State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd. vs M/S Bhagwati Traders. on 1 July, 2020
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 281/2018
Date of Presentation: 04.07.2018
Order Reserved on : 03.01.2020
Date of Order : 01.07.2020
......
The New India Assurance Company Ltd. Hoshiarpur District
Hoshiarpur Punjab through its Divisional Incharge (Officiating)
The New India Assurance Company Ltd. Divisional Office 3rd
Floor Block No.7 SDA Complex Shimla-H.P.
...... Appellant/Opposite Party
Versus
M/s Bhagwati Traders Village Gagret Tehsil Amb District Una
(HP) through its proprietor Shri Vipan Kumar S/o Shri Sham
Lal.
......Respondent/Complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Hon'ble Mr. R.K. Verma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Jagdish Thakur Advocate.
For Respondent : Mr. Rajesh Prakash vice Mr. Vivek
Chandel Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 03.04.2018 passed by learned DCF/DCC in consumer complaint No.101/2014 titled M/s Bhagwati Traders Versus The New India Assurance Company Ltd.
1 Whether reporters of the local papers may be allowed to see the order? Yes.
New India Assurance Co. Ltd. Versus M/s Bhagwati Traders F.A. No.281/2018 Brief facts of consumer complaint:
2. Complainant M/s Bhagwati Traders filed consumer complaint under Consumer Protection Act pleaded therein that complainant is owner of vehicle No.HP-19B-3391.
It is pleaded that on dated 19.05.2013 vehicle in question was driven by Sh. Des Raj and when vehicle reached at Village Nangal Jarialan at about 8.00 AM then suddenly cattle came on road and in order to save cattle driver applied brake and vehicle in question skidded and met with accident. It is further pleaded that matter was reported vide rapat No.10 dated 29.05.2013. It is pleaded that at the time of accident vehicle was insured with opposite party. It is further pleaded that Insurance claim was submitted before opposite party but opposite party repudiated the claim and committed deficiency in service. Complainant sought relief to the effect that Insurance company be ordered to pay an amount of Rs.506880/-(Five lac six thousand eight hundred eighty) alongwith interest @ 12% per annum. In addition complainant sought relief to the effect that Insurance company be ordered to pay compensation to the tune of Rs.50000/-(Fifty thousand). Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party pleaded therein that at the time of accident driver was not 2 New India Assurance Co. Ltd. Versus M/s Bhagwati Traders F.A. No.281/2018 holding valid and effective driving licence. It is pleaded that complainant has violated terms and conditions of Insurance policy. It is pleaded that name of Sh. Des Raj has been entered in rapat No.10 dated 29.05.2013 in police station Gagret District Una in order to obtain O.D claim in illegal manner. It is further pleaded that at the time of accident three boys namely Sh. Sumit, Vinod and Gaurav were occupants of vehicle in question and one of person was driving vehicle in question at the time of accident. 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 DCF/DCC ordered Insurance company to pay a sum of Rs.225000/-(Two lac twenty five thousand) to complainant on total loss basis alongwith interest @ 9% per annum from date of filing of complaint till actual payment. In addition learned DCF/DCC further ordered Insurance company to pay punitive compensation to the complainant to the tune of Rs.4000/- (Four thousand). In addition learned DCF/DCC ordered Insurance company to pay litigation costs to complainant to the tune of Rs.4000/-(Four thousand). Learned DCF/DCC further ordered that complainant would hand over salvage of 3 New India Assurance Co. Ltd. Versus M/s Bhagwati Traders F.A. No.281/2018 vehicle in question to Insurance company and would get RC transferred in the name of Insurance company.
5. Feeling aggrieved against order passed by learned DCF/DCC opposite party filed present appeal before State Commission. 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 Insurance company is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Final order.
Findings upon point No.1 with reasons:
7. Complainant filed affidavit in evidence. There is recital in affidavit that deponent is owner of vehicle in question. There is recital in affidavit that vehicle in question was driven by Sh. Des Raj on dated 29.05.2013 and when vehicle in question reached at Village Nangal Jarialan then at about 8.00 AM cattle came on the road and in order to save the cattle driver Sh. Des Raj applied brake and vehicle in question skidded and met with accident and was damaged.
There is recital in affidavit that rapat No.10 dated 29.05.2013 was also recorded in the police station. There is recital in affidavit that at the time of accident vehicle in question was 4 New India Assurance Co. Ltd. Versus M/s Bhagwati Traders F.A. No.281/2018 insured with Insurance company. There is recital in affidavit that Insurance company repudiated claim and committed deficiency in service.
8. Complainant also filed corroborative affidavit of Sh. Des Raj in evidence. There is recital in affidavit that deponent worked as driver in M/s Bhagwati Traders. There is recital in affidavit that on dated 29.05.2013 deponent went to his house in vehicle in question and when deponent reached at Village Nangal Jarialan at about 8.00 A.M some cow suddenly came in front of vehicle in question. There is recital in affidavit that deponent applied brake and vehicle in question skidded and met with accident. There is recital in affidavit that at the time of accident Sh. Vinod, Gaurav and Sumit were sitting in vehicle in question. There is further recital in affidavit that accident was reported to police station vide rapat No.10 dated 29.05.2013. State Commission has carefully perused all annexures filed by complainant.
9. Insurance company filed affidavit of Sh. Ram Kishan Sr. Divisional Manager posted in New India Assurance Company Ltd. There is recital in affidavit that at the time of accident vehicle in question was driven by unauthorized person. There is recital in affidavit that complainant has committed fundamental breach of terms & conditions of Insurance policy. There is recital in affidavit that Insurance 5 New India Assurance Co. Ltd. Versus M/s Bhagwati Traders F.A. No.281/2018 company repudiated claim in accordance with laws and proved facts.
10. Insurance company also filed affidavit of Sh. Rajeshwar Nath Surveyor cum Loss Assessor in evidence. There is recital in affidavit that deponent assessed loss to the tune of Rs.286695/-(Two lac eighty six thousand six hundred ninety five) on repair basis and assesses loss to the tune of Rs.225000/-(Two lac twenty five thousand) on total loss basis and assessed loss to the tune of Rs.174000/-(One lac seventy four thousand) on wreck basis.
11. Insurance company also filed affidavit of Sh. Kashmir Singh in evidence. There is recital in affidavit that deponent has investigated the matter and submitted investigation report on dated 30.08.2013.
12. Insurance company also filed affidavit of Sh. Satinder Pal Surveyor cum Loss Assessor in evidence. There is recital in affidavit that deponent visited the spot and conduct spot survey and submitted spot survey report on dated 04.06.2013 with Insurance company.
13. Submission of learned Advocate appearing on behalf of Insurance company that at the time of accident three persons namely S/Shri Vinod, Gaurav & Sumit were travelling in vehicle in question and one of the person was 6 New India Assurance Co. Ltd. Versus M/s Bhagwati Traders F.A. No.281/2018 driving vehicle in question at the time of accident and name of Sh. Des Raj has been wrongly mentioned by complainant as driver in order to gain Insurance benefit and on this ground appeal filed by Insurance company be allowed is decided accordingly. Insurance company did not send any interrogatories to eye witnesses namely S/Shri Vinod, Gaurav & Sumit in order to prove that at the time of accident vehicle in question was driven by one of above stated persons.
14. On the contrary Sh. Des Raj has filed his personal affidavit and there is positive recital in affidavit that vehicle in question was driven by Sh. Des Raj at the time of accident. Insurance company did not send any interrogatories to Sh. Des Raj. Even Insurance company appointed Surveyor cum Loss Assessor namely Sh. Rajeshwar Nath under section 64UM of Statutory Insurance Act 1938 to assess loss and Surveyor cum Loss Assessor has specifically mentioned in a positive manner in his report that at the time of accident vehicle in question was driven by Sh. Des Raj. As per RC type of vehicle in question is PSV motor cab.
15. Shri Rajeshwar Nath Surveyor cum Loss Assessor has specifically mentioned in his survey report that licence of driver was valid w.e.f. 15.12.1981 to 04.06.2015. State Commission is of the opinion that damage assessment report submitted by Sh. Rajeshwar Nath Surveyor cum Loss 7 New India Assurance Co. Ltd. Versus M/s Bhagwati Traders F.A. No.281/2018 Assessor registered under section 64UM of Statutory Insurance Act 1938 is binding upon Insurance company. It is well settled law that report of Surveyor cum Loss Assessor is substantial piece of evidence. See 2012(1) CPJ 420 NC titled H.C Saxena Versus New India Assurance Company Ltd. See 2012(4) CPJ 103 NC titled National Insurance Company Ltd. Versus Jyothi Tobacco Traders. See 2009(3) CPJ 194 NC titled Nand Kishore Jaiswal Versus National Insurance Company Ltd. See 2010(3) CPJ 401 NC titled New India Assurance Company Ltd. Versus Pushpa Chhabra. See 2010(1) CPC 696 NC titled Champa Lal Verma Versus Oriental Insurance Company Ltd. See 2009(1) CPC 166 NC titled Pradeep Kumar Versus National Insurance Company Ltd.
16. State Commission is of the opinion that present Insurance claim is a genuine claim and Insurance company is under legal obligation to pay genuine Insurance claim. See AIR 2017 SC 4836 (DB) titled Om Prakash Versus Reliance General Insurance & Anr. See 2019(1) CPR 471 NC titled ICICI Lombard General Insurance Company Ltd. Versus Honest Bio-vet Pvt. Ltd. Plea of Insurance company that at the time of accident vehicle in question was driven by one of following persons namely S/Shri Vinod, Gaurav & Sumit is 8 New India Assurance Co. Ltd. Versus M/s Bhagwati Traders F.A. No.281/2018 defeated on the concept of ipse dixit (An assertion made without proof).
17. Submission of learned Advocate appearing on behalf of Insurance company that learned DCF/DCC has granted punitive compensation to complainant to the tune of Rs.4000/-(Four thousand) in illegal manner is decided accordingly. State Commission is of the opinion that learned DCF/DCC has granted equitable punitive compensation in genuine Insurance claim and it is not expedient in the ends of justice and on the principles of natural justice to interfere in order passed by learned DCF/DCC.
18. Submission of learned Advocate appearing on behalf of Insurance company that learned DCF/DCC has granted excessive litigation costs to complainant to the tune of Rs.4000/-(Four 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 litigation costs & other expenses and it is not expedient in the ends of justice and on the principles of natural justice to interfere in litigation costs order of learned DCF/DCC.
19. Submission of learned Advocate appearing on behalf of complainant that order of learned DCF/DCC is in 9 New India Assurance Co. Ltd. Versus M/s Bhagwati Traders F.A. No.281/2018 accordance with laws and in accordance with proved facts and does not warrant any interference by State Commission is decided accordingly. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to interfere in order of learned DCF/DCC and it is held that order of learned DCF/DCC is strictly in accordance with laws and in accordance with proved facts. Point No.1 is decided accordingly. Point No.2: Final Order
20. In view of findings upon point No.1 above appeal filed by Insurance company is dismissed. Order of learned DCF/DCC is affirmed. Survey report dated 22.09.2013 submitted by Shri Rajeshwar Nath Surveyor cum Loss Assessor registered under section 64UM of Statutory Insurance Act 1938 Annexure-R8 shall form part and parcel of order. Parties are left to bear their own litigation costs before State Commission.
21. Certified copy of order be sent to learned DCF/DCC for information 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. Due to winter vacation of State Commission w.e.f. 11.01.2020 to 10 New India Assurance Co. Ltd. Versus M/s Bhagwati Traders F.A. No.281/2018 23.02.2020 and due to country wide lockdown on account of Corona virus w.e.f. 24.03.2020 to 14.04.2020 appeal is decided today. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member R.K. Verma Member 01.07.2020 K.D 11