State Consumer Disputes Redressal Commission
Smt. Bimla Devi. vs New India Assurance Co. Ltd. on 5 October, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 11/2018
Date of Presentation: 03.11.2017
Order Reserved on : 04.07.2018
Date of Order : 05.10.2018
......
Bimla Devi wife of Shri Brij Lal Mahajan resident of village
Devighati (Chhakoh) Post Office Chhakoh Tehsil Sadar District
Bilaspur H.P.
...... Appellant/Complainant
Versus
The New India Assurance Company Ltd. Sankhyan Complex
Main Market Bilaspur 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
Whether approved for reporting?1 Yes.
For Appellant : Ms. Vandana Thakur 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 20.07.2017 passed by Learned District Forum in consumer complaint No.04/2012 titled Bimla Devi Versus The New India Assurance Company Ltd.
1 Whether reporters of the local papers may be allowed to see the order? Yes.
Bimla Devi Versus New India Assurance Company Ltd.
(F.A. No.11/2018) Brief facts of consumer complaint:
2. Smt. Bimla Devi filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is owner in possession of truck having registration No.HP-63-7301. It is pleaded that vehicle was insured with opposite party w.e.f. 30.07.2010 to 29.07.2011 for a sum of Rs.500000/-(Five lac) vide policy No.35240431100-100002821. It is pleaded that vehicle met with accident on dated 22.08.2010 near Bagga in Solan District and was badly damaged. It is further pleaded that opposite party was intimated and opposite party appointed surveyor cum loss assessor namely Deepak Sood who assessed the loss to the tune of Rs.250000/-(Two lac fifty thousand) arbitrarily. It is pleaded that complainant has spent an amount of Rs.500000/-(Five lac) for repair of the vehicle. It is pleaded that complainant informed the opposite party to settle the claim on net salvage basis. It is further pleaded that complainant also sent legal notice to the opposite party. It is pleaded that opposite party committed deficiency in service. Complainant sought relief of payment of Rs.250000/-(Two lac fifty thousand) alongwith interest @12% per annum from the date of accident till realization. In addition complainant sought compensation to the tune of 2 Bimla Devi Versus New India Assurance Company Ltd.
(F.A. No.11/2018) Rs.50000/-(Fifty thousand) for mental pain and agony. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party pleaded therein that complainant has no cause of action. It is pleaded that claim was settled on repair basis. It is pleaded that complainant did not repair the vehicle and sold the vehicle before the settlement of claim. It is further pleaded that claim of the complainant was closed as no claim by the insurance company. It is pleaded that vehicle was purchased for commercial purpose. It is further pleaded that intricate question of law and facts are involved in the present consumer complaint and same could not be decided in a summary manner. Prayer for dismissal of consumer complaint sought.
4. Learned District Forum allowed the complaint and ordered opposite party to pay an amount of Rs.219854/-(Two lac nineteen thousand eight hundred fifty four) to complainant as assessed by surveyor cum loss assessor in his report annexure-R6 within thirty days from the date of receipt of copy of order. Learned District Forum further ordered that failing which insurance company would pay interest @ 9% per annum from the date of filing of complaint till the said amount is not paid or realized. Feeling aggrieved against order passed by Learned District Forum complainant filed present appeal before State Commission. 3
Bimla Devi Versus New India Assurance Company Ltd.
(F.A. No.11/2018)
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.
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 filed affidavit in evidence. There is recital in affidavit that deponent is owner in possession of truck having registration No.HP-63-7301. There is recital in affidavit that vehicle was duly insured with the opposite party w.e.f. 30.07.2010 to 29.07.2011 in consideration amount of Rs.500000/-(Five lac). There is further recital in affidavit that vehicle was purchased by deponent to earn her livelihood.
There is recital in affidavit that vehicle met with accident on 22.08.2010 near Bagga in Solan District and total loss was caused. There is recital in affidavit that accident was reported to insurance company and insurance company deputed Shri Deepak Sood surveyor cum loss assessor who assessed the loss to the tune of Rs.250000/-(Two lac fifty thousand). There is recital in affidavit that deponent has spent an amount of Rs.500000/-(Five lac) on repair of vehicle. 4
Bimla Devi Versus New India Assurance Company Ltd.
(F.A. No.11/2018) There is recital in affidavit that legal notice was also given to opposite party. There is recital in affidavit that deponent is entitled for a sum of Rs.250000/-(Two lac fifty thousand) qua vehicle and deponent is also entitled for compensation to the tune of Rs.50000/-(Fifty thousand).
8. Opposite party filed affidavit of Shri Santosh Kumar Sr. Divisional Manager. There is recital in affidavit that version filed by the opposite party be treated as evidence relating to controversial facts on behalf of opposite party.
9. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for IDV value of vehicle to the tune of Rs.500000/-(Five lac) on repair basis is decided accordingly. It is proved on record vide annexure-C1 that IDV value of vehicle was Rs.500000/-(Five lac) and it is also proved on record that insurance company has received O.D premium to the tune of Rs.7987/-(Seven thousand nine hundred eighty seven) from complainant. It is also proved on record that insurance policy was operative w.e.f. 30.07.2010 to 29.07.2011. It is also proved on record that accident of vehicle took place during the period when insurance policy was in operation. It is proved on record that initially insurance company appointed Mr. Deepak Sood surveyor cum loss assessor who has submitted the report that vehicle was going to loading area of J.P. Cement Factory 5 Bimla Devi Versus New India Assurance Company Ltd.
(F.A. No.11/2018) then driver of vehicle lost control after negotiating a deep curve and vehicle rolled down towards valley side about 100 feet from the road and got damaged badly.
10. Thereafter insurance company appointed surveyor cum loss assessor namely Dinesh Kumar who has submitted his report annexure-R6 placed on record. As per surveyor cum loss assessor accident took place on dated 22.08.2010 at about 1.30 A.M midnight and survey was conducted on 27.08.2010 by surveyor cum loss assessor namely Shri Deepak Sood. Thereafter survey of vehicle was conducted by other surveyor cum loss assessor namely Shri Dinesh Kumar. Surveyor cum loss assessor namely Mr. Dinesh Kumar has deducted the salvage value of the vehicle. The surveyor cum loss assessor namely Shri Dinesh Kumar has recommended net indemnity to the tune of Rs.219854/-(Two lac nineteen thousand eight hundred fifty four).
11. Complainant did not sent any interrogatories to surveyor cum loss assessor namely Mr. Dinesh Kumar. No reasons assigned by complainant as to why complainant did not sent any interrogatories to surveyor cum loss assessor namely Shri Dinesh Kumar when complainant was dissatisfied with the report of surveyor cum loss assessor namely Dinesh Kumar. Complainant also did not file any counter surveyor cum loss assessor report. Survey report 6 Bimla Devi Versus New India Assurance Company Ltd.
(F.A. No.11/2018) submitted by Mr. Dinesh Kumar Annexure-R6 dated 10.12.2010 remained unrebutted on record.
12. It is well settled law that report of surveyor is important document which could not be brushed aside by consumer Fora without valid reasons. It is well settled law that report of surveyor should be given due credence unless contrary is proved. 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 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.
13. Even complainant did not file any affidavit of mechanic who had conducted repair work of vehicle. No reason assigned by complainant as to why complainant did not file affidavit of mechanic who had conducted repair works of vehicle.
14. It is well settled law that contents of controversial private document should be proved by way of affidavit of person who had signed controversial private documents as per Consumer Protection Act 1986. It is well settled law that contents of controversial public documents could be proved 7 Bimla Devi Versus New India Assurance Company Ltd.
(F.A. No.11/2018) by way of certified copies of public document issued by custodian of public documents under Consumer Protection Act 1986. It is well settled law that proceedings under Consumer Protection Act 1986 are quasi judicial proceedings.
15. Submission of the learned Advocate appearing on behalf of complainant that learned District Forum has not granted interest upon O.D damage ordered by learned District Forum from institution of complaint and on this ground appeal filed by complainant be allowed is decided accordingly. State Commission is of the opinion that complainant is legally entitled for interest from institution of complaint till realization in the ends of justice and on the principle of natural justice.
16. Submission of learned Advocate appearing on behalf of complainant that learned District Forum did not grant any compensation to the complainant for mental agony and harassment is decided accordingly. It is proved on record that insurance company did not settle the claim of complainant and complainant has to approach learned District Forum for redressal of her grievances. Complainant is female aged 60 years. State Commission is of the opinion that complainant is legally entitled for reasonable compensation for mental agony and harassment and litigation costs.
8
Bimla Devi Versus New India Assurance Company Ltd.
(F.A. No.11/2018)
17. Submission of learned Advocate appearing on behalf of insurance company that complainant has sold the vehicle to third person and on this ground insurance company is not legally liable to indemnify the complainant is decided accordingly. It is proved on record that at the time of accident complainant was owner in possession of the vehicle and it is also proved on record that at the time of accident insurance policy was in operation. State Commission is of the opinion that date of accident is material date. State Commission is of the opinion that on the date of accident vehicle was not sold to anybody by the complainant. State Commission is of the opinion that insurance company could not be exonerated from liability on the ground that complainant has sold vehicle to third person after accident.
18. Submission of learned Advocate appearing on behalf of insurance company that vehicle was used for commercial purpose and on this ground appeal filed by complainant be dismissed is decided accordingly. Complainant has specifically mention in her pleading and affidavit that vehicle was purchased by complainant to earn her livelihood. Insurance company did not file any evidence on record that vehicle was not purchased by complainant to earn her livelihood. Even as per section 2(o) of Consumer Protection Act 1986 any services rendered by insurance 9 Bimla Devi Versus New India Assurance Company Ltd.
(F.A. No.11/2018) company falls within the definition of section 2(0) of Consumer Protection Act 1986. Hence it is held that case of complainant falls under section 2(o) of Consumer Protection Act 1986 and complainant falls within the definition of consumer as defined under section 2(o) of Consumer Protection Act 1986 because under section 2(o) of Consumer Protection Act 1986 services of any description rendered by insurance company has been covered.
19. Submission of learned Advocate appearing on behalf of insurance company that intricate questions of law and facts are involved in the present consumer complaint and complainant be relegated to civil court for redressal of her grievances is decided accordingly. State Commission is of the opinion that present matter could be disposed of under Consumer Protection Act 1986 in a summary manner. State Commission is of the opinion that it is not expedient to relegate the complainant to civil court in the ends of justice and on the principle of natural justice. In view of above stated facts point No.1 is decided accordingly. Point No.2: Final Order
20. In view of findings upon point No.1 above appeal is partly allowed. Order of learned District Forum that opposite party shall pay amount to the tune of Rs.219854/-(Two lac nineteen thousand eight hundred fifty four) qua O.D claim is 10 Bimla Devi Versus New India Assurance Company Ltd.
(F.A. No.11/2018) affirmed as assessed by Surveyor cum loss assessor namely Dinesh Kumar. It is further ordered that opposite party would pay compensation to complainant for mental agony to the tune of Rs.20000/-(Twenty thousand). It is further ordered that insurance company would pay litigation costs to the complainant to the tune of Rs.10000/-(Ten thousand). It is further ordered that insurance company shall pay interest @ 9% per annum from institution of complaint till realization qua entire amount cited supra. Report of surveyor cum loss assessor namely Shri Dinesh Kumar Annexure-R6 dated 10.12.2010 shall form part and parcel of order. Order of learned District Forum is modified accordingly. 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 rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 05.10.2018 K.D * 11