State Consumer Disputes Redressal Commission
Sh. Shamsher Singh Banshtu. vs M/S Shriram General Insurance Co. Ltd. on 25 June, 2018
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
(1) First Appeal No. : 197/2017
Date of Presentation: 30.06.2017
Order reserved on: 19.04.2018
Date of Order : 25.06.2018
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Shriram General Insurance Company Ltd. E-8 RIICO Sitapura Jaipur
Rajasthan Kanta Niwas Near Apple Rose Hotel Kachi Ghati Shimla
through its Branch Manager Branch Office Near P.G. College
Bilaspur Roura Sector-III NH-21 Bilaspur District Bilaspur H.P.
... Appellant/opposite party
Versus
Shamsher Singh Banshtu S/o. Shri Sukh Chain Singh resident of
Village Dalgaon P.O. Kutara Tehsil Rohru District Shimla H.P.
... Respondent/complainant
For Appellant : Mr. Jagdish Thakur Advocate.
For Respondent : Mr. Peeyush Verma Advocate
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(2) First Appeal No.: 250/2017
Date of Presentation: 11.08.2017
Order Reserved on : 19.04.2018
Date of Order : 25.06.2018
Shamsher Singh Banshtu S/o. Shri Sukh Chain Singh resident of
Village Dalgaon P.O. Kutara Tehsil Rohru District Shimla H.P.
.......... Appellant/complainant.
Versus
Shriram General Insurance Company Ltd. E-8 RIICO Sitapura Jaipur
Rajasthan through its Chief Executive Officer to be served through
its Branch Manager Branch Office M/s. Shriram General Insurance
Company Ltd. Kanta Niwas Near Apple Rose Hotel Kachi Ghati
Shimla.
..... Respondent/opposite party.
.................................................................................................
Coram
Hon'ble Mr. P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes
1
Whether Reporters of the local papers may be allowed to see the order? yes
Shriram General Insurance Company Ltd. Versus Shamsher Singh Banshtu
(F.A. No.197/2017)
&
Shamsher Singh Banshtu Versus Shriram General Insurance Company Ltd.
(F.A. No.250/2017)
For Appellant: Mr. Peeyush Verma Advocate.
For Respondent : Mr. Jagdish Thakur Advocate.
..................................................................................................
JUSTICE P.S. RANA (R) PRESIDENT :
O R D E R :-
1. Appeal No.197/2017 & Appeal No.250/2017 filed against the same order passed by learned District Forum in consumer complaint No.365/2012 title Shamsher Singh Banshtu Versus Shriram General Insurance Company Ltd. Both appeals are consolidated for disposal in order to avoid conflicting orders.
Brief facts of consumer complaint:
2. Shamsher Singh filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant purchased JCB machine/excavator having registration No.HP-62-1788. It is pleaded that JCB machine/excavator was insured with the opposite party w.e.f. 15.07.2012 to 14.07.2013 and premium to the tune of Rs.28284/-(Twenty eight thousand two hundred eighty four) was also paid to the opposite party. It is further pleaded that IDV value of JCB machine/excavator was Rs.1500000/- (Fifteen lac). It is pleaded that JCB machine/excavator met with accident in the month of August 2012 and machine was badly damaged. It is further pleaded that matter was report to police agency and opposite party was also intimated. It is 2 Shriram General Insurance Company Ltd. Versus Shamsher Singh Banshtu (F.A. No.197/2017) & Shamsher Singh Banshtu Versus Shriram General Insurance Company Ltd.
(F.A. No.250/2017) pleaded that opposite party deputed surveyor cum loss assessor and complainant submitted repair bills to opposite party. It is further pleaded that claim of the complainant was repudiated by opposite party illegally. It is pleaded that opposite party committed deficiency in service. Complainant sought relief to the effect that opposite party be directed to pay a sum of Rs.1140510/-(Eleven lac forty thousand five hundred ten) and opposite party be also ordered to pay additional sum of Rs.100000/-(One lac) incurred for carriage of JCB machine/excavator from place of accident to authorised dealer at Chandigarh for repairs. Complainant also sought addition relief of payment of Rs.200000/-(Two lac) on account of labour charges. In total complainant sought relief of Rs.1640514/-(Sixteen lac forty thousand five hundred fourteen) alongwith interest @ 15% per annum from the date of complaint till realization. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party pleaded therein that consumer complaint is not maintainable. It is pleaded that complainant did not approach Forum with clean hands and suppressed material facts. It is further pleaded that learned District Forum has no jurisdiction to entertain the consumer complaint as it involve intricate and complicated question of facts and laws. It is 3 Shriram General Insurance Company Ltd. Versus Shamsher Singh Banshtu (F.A. No.197/2017) & Shamsher Singh Banshtu Versus Shriram General Insurance Company Ltd.
(F.A. No.250/2017) pleaded that complainant has no cause of action against the opposite party and complainant is estopped by his own act and conduct from filing the consumer complaint. It is pleaded that consumer complaint is bad for mis-joinder of necessary party. It is pleaded that complainant has submitted false declaration to opposite party regarding previous policy of vehicle in question. Prayer for dismissal of complaint sought.
4. Learned District Forum ordered opposite party to pay a sum of Rs.786637/-(Seven lac eighty six thousand six hundred thirty seven) alongwith interest @ 9% per annum from the date of filing of complaint till actual payment to complainant within 45 days. In addition learned District Forum ordered opposite party to pay punitive compensation to the tune of Rs.20000/-(Twenty thousand) on account of harassment and mental agony. In addition learned District Forum ordered opposite party to pay litigations costs to complainant to the tune of Rs.10000/-(Ten thousand). Feeling aggrieved against the order passed by learned District Forum opposite party filed appeal No.197/2017 and complainant filed appeal No.250/2017 before H.P. State Commission.
5. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
4
Shriram General Insurance Company Ltd. Versus Shamsher Singh Banshtu (F.A. No.197/2017) & Shamsher Singh Banshtu Versus Shriram General Insurance Company Ltd.
(F.A. No.250/2017)
6. Following points arise for determination in present appeals.
1. Whether appeal No.197/2017 titled Shriram General Insurance Company Ltd. Versus Shamsher Singh Banshtu is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Whether appeal No.250/2017 titled Shamsher Singh Banshtu Versus M/s. Shriram General Insurance Company Ltd. is liable to be accepted as mentioned in memorandum of grounds of appeal.
3. Final order.
Findings upon point No.1 with reasons relating to F.A. No.197/2017:-_____________________________________________
7. Complainant filed affidavit in evidence. There is recital in affidavit that vehicle No.HP62-1788 i.e. JCB machine/excavator was duly insured with the opposite party w.e.f. 15.07.2012 to 14.07.2013 and premium to the tune of Rs.28284/- was also paid to opposite party. There is recital in affidavit that JCB machine/excavator met with accident in the month of August 2012 and was badly damaged. There is further recital in affidavit that report was also lodged before police authority and intimation was also given to opposite party. There is recital in affidavit that deponent transported JCB machine/excavator to Chandigarh. There is recital in affidavit that claim was submitted before opposite party but opposite party repudiated the claim illegally and committed deficiency in service.
5
Shriram General Insurance Company Ltd. Versus Shamsher Singh Banshtu (F.A. No.197/2017) & Shamsher Singh Banshtu Versus Shriram General Insurance Company Ltd.
(F.A. No.250/2017)
8. Complainant also filed affidavit of Shri Anil Goelay authorized signatory of Krishna Automobile Chandigarh. There is recital in affidavit that deponent is carrying automobile repair works in the name and style of Krishna Automobile in Industrial Area Chandigarh. There is recital in affidavit that complainant came to deponent and deponent examined JCB machine/excavator and issued Annexure-C5. There is recital in affidavit that Krishna Automobile did not repair vehicle because owner of vehicle took unrepaired JCB machine/excavator from the workshop of deponent.
9. Complainant also filed affidavit of Kadir Ahmad authorised dealer of B.K. Engineering Works Chandimandir. There is recital in affidavit that deponent is carrying repair work of automobile. There is recital in affidavit that complainant came to deponent and deponent repaired the JCB machine/excavator and bill to the tune of Rs.1140514/- (Eleven lac forty thousand five hundred fourteen) was issued excluding Rs.200000/-(Two lac) qua labour charges. Oral statement of Kadir Ahmad was also recorded by learned District Forum on dated 27.08.2014. State Commission has also carefully perused the oral statement of Kadir Ahmad recorded by learned District Forum. Kadir Ahmad has admitted in oral statement in cross examination that original bills Annexure-C8 to C14 are not placed on the file and only 6 Shriram General Insurance Company Ltd. Versus Shamsher Singh Banshtu (F.A. No.197/2017) & Shamsher Singh Banshtu Versus Shriram General Insurance Company Ltd.
(F.A. No.250/2017) carbon copy of same have been placed on record. Kadir Ahmad admitted in oral statement in cross examination that he could not state whether JCB machine was brought to his workshop. Self stated that parts of JCB machine were brought to his work shop in truck.
10. Complainant also filed affidavit of Shri Chaman Rakesh Azta surveyor cum loss assessor. There is recital in affidavit that deponent was appointed by opposite party to visit the spot at Dabar Badanala in Gram Panchayat Seema Rantari Tehsil Rohru District Shimla. There is further recital in affidavit that deponent visited the spot and took photographs of JCB machine and submitted survey report alongwith photographs to opposite party. There is recital in affidavit that JCB machine/excavator was damaged badly.
11. Opposite party filed affidavit of Shri Manoj Kumar Asstt. Manager (Legal). There is recital in affidavit that opposite party appointed surveyor cum loss assessor and surveyor submitted damage assessment report. There is recital in affidavit that wrong declaration was given by complainant when the insurance policy was obtained in the declaration form. There is recital in affidavit that complainant has submitted fake and fabricated bills. There is further recital in affidavit that response filed by opposite party be treated as part and parcel of affidavit.
7
Shriram General Insurance Company Ltd. Versus Shamsher Singh Banshtu (F.A. No.197/2017) & Shamsher Singh Banshtu Versus Shriram General Insurance Company Ltd.
(F.A. No.250/2017)
12. Opposite party also filed affidavit of Shri Kailash Chander surveyor cum loss assessor. There is recital in affidavit that deponent visited Krishna Automobile Chandigarh on 11.08.2012 and inspected the vehicle and prepared survey report on the basis of actual damage annexure-KC1. There is further recital in affidavit that loss was assessed in the presence of insured and prepared in fair manner. There is recital in affidavit that surveyor cum loss assessor has assessed loss to the tune of Rs.640568.95/-(Six lac forty thousand five hundred sixty eight & ninety five paise) after deducting salvage value to the tune of Rs.73394.06/- (Seventy three thousand three hundred ninety four & six paise).
13. Submission of learned Advocate appearing on behalf of insurance company that complainant has given false declaration with respect to previous policy cover note which on subsequent date on verification was found false and on this ground appeal filed by insurance company be allowed is decided accordingly. It is proved on record that opposite party has issued insurance policy annexure-C2 in favour of complainant relating to vehicle having registration No.HP-62- 1788 w.e.f. 15.07.2012 to 14.07.2013. It is also proved on record that IDV value of the vehicle has been mentioned as Rs.1500000/-(Fifteen lac) lac in the insurance policy annexure-C2. It is also proved on record that opposite party 8 Shriram General Insurance Company Ltd. Versus Shamsher Singh Banshtu (F.A. No.197/2017) & Shamsher Singh Banshtu Versus Shriram General Insurance Company Ltd.
(F.A. No.250/2017) has received premium to the tune of Rs.28284/-(Twenty eight thousand two hundred eighty four) from complainant at the time of issuance of insurance policy. State Commission is of the opinion that after receiving premium for own damage of vehicle by insurance company from complainant insurance company is under legal obligation to indemnify the complainant. State Commission is of the opinion that insurance company was under legal obligation to verify facts mentioned in the declaration form prior to issuance of insurance policy and prior to receive of premium amount from complainant. No reasons has been assigned as to why insurance company did not verify the facts mentioned in the declaration form at the time of issuance of insurance policy. It is well settled law that party cannot be allowed to take benefit of its own laxity. Even opposite party has not examined the agent who had filled the proposal form and who has received documents from complainant. Hence adverse inference is drawn against the insurance company for withholding affidavit of material eye witness. It is held that insurer had means to verify correctness of declaration made by complainant in declaration form but insurer did not verify correctness of declaration prior to receiving of premium from complainant. Insurer could not be allowed to take benefit of its own laxity. See AIR 2018 SC 2180 D. Sriniwas Versus SBI 9 Shriram General Insurance Company Ltd. Versus Shamsher Singh Banshtu (F.A. No.197/2017) & Shamsher Singh Banshtu Versus Shriram General Insurance Company Ltd.
(F.A. No.250/2017) Life Insurance Company. See 2018 (II) CPJ 535 NC Anjani Gupta Versus Future Generally India Insurance Company.
14. Submission of learned Advocate appearing on behalf of insurance company that opposite party appointed surveyor cum loss assessor and surveyor has assessed loss to the tune of Rs.640568.95/-(Six lac forty thousand five hundred sixty eight & ninety five paise) and learned District Forum has disbelieve report of surveyor cum loss assessor without any cogent reason and on this ground appeal be allowed is decided accordingly. It is proved on record that opposite party has appointed Shri Kailash Chander surveyor cum loss assessor who personally inspected the vehicle and submit loss assessment report to the tune of Rs.640568.95/- (Six lac forty thousand five hundred sixty eight & ninety five paise) after deducting salvage value to the tune of Rs.73394.06/-(Seventy three thousand three hundred ninety four & six paise). State Commission is of the opinion that report submitted by surveyor cum loss assessor is substantial piece of evidence. There is no evidence on record that Kailash Chander surveyor has hostile animus against the complainant at any point of time. 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 2010(3) CPJ 401 NC New India Assurance Company Ltd. Versus Pushpa Chhabra. See 10 Shriram General Insurance Company Ltd. Versus Shamsher Singh Banshtu (F.A. No.197/2017) & Shamsher Singh Banshtu Versus Shriram General Insurance Company Ltd.
(F.A. No.250/2017) 2010(1) CPC 696 NC Champa Lal Verma Versus Oriental Insurance Company Ltd.
15. Submission of learned Advocate appearing on behalf of insurance company that learned District Forum has granted enhanced rate of interest @ 9% per annum and same be reduced to 7.5% per annum is decided accordingly. State Commission is of the opinion that learned District Forum has granted reasonable rate of interest i.e. 9% per annum and State Commission is of the opinion that it is not expedient in the ends of justice and interest of justice to reduce interest rate from 9% to 7.5% per annum.
16. Submission of learned Advocate appearing on behalf of insurance company that complicated facts are involved in consumer complaint and complainant be relegated to civil court is decided accordingly. State Commission is of the opinion that present consumer complaint can be decided properly and effectively in a summary manner under Consumer Protection Act 1986. State Commission is of the opinion that it is not expedient in the ends of justice and in the interest of natural justice to relegate the complainant to civil court because as per section 2(o) of Consumer Protection Act 1986 all matters relating to insurance company falls within jurisdiction of Consumer Forum. In view of above stated facts point No.1 is answered accordingly. 11
Shriram General Insurance Company Ltd. Versus Shamsher Singh Banshtu (F.A. No.197/2017) & Shamsher Singh Banshtu Versus Shriram General Insurance Company Ltd.
(F.A. No.250/2017) Findings upon point No.2 with reasons relating to F.A. No.250/2017 :-___________________________________________
17. Evidence is not repeated again in order to avoid repetition. Submission of learned Advocate appearing on behalf of complainant that Shri Kailash Chander surveyor has not properly assessed the damage and on this ground appeal be allowed is decided accordingly. Complainant did not file any interrogatories to Shri Kailash Chander Surveyor cum loss assessor. No reason has been assigned by complainant as to why complainant did not file any interrogatories to shri Kailash Chander. Hence adverse inference is drawn against the complainant.
18. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled to repairs amount to the tune of Rs.1140514/-(Eleven lac forty thousand five hundred fourteen) is decided accordingly. Complainant has filed affidavit of Shri Kadir Ahmad and Kadir Ahmad has mentioned in the affidavit that he has carried out the repair works of JCB machine/excavator and bill to the tune of Rs.1140514/-(Eleven lac forty thousand five hundred fourteen) excluding labour charges to the tune of Rs.200000/-(Two lac) was handed over to complainant vide annexure-C8 to C14. Learned District Forum has also recorded oral statement of Kadir Ahmad and Kadir Ahmad specifically mentioned in his oral statement that that he could 12 Shriram General Insurance Company Ltd. Versus Shamsher Singh Banshtu (F.A. No.197/2017) & Shamsher Singh Banshtu Versus Shriram General Insurance Company Ltd.
(F.A. No.250/2017) not state whether JCB machine was brought to his work shop. He has self stated that parts of machine were brought to his work shop in the Truck. Complainant has not filed affidavit of mechanic who had personally repaired JCB machine. Hence adverse inference is drawn against complainant for non filing of affidavit of mechanic who had personally repaired JCB machine. In view of the above stated facts it is not expedient in the ends of justice and on the principle of natural justice to grant repair charges to complainant to the tune of Rs.1140514/-(Eleven lac forty thousand five hundred fourteen) because Kadir Ahmad has specifically mentioned in his cross examination that he could not state whether JCB machine/excavator was brought to his work shop and has self stated that only parts of machine were brought to his work shop for repair.
19. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled to interest @ 18% per annum and on this ground appeal be allowed is decided accordingly. State Commission is of the opinion that no contractual rate of interest was executed between the parties. Hence it is held that in the absence of contractual rate of interest it is expedient in the ends of justice and on the principle of natural justice to grant 9% rate of interest to complainant.
13
Shriram General Insurance Company Ltd. Versus Shamsher Singh Banshtu (F.A. No.197/2017) & Shamsher Singh Banshtu Versus Shriram General Insurance Company Ltd.
(F.A. No.250/2017)
20. Submission of learned Advocate appearing on behalf of complainant that on the basis of affidavit of Shri Chaman Rakesh Azta compensation amount be enhanced is decided accordingly. State Commission has carefully perused affidavit filed by Shri Chaman Rakesh Azta. In affidavit Shri Chaman Rakesh Azta did not mention damaged assessment amount of JCB machine/excavator. No reason assigned by Shri Chaman Rakesh Azta as to why he did not mention in his affidavit amount of damaged sustained to JCB machine/excavator. Point No.2 is decided accordingly. Point No.3 : Final Order
21. In view of findings upon points No.1 & 2 F.A. No.197/2017 titled Shriram General Insurance Company Ltd. Versus Shamsher Singh Banshtu is partly allowed. Order of learned District Forum whereby learned District Forum ordered opposite party to pay a sum of Rs.786637/-(Seven lac eighty six thousand six hundred thirty seven) alongwith interest @ 9% per annum from the date of filing of complaint till the date of actual payment is reduced to Rs.640568.95/- (Six lac forty thousand five hundred sixty eight & ninety five paise) as assessed by surveyor cum loss assessor namely Kailash Chander. Order of learned District Forum that opposite party would pay punitive compensation to the tune of Rs.20000/-(Twenty thousand) to complainant on account 14 Shriram General Insurance Company Ltd. Versus Shamsher Singh Banshtu (F.A. No.197/2017) & Shamsher Singh Banshtu Versus Shriram General Insurance Company Ltd.
(F.A. No.250/2017) of harassment and mental agony is affirmed. Order of learned District Forum that opposite party would pay litigation costs to the tune of Rs.10000/-(Ten thousand) to complainant is also affirmed. F.A. No.250/2017 titled Shamsher Singh Banshtu Versus Shriram General Insurance Company Ltd. filed by complainant is dismissed. Report of Surveyor cum loss assessor Annexure-KC-1 will form part & parcel of order. Certified copy of order be placed in the original file of F.A. No.250/2017 forthwith. Parties are left to bear their own litigation costs before State Commission. 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. Both Appeals i.e. F.A. No.197/2017 & F.A. No.250/2017 are disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 25.06.2018.
K.D 15