State Consumer Disputes Redressal Commission
Sh. Chet Ram. vs Shriram General Insurance Co. Ltd. & ... on 1 May, 2018
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
(1) First Appeal No. : 128/2017
Date of Presentation: 11.05.2017
Order reserved on: 01.03.2018
Date of Order : 01.05.2018
Chet Ram son of Shri Man Dass resident of Village Khincha Post
Office Taklech Tehsil Rampur District Shimla H.P.
... Appellant/Complainant.
Versus
Shriram General Insurance Company Limited E-8 EPIP RHCO
Sitapura Jaipur Rajasthan through its Authorised Signatory.
... Respondent/opposite party
For Appellant : Ms. Mamta Bhatwan vice Mr. B.N.
Sharma Advocate.
For Respondent : Mr. Jagdish Thakur Advocate.
(2) First Appeal No.: 304/2017
Date of Presentation: 31.05.2017
Order Reserved on : 01.03.2018
Date of Order : 01.05.2018
Shriram General Insurance Company Limited E-8 RIICO Sitapura
Jaipur Rajasthan through its Branch Manager Branch Office near
P.G College Bilaspur Roura Sector-III NH-21 Bilaspur District
Bilaspur H.P.
.......... Appellant/Opposite party.
Versus
Chet Ram son of Shri Man Dass resident of Village Khincha Post
Office Taklech Tehsil Rampur District Shimla H.P.
..... Respondent/Complainant.
For Appellant : Mr. Jagdish Thakur Advocate.
For Respondent : Ms. Mamta Bhatwan vice Mr. B.N.
Sharma Advocate.
Coram
Hon'ble Mr. P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes
1
Whether Reporters of the local papers may be allowed to see the order? yes
(F.A. No.128/2017)
&
(F.A. No.304/2017)
JUSTICE P.S. RANA (R) PRESIDENT :
O R D E R :-
1. Appeal No.128/2017 & Appeal No.304/2017 filed against the same order passed by learned District Forum in consumer complaint No.254/2014 title Chet Ram Versus Shriram General Insurance Company Ltd. Both appeals are consolidated for disposal in order to avoid conflicting orders. Brief facts of consumer complaint:
2. Shri Chet Ram filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is owner of vehicle having registration No.HP-06A-2407. It is pleaded that vehicle met with accident on dated 25.03.2013 and two persons died. It is further pleaded that FIR No.52/2013 was also registered under section 279, 337 & 304A of IPC at police station Rampur District Shimla-H.P. It is pleaded that claim was submitted before opposite party and opposite party also deputed the surveyor who assessed loss to the tune of Rs.233832/-(Two lac thirty three thousand eight hundred thirty two). It is further pleaded that despite several requests opposite party did not release the amount and committed deficiency in service. Complainant sought relief of payment of Rs.233832/- (Two lac thirty three thousand eight hundred thirty two) 2 (F.A. No.128/2017) & (F.A. No.304/2017) alongwith interest @ 18% per annum. In addition complainant sought relief of payment of Rs.100000/-(One lac) on account of mental agony and harassment. In addition complainant also sought litigation costs to the tune of Rs.25000/-(Twenty five thousand). Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party pleaded therein that complainant is not consumer. It is pleaded that complainant has purchased vehicle for commercial purpose and did not purchase the vehicle for earning his livelihood by means of self employment. It is pleaded that learned District Forum has no territorial jurisdiction to entertain the consumer complaint. It is further pleaded that vehicle was plied in violation of terms and conditions of insurance policy. It is pleaded that vehicle involved in the accident was light goods vehicle. It is pleaded that unauthorized five persons were travelling in the vehicle at the time of accident against the sitting capacity of four persons. It is further pleaded that driver did not hold valid and effective driving licence at the time of accident. It is further pleaded that there was delay in informing the accident. It is pleaded that vehicle was financed by M/s. Shriram Finance Company. It is pleaded that opposite party did not commit any deficiency in service. Prayer for dismissal of complaint sought.
3
(F.A. No.128/2017) & (F.A. No.304/2017)
4. Learned District Forum allowed the complaint and ordered opposite party to pay a sum of Rs.28482/-(Twenty eight thousand four hundred eighty two) alongwith interest @ 9% per annum from the date of filing of complaint till payment within forty five days. Learned District Forum further ordered that opposite party would also pay a sum of Rs.10000/-(Ten thousand) to the complainant on account of harassment and mental agony. Learned District Forum further ordered that opposite party would also pay a sum of Rs.5000/-(Five thousand) as litigation costs. Feeling aggrieved against the order passed by learned District Forum complainant filed appeal No.128/2017 and opposite party filed appeal No.304/2017 before H.P. State Consumer Commission.
5. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
6. Following points arise for determination in present appeals.
1. Whether appeal No.128/2017 title Chet Ram Versus Shriram General Insurance Co. Ltd. is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Whether appeal No.304/2017 title Shriram General Insurance Co. Ltd. Versus Chet Ram is 4 (F.A. No.128/2017) & (F.A. No.304/2017) liable to be accepted as mentioned in memorandum of grounds of appeal.
3. Final order.
Findings upon point No.1 with reasons relating to F.A. No.128/2017 :-_______________________________________
7. Complainant Chet Ram filed affidavit in evidence. There is recital in affidavit that deponent is owner of vehicle having registration No.HP-06A-2407. There is recital in affidavit that vehicle rolled down in gorge on dated 25.03.2013 and two persons died. There is recital in affidavit that FIR No.52/2013 was also registered under section 279, 337, 304-A of IPC in police station Rampur District Shimla- H.P. There is recital in affidavit that opposite party deputed surveyor and surveyor assessed loss to the tune of Rs.233832/-(Two lac thirty three thousand eight hundred thirty two). There is further recital in affidavit that claim was filed before the opposite party but opposite party did not settle the claim. There is recital in affidavit that legal notice was also issued to opposite party.
8. Per contra opposite party filed affidavit of Brij Bhushan in evidence. There is recital in affidavit that deponent is working a Manager Legal. There is further recital in affidavit that version filed by opposite party alongwith annexure-OP1 to OP6 be treated as evidence of opposite 5 (F.A. No.128/2017) & (F.A. No.304/2017) party. State Commission has carefully perused all annexures placed on record.
9. Submission of learned Advocate appearing on behalf of complainant that complainant has sustained loss to the tune of Rs.233832/-(Two lac thirty three thousand eight hundred thirty two) as per controversial bill already annexed with the complaint and on this ground appeal be allowed is decided accordingly. It is held that bills annexed by complainant by way of annexures are not per-se admissible under Consumer Protection Act 1986. It is well settled law that contents of controversial bills should be proved by way of affidavits of persons who have signed the bills as per mode mentioned under section 13(4) of Consumer Protection Act 1986. In the present matter complainant did not file affidavits of persons who have issued the controversial bills as per mode mentioned under section 13(4) of Consumer Protection Act 1986. Hence adverse inference is drawn against the complainant. It is well settled law that proceedings under Consumer Protection Act 1986 are quasi judicial proceedings and it is well settled law that controversial bills submitted by complainant are not per-se admissible under Consumer Protection Act 1986.
10. Submission of learned Advocate appearing on behalf of complainant that surveyor namely Chaman Rakesh Azta has illegally submitted loss assessment to the tune of 6 (F.A. No.128/2017) & (F.A. No.304/2017) Rs.37976/-(Thirty seven thousand nine hundred seventy six) vide annexure-OP6 and on this ground appeal filed by complainant be allowed is decided accordingly. State Commission has carefully perused the surveyor-cum- assessment report submitted by Chaman Rakesh Azta annexure-OP6 placed on record. Complainant did not file any interrogatories to Chaman Rakesh Azta surveyor cum loss assessor upon the report of surveyor. Hence complainant could not be allowed to take benefit of his own wrong. Even complainant did not file any counter surveyor cum loss assessor report. Surveyor report submitted by surveyor Shri Chaman Rakesh Azta remained unrebutted on record.
11. Submission of learned Advocate appearing on behalf of complainant that loss assessed by surveyor cum loss assessor to the tune of Rs.37976/-(Thirty seven thousand nine hundred seventy six) has been reduced by learned District Forum to the tune of Rs.28482/-(Twenty eight thousand four hundred eight two) on the basis of non- standard basis illegally and on this ground appeal be allowed is decided accordingly. Learned District Forum has granted the amount on the basis of non-standard basis due to overloading of the vehicle. Sitting capacity of the vehicle was four and five persons were travelling at the time of accident in the vehicle. State Commission has carefully perused the report of surveyor namely Chaman Rakesh Azta annexure- 7
(F.A. No.128/2017) & (F.A. No.304/2017) OP6 deputed by insurance company. Surveyor has specifically mentioned in his report that cause of accident was skid of vehicle due to rain. Surveyor cum loss assessor appointed by insurance company did not mention in the report that cause of accident was due to overloading. State Commission is of the opinion that insurance company could not be allowed to disbelieve the report of its own surveyor cum loss assessor namely Chaman Rakesh Azta. As per report of surveyor there was no nexus between overloading and accident. Surveyor cum loss assessor has specifically mentioned that accident occurred due to skid of vehicle due to rain. Hence State Commission is of the opinion that learned District Forum ought to have granted the compensation as assessed by surveyor cum loss assessor namely Chaman Rakesh Azta appointed by insurance company. Surveyor cum loss assessor appointed by insurance company did not recommend payment on behalf of insurance company by way of non-standard basis. Point No.1 is decided accordingly.
Findings upon point No.2 with reasons relating to F.A. No.304/2017 :-_______________________________________
12. Evidence is not repeated again in order to avoid repetition. Submission of learned Advocate appearing on behalf of insurance company that vehicle was goods carrier vehicle and five persons were travelling against the sitting 8 (F.A. No.128/2017) & (F.A. No.304/2017) capacity of four which amounts to fundamental breach of terms and conditions of insurance policy and on this ground appeal filed by insurance company be allowed is decided accordingly. It is proved on record that insurance company has appointed surveyor namely Chaman Rakesh Azta to assess the loss. It is proved on record that surveyor cum loss assessor namely Chaman Rakesh Azta appointed by opposite party submitted report annexure-OP6 placed on record. Surveyor cum loss assessor has specifically mentioned in the report that cause of accident was skid of vehicle due to rain. Surveyor cum loss assessor did not mention in his report that accident was caused due to overloading of vehicle. State Commission is of the opinion that report submitted by surveyor cum loss assessor appointed by insurance company is binding upon the insurance company. In the absence of recital in the report of surveyor that accident was caused due to overloading it is not expedient in the ends of justice and on the principle of natural justice to deny the compensation to complainant. See 2017(1) CPJ 88 J&K United India Insurance Co. Ltd. Versus S. Avtar Singh. See 2016 (3) SCC 100 Lakhmi Chand Versus Reliance General Insurance Company.
13. Submission of learned Advocate appearing on behalf of insurance company that licence of the driver was renewed for five years by licencing authority contrary to 9 (F.A. No.128/2017) & (F.A. No.304/2017) provisions of Motor Vehicles Act and on this ground appeal be allowed is decided accordingly. State Commission has carefully perused driving licence annexure-OP4 placed on record. Driving licence was issued for MC, LMV w.e.f. 08.03.2010 to 07.03.2016 and licence was issued for HTV, HGV on 08.04.2011 till 07.03.2016 by District Transport Officer Nagaland. Insurance company did not sent any interrogatories to District Transport Officer Nagaland relating to licence. No reason assigned by insurance company as to why insurance company did not send any interrogatories to District Transport Officer Nagaland. It is held that insurance company could not be allowed to take benefit of its own wrongs and laxity. It is also held that complainant could not be allowed to suffer on account of laxity of licensing authority. As per RC annexure C-4 vehicle No. HP-06A-2407 was light goods vehicle unladen weight of vehicle was 1695 Kg. and laden weight of vehicle was 2750 kg. As per section 2(21) of Motor Vehicles Act 1988 light motor vehicle means a transport vehicle the unladen weight of which does not exceed 7500 kilograms. See 2015 (2) SCC 186 Kulwant Singh & Others Versus Oriental Insurance Company Limited.
14. Submission of learned Advocate appearing on behalf of insurance company that learned District Forum has illegally granted compensation to the complainant on non- 10
(F.A. No.128/2017) & (F.A. No.304/2017) standard basis and on this ground appeal be allowed is decided accordingly. State Commission is of the opinion that as per report of surveyor cum loss assessor appointed by insurance company there was no nexus between overloading and accident. As per surveyor report accident took place due to skid of vehicle on account of rain. There is no recital in the report of surveyor cum loss assessor that accident took place due to overloading of vehicle. It is held that surveyor report is substantial piece of evidence and it is held that insurance company could not be allowed to disbelieve the report of its own surveyor. Surveyor cum loss assessor has assessed the loss to the tune of Rs.37976/-(Thirty seven thousand nine hundred seventy six). It is held that insurance company is under legal obligation to pay the amount as assessed by surveyor cum loss assessor appointed by insurance company. See 2012 (4) CPJ 103 NC National Insurance Company Limited Versus Jyothi Tobacco Traders. See 2009 (3) CPJ 194 NC Nand Kishore Jaiswal Versus National Insurance Company Limited. See 2009 (1) CPC 166 NC Pradeep Kumar Sharma Versus National Insurance Company Limited. See 2010 (3) CPJ 401 NC New India Assurance Co. Ltd. Versus Pushpa Chhabra. See 2010 (1) CPC 696 NC Champa Lal Verma Versus Oriental Insurance Co. Ltd.
15. Submission of learned Advocate appearing on behalf of insurance company that compensation awarded by 11 (F.A. No.128/2017) & (F.A. No.304/2017) learned District Forum to complainant to the tune of Rs.10000/-(Ten thousand) on account of harassment and mental agony is on higher side and on this ground appeal filed by insurance company be allowed is decided accordingly. State Commission is of the opinion that learned District Forum has granted reasonable compensation to complainant for mental agony and harassment. It is not expedient in the ends of justice and on the principle of natural justice to interfere in the order of learned District Forum relating to compensation granted on account of mental agony and harassment.
16. Submission of learned Advocate appearing on behalf of insurance company that learned District Forum has granted excessive litigation costs to complainant to the tune of Rs.5000/-(Five thousand) and on this ground appeal filed by insurance company be allowed is decided accordingly. State Commission is of the opinion that complainant has engaged advocate and has also paid other litigation charges. It is held that reasonable litigation costs has been granted by learned District Forum to complainant. State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to interfere in the litigation costs ordered by learned District Forum.
17. Submission of learned Advocate appearing on behalf of insurance company that learned District Forum has 12 (F.A. No.128/2017) & (F.A. No.304/2017) granted interest rate @ 9% per annum on higher side and on this ground appeal filed by insurance company be allowed is decided accordingly. State Commission is of the opinion that grant of interest rate is discretion of the Forum under Consumer Protection Act 1986 because no contractual interest agreement executed inter-se parties relating to interest. Insurance company did not place on record terms and conditions of contractual interest agreement upon principal amount. Hence in view of above stated facts 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 ordered by learned District Forum.
18. Submission of learned advocate appearing on behalf of insurance company that vehicle was used for commercial purpose and on this ground appeal filed by insurance company be allowed is decided accordingly. Service has been defined under Section 2(O) of Consumer Protection Act 1986 which means service of any description given by insurance company. It is held that matter of complainant falls under section 2(O) of Consumer Protection Act 1986.
19. Submission of learned advocate appearing on behalf of insurance company that complicated facts are involved and complainant be relegated to civil court is decided accordingly. It is held that matter could be decided under 13 (F.A. No.128/2017) & (F.A. No.304/2017) Consumer Protection Act 1986 and it is not expedient in the ends of justice and on the principles of natural justice to relegate the complainant to civil court. Point No.2 is decided accordingly.
Point No.3 : Final Order
20. In view of findings upon points No.1 & 2 above appeal No.128/2017 filed by complainant Chet Ram is partly allowed. Compensation amount awarded by learned District Forum to the tune of Rs.28482/-(Twenty eight thousand four hundred eighty two) alongwith interest @ 9% per annum from the date of filing of complaint till realization is enhanced to Rs.37976/-(Thirty seven thousand nine hundred seventy six) as assessed by surveyor cum loss assessor namely Chaman Rakesh Azta appointed by insurance company. Other parts of order passed by learned District Forum is affirmed. Order of learned District Forum is modified to this extent only. Report of Surveyor cum loss assessor namely Chaman Rakesh Azta annexure-OP6 shall form part and parcel of order. Appeal No.304/2017 filed by insurance company is dismissed. Certified copy of order be placed in the file of F.A. No.304/2017 forthwith. 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 14 (F.A. No.128/2017) & (F.A. No.304/2017) transmitted to parties forthwith free of costs strictly as per rules. Both Appeals i.e. F.A. No.128/2017 & F.A. No.304/2017 are disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 01.05.2018 K.D* 15