State Consumer Disputes Redressal Commission
Smt. Bir Dei. vs United India Insurance Co. Ltd. on 26 August, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 136/2018
Date of Presentation: 21.04.2017
Order Reserved on : 01.04.2019
Date of Order : 26.08.2019
......
Bir Dei wife of Shri Narender Kumar resident of Village
Chamdar P.O. Chamdar Tehsil Nalagarh District Solan H.P.
...... Appellant/Complainant
Versus
United India Insurance Company Ltd. Branch Office SCO 149-150
Sector-8 Chandigarh through its Branch Manager.
......Respondent /Opposite party
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Rakesh Thakur Advocate.
For Respondent : Mr. Vivek Negi Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 18.01.2017 passed by Learned District Consumer Commission (Nomenclature of District Consumer Forum converted to District Consumer Commission vide new Consumer Protection Act 2019 notified in official Gazette of India on dated 09.08.2019) in consumer complaint No.96/2015 titled Bir Dei Versus United India Insurance Company Ltd.
1Whether reporters of the local papers may be allowed to see the order? Yes.
Bir Dei Versus United India Insurance Company Ltd. F.A. No.136/2018 Brief facts of consumer complaint:
2. Smt. Bir Dei filed consumer complaint under Consumer Protection Act pleaded therein that complainant is owner of vehicle No.HP-64-1709. It is pleaded that complainant purchased vehicle in question for earning her livelihood by means of self employment and to maintain her family. It is pleaded that vehicle in question was insured with opposite party w.e.f. 26.05.2012 to 25.05.2013. It is pleaded that vehicle in question met with accident on 13.01.2013 near Gamberpul and driver of vehicle died in accident. It is further pleaded that FIR was also registered under section 279, 337 & 304A of IPC in police station Ramshaher. It is pleaded that vehicle was damaged. It is further pleaded that complainant spent Rs.475000/-(Four lac seventy five thousand) and brought vehicle on the road. It is pleaded that complainant submitted bill to Insurance complaint but Insurance company did not settle the claim and committed deficiency in service.
3. Complainant sought relief of payment of Rs.475000/-(Four lac seventy five thousand) alongwith interest @ 18% per annum from date of damage till actual payment. In addition complainant sought relief of payment of Rs.20000/-(Twenty thousand) for mental harassment and tension. In addition complainant sought relief of payment of 2 Bir Dei Versus United India Insurance Company Ltd. F.A. No.136/2018
litigation costs to the tune of Rs.4000/-(Four thousand). Prayer for acceptance of consumer complaint sought.
4. Per contra version filed on behalf of opposite party pleaded therein that consumer complaint is not maintainable. It is pleaded that complicated questions of facts and laws are involved in present consumer complaint and complainant be relegated to civil court for adjudication of dispute. It is pleaded that complainant purchased vehicle in question for commercial purpose and complainant does not fall within definition of consumer as defined under Consumer Protection Act. It is pleaded that vehicle in question met with accident on 13.01.2013 and FIR No.5/13 was registered in police station Ramshaher. It is further pleaded that Surveyor cum Loss Assessor was appointed by Insurance company and Surveyor cum Loss Assessor has assessed loss to the tune of Rs.217344/-(Two lac seventeen thousand three hundred forty four). It is pleaded that driver was not holding valid and effective driving licence at the time of accident. It is further pleaded that opposite party did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
5. Complainant filed rejoinder and reasserted allegations mentioned in consumer complaint. Learned District Consumer Commission dismissed consumer complaint. Feeling aggrieved against order passed by Learned 3 Bir Dei Versus United India Insurance Company Ltd. F.A. No.136/2018 District Consumer Commission complainant filed present appeal before State Commission.
6. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
7. 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 and whether Insurance company is under legal obligation to pay genuine claim in view of ruling reported in 2017(9) SCC 724 titled Om Prakash Versus Reliance General Insurance & Anr. announced by Hon'ble Apex Court of India and whether if two different opinions are possible then view favourable to complainant should be adopted in view of ruling announced by Hon'ble National Consumer Commission in 2018(1) CLT 468 NC titled Union of India through GM Western Railway Versus Smt. Vinaya Vilas Sawant?
2. Final order.
Findings upon point No.1 with reasons:
8. Complainant filed affidavit Ext.CW-1 in evidence.
There is recital in affidavit that deponent purchased vehicle in question for earning her livelihood by means of self employment. There is recital in affidavit that vehicle in question was insured with opposite party w.e.f. 26.05.2012 to 25.05.2013. There is recital in affidavit that on dated 13.01.2013 vehicle in question met with accident and FIR 4 Bir Dei Versus United India Insurance Company Ltd. F.A. No.136/2018 No.5/13 was registered in police station Ramshaher under section 279, 337 & 304A of IPC. There is recital in affidavit that claim was submitted before Insurance company but Insurance company did not settle the claim.
9. Complainant filed affidavit of Sh. Pushpinder Ext.CW-2 in evidence. There is recital in affidavit that deponent repaired the vehicle in question and charged Rs.8000/-(Eight thousand) from owner of vehicle in question and issued bills vide No.303 and 304 dated 18.02.2013.
10. Complainant also filed affidavit of Sh. Gian Chand Ext.CW3 in evidence. There is recital in affidavit that complainant purchased Tata parts for repair of vehicle and deponent has issued bill to the tune of Rs.30667/-(Thirty thousand six hundred sixty seven).
11. Complainant also filed affidavit of Sh. Avtar Singh Ext.CW-4 in evidence. There is recital in affidavit that deponent is dealing in repair of all kinds of brake system, Hydraulic steering. There is recital in affidavit that vehicle in question was brought for repair of hydraulic steering system and deponent charged Rs.12050/-(Twelve thousand fifty) from owner of vehicle in question.
12. Complainant filed affidavit of Sh. Mehar Singh Ext.CW-5 in evidence. There is recital in affidavit that 5 Bir Dei Versus United India Insurance Company Ltd. F.A. No.136/2018 deponent is dealing in all types of repair of electrical and vehicle in question was brought for repair. There is recital in affidavit that deponent charged Rs.5750/-(Five thousand seven hundred fifty) from owner of vehicle in question.
13. Complainant also filed affidavit of Shri Bhola Singh Ext.CW-6 in evidence. There is recital in affidavit that deponent repaired vehicle in question and charges Rs.2400/- (Two thousand four hundred) from owner of vehicle in question.
14. Complainant also filed affidavit of Shri Badar Singh Ext.CW-7 in evidence. There is recital in affidavit that vehicle in question was brought for body repair and deponent has issued bill to the tune of Rs.350000/-(Three lac fifty thousand). State Commission has carefully perused all annexures filed by complainant.
15. Opposite party filed affidavit of Shri S.S. Sindhu Sr. Branch Manager in evidence. There is recital in affidavit that driver was not holding valid and effective driving licence at the time of accident. There is recital in affidavit that complicated questions of facts and laws are involved which could not be decided in a summary manner. There is further recital in affidavit that vehicle in question was used for commercial purpose and learned District Consumer Commission has no jurisdiction to dispose of consumer 6 Bir Dei Versus United India Insurance Company Ltd. F.A. No.136/2018 complaint. State Commission has carefully perused all annexures filed by opposite party.
16. Submission of learned Advocate appearing on behalf of complainant that complainant verified driving licence from District Transport Officer Mon Nagaland Annexure-H on dated 09.07.2014 and District Transport Officer Mon Nagaland has specifically mentioned in his report that licence issued in the name of Som Raj was genuine licence and on this ground appeal filed by complainant be allowed is decided accordingly. Insurance company appointed Surveyor cum Loss Assessor and Surveyor cum Loss Assessor namely Shri R.P. Bhasin appointed under section 64UM of statutory Insurance Act 1938 has submitted report relating to driving licence dated 09.07.2014 relating to driver particulars and Surveyor cum Loss Assessor has specifically mentioned in his report name of driver as Som Raj. Surveyor cum Loss Assessor has specifically mentioned in his report that driver was holding licence No.65034 /MON/TV/2010 for MC/LMV/LTV/HTV/HPV. Surveyor cum Loss Assessor has specifically mentioned that date of issue of licence was 15.02.2010 and issuing authority was Nagaland and date of validity was 13.02.2016.
17. Surveyor cum Loss Assessor has not mentioned in his report that licence of Sh. Som Raj was fake in nature. 7
Bir Dei Versus United India Insurance Company Ltd. F.A. No.136/2018 Surveyor cum Loss Assessor has specifically mentioned in his report that driver Sh. Som Raj died in accident on way to hospital and other passengers travelling in vehicle have sustained injuries. Surveyor cum Loss Assessor appointed under section 64UM of statutory Insurance Act 1938 has specifically mentioned that bus in question was on its normal route from Kasauli to Neroli and on a curve deceased driver lost control over the vehicle and vehicle left road and rolled down towards valley side about 250 feet and was damaged. Surveyor cum Loss Assessor has assessed the loss to the tune of Rs.217344/-(Two lac seventeen thousand three hundred forty four). State Commission is of the opinion that Insurance company could not be allowed to disbelieve report of its own Surveyor cum Loss Assessor appointed under section 64UM of statutory Insurance Act 1938. It is well settled law that report submitted by Surveyor cum Loss Assessor is a substantial piece of evidence for adjudication of Insurance claim.
18. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for a sum of Rs.475000/-(Four lac seventy five thousand) spent for repair of vehicle in question is decided accordingly. State Commission is of the opinion that assessment report submitted by Surveyor cum Loss Assessor namely Shri R.P. Bhasin under section 64UM of statutory Insurance Act 1938 8 Bir Dei Versus United India Insurance Company Ltd. F.A. No.136/2018 is a substantial piece of evidence and complainant could not be allowed to disbelieve report of Surveyor cum Loss Assessor. Complainant did not send any interrogatories to shri R.P. Bhasin & Co. Even complainant did not file any counter report of Surveyor cum Loss Assessor. 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 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.
19. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for compensation for mental agony and harassment to the tune of Rs.20000/-(Twenty thousand) is decided accordingly. State Commission is of the opinion that Insurance company did not settle the claim of complainant despite positive report submitted by Surveyor cum Loss Assessor appointed under section 64UM of statutory Insurance Act 1938. Surveyor cum Loss Assessor assessed the loss to the tune of Rs.217344/- (Two lac seventeen thousand three hundred forty four). State 9 Bir Dei Versus United India Insurance Company Ltd. F.A. No.136/2018 Commission is of the opinion that complainant is legally entitled for reasonable compensation from Insurance company because Insurance company did not pay the amount to complainant as assessed by Surveyor cum Loss Assessor appointed under section 64UM of statutory Insurance Act 1938.
20. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for litigation costs to the tune of Rs.4000/-(Four thousand) is decided accordingly. Insurance company did not pay Insurance claim to complainant despite the fact that Insurance policy was in operation at the time of accident. State Commission is of the opinion that complainant engaged Advocate and has also paid litigation costs before learned District Consumer Commission. Complainant did not file receipt of Advocate fee on record. State Commission is of the opinion that complainant is legally entitled for reasonable litigation costs.
21. Submission of learned Advocate appearing on behalf of Insurance company that complicated facts and laws are involved in present consumer complaint and complainant be relegated to civil court is decided accordingly. State Commission is of the opinion that Smt. Bir Dei is female aged 36 years and present consumer complaint could be dispose of properly and in effective manner under Consumer Protection 10 Bir Dei Versus United India Insurance Company Ltd. F.A. No.136/2018 Act. State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to relegate female to civil court for adjudication of her Insurance claim.
22. Submission of learned Advocate appearing on behalf of Insurance company that vehicle was purchased by complainant for commercial purpose and jurisdiction of learned District Consumer Commission is ousted is decided accordingly. There is positive recital in consumer complaint that complainant has purchased vehicle in question for earning her livelihood by means of self employment. Explanation was added in Consumer Protection Act to the effect that commercial purpose would not include any goods bought or any service availed by complainant exclusively for the purpose of earning livelihood by means of self employment. State Commission is of the opinion that case of complainant falls within explanation added to Consumer Protection Act.
23. Submission of learned Advocate appearing on behalf of Insurance company that in view of report submitted by District Transport Officer Mon Nagaland placed on record dated 29.08.2016 that driving licence of deceased driver was fake and on this ground appeal filed by complainant be dismissed is decided accordingly. State Commission is of the opinion that there are two contradictory reports relating to 11 Bir Dei Versus United India Insurance Company Ltd. F.A. No.136/2018 driving licence of deceased driver submitted by District Transport Officer Mon Nagaland. One report Annexure-H placed on record dated 04.07.2014 issued by District Transport Officer Mon Nagaland clearly reported that licence in name of deceased driver namely Som Raj was genuine in nature. Other report submitted by District Transport Officer Mon Nagaland dated 29.08.2016 revealed that licence was false. District Transport Officer Mon Nagaland has submitted two contradictory reports. Insurance company did not file affidavit of District Transport Officer Mon Nagaland to verify authenticity of two contradictory reports submitted by same authority. It is well settled law that when two views are possible then view favourable to consumer should be adopted by consumer Fora in view of ruling announced by Hon'ble National Consumer Commission in case reported in 2018(1) CLT 468 NC titled Union of India through GM Western Railway Versus Smt. Vinaya Vilas Sawant.
24. Even present claim is genuine claim and as per ruling announced by Hon'ble Apex Court of India and Hon'ble National Consumer Commission genuine claim should be paid by Insurance company. See 2017(9) SCC 724 titled Om Prakash Versus Reliance General Insurance & Anr. See 2019(1) CPR 725 NC titled Assistant Commissioner Commercial Tax Versus New India Assurance Company Ltd. 12
Bir Dei Versus United India Insurance Company Ltd. F.A. No.136/2018 State Commission is of the opinion that Insurance company is under legal obligation to pay damage assessed by Surveyor cum Loss Assessor appointed under section 64UM of statutory Insurance Act 1938 and in view of fact that present claim is genuine claim and in view of fact that two different opinions were submitted by same District Transport Officer Mon Nagaland relating to driving licence of deceased driver of vehicle in question. Point No.1 is decided accordingly. Point No.2: Final Order
25. In view of findings upon point No.1 above appeal is partly allowed. Order of learned District Forum (Nomenclature changed to District Consumer Commission as per latest Consumer Protection Act 2019) is set aside. It is ordered that Insurance company shall pay O.D claim of vehicle in question to the tune of Rs.217344/-(Two lac seventeen thousand three hundred forty four) as assessed by Surveyor cum Loss Assessor namely Sh. R.P. Bhasin alongwith interest @ 9% per annum from the date of institution of complaint till actual payment. It is further ordered that Insurance company shall 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.4000/-(Four thousand). Insurance company shall comply order within one month after receipt of certified copy of order. 13
Bir Dei Versus United India Insurance Company Ltd. F.A. No.136/2018
26. Surveyor cum Loss Assessor report annexure-R4 dated 29.04.2013 and verification of driving licence report submitted by District Transport Officer Mon Nagaland relating to deceased driver Sh. Som Raj annexure-H dated 04.07.2014 wherein it is mentioned that driving licence of deceased driver was genuine shall form part and parcel of order. File of learned District Consumer Commission 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 Sunita Sharma Member 26.08.2019 KD* 14