State Consumer Disputes Redressal Commission
Sh. Davinder Singh Thakur. vs M/S Reliance General Insurance Co. Ltd. ... on 14 October, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 230/2015
RBT No. : 03/2018
Date of Presentation: 18.11.2015
Order Reserved on : 08.05.2019
Date of Order : 14.10.2019
......
Davinder Singh Thakur son of Shri Gulab Singh Resident of
Village Dhamoon P.O. Karganoo-Sanora Tehsil Rajgarh District
Sirmour (H.P).
...... Appellant/Complainant
Versus
1. M/s Reliance General Insurance Company Ltd. registered
office Reliance Center-19 Walchand Marg Ballard Estate
Mumbai-400001 through its Managing Director.
2. M/s Reliance General Insurance Company Ltd. Branch
Office Ist Floor Basera Building Khalini Shimla (H.P)-171002
through its Branch Manager.
......Respondents No.1 & 2/Opposite parties No.1 & 2
3. Chander Prakash Thakur son of Shri Joginder Singh Sai
Finance Sahani Complex Rajgarh Road Solan Tehsil &
District Solan (H.P).
......Respondent No.3/opposite party No.3
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Lalit K.Sharma Advocate.
For Respondents No.1&2: Mr. Jagdish Thakur Advocate.
For Respondent No3 : Ex-parte.
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Whether reporters of the local papers may be allowed to see the order? Yes.
Davinder Singh Thakur Versus M/s Reliance General Insurance Co. Ltd. & Ors.
F.A. No.230/2015 RBT No.03/2018
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 18.09.2015 passed by Learned District Consumer Forum/ Commission in consumer complaint No.76/2015 titled Davinder Singh Versus M/s Reliance General Insurance Co. Ltd. & Ors.
Brief facts of consumer complaint:
2. Complainant Davinder Singh filed consumer complaint No.191/2012 under Consumer Protection Act pleaded therein that complainant insured vehicle No.HP-16-
3849 with Insurance company w.e.f. 03.05.2011 to 02.05.2012. It is pleaded that IDV of vehicle in question is Rs.486400/-(Four lac eighty six thousand four hundred). It is further pleaded that on dated 25.04.2012 vehicle met with accident and was damaged. It is pleaded that claim was submitted before Insurance company but Insurance company did not settle the claim and committed deficiency in service. Complainant sought relief of payment of Rs.308895/-(Three lac eight thousand eight hundred ninety five) alongwith interest @ 18% per annum w.e.f. 30.07.2012 till realization. In addition complainant sought compensation to the tune of Rs.15000/-(Fifteen thousand) for mental agony and 2 Davinder Singh Thakur Versus M/s Reliance General Insurance Co. Ltd. & Ors.
F.A. No.230/2015 RBT No.03/2018 harassment and costs of litigation. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite parties No.1 & 2 pleaded therein that complainant did not submit documents within stipulated period. It is pleaded that Insurance company appointed Surveyor cum Loss Assessor and Surveyor cum Loss Assessor has assessed loss to the tune of Rs.191000/-(One lac ninety one thousand). It is pleaded that complainant has no cause of action and locus standi to file present consumer complaint and complainant is estopped to file present consumer complaint due to his own act and conduct. It is pleaded that opposite parties did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
4. On dated 18.07.2014 in C.C. No.191/2012 learned District Consumer Forum/Commission dismissed the consumer complaint and clarified that if complainant would submit necessary documents to opposite parties No.1 & 2 within a period of thirty days from today against proper receipt then opposite parties would settle and pay claim as per terms and conditions of Insurance policy.
5. Thereafter complainant again filed subsequent consumer complaint No.76/2015 read with section 25 & 27 of Consumer Protection Act 1986 pleaded therein that complainant submitted all documents to Insurance company 3 Davinder Singh Thakur Versus M/s Reliance General Insurance Co. Ltd. & Ors.
F.A. No.230/2015 RBT No.03/2018 but despite submission of all documents Insurance company did not settle the claim and committed deficiency in service. Learned District Consumer Forum/Commission on dated 18.09.2015 dismissed consumer complaint filed under section 12 read with section 25 & 27 of Consumer Protection Act 1986. Feeling aggrieved against order dated 18.09.2015 passed by Learned District Consumer Forum/Commission complainant filed present appeal No.230/2015 before State Commission.
6. State Commission on dated 22.02.2016 dismissed appeal and Misc. application filed for condonation of delay in default. Thereafter complainant filed revision petition No.562/2017 before Hon'ble National Consumer Commission and Hon'ble National Consumer Commission restored Appeal No.230/2015 with direction to State Commission to dispose of limitation application and appeal after hearing complainant. Thereafter State Commission condoned delay on dated 21.08.2018 vide M.A. No.618/2015 and admit F.A. No.230/2015 for final hearing.
7. We have heard learned Advocates appearing on behalf of appellant and co-respondents No.1 & 2 and we have also perused entire record carefully. None appeared on behalf of Co-respondent No.3 despite notice. Co-respondent No.3 was proceeded ex-parte by State Commission. 4
Davinder Singh Thakur Versus M/s Reliance General Insurance Co. Ltd. & Ors.
F.A. No.230/2015 RBT No.03/2018
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 affidavit that deponent is owner in possession of vehicle No.HP-16-3849. There is recital in affidavit that vehicle in question was insured with opposite party w.e.f.
03.05.2011 to 02.05.2012. There is recital in affidavit that IDV of vehicle in question is Rs.486400/-(Four lac eighty six thousand four hundred). There is recital in affidavit that on dated 25.04.2012 vehicle met with accident and vehicle was damaged. There is recital in affidavit that actual amount incurred for repair was Rs.308895/-(Three lac eight thousand eight hundred ninety five). There is recital in affidavit that complainant submitted claim before opposite parties alongwith all documents but opposite parties did not settle the claim. State Commission has carefully perused all annexures filed by complainant.
10. Opposite party filed affidavit of Shri Jaspreet Pahiya Assistant Manager Reliance General Insurance Co. Ltd. There is recital in affidavit that complainant did not submit required documents to Insurance company despite several reminders. There is recital in affidavit that Insurance 5 Davinder Singh Thakur Versus M/s Reliance General Insurance Co. Ltd. & Ors.
F.A. No.230/2015 RBT No.03/2018 company appointed Surveyor cum Loss Assessor and Surveyor cum Loss Assessor namely Arora Associates has assessed loss to the tune of Rs.191000/-(One lac ninety one thousand). There is recital in affidavit that Insurance company did not commit any deficiency in service. State Commission has carefully perused all annexures filed by Insurance company.
11. Submission of learned Advocate appearing on behalf of complainant that vehicle was duly insured with Insurance company at the time of accident and complainant has incurred expenditure for repair purpose to the tune of Rs.308895/-(Three lac eight thousand eight hundred ninety five) and on this ground appeal filed by complainant be allowed is decided accordingly. Complainant did not file affidavit of mechanic who has personally repaired vehicle in question. Sole testimony of complainant that he has spent Rs.308895/-(Three lac eight thousand eight hundred ninety five) on repair of vehicle in question is not corroborated by any affidavit of mechanic or service engineer. Even complainant did not file affidavit of a person who has issued controversial repair bills. Controversial repair bills are not per se admissible as per old Consumer Protection Act 1986 and as per new Consumer Protection Act 2019 because proceedings under Consumer Protection Act 2019 are quasi judicial proceedings.
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Davinder Singh Thakur Versus M/s Reliance General Insurance Co. Ltd. & Ors.
F.A. No.230/2015 RBT No.03/2018
12. Submission of learned Advocate appearing on behalf of complainant that Insurance company appointed Surveyor cum Loss Assessor and Surveyor cum Loss Assessor has assessed damage of vehicle in question to the tune of Rs.191000/-(One lac ninety one thousand) and Insurance company is under legal obligation to pay the claim to complainant as assessed by Surveyor cum Loss Assessor appointed by Insurance company is decided accordingly. Insurance company has specifically pleaded in version that Insurance company appointed Surveyor cum Loss Assessor namely Arora Associates. Insurance company also pleaded in version that Arora Associates has assessed loss to the tune of Rs.191000/-(One lac ninety one thousand). Insurance company did not place on record report of Surveyor cum Loss Assessor and Insurance company also did not file affidavit of Arora Associates.
13. State Commission is of the opinion that Insurance company is under legal obligation to appoint Surveyor cum Loss Assessor when damage exceed Rs.20000/-(Twenty thousand) as per section 64UM of statutory Insurance Act 1938. No reasons assigned by Insurance company as to why Insurance company withheld report of Surveyor cum Loss Assessor who has submitted report under section 64UM of statutory Insurance Act 1938. Hence adverse inference is drawn against Insurance company.
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Davinder Singh Thakur Versus M/s Reliance General Insurance Co. Ltd. & Ors.
F.A. No.230/2015 RBT No.03/2018
14. It is well settled law that damage assessed by Surveyor cum Loss Assessor is a substantial piece of evidence. It is also well settled law that facts admitted need not to be proved. In the present matter Insurance company has admitted factum that Surveyor cum Loss Assessor appointed under section 64UM of statutory Insurance Act 1938 has assessed loss to the tune of Rs.191000/-(One lac ninety one thousand). State Commission is of the opinion that Insurance company could not be allowed to disbelieve assessment report of damage submitted by Surveyor cum Loss Assessor appointed under section 64UM of statutory Insurance Act 1938. See 2018(1) CPR 311 NC Oriental Insurance Company Ltd. Versus Jagdish Chand Gupta. See 2017 (1) CPJ 529 NC Ashish Kumar Jaiswal Versus ICICI Lombard General Insurance Company Ltd. & others. See 2010(1) CPC 696 NC Champa Lal Verma Versus Oriental Insurance Company Ltd. 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(1) CPC 166 NC Pradeep Kumar Versus National Insurance Company Ltd. See 2009(3) CPJ 194 NC Nand Kishore Jaiswal Versus National Insurance Company Ltd.
15. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for 8 Davinder Singh Thakur Versus M/s Reliance General Insurance Co. Ltd. & Ors.
F.A. No.230/2015 RBT No.03/2018 compensation for mental agony and harassment to the tune of Rs.50000/-(Fifty thousand) and on this ground appeal filed by complainant be allowed is decided accordingly. State Commission is of the opinion that Insurance company did not pay claim of complainant as assessed by Surveyor cum Loss Assessor to the tune of Rs.191000/-(One lac ninety one thousand). State Commission is of the opinion that complainant is legally entitled for reasonable compensation for mental agony and harassment.
16. Submission of learned Advocate appearing on behalf of complainant that complainant is entitled for litigation costs to the tune of Rs.15000/-(Fifteen thousand) is decided accordingly. State Commission is of the opinion that complainant has engaged Advocate and has also paid litigation costs. Complainant did not place on record Advocate fee receipt. State Commission is of the opinion that complainant is entitled for reasonable litigation costs.
17. Submission of learned Advocate appearing on behalf of Insurance company that complainant did not submit documents to Insurance company despite several reminders and on this ground appeal filed by complainant be dismissed is decided accordingly. Complainant has specifically mentioned in consumer complaint that he visited office of Insurance company and has submitted all relevant 9 Davinder Singh Thakur Versus M/s Reliance General Insurance Co. Ltd. & Ors.
F.A. No.230/2015 RBT No.03/2018 documents to Insurance company. Insurance company did not file counter affidavit of receipt clerk posted in Insurance office in order to prove that complainant did not file required documents. Even complainant has issued legal notice to Insurance company and there is recital in legal notice that complainant has submitted all the required documents to Insurance company. Insurance company has withheld affidavit of receipt clerk who is the best witness. Hence adverse inference is drawn against Insurance company for withholding affidavit of best witness. State Commission is of the opinion that affidavit filed by Assistant Manager is not helpful to Insurance company because Assistant Manager did not mention in his affidavit that receipt clerk has informed him personally in a positive manner that no documents were filed by complainant in the office of Insurance company within stipulated period as ordered by Learned District Consumer Forum/Commission in earlier consumer complaint No.191/ 2012 decided on 18.07.2014.
18. Submission of learned Advocate appearing on behalf of Insurance company that complainant has no cause of action against Insurance company and complainant is estopped due to his own act and conduct from filing present consumer complaint is decided accordingly. State Commission is of the opinion that cause of action to 10 Davinder Singh Thakur Versus M/s Reliance General Insurance Co. Ltd. & Ors.
F.A. No.230/2015 RBT No.03/2018 complainant is recurring in nature because Insurance company has not paid Insurance claim to complainant despite recommendation of Insurance claim by Surveyor cum Loss Assessor appointed under section 64UM of statutory Insurance Act 1938 to the tune of Rs.191000/-(One lac ninety one thousand).
19. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to allow Insurance company to disbelieve report of its own Surveyor cum Loss Assessor appointed under section 64UM of statutory Insurance Act 1938. Insurance company has withheld report of Surveyor cum Loss Assessor from Learned District Consumer Forum/ Commission and State Commission is of the opinion that Insurance company does not warrant any leniency. No reasons assigned by Insurance company as to why Insurance company withheld report of Surveyor cum Loss Assessor before Learned District Consumer Forum/Commission and State Commission despite the fact that Insurance company has admitted in version that Surveyor cum Loss Assessor has assessed loss to the tune of Rs.191000/-(One lac ninety one thousand). It is well settled law that Consumer Protection Act 2019 is consumer oriented Act and consumer authorities are under legal obligation to protect consumers strictly as per 11 Davinder Singh Thakur Versus M/s Reliance General Insurance Co. Ltd. & Ors.
F.A. No.230/2015 RBT No.03/2018 laws and proved facts. State Commission is of the opinion that Insurance company is under legal obligation to pay damage of vehicle in question to the tune of Rs.191000/-(One lac ninety one thousand) as assessed by Surveyor cum Loss Assessor and as admitted by Insurance company on the concept of equity and natural justice. Point No.1 is decided accordingly.
Point No.2: Final Order
20. In view of findings upon point No.1 above appeal filed by complainant is partly allowed. Order of Learned District Consumer Forum/Commission is set aside. It is ordered that opposite parties No.1 & 2 jointly and severally shall pay O.D claim of vehicle in question to complainant to the tune of Rs.191000/-(One lac ninety one thousand) alongwith interest @ 9% per annum from institution of complaint till actual payment on furnishing NOC from Mahindra & Mahindra Financial Services Ltd. because vehicle in question was leased with Mahindra & Mahindra Financial Services Ltd. as per lease agreement as per R.C. Annexure-A. If complainant will not submit NOC then in that eventuality opposite parties will transmit O.D claim amount of vehicle in question in the loan account of complainant kept by Mahindra & Mahindra Financial Services Ltd. It is further ordered that opposite parties No.1 & 2 jointly and severally 12 Davinder Singh Thakur Versus M/s Reliance General Insurance Co. Ltd. & Ors.
F.A. No.230/2015 RBT No.03/2018 shall also pay compensation to complainant for mental agony and harassment to the tune of Rs.20000/-(Twenty thousand). It is further ordered that opposite parties No.1 & 2 jointly and severally shall pay litigation costs to complainant to the tune of Rs.10000/-(Ten thousand). Opposite parties No.1 & 2 will comply order within one month after receipt of certified copy of order.
21. R.C of vehicle Annexure-A and Insurance policy Annexure-B shall form part and parcel of order. File of learned District Consumer Forum/Commission 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 Sunita Sharma Member 14.10.2019 K.D 13