State Consumer Disputes Redressal Commission
Oriental Insurance Co. Ltd. vs Sh. Chander Parkash. on 22 September, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 146/2017
Date of Presentation: 21.02.2017
Order Reserved On : 31.07.2017
Date of Order : 22.09.2017
......
The Oriental Insurance Company Limited through its Divisional
Manager Divisional Office Mythe Estate Kaithu Shimla H.P.
...... Appellant/Opposite Party
Versus
Chander Parkash son of Shri Chukru Ram resident of Village
Sharnal Post Office Darkali Tehsil Rampur District Shimla H.P.
......Respondent /Complainant
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. Nitin Kaith vice Mr. Sanjay Singh
Chauhan Advocate.
For Respondent : Mr. Swaran Sharma 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 09.12.2016 passed by Learned District Forum in consumer complaint 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Oriental Insurance Company Ltd. Versus Chander Parkash (F.A. No.146/2017) No.63/2013 titled Chander Prakash Versus M/s. Oriental Insurance Company Ltd.
Brief facts of Case:
2. Shri Chander Prakash filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is owner of Bolero vehicle having registration No.HP-33A-7484. It is pleaded that complainant has purchased vehicle for earning his livelihood by way of self employment. It is pleaded that vehicle was insured with the opposite party for a sum of Rs.280000/-. It is further pleaded that insurance policy was effective w.e.f. 22.12.2011 to 21.12.2012. It is pleaded that on dated 27.04.2012 the vehicle met with an accident and vehicle was completely damaged. It is pleaded that factum of accident was intimated to the opposite party and FIR was also lodged in police station. It is further pleaded that complainant completed all codal formalities. It is further pleaded that opposite party has rejected the claim of complainant. Complainant sought relief to the tune of Rs.280000/- alongwith interest @ 12% per annum from the date of filing of complaint till date of payment. Complainant also sought relief to the tune of Rs.50000/- as damages for mental harassment and Rs.11000/- as cost of litigation.
3. Per contra version filed on behalf of opposite party pleaded therein that complainant is estopped from filing the present complaint due to his acts deeds conducts and acquiescence. It is pleaded that complainant has concealed the 2 Oriental Insurance Company Ltd. Versus Chander Parkash (F.A. No.146/2017) material facts from learned District Forum. It is further pleaded that complainant has no cause of action to file the complaint. It is further pleaded that vehicle was plied in contravention of terms and conditions of insurance policy. It is further pleaded that vehicle was plied without route permit, fitness certificate and road tax. It is pleaded that dispute inter se parties is of civil nature which requires detailed inquiry and could not be decided in a summary manner. It is pleaded that opposite party has appointed surveyor and surveyor has assessed the loss to the tune of Rs.279500/- on total loss basis. It is pleaded that surveyor has evaluated the salvage cost to the tune of Rs.80000/-. Prayer for dismissal of complaint sought.
4. Learned District Forum allowed the complaint and ordered opposite party to pay a sum of Rs.209625/- alongwith interest @ 9% per annum from the date of filing of complaint till payment. Learned District Forum also ordered opposite party to pay a sum of Rs.10000/- as punitive compensation on account of harassment and mental agony. Learned District Forum also ordered to pay a sum of Rs.5000/- as litigation costs. Feeling aggrieved against order passed by Learned District Forum opposite party 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.
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Oriental Insurance Company Ltd. Versus Chander Parkash (F.A. No.146/2017)
1. Whether complaint and affidavit filed in support of complaint could be treated as evidence of the parties as per section 13(4) of Consumer Protection Act 1986 for adjudication of controversial facts inter se parties under Consumer Protection Act 1986.
2. Final order.
Findings upon point No.1 with reasons:
7. Learned District Forum after perusal of contents of complaint and after perusal of version filed by opposite party ordered complainant to file evidence. Learned District Forum listed the complaint for evidence of complainant on dated
03.10.2013, 30.11.2013 18.01.2014, 10.04.2014, 31.05.2014, 11.07.2014, 19.09.2014, 04.12.2014, 16.01.2015, 25.03.2015, 26.05.2015, 25.07.2015 and 17.08.2015. On dated 25.07.2015 learned advocate appeared on behalf of complainant namely Swaran Sharma Advocate has given statement before learned District Forum which is quoted in toto:-
Statement of Sh. Swaran Sharma, Adv. vice for complainant.
Without oath 25.07.2015 Complaint alongwith affidavit and documents Annexure-C1 to Annexure-C5 already filed be read in evidence and prayed time for remaining evidence.
R.O.A.C Sd/- Sd/- Sd/- Member Member
8. Thereafter again learned District Forum listed the case for evidence of complainant on 17.08.2015. On 17.08.2015 learned advocate appeared on behalf of complainant has given statement that he does not want to lead any remaining evidence 4 Oriental Insurance Company Ltd. Versus Chander Parkash (F.A. No.146/2017) of complainant and closed the evidence. Statement dated 17.08.2015 is also quoted in toto :
Statement of Sh. Swaran Sharma, Adv. for complainant.
Without oath 17.08.2015 I do not want to lead remaining evidence and close the evidence.
R.O.A.C Sd/- Sd/- Sd/- Sd/- President Member Member
9. Opposite party filed affidavit of Prem Nath Sr. Divisional Manager. There is recital in affidavit that vehicle bearing No.HP-33A-7484 was registered as goods carrying commercial vehicle. There is recital in affidavit that vehicle was insured e.w.f. 22.12.2011 to midnight of 21.12.2012 for IDV of Rs.280000/-. There is further recital in affidavit that after intimation surveyor Shri Pankaj Sharma was appointed to conduct spot survey of the vehicle. There is recital in affidavit that at the time of accident eight persons were travelling in vehicle plus driver. There is further recital in affidavit that sitting capacity of vehicle was only 4 plus one. There is recital in affidavit that two persons have died and remaining persons have sustained injuries. There is further recital in affidavit that gratuitous persons were travelling in the vehicle and complainant has committed violation of terms and conditions of insurance policy.
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Oriental Insurance Company Ltd. Versus Chander Parkash (F.A. No.146/2017)
10. Opposite party also filed affidavit of Kamal Narian retired HPS Investigator. There is recital in affidavit that deponent is retired police officer who had attained superannuation from HPS. There is further recital in affidavit that eight persons were travelling in the vehicle at the time of accident in violation of terms and conditions of insurance policy.
11. Opposite party also filed affidavit of Shri Pankaj Sharma who is approved surveyor and loss assessor. There is recital in affidavit that deponent conducted spot verification of vehicle which met with accident on dated 27.04.2012 at about 2.15 PM. There is further recital in affidavit that eight persons were travelling in the vehicle apart from driver at the time of accident.
12. Opposite party also tender affidavit of Shri B.S. Dhillon surveyor and loss assessor. There is recital in affidavit that deponent is approved surveyor and loss assessor. There is further recital in affidavit that as per instruction received from opposite party deponent conducted final survey of vehicle which met with an accident on dated 27.04.2012. There is further recital in affidavit that survey was conducted and deponent has assessed the loss to the tune of Rs.279500/- on total loss basis and evaluated the value of salvage to the tune of Rs.80000/-.
13. State Commission is of the opinion that complainant did not adduce any evidence by way of affidavits as per mode mentioned under section 13(4) of Consumer Protection Act 1986 for adjudication of controversial facts. On the contrary learned 6 Oriental Insurance Company Ltd. Versus Chander Parkash (F.A. No.146/2017) advocate appeared on behalf of complainant submitted that complaint be treated as evidence. It is held that complaint is only pleading of the parties and could not be treated as evidence of the parties under section 13(4) of Consumer Protection Act 1986 for adjudication of controversial facts. It is held that affidavit filed in support of complaint is only affidavit filed in support of complaint i.e. pleadings and could not be treated as evidence in support of controversial facts under section 13(4)(iii) of Consumer Protection Act 1986. In the present complaint mixed question of law and facts are involved. Mixed question of law and facts could be decided only on basis of evidence adduced under section 13(4)(iii) of Consumer Protection Act 1986.
14. It is held that in consumer dispute the evidence qua controversial facts could be adduced only in one of the mode mentioned in section 13(4) of Consumer Protection Act 1986. Section 13(4) of Consumer Protection Act 1986 is quoted in toto:-
(4) For the purposes of this section the District Forum shall have the same powers as are vested in a civil court under Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:--
(i) Summoning and enforcing the attendance of any defendant or witness and examining the witness on oath.
(ii) Discovery and production of any document or other material object producible as evidence.
(iii) Reception of evidence on affidavits. 7
Oriental Insurance Company Ltd. Versus Chander Parkash (F.A. No.146/2017)
(iv) Requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source.
(v) Issuing of any commission for the examination of any witness.
(vi) Any other matter which may be prescribed.
15. It is held that as per Consumer Protection Act 1986 complaint is defined under section 2(c) of Consumer Protection Act 1986 which means allegation in writing made by complainant. It is held that allegation made in writing by complainant could not be treated as evidence under Consumer Protection Act 1986 on behalf of complainant qua controversial facts under section 13(4)(iii) of Consumer Protection Act 1986. State Commission has carefully perused the affidavit filed in support of complaint. There is recital in affidavit that affidavit was filed in support of contents of complaint only. State Commission is of the opinion that affidavit filed in support of complaint could not be treated as evidence under section 13(4) of Consumer Protection Act 1986 for adjudication of controversial facts qua consumer dispute. There is no recital in section 13(4) of Consumer Protection Act 1986 that complaint and affidavit filed in support of complaint could be treated as evidence for adjudication of controversial facts in consumer complaint. It is held that proceedings under Consumer Protection Act 1986 are quasi judicial proceedings. It is held that in quasi judicial proceedings complaint i.e. pleadings and affidavit filed in support of complaint (i.e. pleadings) could not 8 Oriental Insurance Company Ltd. Versus Chander Parkash (F.A. No.146/2017) be treated as evidence under section 13(4) of Consumer Protection Act 1986 qua controversial facts.
16. In view of the above stated facts it is held that learned District Forum has committed procedural material irregularity by way of treating complaint as evidence of complainant. State Commission is of the opinion that it is not expedient in the ends of justice to dispose of appeal properly and effectively unless material procedural irregularity is not rectified. State Commission is of the opinion that rectification of material procedural irregularity is essential in the ends of justice and on the principle of natural justice. In view of above stated facts point No.1 is answered accordingly.
Point No.2: Final Order
17. In view of findings upon point No.1 above order of learned District Forum dated 09.12.2016 announced in consumer complaint No.63 of 2013 is set aside and complaint is remanded back to learned District Forum Shimla with order to receive the evidence of the complainant strictly as per mode mentioned under section 13(4)(iii) of Consumer Protection Act 1986 by way of affidavits relating to controversial facts for adjudication of consumer dispute. It is further ordered that opposite party will also be at liberty to file rebuttal evidence by way of affidavits as per mode mentioned under section 13(4)(iii) of Consumer Protection Act 1986. Learned District Forum will dispose of complaint strictly as per law and strictly as per proved facts within two months after the receipt of file. 9
Oriental Insurance Company Ltd. Versus Chander Parkash (F.A. No.146/2017) Statements of learned Advocate appeared on behalf of complainant namely Shri Swaran Sharma Advocate dated 25.07.2015 & 17.08.2015 will form part and parcel of order. Observations will not effect the merits of complaint in any manner. Parties are left to bear their own litigation costs before State Commission. Parties are directed to appear before learned District Forum Shimla on date 16.10.2017. 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 22.09.2017.
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