State Consumer Disputes Redressal Commission
Sh. Joginder Singh. vs Manager, National Insurance Co. Ltd. & ... on 15 May, 2020
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 212/2018
Date of Presentation: 28.05.2018
Order Reserved on : 30.10.2019
Date of Order : 15.05.2020
......
Joginder Singh son of Sh. Sant Ram R/o Village and P.O.
Raghunathpura Tehsil Sadar District Bilaspur (H.P).
...... Appellant/Complainant
Versus
1. National Insurance Company Ltd. Moti Market Mandi
(H.P) through Manager.
......Respondent No.1/Opposite party No.1
2. M/s Hi-Tech Satluj Motors Pvt. Ltd. Branch Office
N.H.88 Diswin Tikker District Hamirpur (H.P) through
Manager.
......Respondent No.2/Opposite party No.2
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. R.K. Verma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Malay Kaushal Advocae.
For RespondentNo.1 : Mr. Jagdish Thakur Advocate.
For Respondent No.2 : Mr. Shashi Bhushan Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 21.02.2018 passed by Learned District Consumer Forum/ Commission in consumer complaint No.45/2015 titled 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Joginder Singh Versus National Insurance Co. Ltd. & Anr. F.A. No.212/2018 Joginder Singh Versus Manager National Insurance Co. Ltd. & Anr.
Brief facts of consumer complaint:
2. Complainant Sh. Joginder Singh filed consumer complaint under Consumer Protection Act pleaded therein that he is owner of Vehicle No.HP-24A-8857. It is pleaded that vehicle in question was insured with National Insurance Company w.e.f. 14.11.2012 to 13.11.2013. It is pleaded that premium was paid to the Insurance company by complainant.
It is further pleaded that on dated 15.02.2013 at about 4.45 PM vehicle in question was moving towards Swarghat from Bilaspur (H.P). It is pleaded that when vehicle in question reached at place Nai-Sarli truck No.HP-51A-2527 came rashly from opposite direction on wrong side and dashed with vehicle in question and caused extreme damage to vehicle in question. It is pleaded that Insurance claim was submitted before National Insurance Company but National Insurance Company repudiated the claim and committed deficiency in service.
3. Complainant sought O.D claim of vehicle in question. In addition complainant sought compensation to the tune of Rs.99000/-(Ninety nine thousand) alongwith interest @ 18% per annum. In addition complainant sought relief of payment of Rs.11000/-(Eleven thousand) as litigation costs. Prayer for acceptance of consumer complaint sought. 2
Joginder Singh Versus National Insurance Co. Ltd. & Anr. F.A. No.212/2018
4. Per contra version filed on behalf of National Insurance Company pleaded therein that intricate questions of facts & laws are involved in present consumer complaint which requires elaborate inquiry. It is pleaded that complainant has no locus standi to file present consumer complaint. It is further pleaded that National Insurance Company appointed Surveyor cum Loss Assessor and Surveyor cum Loss Assessor has assessed loss to the tune of Rs.105000/-(One lac five thousand) on net salvage basis. It is pleaded that after receiving report of Surveyor cum Loss Assessor Insurance company deputed S.A. Investigating & Consulting Agency to investigate the case. It is pleaded that vehicle in question was damaged extensively from driver side. It is further pleaded that two occupants of vehicle namely Sh. Hem Raj and Sh. Rajat have sustained injuries. It is pleaded that at the time of accident Sh. Rajat son of insured was driving vehicle in question who was not holding valid driving licence and he was minor. It is further pleaded that Insurance claim was closed as no claim and same was intimated to complainant vide letter dated 08.07.2014.
5. It is further pleaded that complainant did not receive a single injury and complainant was also not hospitalized for any first aid. It is pleaded that vehicle in question was driven by unlicensed person at the time of accident. It is further pleaded that complainant has 3 Joginder Singh Versus National Insurance Co. Ltd. & Anr. F.A. No.212/2018 committed fundamental breach of Insurance policy. It is pleaded that National Insurance Company did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
6. Learned DCF/DCC dismissed consumer complaint. Feeling aggrieved against order passed by learned DCF/DCC complainant 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 complainant is liable to be accepted as mentioned in memorandum of grounds of appeal and whether Insurance company is under legal obligation to pay genuine Insurance claim?
2. Final order.
Findings upon point No.1 with reasons:
9. Complainant filed affidavit annexure-C1 in evidence. There is recital in affidavit that deponent is registered owner of vehicle No.HP-24A-8857. There is recital in affidavit that deponent purchased vehicle in question from opposite party No.2. There is recital in affidavit that vehicle in question was insured with National Insurance Company at the time of accident. There is recital in affidavit that on dated 4 Joginder Singh Versus National Insurance Co. Ltd. & Anr. F.A. No.212/2018 15.02.2013 at about 4.45 PM vehicle in question was moving towards Swarghat from Bilaspur (H.P). There is recital in affidavit that when vehicle in question reached at place Nai-
Sarli truck No.HP-51A-2527 came rashly from opposite direction on wrong side and dashed with vehicle in question and caused extreme damage to vehicle in question. There is recital in affidavit that vehicle in question was financed from Tata Motors Finance Company. There is recital in affidavit that Insurance claim was submitted before Insurance company but Insurance company did not settle the claim. State Commission has carefully perused all annexures filed by complainant.
10. Insurance company filed affidavit of Sh. Darshan Singh Authorised Signatory of National Insurance Company. There is recital in affidavit that intricate questions of laws and facts are involved in present matter and complainant has no locus standi to file the present consumer complaint. There is recital in affidavit that Insurance company appointed Surveyor cum Loss Assessor namely Sh. Vishal Kumar who assessed loss to the tune of Rs.105000/-(One lac five thousand) on net salvage basis. There is recital in affidavit that thereafter Insurance company deputed S.A. Investigating Agency to investigate the matter. There is recital in affidavit that investigator has submitted report that Sh.Joginder Singh was not personally driving vehicle in question at the time of 5 Joginder Singh Versus National Insurance Co. Ltd. & Anr. F.A. No.212/2018 accident but his son Sh. Rajat was driving vehicle in question at the time of accident and two persons namely Sh. Rajat son of Sh. Joginder Singh and another person sustained injuries. There is recital in affidavit that at the time of accident Sh. Joginder Singh complainant was not driving vehicle in question and claim was repudiated by Insurance company as per laws. There is recital in affidavit that vehicle was damaged from driver side and there is no explanation on behalf of Sh. Joginder Singh as to why Sh. Joginder Singh complainant did not sustain any injuries from driver side of vehicle in question.
11. Insurance Company also filed affidavit of Sh. Vishal Kumar Surveyor cum Loss Assessor in evidence. There is recital in affidavit that deponent is surveyor registered under Insurance Act 1938. There is recital in affidavit that deponent has assessed loss to the tune of Rs.105000/-(One lac five thousand) on net of salvage basis. There is recital in affidavit that report submitted by deponent dated 20.01.2014 bears signature of deponent.
12. Insurance company also filed affidavit of Sh. Sarv Daman Bhalla Investigator cum Consultant in evidence. There is recital in affidavit that FIR is silent about name of person who was driving vehicle in question at the time of accident. There is recital in affidavit that persons travelling in vehicle at the time of accident were badly injured. There is 6 Joginder Singh Versus National Insurance Co. Ltd. & Anr. F.A. No.212/2018 recital in affidavit that driver side of vehicle in question was also damaged. There is recital in affidavit that driver could not escape major injury. State Commission has carefully perused all annexures filed by opposite parties.
13. Submission of learned Advocate appearing on behalf of complainant that complainant is entitled for O.D claim of vehicle in question as assessed by Surveyor cum Loss Assessor appointed under section 64UM of Statutory Insurance Act 1938 is decided accordingly. State Commission has carefully perused damage assessment report submitted by Sh. Vishal Kumar Surveyor cum Loss Assessor. Sh. Vishal Kumar Surveyor cum Loss Assessor has recommended payment of Insurance claim to the tune of Rs.105000/-(One lac five thousand) on net of salvage basis in his report submitted under section 64UM of Statutory Insurance Act 1938. Surveyor cum Loss Assessor has specifically mentioned that IDV of vehicle in question was Rs.140273/-(One lac forty thousand two hundred seventy three). Sh. Vishal Kumar Surveyor cum Loss Assessor has assessed value of salvage of vehicle in question to the tune of Rs.34273/-(Thirty four thousand two hundred seventy three). Surveyor cum Loss Assessor reduced salvage value to the tune of Rs.34273/-(Thirty four thousand two hundred seventy three) and has also reduced Rs.1000/-(One thousand) as less payment clause and recommended payment of net liability to 7 Joginder Singh Versus National Insurance Co. Ltd. & Anr. F.A. No.212/2018 the tune of Rs.105000/-(One lac five thousand). Shri Vishal Kumar Surveyor cum Loss Assessor has specifically mentioned in his report that vehicle in question was driven by Sh. Joginder Singh.
14. Even Insurance company also appointed Sh. Vineet Kaura Surveyor cum Loss Assessor registered under Insurance Act 1938 and he has also mentioned in his report annexure-OP4 that vehicle in question was driven by Sh. Joginder Singh. Both the Surveyors namely Sh. Vishal Kumar and Sh. Vineet Kaura have mentioned in their report that vehicle in question was driven by Sh. Joginder Singh at the time of accident. It is well settled law that report submitted by Surveyor cum Loss Assessor under section 64UM of Statutory Insurance Act 1938 is a substantial piece of evidence.
15. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to exonerate Insurance company from liability in view of reports submitted by two Surveyors namely Sh. Vishal Kumar and Sh. Vineet Kaura. 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 8 Joginder Singh Versus National Insurance Co. Ltd. & Anr. F.A. No.212/2018 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.
16. It is proved on record that vehicle in question was completely damaged as per two reports submitted by Surveyors placed on record appointed under section 64UM of Statutory Insurance Act 1938. It is proved on record that present Insurance claim is a genuine Insurance claim. State Commission is of the opinion that Insurance company is under legal obligation to pay genuine Insurance claim. See AIR 2017 SC 4836 (DB) titled Om Prakash Versus Reliance General Insurance & Anr. See 2019(1) CPR 471 NC titled ICICI Lombard General Insurance Company Ltd. Versus Honest Bio-vet Pvt. Ltd.
17. Submission of learned Advocate appearing on behalf of complainant that complainant is entitled for compensation to the tune of Rs.99000/-(Ninety nine thousand) alongwith interest @ 18% per annum is decided accordingly. State Commission is of the opinion that present Insurance claim is a genuine claim and Insurance company did not pay genuine claim to complainant. State Commission is of the opinion that complainant is legally entitled for equitable compensation from Insurance company in the ends of justice and on the principles of natural justice. 9
Joginder Singh Versus National Insurance Co. Ltd. & Anr. F.A. No.212/2018
18. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for litigation costs to the tune of Rs.11000/-(Eleven thousand) is decided accordingly. State Commission is of the opinion that complainant is legally entitled for equitable litigation costs from Insurance company because complainant has engaged Advocate before learned DCF/DCC and has also paid other litigation expenses.
19. Submission of learned Advocate appearing on behalf of National Insurance Company that vehicle in question was driven by Sh. Rajat son of insured at the time of accident and Sh. Rajat was not holding valid and effective driving licence at the time of accident and he was minor and on this ground appeal filed by complainant be dismissed is decided accordingly. National Insurance Company did not send any interrogatories to Sh. Rajat son of Sh. Joginder Singh. No reasons assigned by National Insurance Company as to why National Insurance Company did not send any interrogatories to Sh. Rajat S/o insured. Adverse inference is drawn against Insurance company for non sending interrogatories to Sh. Rajat. In the FIR there is no recital that vehicle in question was driven by Sh. Rajat at the time of accident.
20. Even National Insurance Company did not send any interrogatories to person namely Sh. Hem Raj son of Sh. 10
Joginder Singh Versus National Insurance Co. Ltd. & Anr. F.A. No.212/2018 Om Prakash at whose instance FIR No.32 dated 15.10.2013 was recorded relating to accident in question. Even National Insurance Company did not send any interrogatories to I.O. Sh. Rajinder Singh who has registered FIR and investigated the matter relating to accident in question. Hence adverse inference is drawn against Insurance company for non sending interrogatories to Sh. Hem Raj and I.O. Rajinder Singh. Two Surveyors did not mentioned in their report that vehicle in question at the time of accident was driven by Sh. Rajat. On the contrary two Surveyors appointed by Insurance company namely Sh. Vishal Kumar and Sh. Vineet Kaura have specifically mentioned in their report that vehicle in question at the time of accident was driven by Sh. Joginder Singh son of Sh. Sant Ram.
21. Submission of learned Advocate appearing on behalf of National Insurance Company that as per report submitted by Sh. Sarv Daman Bhalla Investigator cum Consultant Annexure-OP10 at the time of accident vehicle in question was driven by Sh. Rajat and on this ground appeal filed by complainant be dismissed is decided accordingly. Sh. Sarv Daman Bhalla Investigator is not eye witness of the incident. Sh. Sarv Daman Bhalla Investigator has filed investigation report on the basis of derived knowledge. Report of Sh. Sarv Daman Bhalla Investigator is contradictory to report of Surveyor cum Loss Assessor relating to driver of 11 Joginder Singh Versus National Insurance Co. Ltd. & Anr. F.A. No.212/2018 vehicle at the time of accident. State Commission is of the opinion that when there is conflict between report submitted by Surveyor cum Loss Assessor registered under section 64UM of Statutory Insurance Act 1938 and report submitted by Investigator who is not registered under section 64UM of Statutory Insurance Act 1938 then in that eventuality it is expedient in the ends of justice and on the principles of natural justice to rely upon the report submitted by Surveyor cum Loss Assessor registered under Insurance Act 1938. It is held that plea of Insurance company that at the time of accident vehicle in question was driven by Sh. Rajat son of insured is defeated on the concept of ipse dixit (An assertion made without proof). It is well settled law that when two views are possible then view favourable to consumer should be adopted by Consumer Authority. See 2018(1) CLT 468 NC Union of India through GM Western Railway Versus Smt. Vinaya Vilas Sawant. See 2019(4) CPR 851 NC titled Oriental Insurance Company Ltd. Versus Dr. Abhijit Purshottam Pathak.
22. Submission of learned Advocate appearing on behalf of National Insurance Company that vehicle in question was damaged badly from driver side and there was no possibility that driver would not sustain any injuries and on this ground appeal filed by complainant be dismissed is decided accordingly. State Commission is of the opinion that 12 Joginder Singh Versus National Insurance Co. Ltd. & Anr. F.A. No.212/2018 finding of Quasi Judicial Authority is always based upon proved facts. State Commission is of the opinion that finding of Quasi Judicial Authority should not be based upon imagination.
23. Submission of learned Advocate appearing on behalf of National Insurance Company that complicated questions of facts and laws are involved in present matter and complainant be relegated to civil court for adjudication of Insurance claim is decided accordingly. State Commission is of the opinion that matter of all description relating to Insurance claim falls within the domain of Consumer Protection Act. 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 complainant to civil court for adjudication of Insurance claim. State Commission is of the opinion that present Insurance claim could be decided properly and effectively under Consumer Protection Act. Facts of present case and facts of ruling cited i.e. 2009(2) ACJ 925 (SC) titled National Insurance Company Ltd. Versus Rattani are distinguishable. Point No.1 is decided accordingly. Point No.2: Final Order
24. In view of findings upon point No.1 above appeal filed by complainant is partly allowed and order of learned DCF/DCC is set aside. It is ordered that National Insurance Company shall pay O.D claim of vehicle in question to 13 Joginder Singh Versus National Insurance Co. Ltd. & Anr. F.A. No.212/2018 complainant to the tune of Rs.105000/-(One lac five thousand) as assessed by Surveyor cum Loss Assessor namely Sh. Vishal Kumar who is registered under section 64UM of Statutory Insurance Act 1938 alongwith interest @ 9% per annum from the date of institution of complaint till actual payment.
25. It is further ordered that complainant will submit NOC from financier namely Tata Motors Finance Ltd. Lunapani Mandi (H.P) because as per R.C vehicle in question was leased with Tata Motors Finance Ltd. It is further ordered that if complainant will not produce NOC from financier i.e Tata Motors Finance Ltd. in that eventuality National Insurance Company will send O.D claim amount of vehicle in question directly to loaner namely Tata Motors Finance Ltd. Luna Pani Mandi (H.P) for liquidation of loan amount of complainant.
26. It is further ordered that National 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 National Insurance Company shall pay litigation costs to complainant to the tune of Rs.10000/-(Ten thousand). National Insurance Company will comply the order within one month after the receipt of certified copy of order. Surveyor report submitted by Sh. Vishal Kumar Annexure-OP-5 and R.C of vehicle in question 14 Joginder Singh Versus National Insurance Co. Ltd. & Anr. F.A. No.212/2018 Annexure-C15 shall form part and parcel of order. Consumer complaint against M/s Hi-Tech Satluj Motors Pvt. Ltd. is dismissed because there is no privity of contract qua Insurance claim between complainant and M/s Hi-Tech Satluj Motors Pvt. Ltd. Privity of contract qua Insurance claim is between Sh. Joginder Singh and National Insurance Company.
27. File of learned DCF/DCC 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. Due to winter vacation of State Commission w.e.f. 11.01.2020 to 23.02.2020 and due to country wide lockdown on account of Corona virus appeal is decided today. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President R.K. Verma Member 15.05.2020 K.D 15