State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs Sh. Kanti Lal. on 4 December, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 116/2017
Date of Presentation: 08.03.2017
Order Reserved On : 03.08.2017
Date of Order : 04.12.2017
......
National Insurance Company Limited Divisional Office Mandi
District Mandi H.P. through its Administrative officer (Legal)
National Insurance Company Ltd. Divisional Office Himland
Hotel Circular Road Shimla.
...... Appellant/Opposite Party
Versus
Kanti Lal son of Shri Kalu Ram Dass resident of House No.250
Ward No.10 Chamunda Nagar Post Office Dhalpur Tehsil and
District Kullu H.P.
......Respondent /Complainant
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. Jagdish Thakur Advocate.
For Respondent : Mr. Aman Parth & Mr. B.L. Soni
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 19.01.2017 passed by Learned District Forum in consumer 1 Whether reporters of the local papers may be allowed to see the order? Yes.
National Insurance Company Ltd. Versus Kanti Lal (F.A. No.116/2017) complaint No.06/2015 title Kanti Lal Versus The National Insurance Company Ltd.
Brief facts of Case:
2. Shri Kanti Lal filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is registered owner of vehicle Taxi No.HP-
01K-3851. It is pleaded that vehicle was insured with opposite party till 24.12.2014. It is pleaded that vehicle met with accident on 21.12.2013 near Army Transit Camp Jhakri District Shimla H.P. and sustained total loss. It is further pleaded that vehicle was also inspected by surveyor cum loss assessor and complainant has submitted all the documents to the insurance company. It is pleaded that claim was repudiated by insurance company on the ground that driver was not holding valid driving licence at the time of accident. It is further pleaded that opposite party committed deficiency in service. Complainant sought relief of Rs.600000/-(Six lac) as total loss of the vehicle alongwith interest @ 18% per annum and complainant also sought relief of special damage to the tune of Rs.700000/-(Seven lac) for non-settlement of claim filed by complainant.
3. Per contra version filed on behalf of opposite party pleaded therein that complainant has no cause of action and locus standi to file the present complaint. It is pleaded that 2 National Insurance Company Ltd. Versus Kanti Lal (F.A. No.116/2017) complainant has insured the vehicle as private car package policy and registered the vehicle as Taxi/Transport vehicle. It is further pleaded that claim of complainant was repudiated in accordance with law. It is pleaded that at the time of accident 98.33 mg ethyl alcohol was found in the blood of driver Tilak Raj who was driving the vehicle at the time of incident. Prayer for dismissal of complaint sought.
4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. Learned District Forum allowed the complaint and ordered opposite party to pay Rs.460000/-(Four lac sixty thousand) to complainant alongwith interest @ 9% per annum from the date of filing of complaint till actual payment. In addition learned District Forum also ordered opposite party to pay compensation to the tune of Rs.10000/-(Ten thousand) and to pay litigation costs to the tune of Rs.3000/-(Three thousand) to complainant. Learned District Forum held that salvage of vehicle No.HP- 01K-3851 would remain the property of complainant. Feeling aggrieved against order passed by Learned District Forum insurance company 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.
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National Insurance Company Ltd. Versus Kanti Lal (F.A. No.116/2017)
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 registered owner of vehicle having registration No.HP-01K-3851. There is recital in affidavit that vehicle was insured with the insurance company till 24.12.2014. There is recital in affidavit that vehicle of deponent met with accident on 21.12.2013 near Army Transit Camp Jhakri. There is further recital in affidavit that deponent has submitted all the documents to insurance company alongwith original bills. There is recital in affidavit that insurance company did not pay the amount on the ground that driver was not holding valid driving licence at the time of accident. There is recital in affidavit that relief be granted to deponent as prayed in the relief clause.
8. Insurance company did not adduce any evidence qua proof of controversial facts by way of affidavits as per mode mentioned under section 13(4) of Consumer Protection Act 1986. Learned Advocate appeared on behalf of insurance company namely C.L. Sharma has given statement before 4 National Insurance Company Ltd. Versus Kanti Lal (F.A. No.116/2017) learned District Forum at the bar on dated 09.12.2015 that insurance company does not want to adduce any evidence.
Learned advocate submitted that documents already adduced at the time of version be read in evidence.
9. 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. We have perused registration certificate of vehicle No.HP-01K- 3851 issued by Registering authority Kullu. As per R.C. unladen weight of vehicle was 1540 Kg. We have also perused extract of driving licence issued by licensing authority annexure-R8. As per annexure-R8 driver was competent to drive non-transport LMV vehicle w.e.f. 28.09.2013. As per section 2(21) of Motor Vehicles Act 1988 LMV vehicle means a transport vehicle unladen weight of which does not exceed 7500 kilograms. In the present case unladen weight of vehicle was 1540 Kg hence it is held that vehicle falls within the definition of LMV vehicle and it is held that driver was legally competent to drive vehicle involved in the accident. It was held by Hon'ble Supreme Court that driver having licence to drive LMV could drive LMV transport vehicle also. See AIR 2017 SC 3668 titled Mukund Devgan Versus Oriental Insurance Company Ltd.
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National Insurance Company Ltd. Versus Kanti Lal (F.A. No.116/2017)
10. Submission of learned Advocate appearing on behalf of insurance company that at the time of accident 98.33 mg of ethyl alcohol was found in the blood of driver and on this ground appeal be allowed is decided accordingly. Onus to prove fact that 98.33 mg of ethyl alcohol was found in the blood of driver was upon insurance company. Learned advocate appeared on behalf of insurance company has given statement before learned District Forum on dated 09.12.2015 that insurance company does not want to adduce any evidence. Operative part of order dated 09.12.2015 passed by learned District Forum is quoted in toto:-
09.12.2015 Present : Sh. Rajender Thakur, Advocate Ld. Counsel for complainant.
Sh. C.L. Sharma Advocate Ld. Counsel for opposite party.
The Ld. Counsel for opposite party stated at the bar that no evidence is intended to be adduced. Documents already adduced at the time of reply be read in evidence.
Sd/-
President.
Sd/-
Member.
11. Submission of learned Advocate appearing on behalf of insurance company that as per final report submitted by investigation agency in FIR No.60/2013 dated 6 National Insurance Company Ltd. Versus Kanti Lal (F.A. No.116/2017) 21.12.2013 under section 173 of Code of Criminal Procedure 1973 98.33 mg% ethyl alcohol was found in the blood sample of driver and on this ground appeal be allowed is decided accordingly. It is held that SHO police station has submitted report under section 173 of Cr.P.C in criminal case under section 279, 377 and 338 of IPC registered in police station Jhakri District Shimla H.P. Opposite party did not file affidavit of SHO P.S. Jhakri as required under section 13(4) of Consumer Protection Act 1986 to proof contents of report submitted under section 173 of Code of Criminal Procedure qua controversial facts. It is well settled law that report submitted by police agency under section 173 of Cr.P.C is not admissible for any purpose as per section 162 of Code of Criminal Procedure 1973 except to contradict the witness by prosecution or defence under section 145 of Indian Evidence Act 1872. Hence it is held that report submitted by SHO Police Station Jhakri is not helpful to insurance company in the present consumer complaint in any manner because under section 13(4) of Consumer Protection Act 1986 document should be produced as evidence which is producible as evidence. It is well settled law that contents of documents are producible as evidence only by way of affidavit of a person who has signed the document. Insurance company did not file affidavit of SHO who has filed report under section 173 of Code of Criminal Procedure in order to 7 National Insurance Company Ltd. Versus Kanti Lal (F.A. No.116/2017) prove contents of document. It is well settled law that proceedings under Consumer Protection Act 1986 are quasi judicial proceedings. It is held that report filed by SHO under section 173 of Code of Criminal Procedure is not perse admissible in evidence under Consumer Protection Act 1986. Hence plea of insurance company is defeated on the concept of ipse dixit (An assertion made without proof).
12. Submission of the learned Advocate appearing on behalf of insurance company that as per report submitted by State Forensic Science Laboratory H.P. Junga annexure-R5 98.33% mg of ethyl alcohol was found in blood sample of driver and on this ground appeal be allowed is decided accordingly. Insurance company did not file affidavit of Assistant Director Dr. V.S. Jamwal who has submitted the report in order to prove contents of document. No reason assigned by insurance company as to why affidavit of Dr. V.S. Jamwal was not filed by insurance company under section 13(4) of Consumer Protection Act 1986 in order to prove controversial facts i.e. report of State Forensic Science Laboratory H.P. Junga. It is held that report submitted by State Forensic Science Laboratory H.P. Junga was not perse admissible under section 13(4) of Consumer Protection Act 1986. It is also well settled law that report submitted under section 293 of Cr.P.C by Government Scientific expert could 8 National Insurance Company Ltd. Versus Kanti Lal (F.A. No.116/2017) be used as evidence only in inquiry, trial or other proceedings under Code of Criminal Procedure 1973 only. It is well settled law that contents of documents are producible as evidence only by way of affidavit of a person who has signed the document under Consumer Protection Act 1986 qua controversial facts and evidence qua document could be produced under Consumer Protection Act 1986 strictly as per mode mentioned under section 13(4) of Consumer Protection Act 1986. It is held that proceedings under Consumer Protection Act 1986 are quasi civil judicial proceedings. It is held that report submitted by State Forensic Science Laboratory Himachal Pradesh Junga under section 293 Cr.P.C is perse admissible only in criminal proceedings under Code of Criminal Procedure and is not perse admissible in quasi civil judicial proceedings under Consumer Protection Act 1986. No reason assigned by insurance company as to why insurance company did not file affidavit of Dr. V.S. Jamwal Assistant Director as per mode mentioned under section 13(4) of Consumer Protection Act 1986 in order to prove controversial fact. Hence plea of insurance company is defeated on the concept of ipse dixit (An assertion made without proof).
13. Submission of learned Advocate appearing on behalf of insurance company that as per medical certificate 9 National Insurance Company Ltd. Versus Kanti Lal (F.A. No.116/2017) issued by Dr. Rajesh Rana annexure-R6 driver Tilak Raj had consumed alcohol at the time of accident and on this ground appeal be allowed is decided accordingly. Insurance Company did not file affidavit of Dr. Rajesh Rana in order to prove contents of medical certificate issued by Dr. Rajesh Rana. It is held that Dr. Rajesh Rana has issued medical certificate in criminal proceedings only. It is held that medical certificate issued in criminal proceedings is not perse admissible in quasi civil judicial proceedings under Consumer Protection Act 1986. No reason assigned by insurance company as to why insurance company did not file affidavit of Dr. Rajesh Rana in order to prove contents of medical certificate placed on record qua controversial facts. It is held that contents of document could be proved under Consumer Protection Act 1986 by way of affidavit of person who has signed document because proceedings under Consumer Protection Act 1986 are quasi judicial proceedings and evidence qua document could be produced qua controversial facts strictly as per mode mentioned under section 13(4) of Consumer Protection Act 1986. Hence plea of insurance company is defeated on the concept of ipse dixit (An assertion made without proof).
14. Submission of learned Advocate appearing on behalf of insurance company that insurance company had 10 National Insurance Company Ltd. Versus Kanti Lal (F.A. No.116/2017) appointed investigator Shri Ramesh Kumar Thakur Advocate and he has submitted investigation report and as per investigation report Tilak Raj driver was under the influence of alcohol at the time of accident and on this ground appeal be allowed is decided accordingly. Onus to prove report of Ramesh Kumar Thakur Advocate was upon insurance company. It is well settled law that contents of document could be produced by way of affidavit of person who has signed document. Insurance company did not file affidavit of Ramesh Kumar as required under section 13(4) of Consumer Protection Act 1986 in order to prove controversial facts. On the contrary learned advocate appeared on behalf of insurance company has given statement before learned District Forum that insurance company does not want to file any evidence by way of affidavits as mentioned under section 13(4) of Consumer Protection Act 1986 relating to controversial facts. Hence plea of insurance company that driver Tilak Raj was under the influence of liquor 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 granted compensation to the tune of Rs.10000/-(Ten thousand) on higher side and on this ground appeal be allowed is decided accordingly. We are of the opinion that 11 National Insurance Company Ltd. Versus Kanti Lal (F.A. No.116/2017) complainant has to engage advocate and has to incur the expenditure of litigation charges hence it is held that compensation awarded by learned District Forum to the tune of Rs.10000/-(Ten thousand) is not excessive in nature but reasonable in nature. It is held that it is not expedient in the ends of justice to interfere in the compensation awarded by learned District Forum.
16. Submission of learned Advocate appearing on behalf of insurance company that learned District Forum has granted 9% interest on higher side is decided accordingly. It is held that learned District Forum has granted reasonable interest and it is held that it is not expedient in the ends of justice and on the principle of natural justice to interfere in the interest rate awarded by learned District Forum.
17. It is proved on record that present consumer complaint was filed by complainant against insurance company through its Divisional Manager Divsional Office Mandi District Mandi H.P. Divisional Manager did not file personal affidavit in order to prove controversial facts as per mode mentioned under section 13(4) of Consumer Protection Act 1986. It is held that affidavit filed in support of version could not be treated as evidence relating to controversial facts as per mode mentioned under Section 13(4) of Consumer Protection Act 1986 because it is well settled law that affidavit 12 National Insurance Company Ltd. Versus Kanti Lal (F.A. No.116/2017) filed in support of version and affidavit filed qua controversial facts under section 13(4) of Consumer Protection Act 1986 are entirely two different concept under law. Hence adverse inference is drawn against insurance company for non filing of affidavit of Divisional Manager qua controversial facts. See AIR 1999 SC 1441 titled Vidyadhar Versus Mankik Rao & Anr. See AIR 1999 SC 1341 titled Ishwar Bhai C. Patel Versus Harihar Bahera.
18. 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. It is proved on record that insurance company has hired service of surveyor cum loss assessor namely Mohinder K. Sharma. It is proved on record that Mohinder K. Sharma has assessed total loss to the tune of Rs.566451/-(Five lac sixty six thousand four hundred fifty one). It is proved on record that surveyor cum loss assessor appointed by insurance company has deducted amount of salvage to the tune of Rs.105451/-(One lac five thousand four hundred fifty one) and also reduced excess amount to the tune of Rs.1000/-(One thousand). It is proved on record that surveyor cum loss assessor has recommended the damage to the tune of Rs.460000/-(Four lac sixty thousand). It is held that surveyor cum loss assessor was appointed by insurance company and insurance company 13 National Insurance Company Ltd. Versus Kanti Lal (F.A. No.116/2017) cannot be allowed to disbelieve the report of surveyor cum loss assessor appointed by insurance company. It is well settled law that report submitted by surveyor cum loss assessor is substantive piece of evidence. See 2012(1) CPJ 420 NC H.C Saxena Versus New India Assurance Company Ltd. See 2009(3) CPJ 194 NC Nand Kishore Jaiswal Versus National Insurance Company Ltd. See 2012(4) CPJ 103 NC National Insurance Company Ltd. Versus Jyothi Tobacco Traders. Point No.1 is decided accordingly. Point No.2: Final Order
19. In view of findings upon point No.1 above appeal is dismissed. Order passed by learned District Forum announced in C.C. No. 06/2015 decided on 19.01.2017 titled Kanti Lal Versus National Insurance Company Ltd. is affirmed. Report submitted by Mohinder K. Sharma annexure-R1 and statement given by learned advocate appeared on behalf of insurance company before learned District Forum dated 09.12.2015 to the effect that opposite party does not intend to adduce any evidence by way of affidavits qua controversial facts as per mode mentioned under section 13(4) of Consumer Protection Act 1986 will form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back 14 National Insurance Company Ltd. Versus Kanti Lal (F.A. No.116/2017) 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 Meena Verma Member 04.12.2017.
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