State Consumer Disputes Redressal Commission
United India Insurance Co. Ltd. vs Smt. Bimla Devi. on 1 January, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 158/2017
Date of Presentation: 02.06.2017
Order Reserved On : 22.08.2017
Date of Order : 01.01.2018
......
United India Insurance Company Limited through its Senior
Divisional Manager Divisional Office Timber House Cart Road
Shimla-171001.
...... Appellant/Opposite party
Versus
Smt. Bimla Devi w/o Shri Narayan Dass s/o late Shri Kanshi
Ram r/o Set No. 1 Firemen Line B Block R.P. Niwas Shimla
171005 through her husband and general power of attorney Shri
Narayan Dass.
......Respondent /Complainant
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. P.S. Chandel Advocate.
For Respondent : None despite notice.
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 26.04.2017 passed by Learned District Forum in consumer complaint 1 Whether reporters of the local papers may be allowed to see the order? Yes. United India Insurance Co. Ltd. Versus Bimla Devi (F.A. No.158/2017) No.226/2013 title Smt. Bimla Devi Versus The Divisional Manager United India Insurance Company Limited. Brief facts of Consumer Complaint:
2. Complainant filed consumer complaint under section 12 of Consumer Protection Act 1986 against opposite party pleaded therein that complainant is owner of vehicle No.HP-01A-5344 which was insured with opposite party w.e.f. 08.07.2011 to 07.07.2012. It is pleaded that vehicle met with accident on dated 31.03.2012 and vehicle was totally damaged. It is further pleaded that thereafter complainant filed claim before insurance but insurance company repudiated the claim filed by complainant. It is further pleaded that complainant completed all formalities. It is further pleaded that insurance company repudiated the claim on the ground that driver was not holding valid and effective driving licence at the time of accident. It is further pleaded that opposite party committed deficiency in service. Complainant sought relief of payment of Rs.300000/- (Three lac) and complainant also sought additional relief to the tune of Rs.17000/- (Seventeen thousand) as crane charges alongwith interest @ 18% per annum. Complainant also sought additional relief of compensation to the tune of Rs.20000/- (Twenty thousand) for mental harassment and agony. Prayer for acceptance of complaint sought.
3. Per contra version filed on behalf of opposite party pleaded therein that opposite party did not commit any 2 United India Insurance Co. Ltd. Versus Bimla Devi (F.A. No.158/2017) deficiency in service and did not commit any unfair trade practice. It is pleaded that at the time of accident Shri Dharmender Kumar was driving the vehicle. It is further pleaded that opposite party hired services of surveyor-cum-loss assessor Rajinder Kumar who verified the driving licence and reported that driving licence was issued for LMV-NT only. It is further pleaded that driver was not legally competent to drive light motor vehicle. It is further pleaded that complainant has committed fundamental violation of terms and conditions of insurance policy. It is further pleaded that deceased driver was also possessing another driving licence issued by DTO Mon Nagaland. It is further pleaded that subsequent licence could not be perused because same was procured subsequently. It is further pleaded that surveyor-cum-loss assessor has assessed loss to the tune of Rs.249500/- (Two lac forty nine thousand five hundred). It is further pleaded that vehicle was overloaded at the time of accident. Prayer for dismissal of consumer complaint sought.
4. Learned District Forum allowed the complaint vide order dated 26.02.2016 and ordered opposite party to pay sum of Rs.299500/- (Two lac ninety nine thousand five hundred) alongwith interest @9% per annum from the date of complaint till actual payment within 45 days. Learned District Forum further ordered opposite party to pay punitive compensation to the tune of Rs.10000/- (Ten thousand) to complainant on 3 United India Insurance Co. Ltd. Versus Bimla Devi (F.A. No.158/2017) account of harassment and mental agony. Learned District Forum further ordered opposite party to pay litigation costs to the tune of Rs.5000/- (Five thousand) to the complainant.
5. Feeling aggrieved against order passed by Learned District Forum opposite party filed appeal No.117/2016 before State Commission. State Commission decided appeal on dated 30.06.2016 and remanded back the complaint to learned District Forum with the direction to decide the same afresh by recording definite findings on the pleas raised by appellant i.e. insurance company.
6. Thereafter learned District Forum vide order dated 26.04.2017 allowed the complaint filed by complainant and ordered opposite party to pay sum of Rs.299500/- (Two lac ninety nine thousand five hundred) alongwith interest @9% per annum from the date of complaint till actual payment within 45 days. Learned District Forum further ordered opposite party to pay punitive compensation to the tune of Rs.20000/- (Twenty thousand) to the complainant on account of harassment and mental agony. Learned District Forum further ordered opposite party to pay litigation costs to the tune of Rs.10000/- (Ten thousand) to the complainant.
7. Feeling aggrieved against order passed by Learned District Forum opposite party filed present appeal before State Commission.
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United India Insurance Co. Ltd. Versus Bimla Devi (F.A. No.158/2017)
8. We have heard learned advocate appearing on behalf of appellant and we have also perused entire record carefully. None appeared on behalf of respondent at the stage of final arguments. State Commission decided to dispose of consumer complaint on merits.
9. 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:
10. Complainant filed affidavit of Narayan Dass in evidence. There is recital in the affidavit that deponent is husband of complainant and is appointed as General Attorney on behalf of complainant. There is further recital in the affidavit that complainant got her vehicle No. HP-01-5344 insured with opposite party w.e.f. 08.07.2011 to 07.07.2012 in consideration amount of Rs.300000/- (Three lac). There is further recital in the affidavit that vehicle met with accident on dated 31.03.2012 and vehicle was totally damaged. There is further recital in the affidavit that claim was filed with opposite party but opposite party repudiated claim. There is further recital in the affidavit that complainant engaged driver namely Dharmender Kumar. 5
United India Insurance Co. Ltd. Versus Bimla Devi (F.A. No.158/2017) There is further recital in the affidavit that claim was repudiated by opposite party on the ground that driver was not holding valid and effective driving licence at the time of accident. There is further recital in the affidavit that legal notice was also issued to opposite party but opposite party did not settle the claim.
11. Opposite party filed affidavit of Ravinder Kumar Negi Assistant Divisional Manager in evidence. There is recital in the affidavit that opposite party did not commit any deficiency in service and did not commit any unfair trade practice. There is further recital in the affidavit that claim of complainant was repudiated legally by the opposite party. There is further recital in the affidavit that at the time of accident Dharmender Kumar was driving the vehicle. There is further recital in the affidavit that driving licence No. DL/N/2196/2008 dated 24.10.20008 was issued by Registering and Licensing Authority Joginder Nagar in favour of driver. There is further recital in the affidavit that insurance company appointed Shri Rajinder Kumar Sharma surveyor-cum-loss assessor who has submitted report that driver was holding LMV-NT licence only at the time of accident. There is further recital in the affidavit that driver was not legally competent to drive light motor vehicle. There is further recital in the affidavit that owner has committed fundamental violation of terms and conditions of insurance policy. There is further recital in the affidavit that thereafter complainant submitted another driving licence of driver issued 6 United India Insurance Co. Ltd. Versus Bimla Devi (F.A. No.158/2017) from DTO Mon Nagaland. There is further recital in the affidavit that driving licence issued by DTO Mon Nagaland could not be renewed for five years. There is further recital in the affidavit that surveyor has assessed loss to the tune of Rs.249500/- (Two lac forty nine thousand five hundred). There is further recital in the affidavit that vehicle was overloaded at the time of accident.
12. Opposite party also filed affidavit of R.L. Vasistha in evidence. There is recital in the affidavit that deponent has conducted investigation in the matter and submitted factual report.
13. Submission of learned advocate appearing on behalf of insurance company that driver was not holding valid and effective driving licence at the time of accident and on this ground appeal be allowed is decided accordingly. State Commission has carefully perused registration certificate of vehicle. As per registration certificate of vehicle annexure C-7 unladen weight of vehicle No. HP-01A-5344 was 1115 kg. As per section 2(21) of Motor Vehicles Act light motor vehicle means a transport vehicle or omnibus the gross unladen weight of which does not exceed 7500 kilograms. In view of above stated facts it is held that vehicle fall within the definition of Light Motor Vehicle. State Commission has also perused driving licence placed on record. It is proved on record that at the time of accident driver was legally competent to drive light motor vehicle. Even surveyor has submitted in his report that driver 7 United India Insurance Co. Ltd. Versus Bimla Devi (F.A. No.158/2017) was legally competent to driver LMV-NT vehicle. It was held by Hon'ble Apex court in cases reported in 2017(8) SC 590 Apex Court titled Sant Lal versus Rajesh & Ors that driver holding LMV licence could drive LMV transport vehicle. Also see 2017 SC 3668 Mukun Dewangan Versus Oriental Insurance Company Limited. It is well settled law that ruling given by Apex Court of India is binding upon all courts, tribunals and commissions as per Article 141 of Constitution of India. Hence it is held that driver was holding valid and effective driving licence at the time of accident.
14. Submission of learned advocate appearing on behalf of insurance company that at the time of accident there was overloading in vehicle and on this ground appeal be allowed is decided accordingly. Onus to prove that there was overloading in vehicle at the time of accident was upon insurance company. Insurance company did not file affidavit of eye witness in order to prove overloading. Recital of overloading in FIR No. 63 dated 31.03.2012 is not helpful to insurance company because FIR is not substantive piece of evidence. Even insurance company did not file any affidavit of police official who had recorded FIR. Even as per Section 162 of Code of Criminal Procedure 1973 no statement made by any person to police officer in the course of investigation would be used for any purpose except for the purpose of contradiction in the manner provided under section 145 of Indian Evidence Act 1872. Even as per Consumer 8 United India Insurance Co. Ltd. Versus Bimla Devi (F.A. No.158/2017) Protection Act 1986 contents of FIR are not per se admissible. It is well settled law that proceedings under Consumer Protection Act 1986 are quasi-judicial proceedings. Hence plea of insurance company that there was overloading at the time of accident is defeated on the concept of ipse-dixit (An assertion made without proof).
15. Submission of learned advocate appearing on behalf of insurance company that learned District Forum has not deducted salvage value of vehicle and on this ground appeal be allowed is decided accordingly. State Commission is of the opinion that insurance company is legally entitled for deduction of salvage value of vehicle in total loss basis cases.
16. 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 is decided accordingly. State Commission is of the opinion that learned District Forum has not deducted salvage value of vehicle at the time of assessment of damage and it is held that insurance company is legally entitled for deduction of salvage value of vehicle. It is proved on record that surveyor-cum-loss assessor has assessed salvage value of vehicle to the tune of Rs.50000/- (Fifty thousand) and after deducting the salvage value surveyor-cum-loss assessor has assessed net loss to the complainant to the tune of Rs.249500/- (Two lac forty nine thousand five hundred). Hence it is held that loss assessment 9 United India Insurance Co. Ltd. Versus Bimla Devi (F.A. No.158/2017) report submitted by surveyor-cum-loss assessor is important document which should not be brushed aside by the consumer forum without valid reasons and same should be given credence. Hence it is held that complainant is legally entitled for damage as assessed by surveyor-cum-loss assessor. See 2012 (1) CPJ 420 NC H.C. Saxena Versus New India Assurance Co. Ltd. See 2012 (4) CPJ 103 NC National Insurance Company Limited Versus Jyoti Tobacco Traders. See 2009 (3) CPJ 194 NC Nand Kisore Jaiswal Versus National Insurance Company. Point No.1 is decided partly in yes and partly in no.
Point No.2: Final Order
17. In view of findings upon point No.1 above appeal is partly allowed and amount to the tune of Rs.299500/- (Two lac ninety nine thousand five hundred) assessed by learned District Forum is reduced to Rs.249500/- (Two lac forty nine thousand five hundred). Other parts of order passed by learned District Forum are affirmed. Report of Girish Sharma surveyor-cum-loss assessor annexure OP-9 will form part and parcel of order. Insurance company will pay the entire amount to the complainant within one month after the receipt of certified copy 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 room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of 10 United India Insurance Co. Ltd. Versus Bimla Devi (F.A. No.158/2017) 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 01.01.2018.
*GUPTA* 11