State Consumer Disputes Redressal Commission
Sh. Vijay Sharma. vs United India Insurance Co. Ltd. on 20 May, 2020
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 142/2019
Date of Presentation: 06.04.2019
Order Reserved on : 05.11.2019
Date of Order : 20.05.2020
......
Vijay Sharma son of Sh. Nek Ram Sharma resident of Village
Tappa P.O. Pahara Tehsil Palampur District Kangra (H.P).
...... Appellant/Complainant
Versus
The United India Insurance Company Ltd. D8 C.S.A Marg Vikas
Mark Laxmi Nagar New Delhi Delhi East 110092 through its
Manager.
......Respondent/Opposite party
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Hon'ble Mr. R.K. Verma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Rohit vice Mr. Naveen K. Bhardwaj
Advocate.
For Respondent : Ms. Rajvinder Sandhu Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 05.03.2019 passed by Learned District Consumer Forum/ Commission in consumer complaint No.149/2018 titled Vijay Sharma Versus The United India Insurance Company Ltd. 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Vijay Sharma Versus United India Insurance Company Ltd. F.A. No.142/2019 Brief facts of consumer complaint:
2. Complainant Sh. Vijay Sharma filed consumer complaint under Consumer Protection Act pleaded therein that complainant is owner of vehicle No.HP-37C-2629 LMV car. It is pleaded that vehicle in question was insured with the Insurance company w.e.f. 17.03.2016 to 16.03.2017. It is pleaded that premium was also paid to the Insurance company. It is further pleaded that on dated 02.11.2016 vehicle in question was giving way to another vehicle coming from opposite direction. It is pleaded that insured vehicle in question was steered on one side but vehicle in question skidded and hit the parapet and vehicle in question went of the road and overturned and fell into deep gorge below the road side and met with accident. It is pleaded that vehicle in question was damaged in accident. It is further pleaded that Insurance claim was submitted before Insurance company but Insurance company did not settle the claim and committed deficiency in service.
3. Complainant sought relief to the effect that Insurance company be directed to pay O.D claim of vehicle in question to the tune of Rs.190000/-(One lac ninety thousand). Complainant sought additional relief for payment of Rs.50000/-(Fifty thousand) for harassment and mental torture. Complainant also sought relief for payment of 2 Vijay Sharma Versus United India Insurance Company Ltd. F.A. No.142/2019
Rs.10000/-(Ten thousand) as litigation costs. Prayer for acceptance of consumer complaint sought.
4. Per contra version filed on behalf of opposite party pleaded therein that complainant has committed fundamental breach of terms & conditions of Insurance policy. It is pleaded that driver of vehicle in question was not holding valid and effective driving licence at the time of accident. It is pleaded that in DDR which was registered immediately after the alleged accident name of some other driver was mentioned and subsequently same was changed to Sh. Vijay Kumar in later DDR which was lodged on 14.11.2016 after twelve days from the date of accident. It is further pleaded that driver was not holding valid and effective driving licence at the time of accident. It is pleaded that Insurance company did not commit any deficiency in service.
5. It is pleaded that Insurance company appointed Surveyor cum Loss Assessor and Surveyor cum Loss Assessor has recommended claim to the tune of Rs.164000/-(One lac sixty four thousand) on net of salvage basis with RC. It is pleaded that complainant has no cause of action and locus standi to the file present consumer complaint and complainant is estopped from filing present consumer complaint due to his own act and conduct. Prayer for dismissal of consumer complaint sought.
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Vijay Sharma Versus United India Insurance Company Ltd. F.A. No.142/2019
6. Complainant filed rejoinder and reasserted allegations mentioned in consumer complaint. 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 Ext.CW-1 in evidence.
There is recital in affidavit that deponent is owner of vehicle in question i.e Car bearing registration No.HP-37C-2629. There is recital in affidavit that vehicle in question was insured with Insurance company w.e.f. 17.03.2016 to 16.03.2017. There is recital in affidavit that premium was also paid by deponent to Insurance company. There is recital in affidavit that on dated 4 Vijay Sharma Versus United India Insurance Company Ltd. F.A. No.142/2019 02.11.2016 when deponent was approaching to his house at Village Tappa P.O. Pahra from Maranda District Kangra (H.P) alongwith one Sh. Dharam Singh son of Sh. Khajana Ram and when they reached at Village Dehan all of sudden one Swift car came from opposite side which was driven by driver in wrong side. There is recital in affidavit that vehicle of deponent rolled down in retaining wall. There is recital in affidavit that at the time of accident deponent was driving car and deponent was holding valid driving licence at the time of accident. There is recital in affidavit that Insurance claim was submitted to the Insurance company but Insurance company repudiated the claim and committed deficiency in service.
10. Complainant also filed corroborative affidavit of Sh. Dharam Chand eye witness of the accident in evidence. There is recital in affidavit that on dated 02.11.2016 deponent alongwith complainant and his brother Sh. Ajay Kumar were going to Village Tappa P.O. Pahra from Maranda District Kangra (H.P). There is recital in affidavit that deponent was sitting in the back seat of vehicle in question. There is recital in affidavit that complainant Sh. Vijay was driving vehicle in question at the time of accident. There is recital in affidavit that when vehicle in question reached near Village Dehan 5 Vijay Sharma Versus United India Insurance Company Ltd. F.A. No.142/2019 then all of sudden one Swift car came from opposite side which was driven in wrong side.
11. There is recital in affidavit that vehicle of complainant rolled down in the retaining wall. There is recital in affidavit that complainant and Sh. Ajay Sharma were injured in accident. There is recital in affidavit that name of driver was written by Criminal Investigating Agency as per statement of deponent but deponent was not fit for making statement as deponent was unconscious. There is recital in affidavit that consequently Investigating Agency has written wrong name of driver. There is recital in affidavit that Sh. Vijay Sharma was factually driving vehicle in question at the time of accident. There is recital in affidavit that after getting medical treatment deponent visited police station Bhawarna and disclosed the factual position to Criminal Investigating Agency and Criminal Investigating Agency has rectified entry in their GD No.024 dated 14.11.2016.
12. Complainant also filed corroborative affidavit of Sh. Ajay Sharma eye witness of accident in evidence. There is recital in affidavit that deponent is real brother of complainant. There is recital in affidavit that on dated 02.11.2016 deponent alongwith complainant was going to Village Tappa P.O. Pahra from Maranda District Kangra (H.P) in vehicle in question. There is recital in affidavit that Sh. 6
Vijay Sharma Versus United India Insurance Company Ltd. F.A. No.142/2019 Dharam Chand son of Sh. Khajana Ram was sitting at the back seat of vehicle in question. There is recital in affidavit that complainant was driving vehicle in question at the time of accident. There is recital in affidavit that when vehicle in question reached at village Dehan all of sudden one Swift car came from opposite side which was driven in wrong side. There is recital in affidavit that vehicle in question rolled down in retaining wall.
13. There is recital in affidavit that complainant and Sh. Dharam Chand were injured in accident and both were brought to civil hospital Palampur for medical treatment. There is recital in affidavit that Criminal Investigating Agency has wrongly written name of driver of vehicle in question instead of Sh. Vijay Kumar complainant. There is recital in affidavit that factually vehicle in question was driven by Sh. Vijay Sharma at the time of accident. There is recital in affidavit that name of driver was written by Criminal Investigating Agency as per statement of Sh. Dharam Chand who was unconscious. There is recital in affidavit that after getting treatment Sh. Dharam Chand visited police station Bhawarna and rectified relevant entry of DDR. State Commission has carefully perused all annexures filed by complainant.
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Vijay Sharma Versus United India Insurance Company Ltd. F.A. No.142/2019
14. Sh. Ravinder Negi filed affidavit on behalf of Insurance company in evidence. There is recital in affidavit that deponent is Sr. Branch Manager of United India Insurance Company Ltd. There is recital in affidavit that complainant has committed fundamental breach of terms and conditions of Insurance policy. There is recital in affidavit that driver of vehicle in question was not holding valid and effective driving licence at the time of accident. There is recital in affidavit that complainant was not driving vehicle in question at the time of accident. There is recital in affidavit that Insurance company appointed Surveyor cum Loss Assessor namely Sh. Rajeev Rajdan who has assessed loss to the tune of Rs.164000/-(One lac sixty four thousand) on net of salvage basis with RC. There is recital in affidavit that complainant has no cause of action against Insurance company and complainant is estopped by his act and conduct to file the present consumer complaint.
15. Insurance company also filed corroborative affidavit of Sh. Rajeev Rajdan Surveyor cum Loss Assessor in evidence. There is recital in affidavit that deponent is qualified Surveyor cum Loss Assessor. There is recital in affidavit that deponent has assessed loss to the tune of Rs.164000/-(One lac sixty four thousand) on net of salvage basis with RC. There is recital in affidavit that final survey 8 Vijay Sharma Versus United India Insurance Company Ltd. F.A. No.142/2019 report submitted by deponent be read as part and parcel of affidavit.
16. Insurance company also filed affidavit of Sh. Rajesh Bhandari Surveyor cum Loss Assessor in evidence. There is recital in affidavit that Insurance company hired services of deponent to conduct spot survey of vehicle in question which met with accident. There is recital in affidavit that deponent conducted spot survey of vehicle in question on dated 27.01.2017. There is recital in affidavit that report submitted by deponent be read as part and parcel of affidavit. State Commission has carefully perused all annexures filed by opposite party.
17. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for O.D claim of vehicle in question is decided accordingly. Insurance company appointed Surveyors cum Loss Assessors namely Sh. Rajesh Bhandari and Sh. Rajeev Rajdan. Sh. Rajesh Bhandari Surveyor cum Loss Assessor has specifically mentioned in his report that vehicle in question met with accident and sustained damage. Sh. Rajesh Bhandari has given certificate that accident was fresh in nature and history of accident and damage tally with each other. 9
Vijay Sharma Versus United India Insurance Company Ltd. F.A. No.142/2019
18. Similarly Insurance company appointed another Surveyor cum Loss Assessor namely Sh. Rajeev Rajdan and Sh. Rajeev Rajdan has assessed damage of vehicle in question and recommended Insurance claim to the tune of Rs.164000/-(One lac sixty four thousand). Surveyor cum Loss Assessor has reduced salvage value of vehicle in question assessed as Rs.25000/-(Twenty five thousand) from net claim recommended for payment. State Commission is of the opinion that report submitted by Surveyor cum Loss Assessor under section 64UM of Statutory Insurance Act 1938 is substantial piece of evidence 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(3) CPJ 194 NC Nand Kishore Jaiswal 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.
19. In view of report submitted by Surveyors cum Loss Assessors namely Sh. Rajesh Bhandari and Sh. Rajeev Rajdan it is proved on record that present Insurance claim is a genuine claim. It is well settled law that Insurance company is under legal obligation to pay genuine claim. See 10 Vijay Sharma Versus United India Insurance Company Ltd. F.A. No.142/2019 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.
20. Factum of accident is corroborated by eye witnesses Sh. Dharam Chand and Sh. Ajay Sharma. Eye witness have specifically stated in their personal affidavits that vehicle in question rolled and sustained damage. Insurance company did not send any interrogatories to Sh. Dharam Chand and Shri Ajay Sharma independent eye witnesses. Adverse inference is drawn against Insurance company for non sending of interrogatories to Sh. Dharam Chand and Sh. Ajay Sharma. Testimonies of Sh. Dharam Chand and Sh. Ajay Sharma eye witnesses are trustworthy, reliable and inspire confidence of State Commission.
21. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for compensation for harassment and mental torture to the tune of Rs.50000/-(Fifty thousand) is decided accordingly. State Commission is of the opinion that in genuine claim complainant is legally entitled for equitable compensation for mental harassment and torture.
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Vijay Sharma Versus United India Insurance Company Ltd. F.A. No.142/2019
22. Submission of learned Advocate appearing on behalf of complainant that complainant is entitled for litigation costs to the tune of Rs.10000/-(Ten thousand) is decided accordingly. State Commission is of the opinion that complainant has engaged Advocate and has also paid litigation costs & other expenses and complainant is entitled for equitable litigation costs.
23. Submission of learned Advocate appearing on behalf of Insurance company that vehicle in question was not driven by complainant at the time of accident and at the time of accident vehicle in question was driven by a person who was not holding a valid and effective driving licence and on this ground appeal filed by complainant be dismissed is decided accordingly. Insurance company has appointed two Surveyors cum Loss Assessors namely Sh. Rajeev Rajdan and Sh. Rajesh Bhandari. Shri Rajesh Bhandari has specifically mentioned in his report annexure-OPI that driver of vehicle in question was Sh. Vijay Sharma complainant at the time of accident. Similarly Sh. Rajeev Rajdan Surveyor cum Loss Assessor has specifically mentioned in his report submitted under section 64UM of Statutory Insurance Act 1938 that driver of vehicle in question was Sh. Vijay Sharma at the time of accident. Factum that driver of vehicle in question was Shri 12 Vijay Sharma Versus United India Insurance Company Ltd. F.A. No.142/2019 Vijay Sharma is also corroborated by eye witnesses namely Sh. Dharam Chand and Sh. Ajay Sharma.
24. Submission of learned Advocate appearing on behalf of Insurance company that in the earlier DDR name of other person has been mentioned as driver of vehicle in question and thereafter earlier DDR was rectified contrary to factual position and on this ground appeal filed by complainant be dismissed is decided accordingly. Sh. Dharam Chand and Sh. Ajay Sharma eye witnesses have specifically submitted in their personal affidavits that vehicle in question was driven by Sh. Vijay Sharma at the time of accident. Personal affidavits of Sh. Dharam Chand and Sh. Ajay Sharma are corroborated by report submitted by Surveyors cum Loss Assessors namely Shri Rajeev Rajdan and Sh. Rajesh Bhandari. Both Surveyors have mentioned driver particulars as Sh. Vijay Kumar. Surveyors cum Loss Assessors have not disclosed name of any third person as driver of vehicle in question at the time of accident in their reports.
25. It is well settled law that statement recorded by Criminal Investigating Agency under section 162 of Code of Criminal Procedure 1973 could not be read in evidence for any purpose except for corroboration and contradiction as required under section 145 of Indian Evidence Act 1872. 13
Vijay Sharma Versus United India Insurance Company Ltd. F.A. No.142/2019 Insurance company did not file affidavit of Investigating Officer on record in order to prove contents of DDR. In view of above stated facts it is held that plea of Insurance company that at the time of accident vehicle in question was not driven by Sh. Vijay Sharma complainant is defeated on the concept of ipse dixit (An assertion made without proof).
26. Submission of learned Advocate appearing on behalf of Insurance company that complainant has no cause of action and locus standi to file consumer complaint against Insurance company and on this ground appeal filed by complainant be dismissed is decided accordingly. State Commission is of the opinion that cause of action accrued against Insurance company when Insurance company repudiated Insurance claim. It is held that complainant has cause of action against Insurance company to file consumer complaint.
27. Submission of learned Advocate appearing on behalf of Insurance company that complainant is estopped by his act and conduct to file present consumer complaint is decided accordingly. There is no positive, cogent and reliable evidence on record that complainant is estopped by his act and conduct to file present consumer complaint. Complainant has filed consumer complaint in order to protect his consumer rights mentioned under Consumer Protection 14 Vijay Sharma Versus United India Insurance Company Ltd. F.A. No.142/2019 Act which is Statutory Act enacted by Parliament of India in order to protect the rights of consumers.
28. Submission of learned Advocate appearing on behalf of Insurance company that present matter falls within exclusion clause of Insurance policy is decided accordingly. State Commission is of the opinion that onus was upon Insurance company to prove that present matter falls within the exclusion clause of Insurance policy. Insurance company did not adduce any positive, cogent and reliable evidence of eye witness on record in order to prove that at the time of accident vehicle in question was driven by unauthorized person. It is well settled law that controversial facts should be proved through independent eye witnesses or documentary evidence. In the present matter Insurance company did not file personal affidavit of any eye witness on record in order to prove that vehicle in question was not driven by Sh. Vijay Sharma complainant at the time of accident. Point No.1 is decided accordingly.
Point No.2: Final Order
29. In view of findings upon point No.1 above appeal filed by complainant is partly allowed. Order of learned DCF/DCC is set aside. It is ordered that Insurance company shall pay Insurance claim to complainant as assessed by 15 Vijay Sharma Versus United India Insurance Company Ltd. F.A. No.142/2019 Surveyor cum Loss Assessor namely Sh. Rajeev Rajdan to the tune of Rs.164000/-(One lac sixty four thousand) on net of salvage basis with RC alongwith interest @ 9% per annum from the date of institution of complaint till actual payment.
30. It is further ordered that Insurance company shall also pay compensation to complainant for mental agony and harassment to the tune of Rs.20000/-(Twenty thousand). It is further ordered that Insurance company shall also pay litigation costs to complainant to the tune of Rs.10000/-(Ten thousand). Damage assessment report submitted by Surveyor cum Loss Assessor namely Shri Rajeev Razdan under section 64UM of Statutory Insurance Act 1938 dated 20.03.2017 Annexure-OP-2 and Spot Survey report submitted by Surveyor cum Loss Assessor namely Shri Rajesh Bhandari dated 10.01.2017 Annexure-OP-1 shall form part and parcel of order. Insurance company will comply order within one month after receipt of certified copy of order.
31. Certified copy of order be sent to learned DCF/DCC for information 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 16 Vijay Sharma Versus United India Insurance Company Ltd. F.A. No.142/2019 Corona virus appeal is decided today. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member R.K. Verma Member 20.05.2020 K.D 17