State Consumer Disputes Redressal Commission
Sh. Amit. vs National Insurance Co. Ltd. on 30 June, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 263/2016
Date of Presentation: 03.08.2016
Order Reserved On : 03.05.2017
Date of Order : 30.06.2017
...
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Amit son of Shri Jagat Ram resident of House No.348/3 village
Pungh Post Office Sunder Nagar District Mandi Himachal Pradesh.
...... Appellant/complainant.
Versus
National Insurance Company Limited Divisional Office Moti
Bazar Post Office Tehsil and District Mandi H.P.
......Respondent /opposite party
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. Shashi Bhushan Advocate.
For Respondent : Mr. Jagdish Thakur 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 30.06.2016 passed by Learned District Forum in consumer complaint No.99/2015 title Amit Versus National Insurance Company Ltd.. 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Amit versus National Insurance Company Ltd.
(F.A. No.263/2016) Brief facts of Case:
2. Amit filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is owner of JCB machine bearing registration No.HP-33-C-0206 which was insured with the opposite party. It is pleaded that JCB machine met with an accident on dated 30.08.2014 at about 4.30 PM. It is further pleaded that JCB machine of complainant was damaged and opposite party was immediately informed. It is further pleaded that all documents were submitted to opposite party relating to claim. Complainant sought relief of Rs.265414/-(Two lac sixty five thousand four hundred fourteen) alongwith interest @ 12% per annum. Complainant also sought litigation costs to the tune of Rs.20000/-(Twenty thousand) and complainant also sought compensation to the tune of Rs.50000/-(Fifty thousand).
3. Per contra version filed on behalf of opposite party pleaded therein that present complaint is not maintainable. It is pleaded that complainant has suppressed the material facts from the Forum. It is further pleaded that JCB machine was carrying more person than sitting capacity at the time of accident. It is pleaded that services of surveyor were hired by the opposite party and surveyor has assessed the loss subject to the terms and conditions of insurance policy. Prayer for dismissal of complaint sought.
4. Learned District Forum ordered that complainant would submit the relevant documents of repair of his vehicle to 2 Amit versus National Insurance Company Ltd.
(F.A. No.263/2016) the opposite party and thereafter opposite party would settle the claim on non-standard basis within 30 days. Learned District Forum further ordered that if the opposite party would not settle the claim within 30 days then complainant would be at liberty to file fresh complaint on same cause of action. 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 arises 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:
7. Complainant Amit filed evidence by way of affidavit.
There is recital in affidavit that deponent is owner of JCB machine bearing registration No.HP-33-C-0206. There is further recital in affidavit that JCB machine was insured with the opposite party at the time of accident. There is further recital in affidavit that JCB machine met with an accident on 30.08.2014 at about 4.30 PM when the JCB machine was clearing PWD road at village Kapahi Tehsil Sunder Nagar District Mandi H.P. There is further recital in affidavit that said JCB machine was engaged by HP PWD for clearance of road. There is recital in 3 Amit versus National Insurance Company Ltd.
(F.A. No.263/2016) affidavit that one Yadvinder operator was engaged by the deponent to operate the said JCB at the time of accident. There is further recital in affidavit that complainant sustained loss to the tune of Rs.265414/-(Two lac sixty five thousand four hundred fourteen). There is further recital in affidavit that opposite party repudiated the claim of the deponent. There is further recital in affidavit that all codal formalities were completed.
8. Complainant also filed affidavit of Yadvinder Kumar in evidence. There is recital in affidavit that deponent was working as driver with JCB machine bearing registration No.HP- 33-C-0206 owned by Amit. There is further recital in affidavit that on 30.08.2014 at about 4.30 PM deponent was plying the said JCB machine at village Kapahi Tehsil Sunder Nagar District Mandi H.P fur clearing HP PWD road. There is further recital in affidavit that JCB machine suddenly skidded from the road and rolled down. There is further recital in affidavit that deponent was alone in the JCB cabin.
9. Complainant also filed affidavit of Gopal Dass work inspector in HPPWD in evidence. There is recital in affidavit that on 30.08.2014 at about 4.30 PM deponent was on duty at village Kapahi Tehsil Sunder Nagar District Mandi and job of clearing the road through JCB machine was carried out. There is further recital in affidavit that said JCB machine was operated by its operator Yadvinder Kumar. There is further recital in affidavit that JCB machine bearing registration No.HP- 4
Amit versus National Insurance Company Ltd.
(F.A. No.263/2016) 33-C-0206 at once skidded out of the road towards down hill. There is further recital in affidavit that in order to save driver deponent alongwith one Prem Singh rushed to the JCB machine and deponent & Prem Singh sustained simple injuries. There is further recital in affidavit that deponent and Prem Singh were not sitting with the driver of JCB machine and there is further recital in affidavit that JCB machine was damaged.
10. Complainant also filed affidavit of Prem Singh in evidence. There is recital in affidavit that deponent was helper in JCB machine bearing No.HP-33-C-0206. There is further recital in affidavit that JCB machine skidded out of the road towards down hill and in order to save driver deponent alongwith Gopal Dass rushed to the JCB machine. There is further recital in affidavit that deponent also sustained injuries. There is recital in affidavit that deponent was not sitting with the driver of JCB machine. There is further recital in affidavit that JCB machine was damaged.
11. Seven dates were given to the opposite party by learned District Forum to adduce evidence but opposite party did not adduce any evidence by way of affidavits. On dated 17.05.2016 learned advocate appearing on behalf of opposite party stated before learned District Forum that opposite party does not want to adduce any evidence by way of affidavit. Learned advocate appearing on behalf of opposite party has also given statement that documents already filed alongwith version be read in evidence.
5
Amit versus National Insurance Company Ltd.
(F.A. No.263/2016)
12. Submission of learned advocate appearing on behalf of appellant that appellant is legally entitled for compensation as assessed by surveyor namely Mohinder K. Sharma is accepted for the reasons hereinafter mentioned. It is proved on record that complainant has submitted the loss to the tune of Rs.265414/-(Two lac sixty five thousand four hundred fourteen). Yadvinder Driver, Gopal Dass Work Inspector and Prem Singh Helper in JCB machine have filed affidavits placed on record. Yadvinder Driver, Gopal Dass Work Inspector and Prem Singh Helper who are eye witnesses of the incident have stated in positive manner in affidavits that on 30.08.2014 at about 4.30 PM JCB machine skidded from the road and rolled down towards hill and damaged. Affidavits filed by eye witnesses namely Yadvinder Driver, Gopal Dass Work Inspector and Prem Singh Helper are trustworthy reliable and inspire confidence of the State Commission. There is no reason to disbelieve the affidavits filed by Yadvinder Driver, Gopal Dass Work Inspector and Prem Singh Helper.
13. Opposite party did not file counter affidavit in evidence in order to prove a particular fact as required under section 13(4) of Consumer Protection Act 1986. No official on behalf of insurance company filed affidavit as required under section 13(4) of Consumer Protection Act 1986 to prove a particular fact. Hence adverse inference is drawn against opposite party on the principle of natural justice and in the ends of justice. See AIR 1999 SC 1441 titled Vidyadhar Versus 6 Amit versus National Insurance Company Ltd.
(F.A. No.263/2016) Mankik Rao. See AIR 1999 SC 1341 titled Ishwar Bhai C. Patel Versus Hari Har Bahera. Affidavits filed by Amit, Yadvinder Driver, Gopal Dass Work Inspector and Prem Singh Helper eye witnesses remained unrebutted on record.
14. We have also perused the report submitted by surveyor Mohinder K. Sharma engaged by opposite party. Mohinder K. Sharma surveyor has specifically mentioned in his report that present case is a fit case for repair basis settlement. Mohinder K. Sharma has specifically assessed the net loss to complainant to the tune of Rs.161488.60 (One lac sixty one thousand four hundred eighty eight & sixty paise). No reason assigned by opposite party to disbelieve report of surveyor and loss assessor. Report of loss assessor appointed by opposite party is binding upon opposite party. See 2017 (II) CPJ 168 Kerla Western India Ply Wood Ltd. Versus Oriental Insurance Company Ltd.
15. Submission of learned advocate appearing on behalf of insurance company that complainant did not furnish the relevant documents to the insurance company and on this ground appeal be dismissed is rejected being devoid of any force for reasons hereinafter mentioned. State Commission is of the opinion that insurance company appointed Mohinder K. Sharma as surveyor and loss assessor in the present case and surveyor and loss assessor personally inspected the vehicle and also obtained the relevant documents from the complainant and after perusal of vehicle personally and after perusal of entire 7 Amit versus National Insurance Company Ltd.
(F.A. No.263/2016) documents surveyor cum loss assessor has submitted the report and recommended payment to the complainant to the tune of Rs.161488.60. State Commission is of the opinion that report submitted by surveyor cum loss assessor is trustworthy reliable and inspire confidence of the State Commission. State Commission is of the opinion that learned District Forum did not assign any reason for disbelieving the assessment report submitted by surveyor cum loss assessor Mohinder K. Sharma.
16. Submission of learned advocate appearing on behalf of insurance company that in FIR No.199 of 2014 it has been specifically mentioned that Gopal Dass Work Inspector and Prem Singh Helper were travelling in the JCB machine and on this ground appeal filed by appellant be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that FIR was lodged at the instance of Gopal Dass Work Inspector. Gopal Dass Work Inspector has filed affidavit and there is recital in affidavit that at the time of accident Gopal Dass was not sitting with the driver of JCB machine. As per section 13(4) of Consumer Protection Act 1986 affidavit is substantial piece of evidence. It is well settled law that FIR is not substantial piece of evidence and it is well settled law that contents of FIR cannot be read in evidence as per section 162 of Code of Criminal Procedure 1973. It is well settled law that contents of FIR can be used only for corroboration or contradiction purpose as per section 145 of Indian Evidence Act 1872. In the present case insurance company did not file any 8 Amit versus National Insurance Company Ltd.
(F.A. No.263/2016) application before learned District Forum for cross examination of Gopal Dass by way of interrogatories. It is held that opposite party has committed deficiency in service by way of not releasing the amount to the complainant as per loss assessed by surveyor cum loss assessor Mohinder K. Sharma. In view of above stated facts point No.1 is decided accordingly.
Point No.2: Final Order
17. In view of findings upon point No.1 above appeal is partly allowed. Order of learned District Forum announced in consumer complaint No.99/2015 title Amit Versus National Insurance Company Ltd. is set aside. It is ordered that opposite party will pay a sum of Rs.161488.60 (One lac sixty one thousand four hundred eighty eight & sixty paise) to complainant as assessed by surveyor cum loss assessor Mohinder K. Sharma within one month after the receipt of copy of order failing which insurance company will be liable to pay interest @ 9% per annum from the date of institution of complaint till realization. In addition it is ordered that opposite party will pay litigation costs to complainant to the tune of Rs.3000/-(Three thousand). In addition it is ordered that opposite party will also pay compensation to complainant to the tune of Rs.5000/-(Five thousand) for mental agony. Final survey report submitted by Mohinder K. Sharma surveyor and loss assessor will form part and parcel of order. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record 9 Amit versus National Insurance Company Ltd.
(F.A. No.263/2016) 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 Meena Verma Member 30.06.2017.
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