State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs Sh. Joginder Kumar Walia & Anr. on 3 October, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 118/2017
Date of Presentation: 06.02.2017
Order Reserved On : 19.07.2017
Date of Order : 03.10.2017
......
National Insurance Company Limited
Divisional Office Moti Bazar Mandi District Mandi H.P.
Through its Administrative Officer (Legal)
National Insurance Company Limited Divisional Office
Himland Hotel Circular Road Shimla H.P.
...... Appellant/Opposite Party No.1
Versus
1. Joginder Kumar Walia s/o Shri Kali Dass
R/o Main Bazar Joginder Nagar District Mandi H.P.
......Respondent /Complainant
2. Competent Automobiles Limited
Village & Post Office Gutkar Tehsil Sadar
District Mandi H.P. through its Director.
......Respondent /Opposite party No.2
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 No.1 : Mr. Shashi Bhushan Advocate
For Respondent No.2 : Mr. H.S. Rangra Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 22.11.2016 passed by Learned District Forum in consumer 1 Whether reporters of the local papers may be allowed to see the order? Yes. National Insurance Co. Ltd. Versus Joginder Kumar Walia & Anr.
(F.A. No.118/2017) complaint No. 60 of 2015 title Joginder Kumar Walia Versus National Insurance Company Limited & Anr. Brief facts of Case:
2. Complainant Joginder Kumar Walia filed consumer complaint under section 12 of Consumer Protection Act 1986 against opposite parties pleaded therein that complainant is registered owner of Maruti Swift D-zire car bearing registration No. HP-29B-9990 which was insured with opposite party No.1 w.e.f. 28.04.2013 to 27.04.2014. It is pleaded that on dated 29.07.2013 at about 9:15PM vehicle met with accident and rolled down and suffered damage. It is further pleaded that matter was reported to police agency vide FIR No.111/2013 and case was registered under section 279 337 IPC. It is further pleaded that matter was also reported to opposite party No.1 and opposite party No.1 appointed surveyor who inspected the spot. It is further pleaded that complainant completed all codal formalities. It is further pleaded that opposite party No.1 did not settle the claim and committed deficiency in service. Complainant sought relief to the effect that opposite party No.1 be ordered to settle claim of complainant on total loss basis. Complainant also sought relief to the effect that opposite party No.1 be ordered to pay Rs.524891/- (Five lac twenty four thousand eight hundred ninety one) alongwith interest @12% per annum from the date 2 National Insurance Co. Ltd. Versus Joginder Kumar Walia & Anr.
(F.A. No.118/2017) of accident till realization. Complainant also sought additional relief of Rs.100000/- (One lac) on account of harassment and complainant also sought additional relief of Rs.100000/- (One lac) for litigation costs.
3. Per contra version filed on behalf of opposite party No.1 pleaded therein that opposite party No.1 did not commit any deficiency in service. It is further pleaded that present complaint did not fall within the Consumer Protection Act 1986. It is further pleaded that present complaint involves complicated questions of law and facts. It is further pleaded that after receipt of information opposite party No.1 deputed surveyor for preliminary inspection and it is further pleaded that surveyor submitted spot survey report. It is further pleaded that opposite party No.1 deputed a final surveyor for assessment of loss of vehicle. It is further pleaded that report of surveyor is Annexure OP-3. It is further pleaded that as per report of surveyor claim of complainant was approved to the tune of Rs.363000/- (Three lac sixty three thousand). It is further pleaded that surveyor is independent person and it is further pleaded that surveyor has assessed loss strictly as per facts proved on record. Prayer for dismissal of complaint sought.
4. Per contra separate version filed on behalf of opposite party No.2 pleaded therein that complainant has no 3 National Insurance Co. Ltd. Versus Joginder Kumar Walia & Anr.
(F.A. No.118/2017) cause of action against opposite party No.2. It is pleaded that vehicle was brought to the workshop of co-respondent No.2 for accidental repair. It is further pleaded that estimate was prepared at the instance of complainant. It is further pleaded that complainant is not entitled for compensation on the basis of total loss. It is further pleaded that amount paid by insurance company to the tune of Rs.363000/- (Three lac sixty three thousand) was adjusted and it is further pleaded that complainant was liable to pay additional amount of Rs.217706/- (Two lac seventeen thousand seven hundred six) after adjusting the amount paid by insurance company. It is further pleaded that complainant is also liable to pay parking charges @ Rs.200/- per day. It is admitted that amount of Rs.363000/- (Three lac sixty three thousand) was received by opposite party No.2 from opposite party No.1. Prayer for dismissal of complaint sought.
5. Learned District Forum allowed complaint and ordered opposite party No.1 to pay Rs.160891/- (One lac sixty thousand eight hundred ninety one) to opposite party No.2 as per IDV of insurance policy within thirty days. Learned District Forum further ordered that if opposite party No.1 would not pay amount within thirty days then opposite party would pay interest @ 9% per annum from the date of filing of complaint i.e. 25.03.2014 till realization. Learned District 4 National Insurance Co. Ltd. Versus Joginder Kumar Walia & Anr.
(F.A. No.118/2017) Forum further ordered that complainant would pay amount of Rs.47000/- (Forty seven thousand) to opposite party No.2 and learned District Forum further ordered that opposite party No.2 would hand over the custody of vehicle to complainant on receiving amount of Rs.47000/-(Forty seven thousand) from complainant. Learned District Forum further ordered that opposite party No.1 would pay costs of litigation to the tune of Rs.5000/- (Five thousand) to complainant.
6. Complainant also filed rejoinders and reasserted the allegations mentioned in the complaint.
7. Feeling aggrieved against order passed by Learned District Forum appellant National Insurance Company filed present appeal before State Commission.
8. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
9. Following points arise for determination in present appeal.
1. Whether appeal filed by the appellant is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Final order.
5 National Insurance Co. Ltd. Versus Joginder Kumar Walia & Anr.
(F.A. No.118/2017) Findings upon point No.1 with reasons:
10. Complainant filed affidavit in evidence. There is recital in affidavit that complainant is registered owner of Maruti Swift Dzire car bearing registration No. HP-29B-9990 which was insured with opposite party No.1 w.e.f. 28.04.2013 to 27.04.2014 in IDV of Rs.524891/- (Five lac twenty four thousand eight hundred ninety one). There is further recital in the affidavit that on dated 29.07.2013 at about 9:15PM vehicle met with accident and rolled down and suffered damage. There is further recital in the affidavit that matter was reported to police station Joginder Nagar Mandi and FIR No.111/2013 under sections 279, 337 IPC was registered.
There is further recital in the affidavit that opposite party No.1 appointed surveyor namely Shanti Swaroop Sharma who visited the spot and submitted preliminary inspection report. There is further recital in the affidavit that complainant submitted all the documents and completed all codal formalities. There is further recital in the affidavit that surveyor has recommended a sum of Rs.364141/- (Three lac sixty four thousand one hundred forty one) to be paid by opposite party No.1. There is further recital in the affidavit that surveyor has not submitted factual report. There is further recital in the affidavit that costs of repair came to Rs.611870/- (Six lac eleven thousand eight hundred seventy). 6 National Insurance Co. Ltd. Versus Joginder Kumar Walia & Anr.
(F.A. No.118/2017)
11. On dated 06.06.2015 learned advocate appeared on behalf of opposite party No.1 submitted that opposite party No.1 does not want to adduce any evidence. Statement of learned advocate dated 06.06.2015 appeared on behalf of opposite party No.1 was recorded by learned District Forum placed on record.
12. Learned advocate appeared on behalf of opposite party No.2 had tendered in evidence documents annexures OP2/A to OP2/D including proof affidavit filed alongwith version and closed the evidence.
13. Submission of learned advocate appearing on behalf of appellant that complainant has disputed final loss assessed report submitted by surveyor and loss assessor namely Mohinder K. Sharma to the tune of Rs.364141.41 (Three lac sixty four thousand one hundred forty one and forty one paisa) and onus was upon complainant to send interrogatories to Mohinder K. Sharma is decided accordingly. In the present complaint it is proved on record that surveyor namely Mohinder K. Sharma was appointed by insurance company and it is also proved on record that surveyor assessed net loss to the complainant to the tune of Rs.364141.41 (Three lac sixty four thousand one hundred forty one and forty one paisa). It is also proved on record that 7 National Insurance Co. Ltd. Versus Joginder Kumar Walia & Anr.
(F.A. No.118/2017) insurance company has paid entire amount assessed by surveyor to opposite party No.2 i.e. repairer of vehicle.
14. Complainant has challenged damage report submitted by surveyor and loss assessor namely Mohinder K. Sharma. It is held that onus was upon complainant to prove that surveyor and loss assessor had submitted damage report contrary to factual damage sustained by complainant. It is well settled law that onus to prove fact lies upon party who asserts disputed fact under Consumer Protection Act 1986. In the present matter complainant did not send interrogatories to surveyors and loss assessors qua incorrect assessment of loss before learned District Forum. Hence adverse inference is drawn against complainant. See 2009 CTJ 581 Apex Court C.P. Sreekumar Versus S. Ramanujan. It is well settled law that law laid down by Hon'ble Apex Court of India is binding upon all Courts, Commission and Tribunals as per article 141 of Constitution of India.
15. Submission of learned advocate appearing on behalf of appellant that appellant is entitled for salvage of vehicle is decided accordingly. In view of the fact that State Commission has relied upon damage assessment report submitted by surveyor on the basis of repair of vehicle State Commission is of the opinion that it is not expedient in the ends of justice and on the concept of principle of natural 8 National Insurance Co. Ltd. Versus Joginder Kumar Walia & Anr.
(F.A. No.118/2017) justice to direct complainant to handover salvage of vehicle to insurance company.
16. Submission of learned advocate appearing on behalf of appellant that RC in the name of complainant be cancelled and RC in the name of insurance company be prepared is also decided accordingly. In the present case State Commission has relied upon report of surveyor annexure C-7 placed on record wherein surveyor has assessed loss to the tune of Rs.364141/- (Three lac sixty four thousand one hundred forty one). State Commission has not assessed loss on the basis of total loss of vehicle but assessed damage on the basis of repair of vehicle. It is not expedient in the ends of justice and on the concept of natural justice to order complainant to transfer RC of vehicle in the name of insurance company when loss is assessed on repair basis.
17. Submission of learned advocate appearing on behalf of respondent/complainant that order of learned District Forum is in accordance with law and proved facts is decided accordingly. It is proved on record that insurance company has paid amount to the opposite party No.2 qua liability of complainant as per damage assessed by surveyor and loss assessor Mohinder K. Sharma. Complainant did not file any counter surveyor cum loss assessor report qua damage sustained by complainant. Surveyor and loss 9 National Insurance Co. Ltd. Versus Joginder Kumar Walia & Anr.
(F.A. No.118/2017) assessor report annexure C-7 placed on record remained unrebutted. Complainant has admitted that Mohinder K. Sharma has assessed damage to the tune of Rs.364141/- in para No.7 of affidavit in evidence. It is well settled law that fact admitted by complainant in evidence should not be proved by opposite parties. Complainant also did not file affidavits of persons who had issued bills of repairs. It is well settled that that bills of repairs are not per se admissible in evidence under Consumer Protection Act 1986 because proceedings under Consumer Protection Act 1986 are quasi- judicial proceedings and it is well settled law that documents filed in consumer proceedings should be proved as per section 13(4)(ii) of Consumer Protection Act 1986. In view of above stated facts point No.1 is decided accordingly. Point No.2: Final Order
18. In view of findings upon point No.1 above order of learned District Forum that opposite party No.1 i.e. insurance company would pay Rs.160891/-(One lac sixty thousand eight hundred ninety one) to opposite party No.2 alongwith interest is set aside. Order of learned District Forum that insurance company would pay Rs.5000/- (Five thousand) as litigation costs to complainant is also set aside. Competent Automobiles Limited will be entitled to claim repairs charges from complainant strictly in accordance with law. Order of 10 National Insurance Co. Ltd. Versus Joginder Kumar Walia & Anr.
(F.A. No.118/2017) learned District Forum dated 22.11.2016 passed in consumer complaint No. 60 of 2015 title Joginder Kumar Walia Versus National Insurance Company Limited & Anr. is modified to this extent only. Damage assessment report filed by Surveyor and Loss Assessor namely Mohinder K. Sharma annexure C-7 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 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 03.10.2017.
*GUPTA* 11