State Consumer Disputes Redressal Commission
Sh. Murari Lal Saini. vs Iffco-Tokio General Insuyrance Co. ... on 6 November, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 15/2019
Date of Presentation: 29.10.2018
Order Reserved on : 29.05.2019
Date of Order : 06.11.2019
......
Shri Murari Lal Saini S/o Sh. Mohal Lal R/o Village Ghatta P.O.
Kummi Tehsil Balh District Mandi H.P.
...... Appellant/Complainant.
Versus
1. IFFCO-TOKIO General Insurance Company Ltd. IFFCO
House 3rd Floor 34-Nehru Place New Delhi Through its
Divisional Manager (Savitri Bhawan Khalini Shimla H.P.)
2. Branch Manager IFFCO-TOKIO General Insurance
Company Ltd. Bhangrotu near Medical College Tehsil Balh
District Mandi H.P.
......Respondents/Opposite parties.
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Lalit K.Sharma Advocate.
For Respondents : Mr. Virender Sharma Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 18.09.2018 passed by Learned District Consumer Forum/Commission in consumer complaint No.195/2016 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Murari Lal Saini Versus IFFCO TOKIO General Insurance Co. Ltd. & Anr. F.A. No.15/2019 titled Murari Lal Saini Versus IFFCO-TOKIO General Insurance Company Ltd. & another.
Brief facts of consumer complaint:
2. Shri Murari Lal Saini filed consumer complaint under Consumer Protection Act pleaded therein that complainant is owner of JCB machine having registration No. HP-67-2838. It is pleaded that vehicle in question was insured with the opposite parties w.e.f. 13.02.2014 to 12.02.2015. It is pleaded that premium was also paid. It is further pleaded that on dated 05.12.2014 at about 7:30 AM vehicle in question due to mechanical defect derailed from road into deep place and was badly damaged. It is pleaded that FIR No.162 dated 05.12.2014 was also recorded in police station Karsog District Mandi H.P. and information to Insurance company was also given. It is pleaded that Insurance company appointed Surveyor cum Loss Assessor and Surveyor cum Loss Assessor has submitted report. It is pleaded that Insurance company did not settle OD claim of vehicle and committed deficiency in service. Complainant sought relief to the effect that opposite parties be ordered to pay OD claim of vehicle in question to the tune of Rs.381476/- (Three lacs eighty one thousand four hundred seventy six) alongwith interest. In addition complainant sought relief of payment to the tune of Rs.200000/- (Two lacs) 2 Murari Lal Saini Versus IFFCO TOKIO General Insurance Co. Ltd. & Anr. F.A. No.15/2019
on account of loss of utility of JCB. In addition complainant sought relief of payment of damage and litigation costs to the tune of Rs.50000/- (Fifty thousand). Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of Insurance company pleaded therein that one gratuitous passenger was travelling in the vehicle in question at the time of accident and Insurance company has repudiated claim on dated 07.05.2015 in accordance with laws. It is further pleaded that complicated questions of facts and laws are involved in present consumer complaint and complainant be relegated to civil court. It is pleaded that Insurance company appointed Surveyor cum Loss Assessor and Surveyor cum Loss Assessor has assessed loss to the tune of Rs.112851/- (One lac twelve thousand eight hundred fifty one) on repair basis. It is pleaded that complainant has violated terms and conditions of Insurance policy relating to usage of JCB machine. It is pleaded that Insurance company did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
4. Complainant filed rejoinder and reasserted allegations mentioned in consumer complaint. Learned District Consumer Forum/Commission allowed consumer complaint and ordered Insurance company jointly and 3 Murari Lal Saini Versus IFFCO TOKIO General Insurance Co. Ltd. & Anr. F.A. No.15/2019 severally to pay OD claim of vehicle to the tune of Rs.112851/- (One lac twelve thousand eight hundred fifty one) to complainant alongwith interest @ 9% per annum from the date of complaint till actual payment. In addition Learned District Consumer Forum/Commission ordered Insurance company to pay compensation to complainant to the tune of Rs.10000/- (Ten thousand) for harassment. In addition Learned District Consumer Forum/Commission ordered Insurance company to pay litigation costs to complainant to the tune of Rs.5000/- (Five thousand). Feeling aggrieved against order passed by Learned District Consumer Forum/Commission complainant filed present appeal for enhancement of OD claim of vehicle in question and compensation before State 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 appeal.
1. Whether appeal filed by appellant for enhancement of OD claim of vehicle in question and compensation is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
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Murari Lal Saini Versus IFFCO TOKIO General Insurance Co. Ltd. & Anr. F.A. No.15/2019 Findings upon point No.1 with reasons:
7. Complainant filed evidence by way of affidavit Annexure CW-1. There is recital in affidavit that deponent is is owner of JCB machine in question having registration No. HP-67-2838. There is further recital in affidavit that vehicle in question was duly insured with Insurance company at the time of accident. There is recital in affidavit that on dated 05.12.2014 at about 7:30 AM vehicle in question was coming from Mahunag to Sunder Nagar District Mandi H.P. and when vehicle in question reached at village Jachh then due to some mechanical defect vehicle derailed from road into deep place and was badly damaged. There is further recital in affidavit that FIR No.162 dated 05.12.2014 was also lodged in police station Karsog District Mandi H.P. There is further recital in affidavit that factum of accident was informed to Insurance company. There is further recital in affidavit that deponent incurred expenditure of Rs.338976/- (Three lacs thirty eight thousand nine hundred seventy six) upon the repair of vehicle in question. There is further recital in affidavit that Insurance company did not settle OD claim of vehicle in question and committed deficiency in service.
8. Complainant filed corroborative evidence of Jagdish Kumar. There is recital in affidavit that on dated 05.12.2014 deponent was going to Karsog District Mandi H.P. 5 Murari Lal Saini Versus IFFCO TOKIO General Insurance Co. Ltd. & Anr. F.A. No.15/2019
upon his motorcycle and at about 7:30 AM deponent reached 2 K.M. ahead of village Jachh then deponent got down from his motorcycle for taking some rest. There is recital in affidavit that vehicle in question came from Karsog Mahunag side and derailed down below the road into deep place and was badly damaged. There is further recital in affidavit that driver and one other person sustained multiple injuries on different parts of their body. There is further recital in affidavit that deponent is mechanic by profession and was going to village Karsog to repair some damaged vehicle.
9. Complainant also filed corroborative evidence of Leeladhar. There is recital in affidavit that on dated 05.12.2014 at about 7:30 AM deponent was coming to Sunder Nagar from Mahunag Kanrsog District Mandi H.P. and when deponent reached 2 K.M. behind from village Jachh then due to some mechanical defect vehicle in question derailed from road into deep place and was badly damaged. There is further recital in affidavit that driver of the vehicle in question and one other person were injured.
10. Complainant filed corroborative evidence of Rohit. There is recital in affidavit that on dated 05.12.2014 at about 7:30 AM deponent was standing on the side of road about 2 K.M. behind from village Jachh Tehsil Karsog District Mandi H.P. and JCB machine in question having registration No.HP- 6
Murari Lal Saini Versus IFFCO TOKIO General Insurance Co. Ltd. & Anr. F.A. No.15/2019 67-2838 came from Karsog side and derailed down from road into deep place. There is further recital in affidavit that driver of JCB machine alongwith other persons sustained injuries. State Commission has carefully perused all annexures filed by complainant.
11. Opposite parties filed affidavit of Rajiv Ranjan in evidence. There is recital in affidavit that deponent is competent authority of opposite parties and opposite parties have authorized deponent to file affidavit. There is further recital in affidavit that seating capacity of vehicle in question was one and at the time of accident one more person in addition to driver was travelling in the vehicle in question in violation of terms and conditions of Insurance policy. There is recital in affidavit that OD claim of vehicle in question was repudiated by Insurance company on dated 07.05.2015. There is recital in affidavit that Insurance company also hired services of Surveyor cum loss assessor and Surveyor cum loss assessor has assessed the loss to the tune of Rs.112851/- (One lac twelve thousand eight hundred fifty one) on repair basis.
12. Insurance company also filed affidavit of Mohinder Kumar Sharma. There is recital in affidavit that deponent is approved and duly licensed Surveyor and loss assessor under Insurance Act 1938. There is further recital in affidavit that 7 Murari Lal Saini Versus IFFCO TOKIO General Insurance Co. Ltd. & Anr. F.A. No.15/2019 deponent has submitted report and assessed damage caused to JCB machine having registration No. HP-67-2838. State Commission has carefully perused all annexures filed by Insurance company.
13. Submission of learned Advocate appearing on behalf of complainant that complainant has spent amount of Rs.381476/- (Three lacs eighty one thousand four hundred seventy six) upon the repair of vehicle in question and Learned District Forum/Commission has not granted adequate OD claim and on this ground appeal filed by complainant for enhancement of amount be allowed is decided accordingly. Complainant has filed bills of (1) Laxya Crane Service (2) Verma Auto Works (3) Anand Auto Electric works (4) Shri Sai Hadrolic works (5) Namdhari Engineering Works (6) Agro Machinery & Spares (7) M/s Simran Automobiles (8) Sahil Hydrolic Works (9) Krishna Automobiles (10) Sankat Mochan Service (11) M/s Piru Painter. State Commission is of the opinion that controversial bills submitted by complainant are not per se admissible under Consumer Protection Act.
14. Complainant has not filed affidavits of persons who have issued controversial bills in order to prove contents of bills. Hence plea of the complainant that complainant has spent Rs.381476/- (Three lacs eighty one thousand four 8 Murari Lal Saini Versus IFFCO TOKIO General Insurance Co. Ltd. & Anr. F.A. No.15/2019 hundred seventy six) for repair of vehicle in question is defeated on the concept of ipse dixit (An assertion made without proof).
15. It is proved on record that in present matter Insurance company appointed Surveyor cum Loss Assessor namely Shri Mohinder Kumar Sharma and Surveyor cum Loss Assessor has assessed damage to the tune of Rs.112851/- (One lac twelve thousand eight hundred fifty one). It is well settled law that report of Surveyor cum Loss Assessor is substantial piece of evidence. Complainant did not send any interrogatory to Surveyor cum Loss Assessor. Complainant also did not file any counter Surveyor report. See 2010(1) CPC 696 NC Champa Lal Verma Versus Oriental Insurance Company Ltd. See 2010(3) CPJ 401 NC New India Assurance Company Ltd. Versus Pushpa Chhabra. 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 2017 (1) CPJ 529 NC Ashish Kumar Jaiswal Versus ICICI Lombard General Insurance Company Ltd. & others. See 2009(1) CPC 166 NC Pradeep Kumar Versus National Insurance Company Ltd. See 2018(1) CPR 311 NC Oriental Insurance Company Ltd. Versus Jagdish Chand Gupta.
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Murari Lal Saini Versus IFFCO TOKIO General Insurance Co. Ltd. & Anr. F.A. No.15/2019
16. Submission of learned Advocate appearing on behalf of complainant that complainant is entitled for payment of Rs.200000/- (Two lacs) on account of incidental loss of income and on this ground appeal filed by complainant be allowed is decided accordingly. State Commission is of the opinion that complainant has not submitted any documentary evidence on record in order to prove actual loss of income sustained by complainant from competent authority of law. In the absence of documentary evidence on record relating to loss of income by complainant State Commission is of the opinion that it is not expedient in the ends of justice on the principles of natural justice to enhance compensation amount ordered by Learned District Forum/Commission.
17. Submission of learned Advocate appearing on behalf of complainant that Learned District Forum/ Commission has not granted reasonable litigation costs to complainant and on this ground appeal filed by complainant be allowed is decided accordingly. State Commission is of the opinion that complainant did not place on record Advocate fee certificate. In the absence of Advocate fee certificate on record State Commission is of the opinion that it is not expedient in the ends of justice on the principles of natural justice to 10 Murari Lal Saini Versus IFFCO TOKIO General Insurance Co. Ltd. & Anr. F.A. No.15/2019 enhance litigation costs ordered by Learned District Forum/Commission.
18. Submission of learned Advocate appearing on behalf of Insurance company that order of Learned District Forum/Commission does not warrant any interference by State Commission in view of the fact that report filed by Surveyor cum Loss Assessor appointed under Statutory Insurance Act 1938 remained unrebutted on record is decided accordingly. State Commission is of the opinion that complainant is legally entitled for OD claim of vehicle as assessed by Surveyor cum Loss Assessor appointed under section 64UM of Statutory Insurance Act 1938. Point No.1 is decided accordingly.
Point No.2: Final Order
19. In view of findings upon point No.1 above appeal filed by complainant is dismissed. Order of Learned District Forum/Commission is affirmed. Parties are left to bear their own litigation costs before State Commission. Report of Surveyor cum Loss Assessor dated 22.01.2015 Annexure O-4 shall form part and parcel of order. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Certified copy of order be sent to Learned District Forum/Commission forthwith for information and file of State 11 Murari Lal Saini Versus IFFCO TOKIO General Insurance Co. Ltd. & Anr. F.A. No.15/2019 Commission be consigned to record room after due completion forthwith. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member 06.11.2019 Manoj 12