State Consumer Disputes Redressal Commission
Sh. Rajesh Chandel. vs United India Insurance Co. Ltd. & Anr. on 10 December, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 99/2018
Date of Presentation: 06.03.2018
Order Reserved on : 28.08.2018
Date of Order : 10.12.2018
......
Rajesh Chandel s/o Shri Shyam Singh Chandel r/o Village Miyan
Bandla Tehsil Sadar District Bilaspur H.P.
...... Appellant/Complainant
Versus
1. United India Insurance Company Limited Branch Office
Gandhi Chowk Hamirpur Tehsil & District Hamirpur H.P.
through its Branch Manager.
2. United India Insurance Company Limited Branch Office
Village and Post Office Barmana Tehsil Sadar District
Bilaspur H.P. through its Manager (Incharge).
......Respondents/Opposite parties
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Abhay Kaushal Advocate vice
Mr. T.S. Chauhan Advocate.
For Respondents : Ms. Rajvinder Sandhu Advocate
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 21.12.2017 passed by Learned District Forum in consumer 1 Whether reporters of the local papers may be allowed to see the order? Yes. Rajesh Chandel Versus United India Insurance Co. Ltd. & Anr. (F.A. No.99/2018) complaint No.104/2014 titled Rajesh Chandel Versus United India Insurance Company Limited & Anr.
Brief facts of Consumer Complaint:
2. Complainant filed consumer complaint under Section 12 of Consumer Protection Act 1986 pleaded therein that complainant is owner in possession of vehicle No. HP-69-1766. It is pleaded that vehicle was duly insured with insurance company w.e.f. 11.10.2010 to 10.10.2011. It is further pleaded that vehicle met with accident on dated 28.09.2011 at about 4:30PM near Village Benla-Brahmana Tehsil Sadar District Bilaspur H.P. It is further pleaded that vehicle sustained total loss. It is further pleaded that OD claim was submitted before the opposite parties but opposite parties did not settle the OD claim and committed deficiency in service. Complainant sought relief of payment of Rs.100000/- (One lac) alongwith interest @12% per annum from the date of accident and also sought costs of litigation.
In addition complainant sought payment of Rs.50000/- (Fifty thousand) as damages for mental harassment, pain and agony. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite parties pleaded therein that complainant has no cause of action and no locus-standi to file the present consumer 2 Rajesh Chandel Versus United India Insurance Co. Ltd. & Anr. (F.A. No.99/2018) complaint. It is further pleaded that complainant has violated terms and conditions of insurance policy. It is further pleaded that driver was holding LMV licence only. It is further pleaded that vehicle was registered as Light Goods Vehicle and driver was not legally competent to drive the LTV vehicle. It is further pleaded that complainant is estopped to file the present complaint due to his own acts, deeds, conduct, omissions and commissions. It is further pleaded that opposite parties did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
4. Learned District Forum dismissed the complaint filed by complainant. Feeling aggrieved against order passed by Learned District Forum complainant filed present appeal 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 is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
3
Rajesh Chandel Versus United India Insurance Co. Ltd. & Anr. (F.A. No.99/2018) Findings upon point No.1 with reasons:
7. Complainant filed affidavit in evidence. There is recital in the affidavit that deponent is owner in possession of vehicle bearing registration No.HP-69-1766. There is further recital in affidavit that vehicle was duly insured with insurance company w.e.f. 11.10.2010 to 10.10.2011 in the sum of Rs.140600/- (One lac forty thousand six hundred).
There is further recital in affidavit that vehicle met with accident on dated 28.09.2011 at about 4:30PM near Village Benla-Brahmana Tehsil Sadar District Bilaspur H.P. on Bilaspur-Hamirpur National Highway. There is further recital in the affidavit that vehicle was totally damaged and vehicle sustained total loss. There is further recital in the affidavit that factum of accident was informed to the opposite parties and opposite parties also appointed surveyor. There is further recital in the affidavit that deponent completed all codal formalities but insurance company did not settle the claim. State Commission has perused all annexures filed by complainant carefully.
8. Opposite parties filed affidavit of Dr. Kushal Abrol Senior Divisional Manager in evidence. There is recital in the affidavit that complainant has no cause of action and no locus-standi to file the present consumer complaint. There is further recital in the affidavit that driver namely Ashwani 4 Rajesh Chandel Versus United India Insurance Co. Ltd. & Anr. (F.A. No.99/2018) Kumar was holding LMV licence only and was not legally competent to drive transport vehicle. There is further recital in the affidavit that complainant has committed fundamental breach of terms and conditions of insurance policy.
9. Opposite parties also filed affidavit of surveyor- cum-loss assessor namely Er. Deepak Sood in evidence. There is recital in the affidavit that deponent is independent surveyor-cum-loss assessor. There is further recital in the affidavit that deponent was deputed by the insurance company to conduct the survey and assess the loss of damaged vehicle No. HP-69-1766. There is further recital in the affidavit that deponent conducted survey of vehicle and submitted report to the United India Insurance Co. Ltd.
10. Submission of learned advocate appearing on behalf of complainant that learned District Forum has not properly appreciated the evidence adduced by parties and also did not appreciate the law and on this ground appeal filed by complainant be allowed is decided accordingly. It is proved on record that insurance company has repudiated the claim of complainant on the ground that driver namely Ashwani Kumar was not holding valid and effective driving licence at the time of accident. It is proved on record that insurance company issued insurance policy annexure R-5 in favour of complainant relating to vehicle involved in the 5 Rajesh Chandel Versus United India Insurance Co. Ltd. & Anr. (F.A. No.99/2018) accident. Insurance policy was operative w.e.f. 11.10.2010 to 10.10.2011 and insurance company has received premium for OD claim of vehicle to the tune of Rs.1844/- (One thousand eight hundred forty four) and insurance company has also received premium for third party liability. In total insurance company received premium to the tune of Rs.3500/- (Three thousand five hundred) from the complainant.
11. State Commission has also perused RC of vehicle No.HP-66-1766 Annexure R-4 placed on record. In the RC vehicle was registered as Light Goods Vehicle and unladen weight of vehicle has been shown as 460 Kg. and laden weight of vehicle has been shown as 1060 Kg. State Commission has also perused the driving licence of Ashwani Kumar. Ashwani Kumar was holding driving licence for non-transport vehicle w.e.f. 05.09.1995 to 05.06.2024. As per section 2(21) of the Motor Vehicles Act 1988 light motor vehicle means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which does not exceed 7500 kilograms. It is well settled law that driver holding LMV licence could drive LMV transport vehicle. See AIR 2017 Apex Court 3668 titled Mukund Dewangan Versus Oriental Insurance Company Limited. It is well settled law that ruling given by Hon'ble 6 Rajesh Chandel Versus United India Insurance Co. Ltd. & Anr. (F.A. No.99/2018) Apex Court of India is binding upon all Courts, Tribunals, Commissions as per Article 141 of the Constitution of India.
12. State Commission has also perused the report submitted by surveyor-cum-loss assessor namely Er. Deepak Sood dated 15.10.2012 Annexure R-11. There is recital in the report submitted by surveyor-cum-loss assessor namely Er. Deepak Sood that at the time of accident driver lost control over the vehicle and vehicle collided with truck No. HP-64- 2799 with considerable force and vehicle was damaged. Surveyor-cum-loss assessor has assessed the damage and recommended the payment of Rs.68846/- (Sixty eight thousand eight hundred forty six).
13. State Commission is of the opinion that damage assessment report submitted by surveyor-cum-loss assessor namely Er. Deepak Sood appointed by insurance company should be complied by insurance company because as per law report submitted by surveyor-cum-loss assessor is substantial piece of evidence and due credence should be given to the report submitted by surveyor-cum-loss assessor. 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 2009 (1) CPC 166 NC Pradeep 7 Rajesh Chandel Versus United India Insurance Co. Ltd. & Anr. (F.A. No.99/2018) Kumar Versus National Insurance Co. Ltd. See 2010 (3) CPJ 401 NC New India Assurance Co. Ltd. Versus Pushpa Chhabra. See 2010 (1) CPC 696 NC Champa Lal Versus Oriental Insurance Co. Ltd.
14. Submission of learned advocate appearing on behalf of insurance company that complainant has committed fundamental breach of terms and conditions of the insurance policy and on this ground appeal filed by complainant be dismissed is decided accordingly. State Commission is of the opinion that plea of insurance company that complainant has committed fundamental breach of terms and conditions of insurance policy is defeated on the concept of ipse-dixit (An assertion made without proof). In view of above stated facts point No.1 is decided accordingly.
Point No.2: Final Order
15. In view of findings upon point No.1 above appeal is partly allowed and order of learned District Forum announced in consumer complaint No.104 of 2014 dated 21.12.2017 is set aside. It is ordered that opposite parties jointly and severally shall pay OD claim to the complainant to the tune of Rs.68846/- (Sixty eight thousand eight hundred forty six) as assessed by surveyor-cum-loss assessor namely Er. Deepak Sood alongwith interest @ 9% per annum from the date of institution of complaint till realization. In addition it is 8 Rajesh Chandel Versus United India Insurance Co. Ltd. & Anr. (F.A. No.99/2018) ordered that opposite parties jointly and severally shall pay compensation to the tune of Rs.10000/- (Ten thousand) to the complainant for mental agony and harassment. In addition opposite parties jointly and severally shall pay litigation costs to the tune of Rs.10000/- (Ten thousand) to the complainant. Driving Licence of Ashwani Kumar Annexure C-5, RC of vehicle Annexure R-4 and Report submitted by Er. Deepak Sood surveyor-cum-loss assessor Annexure R-11 shall form part and parcel of order. 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 10.12.2018.
*GUPTA* 9