State Consumer Disputes Redressal Commission
Shriram General Insurance Co. Ltd. vs Vinod on 17 November, 2023
FA NO./555/2015 D.O.D.: 17.11.2023
SHRI RAM GENERAL INSURANCE CO. LTD. VS. MR. VINOD
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 18.11.2015
Date of Hearing: 24.05.2023
Date of Decision: 17.11.2023
FIRST APPEAL NO.- 555/2015
IN THE MATTER OF
SHRI RAM GENERAL INSURANCE CO. LTD.,
REGD. OFFICE AT: E-8, EPIP,
RIICO INSTITUTIONAL AREA, SITAPURA,
JAIPUR, RAJASTHAN-302022.
BRANCH OFFICE AT:
1001, GROUND FLOOR,
ARYA SAMAJ ROAD, NAIWALA,
KAROL BAGH, NEW DELHI-05.
(Through: Mr. N. K. Chauhan, Advocate)
...Appellant
VERSUS
MR. VINOD,
S/o MR. MAHABIR SINGH,
R/o VILLAGE DARYA PUR KHURD,
P.O. UJJWA, NEW DELHI.
(Through: Mr. Parvez Rahat, Advocates)
...Respondent
DISMISSED PAGE 1 OF 11
FA NO./555/2015 D.O.D.: 17.11.2023
SHRI RAM GENERAL INSURANCE CO. LTD. VS. MR. VINOD
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR. J. P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. Ankit Kalra, counsel for the Appellant.
None for the Respondent.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The facts of the case as per the District Commission record are:
"The complainant is the registered owner of a car TATa Indica bearing no. HR -55-DT-0407. He had purchased a policy of insurance in respect of the aforesaid car which was valid for the period 18/10/2006 to 17/10/2009 for an IDV of Rs. 2,20,000/-. It is alleged that on 15.9.2009, the car met with an accident and was completely burnt. The OP had appointed a surveyor. Initially a sum of Rs. 1,50,000/- was offered to the complainant for the loss as compensation despite the fact that the car was insured for an IDV of Rs 2,20,000/-. The OP had also sent a letter to the complainant dated 30.7.2009 offering a second hand car in lieu of the insured one. The complainant had refused the offer whereafter the OP insurance company had closed the case and had refused to settle the claim. The complainant has alleged that the act of the OP amounted to deficiency in service and has prayed for the redresal of his grievance."
2. The District Commission after taking into consideration the material available on record passed the order dated 31.07.2015, whereby it held as under:
"of late, it has been noticed that there has been a tendency on the part of the insurance company to repudiate the claim lodged by the insured on one pretext or the other. Courts on a no. of DISMISSED PAGE 2 OF 11 FA NO./555/2015 D.O.D.: 17.11.2023 SHRI RAM GENERAL INSURANCE CO. LTD. VS. MR. VINOD occasions have impressed upon the officers who deal claims to act in insurance contract. a manner with the passgage of claims to act in a manner which advances the purpose of the insurance contract. It has been impressed upon these officers to act in the right perspective in order to settle the genuine claims of the consumers. Coming to the facts of the present complaint, it appears to us that the officers of the insurance company were inclined not to compensate the insured fully for the loss and in the result earn some gain for the insurance company. The mindset of the officers dealing with the passage of this claim is reflected from the written statement wherein it has been stated that the insurance company was not bound to indemnify the loss of the insured on the IDV but was liable to pay the acutals loss as per market value of the car in 2009. In para 2 of the reply on merits, the insurance company has stated that even though the value of the insured vehicle was assessed to the tune of Rs. 2,20,000/- , the value of the vehicle in the year 2009 was not the same as it was at the time of entering into the insurance contract in the year 2008. It is also alleged in the written statement that the complainant had not maintained the vehicle properly as a result of which it had caught fire and was completely burnt. It is, therefore, clear that the insurance company did not want to compensate the insured on the Insured declared Value. They rather were of the opinion, that since the market value of the insured vehicle had depreciated, the insured should be compensated at a lesser amount. This amounts to an unfair trade practice on the part of the insurance company. The value of the insured vehicle had been assessed as Rs. 2,20,000/- at the time of entering into the insurance contract on which the required premium was paid by the complainant. Having accepted premium at the above rate, it did not lay in the mouth of the insurance company to say that the compensation has to be given at a lesser rate. The complainant was , therefore, justified in not consenting to the claim which was being offered in cash or the replacement of the vehicle. The complainant would naturally have gained the impression that the replaced vehicle would also be of the lesser value at which the compensation in money was DISMISSED PAGE 3 OF 11 FA NO./555/2015 D.O.D.: 17.11.2023 SHRI RAM GENERAL INSURANCE CO. LTD. VS. MR. VINOD being offered. We, therefore, hold that the OP insurance company. was deficient in rendring services to the complainant. It ought to have offered compensation to the complainant on the insured declare value rather than harping on the plea that the value of the insured vehicle had depreciated at the time of the accident. We, therefore, direct the OP insurance compay as under:-
1. Pay to the complainant a sum of Rs. 2,20,00- along with interest @ 10% p.a. from the date of institution of the preent complaint i.e. 9.4.2010 till payment.
2. Pay to the complainant a sum of Rs. 20,000/- as compensation for pain & agony suffered by him.
3. Pay to the complainant a sum of Rs.5,000/- as cost of litigation.
The OP shall pay this amount within a period of 30 days from the date of this order failing which they shall be liable to pay interest on the entire awarded amount @ 10% per annum."
3. Aggrieved by the aforesaid order of the District Commission, the Appellant/Opposite Party has preferred the present appeal contending that the District Commission has erred in establishing deficiency on the part of Appellant. The counsel further submitted that the District Commission failed to appreciate the terms and conditions of the policy. Lastly, the counsel submitted that there was no deficiency of service on the part of Appellant. Pressing the aforesaid submissions, the Appellant prayed for setting aside the impugned judgment.
4. The Respondent, on the other hand, denied all the allegations of the Appellant and submitted that there is no error in the impugned order as the entire material available on record was properly scrutinized before passing the said order.
DISMISSED PAGE 4 OF 11 FA NO./555/2015 D.O.D.: 17.11.2023
SHRI RAM GENERAL INSURANCE CO. LTD. VS. MR. VINOD
5. We have perused the material available on record and heard the counsel who appeared on behalf of the Appellant.
6. Additionally, we find that during the course of proceeding, the Appellant has filed an application seeking permission to take on record the additional documents filed by it.
7. Therefore, the primary question for consideration before us that whether this Commission is bound to consider this additional evidence filed by the Appellant which was not produced before District Commission.
8. To deal with this issue, it is imperative to refer to Order 41 Rule 27 of Civil Procedure Code, 1908, wherein it is provided as under:-
"Rule 27- Production of Additional Evidence in Appellate Court.
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, DISMISSED PAGE 5 OF 11 FA NO./555/2015 D.O.D.: 17.11.2023 SHRI RAM GENERAL INSURANCE CO. LTD. VS. MR. VINOD the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
9. Further, we deem it appropriate to refer to 'Branch Manager, Universal Sompo General Insurance Company Limited and Ors. Vs. Didwaniya Exim Private Limited and Ors.' reported as I (2020) CPJ407 (NC), wherein, the National Commission, has held as under:
"5. We have heard the Learned Counsel for the parties. Even though a large number of decisions have been cited by the Learned Counsel for either of the parties, but we are of the considered opinion that it is not necessary to go into the decisions cited by the Learned Counsel for the parties for the reason that recently the Hon'ble Supreme Court of India in Jiten K. Ajmera & Anr. Vs. Tejas Cooperative Housing Society, MANU/SC/0665/2019 : (2019) 6 SCC 128, has held that under Order 41 Rule 27 of the Code of Civil Procedure, 1908, a party can produce additional evidence at appellate stage. Relevant paragraphs of the Hon'ble Supreme Court's judgment are reproduced below for ready reference:
"3.1 We have perused the application filed by the appellants herein for bringing additional evidence on record, along with documents sought to be produced in the pending appeal before the State Commission. These documents have admittedly come into existence after the appeal was filed before the State Commission. The appellants, therefore, could not have produced the said documents before the District Forum.
3.2 Under Order 41 Rule 27 CPC a party can produce additional evidence at the appellate stage, if it establishes that notwithstanding the exercise of due diligence, such evidence was not within its knowledge, or could not even after DISMISSED PAGE 6 OF 11 FA NO./555/2015 D.O.D.: 17.11.2023 SHRI RAM GENERAL INSURANCE CO. LTD. VS. MR. VINOD the exercise of due diligence, be produced by it at the time when the decree appealed against was passed. 3.3 These documents are of relevance to establish that the appellants are not in a position to obtain the occupancy certificate from MCGM until the unauthorised structures, which are in violation of the approved plans, are removed. In the absence of these documents, the appellants would not be in a position to substantiate their case that they are unable to obtain the occupancy certificate and comply with the directions issued by the District Forum.
4. The State Commission was in error by rejecting the application filed by the appellants under Order 41 Rule 27 CPC by merely stating that the documents are "not necessary ". The said order is an unreasoned one. The State Commission must have taken a holistic view of the matter.
5. The National Commission has by the impugned order dated 16-03-2018 affirmed the interim order passed by the State Commission.
6. In the light of the aforesaid discussion, the interim order dated 10-12-2015 passed by the State Commission is hereby set aside, as also the impugned order dated 16-03-2018 passed by the National Commission.
7. The Civil Appeal is allowed. The matter is remitted to the State Commission to take the additional documents on record, and decide the appeal on merits in accordance with law. The State Commission is further directed to decide the appeal expeditiously since it is pending since 2013. Ordered accordingly."
6. In view of the law laid down by the Hon'ble Supreme Court in Jiten K. Ajmera (supra), either of the parties are entitled to produce additional evidence in the Appeal and/or Revision Petition at any stage if it establishes that notwithstanding the exercise of due diligence such evidence was not in its knowledge and could not, even after exercise of due diligence, be produced by it at the time when the Consumer Complaint was decided. We, therefore, answer the reference accordingly."
DISMISSED PAGE 7 OF 11 FA NO./555/2015 D.O.D.: 17.11.2023
SHRI RAM GENERAL INSURANCE CO. LTD. VS. MR. VINOD
10. Analysis of the Order 41 Rule 27 of the Code of Civil Procedure, 1908 and the settled law reproduced above, leads us to the conclusion that this Commission is empowered to admit fresh or additional evidences submitted by any party only when it is clearly established by the party that such evidence was not within his knowledge or could not, or after the exercise of due diligence, be produced by him at the time when Consumer complaint was decided by the Commission having original jurisdiction.
11. Therefore, in the present case, it will have to be ascertained whether the additional evidence produced by the Appellant was not within his knowledge or could not be produced before District Commission after exercising due diligence. However, the Appellant failed to show any reason for the same. Therefore, we are of the view that the additional evidence filed by the Appellant before this Commission cannot be taken into consideration as the same should have been filed/ produced before the District Commission.
12. Additionally, the motor final survey report filed by the Appellant as an additional document reflects entirely different facts as compared to the evidences filed by the Appellant before the District Commission. The bare perusal of such additional document reflects that the surveyor has mentioned in the report that the car in question had met with an accident and the parts of the car can be replaced in order to make it roadworthy and accordingly, the surveyor has assessed the claim. However, on the other hand, the impugned order and the documents annexed with the Appeal reflects that the car in question was met with the accident and completely burnt due to the short circuit in car. Therefore, we tend to rely upon the motor spot survey report dated 19.01.2009 and re-investigation report dated 24.01.2009 filed before the District Commission. Consequently, the DISMISSED PAGE 8 OF 11 FA NO./555/2015 D.O.D.: 17.11.2023 SHRI RAM GENERAL INSURANCE CO. LTD. VS. MR. VINOD additional document filed by the Appellant before this Commission cannot be taken on record.
13. The next question for consideration before us is whether the District Commission has erred in establishing deficiency of service on the part of Appellant.
14. From the perusal of the record, we find that the insured car in question having IDV of Rs. 2,20,000/- met with an accident on 15.09.2009 and was completely burnt, which is clear from the spot survey report dated 19.01.2009 by Mr. Ravi Kant Ajmera (Surveyor) and has submitted the following in the clause 'remarks and recommendations' as under:
"REMARKS & RECOMMENDATIONS"
Pursuant to the instruction from Autorisk Management Services Pvt. Ltd., 11Th Floor, Hemkunt Tower, Rajindra Piace, New Delhi - 110008 on 16.01 2009 and as desired the undersigned visited the spot of accident at Khera Dabar-Ujwa Road, New Delhi on 16.01 2009 to survey and assess the loss to above mentioned vehicle reported to have met with an accident. The vehicle was examined very minutely and damages sustained by it were noted down. The damages are listed below.
Body Shell badly fired/tempered, All seats burnt badly. Dash Board, Steering System, ABC pedal. A.C system, Heater assy., Roof Lining, Carpets are badly burnt, Front Windshield Glass, Rear Wind shield Glass & All Door Glasses broken. All tyres including spare wheel burnt, Engine Compartment badly burnt. Gear Box assy., Engine assy., A.C Compressor, Alternator, Wiring, Brake System are badly burnt. Although proper care has been taken while noting down the damages to the extent of visibility and accessibility if however there appears any other damages a suitable decision may be taken by the final surveyor."
15. From the aforesaid spot survey report it is clear that the car in question was completely burnt and all the major parts of the car was badly burnt due to DISMISSED PAGE 9 OF 11 FA NO./555/2015 D.O.D.: 17.11.2023 SHRI RAM GENERAL INSURANCE CO. LTD. VS. MR. VINOD the said accident. Further, the re-investigation report dated 24.01.2009 concluded by Auto Risk Management Services Pvt. Ltd. has also submitted in the conclusion para that: "After our investigation it is revealed that the car bearing regn. No. HR-55DT-0407 caught fire due to the short circuit and the claim is genuine."
16. Therefore, from the combined reading of both the reports, it is clear that the car in question was completely burnt due to the alleged accident. Further, the Appellant had tried to settle the claim of the Respondent by offering a second hand car in lieu of the insured vehicle which was refused by the Respondent. However, we find that no clause of the terms and conditions of the policy gives right to the Appellant to settle the claim by handing over the second hand car of the similar value. Therefore, in our considered view, the Appellant had arbitrarily and unjustifiably tried to settled the claim of the Respondent and the Respondent is not bound to settle his claim by taking the second hand car in lieu of the insured vehicle.
17. Infact, we are in agreement with the reasons given by the District Commission and fail to find any cause or reason to reverse the findings of the District Commission. Consequently, we uphold the order dated 31.07.2015 passed by the District Consumer Disputes Redressal Commission (Central), Kashmere Gate, Delhi.
18. Consequently, the present Appeal stands dismissed with no order as to costs.
19. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
20. FDR, if any be released in favour of the Respondent namely Mr. Vinod Kumar.
21. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties as well as forwarded to the corresponding E-mail DISMISSED PAGE 10 OF 11 FA NO./555/2015 D.O.D.: 17.11.2023 SHRI RAM GENERAL INSURANCE CO. LTD. VS. MR. VINOD address available on the record i.e. [email protected] (Appellant) and [email protected] (Respondent).
22. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) (J.P. AGRAWAL) MEMBER (GENERAL) Pronounced On:
17.11.2023 DISMISSED PAGE 11 OF 11