rs.25188/- (Twenty five thousand one hundred eighty eight) to insurance company. There is further recital in the affidavit that vehicle met with accident on dated 29.02.2012 near Barnoh in District Una and said vehicle went out of road and struck with parapet of wall of small bridge and sustained total 5 New India Assurance Company Limited Versus Vikas Kumar & Anr. (F.A. No.09/2018) damage. There is further recital in the affidavit that matter was reported to the insurance company and insurance company deputed surveyor-cum-loss assessor. There is further recital in the affidavit that insurance company did not settle the claim.
10. Complainant also filed affidavit of Rattan Chand Ex.C-19 in evidence. There is recital in the affidavit that deponent is transporter having two trucks. There is further recital in the affidavit that deponent is undertaking the work as transporter since 1968. There is further recital in the affidavit that deponent has visited the spot at Village Jhabola and found that major parts like engine gear, chassis, and other parts of Truck bearing No.HP-24C-4483 were totally damaged in the accident. There is further recital in the affidavit that these parts were not repairable. There is further recital in the affidavit that about Rs.14.00 lac to Rs.15.00 lac would be required for the repair of vehicle in question.
11. Complainant also filed affidavit of Rajesh Kumar Ex.C-20 in evidence. There is recital in the affidavit that deponent is Branch Manager of Sikand & Co. which is dealer of commercial vehicles of Tata Motors at Village and Post Office Barmana Tehsil Sadar District Bilaspur H.P. There is further recital in the affidavit that Sikand & Co. is commercial vehicle dealer of Tata Motors and is having authorized service 6 New India Assurance Company Limited Versus Vikas Kumar & Anr. (F.A. No.09/2018) centers at Barmana, Nalagarh, Solan and Nagrota Bagwan. There is further recital in the affidavit that owner of Truck No. HP-24C-4483 Shri Vikas Kumar approached the authorized center for the preparation of proforma invoice/estimate of accidental Truck bearing registration No.HP-24C-4483. There is further recital in the affidavit that deponent alongwith mechanic had visited the spot to ascertain the factual position of repair. There is further recital in the affidavit that after visiting the spot mechanic had made the list of items which were to be required for the repair of said vehicle involved in the accident. There is further recital in the affidavit that estimate of repair comes to Rs.1331654/- (Thirteen lac thirty one thousand six hundred fifty four). There is further recital in the affidavit that if Truck No.HP-24C-4483 was to be repaired then owner has to pay amount of Rs.1350000/- (Thirteen lac fifty thousand). There is further recital in the affidavit that proforma invoice has been issued by deponent which is true and correct as per record.
12. Insurance Company filed affidavit of Shri Nawang Tamba Bodh Deputy Manager New India Assurance Company Limited Annexure-R15 in evidence. There is recital in the affidavit that complainant has no cause of action against the insurance company. There is further recital in the affidavit that intricate questions of law and facts are involved in the 7 New India Assurance Company Limited Versus Vikas Kumar & Anr. (F.A. No.09/2018) present consumer complaint. There is further recital in the affidavit that insurance company deputed independent surveyor Shri H.P. Singh to assess the loss of vehicle No. HP- 24C-4483. There is further recital in the affidavit that Shri H.P. Singh visited the spot. There is further recital in the affidavit that thereafter insurance company deputed Shri Dinesh Kumar to conduct the final survey. There is further recital in the affidavit that Shri Dinesh Kumar surveyor-cum- loss assessor submitted his report on dated 14.08.2012 and assessed the loss to the tune of Rs.271883/- (Two lac seventy one thousand eight hundred eighty three) after deducting salvage value of vehicle to the tune of Rs.15000/- (Fifteen thousand) and less excess clause of Rs.1000/- (One thousand). There is further recital in the affidavit that complainant was asked to start the repair of vehicle vide letter dated 22.08.2012 and remainders dated 10.09.2012 and 23.11.2012.
13. Insurance company also filed affidavit of Shri Dinesh Kumar surveyor-cum-loss assessor Annexure R16 in evidence. There is recital in the affidavit that deponent received instructions from insurance company and thereafter deponent inspected the accidental vehicle in the presence of complainant on dated 23.04.2012 at Village Jhabola Tehsil Jhandutta District Bilaspur H.P. where accidental vehicle was 8 New India Assurance Company Limited Versus Vikas Kumar & Anr. (F.A. No.09/2018) parked. There is further recital in the affidavit that deponent has assessed the loss to the tune of Rs.271883/- (Two lac seventy one thousand eight hundred eighty three) after deducting salvage value of Rs.15000/- (Fifteen thousand) and less excess policy clause of Rs.1000/- (One thousand). There is further recital in the affidavit that complainant was asked to start the repair of vehicle vide letter dated 22.08.2012 and remainders dated 10.09.2012 and 23.11.2012.
14. Insurance company also filed affidavit of Shri H.P. Singh surveyor-cum-loss assessor Annexure-R17 in evidence. There is recital in the affidavit that deponent after receiving the instructions from insurance company inspected the damaged vehicle No. HP-24C-4483 on dated 29.02.2012 at Village Samoor District Una H.P. There is further recital in the affidavit that deponent visited the accidental site on the same day. There is further recital in the affidavit that deponent has submitted factual damage report.
15. Submission of learned advocate appearing on behalf of insurance company that learned District Forum has granted OD claim of vehicle to the complainant to the tune of Rs.870000/- (Eight lac seventy thousand) contrary to report submitted by surveyors-cum-loss assessors namely Shri H.P. Singh and Shri Dinesh Kumar and on this ground appeal filed by insurance company be allowed is decided accordingly. It is 9 New India Assurance Company Limited Versus Vikas Kumar & Anr. (F.A. No.09/2018) proved on record that insurance company has appointed Shri Shri H.P. Singh surveyor-cum-loss assessor to submit the fact finding inquiry report of damage caused to the vehicle. It is proved on record that accident took place on dated 29.02.2012 at about 4:00 AM near Village Samoor District Una H.P. when vehicle was coming from Una side to Bangana side loaded with sand. As per report of Shri H.P. Singh surveyor-cum-loss assessor suddenly some animals came from RHS in front of vehicle and driver applied brakes but vehicle dragged and struck with parapet wall of small bridge and overturned causing damage to the vehicle.
16. Surveyor-cum-loss assessor namely Shri H.P. Singh visited the place of incident on the same day i.e. on 29.02.2012. Shri H.P. Singh has observed that (1) Engine foundations were damaged (2) Engine Block was damaged (3) Timing cover was damaged (4) Tappet Cover and pipelines were damaged (5) Engine Chamber was damaged (6) Air cleaner assembly was damaged (7) Silencer assembly was damaged (8) Fuel pump was damaged (9) Chassis both long members front & 2nd cross member badly damaged (10) Cooling system of vehicle was totally damaged (11) Electric and Gauges was damaged and battery acid was drained out (12) Steering assembly was totally damaged (13) Suspension system was also damaged (14) Propeller shafts became out of 10 New India Assurance Company Limited Versus Vikas Kumar & Anr. (F.A. No.09/2018) alignment/bent (15) Front axle was badly damaged (16) Dashboard and windscreen glasses were damaged (17) Driver cabin and Tool box were damaged. Surveyor-cum-loss assessor namely Shri H.P. Singh has submitted report that visual losses were detected by him at the time of preliminary inspection.
17. Shri H.P. Singh surveyor-cum-loss assessor has specifically mentioned in his report in a positive manner that insured has completed the required papers on dated 12.03.2012. It is proved on record that thereafter insurance company has appointed Shri Dinesh Kumar surveyor-cum- loss assessor. Shri Dinesh Kumar surveyor-cum-loss assessor has specifically mentioned in his report that suddenly some animals came from RHS in front of the insured vehicle and driver applied the brakes but vehicle dragged and struck with the parapet wall of some bridge and overturned and caused damaged. Shri Dinesh Kumar surveyor-cum-loss assessor has assessed the salvage value of vehicle to the tune of Rs.15000/- (Fifteen thousand).
18. It is proved on record that as per insurance policy the IDV of vehicle was Rs.920000/- (Nine lac twenty thousand) and year of manufacturing of vehicle was 2010 and accident took place on dated 29.02.2012. Registration certificate of vehicle was issued on dated 28.08.2010. It is 11 New India Assurance Company Limited Versus Vikas Kumar & Anr. (F.A. No.09/2018) proved on record that accident took place within one and half year of purchasing of vehicle.
19. State Commission is of the opinion that when value of salvage was assessed by Shri Dinesh Kumar surveyor-cum-loss assessor to the tune of Rs.15000/- (Fifteen thousand) then vehicle falls within the category of total loss concept because damage of vehicle was exceeding 75% of IDV of vehicle. Shri Dinesh Kumar surveyor-cum-loss assessor despite assessing the entire value of salvage of vehicle to the tune of Rs.15000/- (Fifteen thousand) has not recommended the payment on total loss basis. No reason assigned by Shri Dinesh Kumar surveyor-cum-loss assessor as to why Shri Dinesh Kumar surveyor-cum-loss assessor has not recommended the loss on the concept of total loss basis when Shri Dinesh Kumar surveyor-cum-loss assessor personally came to the conclusion that entire value of salvage of vehicle was to the tune of Rs.15000/- (Fifteen thousand). As per law salvage means damaged property an insurer takes over to reduce its loss after paying claim to insured.
20. It is proved on record that complainant has impleaded Shri Dinesh Kumar surveyor-cum-loss assessor as co-opposite party in the present consumer complaint personally. Shri Dinesh Kumar surveyor-cum-loss assessor did not file any version. Loss assessed by Shri Dinesh Kumar 12 New India Assurance Company Limited Versus Vikas Kumar & Anr. (F.A. No.09/2018) surveyor-cum-loss assessor is contradictory to the damage report submitted by Shri H.P. Singh surveyor-cum-loss assessor who has personally inspected the vehicle on the same day of accident. On the contrary Shri Dinesh Kumar surveyor-cum-loss assessor has inspected the vehicle on dated 23.04.2012 after about two months of incident. It is well settled law that report of surveyor-cum-loss assessor is not sacrosanct document and is not conclusive. See 2009 (7) SCC 787 DB titled New India Assurance Company Limited Versus Pardeep Kumar. State Commission is of the opinion that it is not expedient in the ends of justice and on the concept of natural justice to rely upon the report of surveyor- cum-loss assessor namely Dinesh Kumar.
21. Shri Rattan Chand has filed affidavit and there is recital in the affidavit that Rs.14.00 lac to Rs.15.00 lac would be required for the repair of vehicle. Affidavit filed by Shri Rattan Chand is trustworthy, reliable and inspires confidence of State Commission.
22. Similarly Shri Rajesh Kumar has filed affidavit and Shri Rajesh Kumar has also specifically mentioned in the affidavit that he alongwith mechanic visited the spot and prepared the repair invoice of vehicle to the tune of Rs.1350000/- (Thirteen lac fifty thousand). Affidavit filed by Shri Rajesh Kumar is trustworthy, reliable and inspires 13 New India Assurance Company Limited Versus Vikas Kumar & Anr. (F.A. No.09/2018) confidence of State Commission. It is well settled law that if different opinions are possible then view favourable to consumer should be adopted by Consumer Foras. See 2018 (1) CLT 468 NC titled Union of India through GM Western Railway Versus Smt. Vinaya Vilas Sawant.
23. Submission of learned advocate appearing on behalf of insurance company that salvage of vehicle has been assessed by learned District Forum to the tune of Rs.50000/- (Fifty thousand) without any basis and on this ground appeal filed by insurance company be allowed is decided accordingly. State Commission is of the opinion that District Forum has not personally inspected the vehicle and District Forum was not legally competent to assess entire salvage value of vehicle to the tune of Rs.50000/- (Fifty thousand) contrary to salvage value of vehicle assessed by Shri Dinesh Kumar surveyor- cum-loss assessor to the tune of Rs.15000/- (Fifteen thousand). State Commission is of the opinion that it is expedient in the ends of justice and on the principles of natural justice to assess entire salvage value of vehicle at Rs.15000/- (Fifteen thousand) as assessed by Shri Dinesh Kumar surveyor-cum-loss assessor.
24. Submission of learned advocate appearing on behalf of insurance company that learned District Forum has granted excessive punitive compensation to the complainant 14 New India Assurance Company Limited Versus Vikas Kumar & Anr. (F.A. No.09/2018) to the tune of Rs.10000/- (Ten thousand) for deficiency in service and on this ground appeal filed by insurance company be allowed is decided accordingly. State Commission is of the opinion that learned District Forum has granted reasonable punitive compensation to the complainant and it is not expedient in the ends of justice and on the principles of natural justice to interfere in the punitive compensation order of learned District Forum.
25. Submission of learned advocate appearing on behalf of insurance company that learned District Forum has granted excessive litigation costs to the complainant to the tune of Rs.5000/- (Five thousand) and on this ground appeal filed by insurance company be allowed is decided accordingly. State Commission is of the opinion that learned District Forum has granted reasonable litigation costs to the complainant and it is not expedient in the ends of justice and on the principles of natural justice to interfere in the litigation costs order of learned District Forum.
26. Submission of learned advocate appearing on behalf of insurance company that learned District Forum has granted excessive interest to the complainant @9% per annum and on this ground appeal filed by insurance company be allowed is decided accordingly. State Commission is of the opinion that learned District Forum has granted 15 New India Assurance Company Limited Versus Vikas Kumar & Anr. (F.A. No.09/2018) reasonable interest to the complainant and it is not expedient in the ends of justice and on the principles of natural justice to interfere in the interest rate order of learned District Forum.
27. Submission of learned advocate appearing on behalf of insurance company that complicated questions of law and facts are involved in the present consumer complaint and complainant be relegated to civil court and on this ground appeal filed by insurance company be allowed is decided accordingly. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to relegate the complainant to civil court. State Commission is of the opinion that complaint could be disposed of under Consumer Protection Act 1986 effectively and properly.
28. Submission of learned advocate appearing on behalf of insurance company that complainant did not complete the codal formalities and on this ground appeal filed by insurance company be allowed is decided accordingly. It is proved on record that insurance company appointed Shri H.P. Singh surveyor-cum-loss assessor to visit the spot on the same day of accident and Shri H.P. Singh surveyor-cum-loss assessor has mentioned in his report in positive manner that insured has submitted required papers on dated 12.03.2012. 16
New India Assurance Company Limited Versus Vikas Kumar & Anr. (F.A. No.09/2018) State Commission is of the opinion that Shri H.P. Singh surveyor-cum-loss assessor was appointed by insurance company and papers submitted to Shri H.P. Singh surveyor- cum-loss assessor by complainant would be deemed to be submission of papers to the insurance company because Shri H.P. Singh surveyor-cum-loss assessor was appointed by insurance company. State Commission is of the opinion that insurance company could not be exonerated from liability on this ground because entire papers were submitted by insured to Shri H.P. Singh surveyor-cum-loss assessor appointed by insurance company.
29. 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 and on this ground appeal filed by insurance company be dismissed is decided accordingly. State Commission is of the opinion that order of learned District relating to value of salvage to the tune of Rs.50000/- (Fifty thousand) warrants partly interference in the interest of justice and on the principles of natural justice. Point No.1 is decided accordingly.
Point No.2: Final Order
30. In view of findings upon point No.1 above appeal is partly allowed. Salvage value of vehicle assessed by learned 17 New India Assurance Company Limited Versus Vikas Kumar & Anr. (F.A. No.09/2018) District Forum to the tune of Rs.50000/- (Fifty thousand) is reduced to Rs.15000/- (Fifteen thousand) as assessed by surveyor-cum-loss assessor namely Shri Dinesh Kumar appointed by insurance company. It is ordered that insurance company would pay Rs.905000/- (Nine lac five thousand) i.e. IDV value of vehicle Rs.920000/- minus Rs.15000/- Salvage value of vehicle to the complainant alongwith interest @ 9% per annum from the date of filing complaint i.e. 18.09.2012 till entire amount is paid or realized.
31. Order of learned District Forum that insurance company shall pay Rs.10000/- (Ten thousand) to the complainant as punitive compensation for deficiency in service is affirmed. Order of learned District Forum that insurance company shall pay Rs.5000/- (Five thousand) as litigation costs to the complainant is also affirmed.
32. Report submitted by Shri H.P. Singh surveyor- cum-loss assessor annexure R-1 dated 14.03.2012 shall form part and parcel of order. Order of learned District Forum is modified accordingly. 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 of costs strictly as per 18 New India Assurance Company Limited Versus Vikas Kumar & Anr. (F.A. No.09/2018) rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 13.11.2018.
*GUPTA* 19