State Consumer Disputes Redressal Commission
Shriram General Insurance Co. Ltd. vs Sh. Sandeep Kumar. on 28 July, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 392/2016
Date of Presentation: 23.12.2016
Order Reserved On : 18.05.2017
Date of Order : 28.07.2017
......
Shriram General Insurance Company Ltd. Branch at near P.G.
College Bilaspur Roura Sector-III NH-21 Bilaspur District
Bilaspur H.P. through its Branch Manager.
...... Appellant/Opposite Party
Versus
Sandeep Kumar son of Shri Gopala Ram resident of Village Bala
Post Office Dahad Tehsil Jhandutta District Bilaspur H.P. at
present resident of Village and Post Office Bahot Kasol Tehsil
Sadar District Bilaspur 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. Jagdish Thakur Advocate.
For Respondent : Mr. Malay Kaushal 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 20.10.2016 passed by Learned District Forum in consumer 1 Whether reporters of the local papers may be allowed to see the order? Yes. Shriram General Insurance Company Ltd. Versus Sandeep Kumar (F.A. No.392/2016) complaint No.18/2013 title Sandeep Kumar Versus Shriram General Insurance Company Ltd.
Brief facts of Case:
2. Shri Sandeep Kumar filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is owner of vehicle having registration No.HP-24B-1377. It is pleaded that vehicle of the complainant was insured with the opposite party w.e.f. 31.01.2011 to 30.01.2012 in consideration amount of Rs.1755000/-(Seventeen lac fifty five thousand). It is pleaded that complainant has paid a sum of Rs.19477/-(Nineteen thousand four hundred seventy seven) as premium to the opposite party. It is further pleaded that vehicle met with an accident on 28.10.2011 near Kol Dam Tehsil Sadar District Bilaspur H.P. when the vehicle was coming from Bahot Kasol to Kol Dam. It is further pleaded that vehicle was partially damaged to the tune of Rs.150000/-(One lac fifty thousand).
It is further pleaded that matter was reported to the opposite party regarding accident and opposite party deputed surveyor cum loss assessor to assess the loss. Surveyor cum loss assessor assessed the loss to the tune of Rs.32000/-(Thirty two thousand). It is pleaded that complainant spent an amount of Rs.150000/-(One lac fifty thousand) upon repair. It is further pleaded that insurance company did not pay 2 Shriram General Insurance Company Ltd. Versus Sandeep Kumar (F.A. No.392/2016) actual loss sustained by the complainant and committed deficiency in service. Complainant sought relief for the payment of Rs.150000/-(One lac fifty thousand) alongwith interest @ 12% per annum from the date of accident till its realization. Complainant also sought additional relief of Rs.50000/-(Fifty thousand) on account of mental agony and harassment.
3. Per contra version filed on behalf of opposite party pleaded therein that complaint is not maintainable. It is pleaded that after accident opposite party deputed surveyor cum loss assessor. It is pleaded that surveyor cum loss assessor conducted survey of the accident and surveyor cum loss assessor assessed loss to the tune of Rs.31312/-(Thirty one thousand three hundred twelve). It is further pleaded that vehicle of the complainant was already damaged before obtaining insurance policy. It is further pleaded that opposite party vide letter dated 09.05.2012 repudiated the claim of the complainant. It is pleaded that Forum has no jurisdiction to decide the present complaint. It is further pleaded that complaint does not fall within the definition of consumer as defined under Consumer Protection Act 1986. Prayer for dismissal of complaint sought.
4. Learned District Forum ordered opposite party to pay Rs.70000/-(Seventy thousand) to the complainant within thirty days from the date of receipt of copy of order failing 3 Shriram General Insurance Company Ltd. Versus Sandeep Kumar (F.A. No.392/2016) which opposite party shall pay interest @ 9% per annum from the date of filing of complaint till the amount is paid or realized. Learned District Forum further order that opposite party would pay to complainant litigations costs to the tune of Rs.5000/-(Five thousand). Feeling aggrieved against order passed by Learned District Forum insurance company 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 arises 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.
Findings upon point No.1 with reasons:
7. Complainant filed affidavit annexure-C1 by way of evidence. There is recital in affidavit that deponent is owner in possession of vehicle bearing registration No.HP-24B-1377.
There is further recital in affidavit that deponent insured his vehicle with opposite party w.e.f. 31.01.2011 to 30.01.2012 in consideration amount of Rs.1755000/-(Seventeen lac fifty five thousand). There is further recital in affidavit that deponent had paid an amount of Rs.19477/-(Nineteen thousand four 4 Shriram General Insurance Company Ltd. Versus Sandeep Kumar (F.A. No.392/2016) hundred seventy seven) as premium to the opposite party. There is further recital in affidavit that vehicle met with an accident on 28.10.2011 and was partially damaged to the tune of Rs.150000/-(One lac fifty thousand). There is further recital in affidavit that matter was reported to the opposite party qua accident and opposite party deputed surveyor cum loss assessor and he assessed loss to the tune of Rs.32000/- (Thirty two thousand). There is further recital in affidavit that deponent spent Rs.150000/-(One lac fifty thousand) for repair and deponent is legally entitled for an amount of Rs.150000/- (One lac fifty thousand).
8. Per contra opposite party also filed affidavit of Brij Bhushan Branch Manager of insurance company. There is recital in affidavit that opposite party did not commit any deficiency in service. There is further recital in affidavit that after receiving information of accident qua vehicle opposite party deputed surveyor cum loss assessor. There is further recital in affidavit that surveyor cum loss assessor assessed loss to the tune of Rs.31312/-(Thirty one thousand three hundred twelve). There is recital in affidavit that vehicle of the complainant was already damaged prior to the issuance of insurance policy and insurance company has repudiated the claim on dated 09.05.2012.
9. Opposite party also filed affidavit of Deepak Sood surveyor cum loss assessor Annexure-R2. There is recital in 5 Shriram General Insurance Company Ltd. Versus Sandeep Kumar (F.A. No.392/2016) affidavit that deponent is authorised surveyor cum loss assessor. There is further recital in affidavit that deponent has conducted the survey and assessed the loss sustained in accident by vehicle No.HP-24-1377. There is further recital in affidavit that deponent has assessed loss on repair basis to the tune of Rs.31312/-(Thirty one thousand three hundred twelve).
10. Submission of learned Advocate appearing on behalf of appellant that opposite party appointed surveyor cum loss assessor who assessed the loss to the tune of Rs.31312/-(Thirty one thousand & three hundred twelve) but learned District Forum assessed the loss to the tune of Rs.70000/-(Seventy thousand) without any evidence on record is decided accordingly. It is proved on record that vehicle of complainant was insured with the opposite party for IDV value of Rs.1755000/-(Seventeen lac fifty five thousand) vide annexure-C10 placed on record. It is also proved on record that complainant had paid premium to the tune of Rs.19477/-(Nineteen thousand four hundred seventy seven) for own damage and for third party liability. It is also proved on record that at the time of accident insurance policy was operative. It is also proved on record that opposite party appointed surveyor cum loss assessor who assessed the damage of vehicle to the tune of Rs.31312/-(Thirty one thousand three hundred twelve).
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Shriram General Insurance Company Ltd. Versus Sandeep Kumar (F.A. No.392/2016)
11. Shri Deepak Sood surveyor cum loss assessor has also filed his affidavit Annexure-R2 placed on record and there is recital in affidavit that surveyor cum loss assessor has assessed the loss to the tune of Rs.31312/-(Thirty one thousand three hundred twelve). It is also proved on record that insurance company repudiated the claim on dated 09.05.2012 on the ground that vehicle was already damaged before issuance of insurance policy.
12. State Commission has carefully perused the affidavit filed by Shri Deepak Sood surveyor cum loss assessor. There is no recital in affidavit filed by surveyor cum loss assessor that vehicle of the complainant was damaged prior to the issuance of insurance policy. On the contrary Deepak Sood Surveyor cum loss assessor has specifically mentioned in his affidavit in a positive manner that he has assessed loss to the tune of Rs.31312/-(Thirty one thousand three hundred twelve). There is no evidence on record in order to prove that vehicle of the complainant was damaged prior to issuance of insurance policy. Plea of the insurance company that vehicle of complainant was damaged prior to issuance of insurance policy is defeated on the concept of ipse dixit (An assertion made without proof). Insurance company did not file any affidavit of eye witness on record in order to prove that vehicle of the complainant was damaged prior to the issuance of insurance company. Affidavit of Brij Bhushan 7 Shriram General Insurance Company Ltd. Versus Sandeep Kumar (F.A. No.392/2016) Sharma to the effect that vehicle of complainant was damaged prior to issuance of insurance policy is based upon derived knowledge because there is no recital in the affidavit that vehicle of the complainant was damaged prior to issuance of insurance policy in presence of Brij Bhushan. Insurance Company did not file affidavit of any eye witness in whose presence vehicle of complainant was damaged prior to issuance of insurance policy.
13. State Commission is of the opinion that report of surveyor cum loss assessor appointed by insurance company is binding upon insurance company unless there is evidence to the contrary that report of surveyor cum loss assessor was based upon ill motive. Insurance company did not plead that report of surveyor cum loss assessor was based upon ill motive. It is also well settled law that report of surveyor is valuable piece of evidence and should be given due credence by the insurer. It is also well settled law that report of surveyor cum loss assessor should not be brushed aside without valid reason and justification. In the repudiation letter there is no reference that report of surveyor cum loss assessor was prepared with ill motive.
14. Surveyor cum loss assessor was appointed under Section 64UB of Insurance Act 1938 and Shri Deepak Sood is an approved surveyor cum loss assessor under section 64UB of Insurance Act 1938. State Commission is of the opinion 8 Shriram General Insurance Company Ltd. Versus Sandeep Kumar (F.A. No.392/2016) that affidavit filed by Deepak Sood is trustworthy reliable and inspires confidence of State Commission. There is no reason to disbelieve the loss assessed by surveyor cum loss assessor. State Commission is of the opinion that insurance company is liable to pay loss to the complainant as per loss assessed by surveyor cum loss assessor to the tune of Rs.31312/-(Thirty one thousand three hundred twelve). See 2012 (1) CPJ 420 NC title H.C. Saxena Versus New India Assurance Company Ltd. & Anr. Also see 2012(IV) CPJ 103 NC title National Insurance Company Ltd. Versus Jyothi Tobacco Traders. See 2017(1) CPJ 529 NC Ashish Kumar Jaiswal Versus ICICI Lombard General Insurance Company Ltd. & others.
15. Submission of learned Advocate appearing on behalf of insurance company that complainant does not fall within definition of consumer is decided accordingly. Consumer is defined under section 2(d) of Consumer Protection Act 1986 and service is defined under section 2(O) of Consumer Protection Act 1986. It is held that complaint filed falls under section 2(O) of Consumer Protection Act 1986 within definition of service.
16. Submission of learned Advocate appearing on behalf of respondent that respondent has spent an amount of Rs.150000/-(One lac fifty thousand) for repair and complainant is legally entitled for an amount to the tune of 9 Shriram General Insurance Company Ltd. Versus Sandeep Kumar (F.A. No.392/2016) Rs.150000/-(One lac fifty thousand) is decided accordingly. It is well settled law that evidence under Consumer Protection Act 1986 is permissible strictly as per mode mentioned under 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.
(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.
17. In the present case complainant did not file affidavit of mechanic who had repaired the vehicle in order to prove that complainant had sustained damage to the tune of Rs.150000/-(One lac fifty thousand). Even complainant did not file affidavit of proprietor Singh Motors who has issued the bill annexure-C2. Even complainant did not file affidavit of proprietor of M/s. V.K. Auto Store who has issued bill annexure-C7. Complainant also did not file affidavit of proprietor of Patiayala Auto Centre who has issued bill 10 Shriram General Insurance Company Ltd. Versus Sandeep Kumar (F.A. No.392/2016) annexure-C9. Hence plea of the complainant that complainant had spent Rs.150000/-(One lac fifty thousand) on repairs is defeated on the concept of ipse dixit (An assertion made without proof). It is well settled law that bill issued by Singh Motors, M/s. V.K. Auto Store and Patiayala Auto Centre are not per se admissible but should be proved by way affidavits as per mode mentioned under section 13(4) of Consumer Protection Act 1986. In view of above stated facts point No.1 is answered accordingly. Point No.2: Final Order
18. In view of findings upon point No.1 above appeal is partly allowed. Damage amount awarded by learned District Forum to the tune of Rs.70000/-(Seventy thousand) is modified and reduced to Rs.31312/-(Thirty one thousand three hundred twelve) only. Other part of order of learned District Forum is affirmed. Order of learned District Forum dated 20.10.2016 announced in consumer complaint No.18/2013 is modified accordingly. Affidavit filed by Shri Deepak Sood surveyor cum loss assessor Annexure-R2 will form part and parcel of order. 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 11 Shriram General Insurance Company Ltd. Versus Sandeep Kumar (F.A. No.392/2016) 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 28.07.2017.
KD* 12