State Consumer Disputes Redressal Commission
Sh. Subhash Verma. vs M/S Oriental Insurance Co. Ltd. on 24 August, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 54/2017
Date of Presentation: 15.02.2017
Order Reserved On : 22.06.2017
Date of Order : 24.08.2017
......
Subhash Verma son of late Shri Goverdhan Dass care of
Kashmiri Lal son of Shri Chuni Lal resident of Village & Post
Office Kingal Tehsil Kumarsain District Shimla H.P.
...... Appellant/complainant.
Versus
M/s. Oriental Insurance Company Mythe Estate Kaithu Shimla-3
through its Divisional Manager.
......Respondent /opposite party
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. Swaran Sharma vice Mr. Peeyush
Verma 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 27.10.2016 passed by Learned District Forum in consumer complaint 1 Whether reporters of the local papers may be allowed to see the order? Yes. Subhash Verma Versus M/s. Oriental Insurance Company Ltd.
(F.A. No.54/2017) No.161/2011 title Subhash Verma Versus Oriental Insurance Company Ltd.
Brief facts of Case:
2. Shri Subhash Verma filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is owner of Eicher Tipper bearing registration No.HP-51B-0216. It is pleaded that complainant purchased the vehicle for earning his livelihood by way of self employment. It is further pleaded that vehicle was insured by the opposite party in consideration amount of Rs.250000/-(Two lac fifty thousand). It is further pleaded that insurance premium was also duly paid by the complainant to opposite party. It is pleaded that vehicle met with an accident at Khekhar Kingal on dated 15.10.2010. It is further pleaded that vehicle was parked on the road and due to slip of gear vehicle skidded of the road into a deep rivulet. It is further pleaded that intimation of accident was given to police on dated 16.10.2010 vide Annexure C-3. It is further pleaded that insurance company was also telephonically informed about the factum of accident on the very next day. It is further pleaded that insurance company deputed spot surveyor. It is pleaded that opposite party did not settle the claim of complainant and committed deficiency in service. Complainant sought relief to the tune of Rs.280000/-(Two lac eighty thousand) alongwith interest @ 12% per annum. Complainant also sought additional 2 Subhash Verma Versus M/s. Oriental Insurance Company Ltd.
(F.A. No.54/2017) relief of Rs.10000/-(Ten thousand) as damages and relief of Rs.3500/-(Three thousand five hundred) as costs of litigation.
3. Per contra version filed on behalf of opposite party pleaded therein that complainant has no cause of action against the opposite party. It is pleaded that complainant did not approach learned District Forum with clean hands and concealed material facts from learned District Forum. It is pleaded that vehicle was sold to Shri Kashmiri Lal prior to accident and there is no privity of contract between the parties. It is pleaded that surveyor was appointed who assessed loss to the tune of Rs.147464/-(One lac forty seven thousand four hundred sixty four). It is further pleaded that Shri Kashmiri Lal is necessary party because complainant had sold the vehicle to him prior to accident. Prayer for dismissal of complaint sought.
4. Learned District Forum directed opposite party to pay a sum of Rs.152464/-(One lac fifty two thousand four hundred sixty four) alongwith interest @ 9% per annum within 45 days of order. Learned District Forum further ordered that opposite party would pay a sum of Rs.10000/-(Ten thousand) on account of mental agony and harassment. Learned District Forum further ordered that opposite party would also pay litigation costs to the tune of Rs.5000/-(Five thousand). Feeling aggrieved against order passed by Learned District Forum Shri Subhash Verma filed present appeal before State Commission. 3
Subhash Verma Versus M/s. Oriental Insurance Company Ltd.
(F.A. No.54/2017)
5. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
6. Following points arises for determination in present appeal.
1. Whether complaint filed by the complainant could be treated as evidence for adjudication of controversial facts under section 13(4) of Consumer Protection Act 1986.
2. Final order.
Findings upon point No.1 with reasons:
7. Learned District Forum after perusal of contents of complaint and after perusal of version filed by opposite party ordered the complainant to adduce evidence. Learned District Forum had given more than five opportunities to complainant to lead evidence relating to controversial facts. On dated 30.04.2013 learned advocate appeared on behalf of complainant had given statement before learned District Forum that complaint filed by the complainant be read in evidence qua controversial facts.
8. Opposite party filed affidavit of Shri R.N. Bodh Sr. Divisional Manager Oriental Insurance Company. There is recital in affidavit that complainant has no cause of action against opposite party. There is further recital in affidavit that immediately after receiving intimation about accident opposite party conducted spot survey and appointed independent surveyor to assess the loss and damage occurred to the vehicle 4 Subhash Verma Versus M/s. Oriental Insurance Company Ltd.
(F.A. No.54/2017) in question. There is further recital in affidavit that surveyor in his report had assessed loss to the tune of Rs.147464/-(One lac forty seven thousand four hundred sixty four) on repair basis. There is further recital in affidavit that Subhash had alienated the possession of vehicle to Shri Kashmiri Lal before accident proved by Nakal Report No.06 dated 16.10.2010. There is further recital in affidavit that opposite party has legally repudiated the claim of the complainant.
9. Opposite party also filed affidavit of surveyor cum loss assessor namely Girish Sharma. There is recital in affidavit that deponent has inspected the damaged vehicle and assessed the loss occurred to vehicle to the tune of Rs.147464/-(One lac forty seven thousand four hundred sixty four) on repair basis and assessed the salvage value to the tune of Rs.5000/-(Five thousand). It is well settled law that evidence qua adjudication of controversial facts could be adduced under Consumer Protection Act 1986 as per mode mentioned under section 13(4) of Consumer Protection Act 1986. There is no provision under section 13(4) of Consumer Protection Act 1986 that complaint could be treated as evidence under section 13(4) of Consumer Protection Act 1986.
10. It is held that in consumer dispute evidence could be adduced as per mode mentioned under section 13(4) of Consumer Protection Act 1986. Section 13(4) of Consumer Protection Act 1986 is quoted in toto :-
5
Subhash Verma Versus M/s. Oriental Insurance Company Ltd.
(F.A. No.54/2017) (4) For the purposes of this section the District Forum shall have the same powers as are vested in a civil court under Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:--
(i) Summoning and enforcing the attendance of any defendant or witness and examining the witness on oath.
(ii) Discovery and production of any document or other material object producible as evidence.
(iii) Reception of evidence on affidavits.
(iv) Requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source.
(v) Issuing of any commission for the examination of any witness.
(vi) Any other matter which may be prescribed.
11. It is held that complaint is only pleading of the party and could not be treated as evidence of the party under section 13(4) of Consumer Protection Act 1986 for adjudication of controversial facts. It is also well settled law that pleading of parties and evidence of parties qua controversial facts are entirely two different concepts under law. Complaint is defined under section 2(c) of Consumer Protection Act 1986 which means allegation in writing made by complainant. It is held that learned District Forum has committed material procedural irregularity by admitting complaint of the complainant as evidence of the complainant under section 13(4) of Consumer Protection Act 1986 for adjudication of consumer dispute.
12. Consumer dispute is defined under section 13(2)(b) of Consumer Protection Act 1986 which means the facts denies or disputes by the opposite party. State Commission is of the 6 Subhash Verma Versus M/s. Oriental Insurance Company Ltd.
(F.A. No.54/2017) opinion that learned District Forum was under legal obligation to obtain evidence strictly as per mode mentioned under section 13(4) of Consumer Protection Act 1986 relating to proof of controversial facts. State Commission is of the opinion that it is not expedient in the ends of justice to dispose of appeal properly and effectively unless material procedural irregularity is not rectified. State Commission is of the opinion that rectification of material procedural irregularity is essential in the ends of justice and on the principle of natural justice. In view of above stated facts point No.1 is answered accordingly. Point No.2: Final Order
13. In view of findings upon point No.1 above order of learned District Forum dated 27.10.2016 announced in consumer complaint No.161 of 2011 is set aside and complaint is remanded back to learned District Forum Shimla with order to receive the evidence of the complainant strictly as per mode mentioned under section 13(4) of Consumer Protection Act 1986 by way of affidavits relating to controversial facts for adjudication of consumer dispute. It is further ordered that opposite party will also be at liberty to file rebuttal evidence by way of affidavits as per mode mentioned under section 13(4) of Consumer Protection Act 1986. Learned District Forum will dispose of complaint as per law and strictly as per proved facts within two months after the receipt of file. Statement of learned Advocate appeared on behalf of complainant namely Shri Subhash Verma Advocate dated 30.04.2013 will form part and 7 Subhash Verma Versus M/s. Oriental Insurance Company Ltd.
(F.A. No.54/2017) parcel of order. Observation will not effect the merits of the case in any manner. Parties are left to bear their own litigation costs before State Commission. Parties are directed to appear before learned District Forum Shimla on date 06.09.2017. 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 Meena Verma Member 24.08.2017.
K.D * 8