State Consumer Disputes Redressal Commission
The Oriental Insuracne Company Ltd. vs Anand Singh Dhaila on 8 July, 2024
First Appeal No. The Oriental Insurance Company Limited 08.07.2024
132 of 2017 Versus
Sh. Anand Singh Dhaila
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
Date of Admission: 04.09.2017
Date of Final Hearing: 02.07.2024
Date of Pronouncement: 08.07.2024
FIRST APPEAL NO. 132 / 2017
The Oriental Insurance Company Limited
Divisional Office, Haldwani through its
Regional Manager, Regional Office
NCR Plaza, Cantt. Road, Dehradun
(Through: Sh. Suresh Gautam, Advocate)
...... Appellant
Versus
Sh. Anand Singh Dhaila S/o Sh. Hari Singh Dhaila
R/o Shyam Garden, Peeli Kothi, Haldwani
District Nainital (Uttarakhand)
(Through: None)
...... Respondent
Coram:
Ms. Kumkum Rani, President
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, President):
This appeal has been directed against the impugned judgment and order dated 01.08.2017 passed by learned District Consumer Disputes Redressal Forum, Nainital (hereinafter to be referred as "The District Commission") in consumer complaint No. 45 of 2015, styled as Sh. Anand Singh Dhaila Vs. Oriental Insurance Company Limited, wherein and whereby the consumer complaint was allowed and the appellant / opposite party was directed to pay compensation of Rs. 2,71,000/- to respondent / complainant together with interest @6% 1 First Appeal No. The Oriental Insurance Company Limited 08.07.2024 132 of 2017 Versus Sh. Anand Singh Dhaila p.a. from the date of filing of the consumer complaint till actual payment as well as Rs. 5,000/- towards litigation expenses.
2. The facts giving rise to the present appeal, in brief, are, as such that the respondent / complainant was the registered owner of vehicle bearing registration No. UA04-B-2628. The permit of the vehicle was valid upto 26.03.2015 and the vehicle was being plied on all the routes of Haldwani Zone. The subject vehicle was purchased by the complainant for sum of Rs. 9,00,000/-, after taking loan from HDFC Bank. On dated 19.05.2013, an accident took place, when the insured vehicle dashed against a tree. At the time of accident, 29 persons including driver and conductor were sitting in the insured vehicle. In the accident, 14-15 persons sustained injuries, to whom first aid was provided and the insured vehicle was badly damaged. The intimation of the accident was immediately given to the insurance company, who appointed surveyor. The surveyor of the insurance company visited the site. The vehicle was taken out from the accident site and was brought to Haldwani by help of crane. The vehicle was again inspected by the surveyor at the workshop / garage. The complainant had spent an amount of Rs. 3,60,000/- in the repair of the vehicle, whereafter the vehicle was re-inspected. The complainant had submitted the claim form along with the requisite repair bills with the insurance company. Through letter dated 18.03.2014 issued by the insurance company, the complainant was informed that his claim has been repudiated on account of overloading of the vehicle at the time of the accident. The complainant issued legal notice to the insurance company, explaining that the First Information Report was lodged on hearsay basis, whereas at the time of occurrence, only 27 passengers including driver and conductor were sitting in the vehicle within the permitted seating 2 First Appeal No. The Oriental Insurance Company Limited 08.07.2024 132 of 2017 Versus Sh. Anand Singh Dhaila capacity of the vehicle as 30 in all. Therefore, the repudiation of the claim by the insurance company is not justified and the same is without any cogent and reliable evidence. By repudiating the claim of the complainant, the insurance company has committed deficiency in service. Therefore, the consumer complaint was submitted by the complainant before the District Commission, praying for grant of reliefs mentioned therein.
3. The appellant / opposite party (insurance company) filed written statement before the District Commission and pleaded that as per the survey report, the insurance company is liable only for the payment of Rs. 54,200/- subject to terms and conditions of the insurance policy. The insurance company has filed the police report as well as survey report, who have found that at the time of accident, the vehicle was overloaded and the owner of the vehicle has given false information to the insurance company regarding his claim, which is clear concealment of fact. The insurance company has conducted investigation and the investigator has also found that as per the newspaper publication and F.I.R., there were more than 35 passengers sitting in the vehicle at the time of accident. It was further pleaded that the survey was carried out by an independent surveyor, who has assessed the loss occasioned to the vehicle as per the terms and conditions of the insurance policy. As per settled law, the survey report is an important piece of evidence, which can not be ignored or disbelieved, unless proved otherwise. The insurance company has not committed any deficiency in service, hence the consumer complaint is liable to be dismissed.
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4. Learned District Commission, after hearing both the parties and after taking into consideration the material available on record, allowed the consumer complaint vide impugned judgment and order dated 01.08.2017 in the above terms.
5. On having been aggrieved by the impugned judgment and order, the present appeal has been submitted on behalf of the insurance company as an appellant, alleging that the impugned judgment and order is against facts, law and merits of the case. The complainant has manipulated the facts and has made concealment of fact regarding his claim. The complainant has concealed the fact that at the time of accident, there were 35 passengers travelling in the vehicle against its carrying capacity of 29 including driver, which was clear violation of terms and conditions of the insurance policy. Therefore, the insurance company has repudiated the claim of the complainant on the genuine ground on the basis of documentary evidence and investigation. It was further averred and contended on behalf of the appellant that the surveyor of the insurance company has assessed the loss to the tune of Rs. 54,200/-, which was payable subject to the terms and conditions of the insurance policy. Learned District Commission has wrongly held that the insurance company has been deficient in service and also awarded the claim amount against the survey report. Learned District Commission has also ignored the fact regarding depreciation of 40% on metal parts, whereas the duly licensed surveyor has assessed the loss as per the terms and conditions of the insurance policy as well as after physical verification of the vehicle. Thus, there was no deficiency in service on the part of the insurance company and the appeal deserves to be allowed.
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6. We have heard learned counsel for the appellant and perused the record. None has appeared on behalf of respondent / complainant. Vide order dated 15.03.2024, it was directed that the appeal shall proceed ex-parte against respondent.
7. It is an admitted fact that the complainant - Sh. Anand Singh Dhaila was the registered owner of the vehicle in question. It is also admitted fact that the subject vehicle was insured with the appellant - insurance company for the period from 03.09.2012 to 02.09.2013 at an IDV of Rs. 3,10,000/-. It is further conceded by the insurance company that on 19.05.2013, while the insured vehicle was coming from Masi to Haldwani, on the way at a place near Bhumiyadhar, P.S. Tallital, all of a sudden, the insured vehicle went out of control of the driver due to brake failure and fell down in the roadside valley about 25 feet deep and subsequently dashed with the roadside tree and overturned to its right side and got damaged. It is also admitted that the claim of the complainant was repudiated by the insurance company on the ground of overloading of the vehicle at the time of the accident. It has been contended on behalf of the insurance company that as per the F.I.R., at the time of accident, the vehicle was carrying 35 passengers, whereas as per the registration certificate, the seating capacity of the vehicle was 30 in all, which was clear violation of the terms and conditions of the insurance policy. In the impugned judgment and order, learned District Commission has held that there is no concrete, reliable and trustworthy evidence available on record to prove that at the time of accident, 35 passengers including driver were travelling in the insured vehicle. The insurance company has not submitted any reliable and cogent evidence that any passenger travelling in the vehicle at the time of accident, has corroborated the fact in evidence that 35 passengers were travelling in 5 First Appeal No. The Oriental Insurance Company Limited 08.07.2024 132 of 2017 Versus Sh. Anand Singh Dhaila the vehicle at the relevant time. Thus, the insurance company has not proved the factum of overloading of the vehicle at the time of accident. Therefore, the repudiation of the claim by the insurance company on the alleged ground of overloading, was not at all justified and the insurance company has wrongly and illegally repudiated the claim of the complainant on such basis.
8. Learned counsel for the insurance company has further contended that the surveyor appointed by the insurance company has assessed the loss to the tune of Rs. 54,200/-, hence the insurance company can be held liable to pay the said sum only and not beyond the amount of loss assessed by the surveyor.
9. We have perused the survey report dated 29.08.2013 submitted by Sh. Balbir Singh, Surveyor & Loss Assessor, copy whereof is Paper Nos. 11 to 13). A perusal of the survey report has shown that the surveyor has assessed the labour / repair charges as Rs. 52,750/- against the estimate of Rs. 3,15,000/-. After adding cost of parts as Rs. 2,450/- and deducting sum of Rs. 1,000/- towards policy excess, the net payable amount was worked out by the surveyor as Rs. 54,200/-. We are unable to find ourselves in agreement with the loss so assessed by the surveyor. The reason being against an estimate of Rs. 2,15,000/- towards complete body repairing with old / new material including labour charges and window glasses / rubber beading / channels etc., the surveyor has assessed an amount of Rs. 40,000/-, for which no detailed and elaborate reasoning has been assigned by the surveyor. It is hard to believe and also impractical that the complete body of a mini bus (transport vehicle), which has been damaged, could be repaired only for Rs. 40,000/-. This apart, the surveyor has allowed an amount of 6 First Appeal No. The Oriental Insurance Company Limited 08.07.2024 132 of 2017 Versus Sh. Anand Singh Dhaila Rs. 1,500/- towards complete wiring, which is quite on the lower side, keeping in view the estimate of Rs. 5,000/- for the said work. Thus, we are of the definite opinion that the surveyor has assessed the loss on the lower side and the same is not as per the actual loss sustained by the insured vehicle in the accident in question. Taking into consideration the overall facts & circumstances of the case and also the damage sustained by the insured vehicle in the accident, we are of the considered view that an amount of Rs. 1,00,000/-, to be awarded in favour of the complainant as compensation, shall meet the ends of justice. This way, the amount of Rs. 2,71,000/- awarded by the District Commission, being on the higher side, needs to be reduced to Rs. 1,00,000/-. The interest @6% p.a. as well as costs of Rs. 5,000/- awarded by the District Commission, are perfectly justified and requires no interference. Thus, the appeal is to be allowed in part and the impugned judgment and order passed by the District Commission is to be modified in the above terms.
10. Appeal is partly allowed. Impugned judgment and order dated 01.08.2017 passed by the District Commission is modified to the extent that the amount of Rs. 2,71,000/- awarded by the District Commission towards compensation, is hereby reduced to Rs. 1,00,000/-. Rest of the impugned judgment and order passed by the District Commission is hereby confirmed. Costs of the appeal made easy.
11. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. A copy of this Order be sent to the concerned District Commission for record and necessary information.
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12. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) President (Mr. B.S. Manral) Member Pronounced on: 08.07.2024 8