State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs Smt. Indra Devi & Ors. on 30 August, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 169/2017
Date of Presentation: 14.06.2017
Order Reserved on : 13.06.2018
Date of Order : 30.08.2018
......
National Insurance Company Limited Divisional Officer
Himland Hotel Circular Road Shimla 171001 through its
Administrative Officer (Legal).
...... Appellant/Opposite Party
Versus
1. Smt. Indra Devi wife of late Shri Gian Chand Dogra
2. Kumari Rachna D/o late Shri Gian Chand Dogra
3. Kumari Sapna D/o late Shri Gian Chand Dogra
4. Mohit S/o. late Shri Gian Chand Dogra
All residents of Village Zal P.O Narkanda Tehsil Kumarsain
District Shimla H.P.
5. Smt. Rukmani now deceased through legal heirs :-
5(a) Vandana D/o. Shri Jeet Ram and sister of deceased
Rukmani
5(b) Rohit s/o Sh. Jeet Ram S/o. Smt. Rukmani.
Both residents of Village Zal P.O Narkanda Tehsil
Kumarsain District Shimla H.P.
5(c) Smt. Satya Chauhan D/o. late Smt. Rukmani and wife of
Sh. Roshan Chauhan R/o. Village Khatrot P.O Himri
Tehsil Kotkhai District Shimla H.P.
5(d) Smt. Kanta Mehta D/o. late Smt. Rukmani and wife of Sh.
B.L. Mehta R/o Village Nahal P.O Zar Tehsil Kumarsain
District Shimla H.P.
......Respondents/Complainants
Coram
Hon'ble Justice 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.
National Insurance Company Ltd. Versus Smt. Indra Devi & Ors. (F.A. No.169/2017)
For Appellant : Mr. Jagdish Thakur Advocate.
For Respondents : Mr. Jitender Thakur Advocate vice
Ms. Pooja 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 05.05.2017 passed by Learned District Forum in consumer complaint No.236/2014 titled Indra Devi & Ors. Versus The National Insurance Company Ltd. & Ors.
Brief facts of consumer complaint:
2. Smt. Indra Devi & Ors. filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that vehicle No.HP-63B-1562 Alto car was insured with insurance company w.e.f. 15.11.2012 to 14.11.2013 and premium was paid to insurance company. It is pleaded that on 18.03.2013 at about 4.30 P.M. at place Nagrot Tehsil Kumarsain District Shimla when vehicle was enroute to Nagrot from Narkanda then due to slippery surface vehicle skidded and accident occurred. It is pleaded that FIR No.29/2013 was also recorded. It is pleaded that Sh. Gian Chand Dogra who was registered owner of vehicle died in the accident. It is pleaded that at the time of accident four persons were travelling in the vehicle namely late Shri Laiq 2 National Insurance Company Ltd. Versus Smt. Indra Devi & Ors. (F.A. No.169/2017) Ram, late Shri Gian Chand owner of vehicle, Shri Madan Lal and Shri Jai Gopal Rajta @ Sunil. It is pleaded that vehicle was driven by Shri Jai Gopal Rajta @ Sunil at the time of accident. It is further pleaded that Shri Gian Chand and Laiq Ram died in the accident. It is pleaded that Madan Lal sustained severe injuries in the accident. It is pleaded that claim was submitted before insurance company but insurance company did not settle the claim and committed deficiency in service. Complainants sought relief of payment of entire insurance value of vehicle to the tune of Rs.294796/-
(Two lac ninety four thousand seven hundred ninety six) alongwith interest @ 12% per annum from the date of accident till the date of actual payment. In addition complainants sought relief of payment of Rs.80000/-(Eighty thousand) as compensation for mental agony and harassment. In addition complainants sought relief of payment of Rs.20000/-(Twenty thousand) as litigation costs. 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 holding valid and effective driving licence. It is further pleaded that opposite party is not under legal obligation to indemnify the complainants. It is pleaded that consumer complaint involves complicated questions of fact and law and 3 National Insurance Company Ltd. Versus Smt. Indra Devi & Ors. (F.A. No.169/2017) complainants be relegated to civil court. It is pleaded that FIR No.29/2013 was lodged at the instance of Shri Amar Chand. It is pleaded that there is positive recital in FIR that at the time of accident vehicle was driven by Shri Gian Chand. It is further pleaded that police officials have submitted final investigation report under section 173 of Cr.P.C and final investigation report was submitted by police agency in collusion with the complainants contrary to facts. It is pleaded that in final investigation report it has wrongly been mentioned that vehicle was driven by Shri Jai Gopal Rajta @ Sunil at the time of accident. It is pleaded that in the claim form Smt. Indra Devi has mentioned in a positive manner that at the time of accident car was parked in courtyard and as soon as Shri Jai Gopal Rajta @ Sunil came out of the vehicle vehicle started skidding and went off the road. It is pleaded that insurance company did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
4. Complainants filed rejoinder and reasserted the allegations mentioned in the complaint. Learned District Forum ordered insurance company to pay Rs.260000/-(Two lac sixty thousand) to the complainants alongwith interest @ 9% per annum from the date of filing complaint till payment within 45 days from the date of receipt of copy of order. In addition learned District Forum ordered that 4 National Insurance Company Ltd. Versus Smt. Indra Devi & Ors. (F.A. No.169/2017) insurance company would pay an amount of Rs.10000/-(Ten thousand) to complainants as compensation for harassment and mental agony. In addition learned District Forum ordered insurance company to pay an amount of Rs.5000/-(Five thousand) as litigation costs.
5. Feeling aggrieved against order passed by Learned District Forum insurance company filed present appeal before State Commission.
6. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
7. 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.
Findings upon point No.1 with reasons:
8. Complainant Indra Devi filed affidavit in evidence.
There is recital in affidavit that vehicle No.HP-63B-1562 was duly insured with insurance company at the time of accident. There is recital in affidavit that accident took place on 18.03.2013 at about 4.30 P.M at Nagrot Tehsil Kumarsain 5 National Insurance Company Ltd. Versus Smt. Indra Devi & Ors. (F.A. No.169/2017) District Shimla when said vehicle was enroute to Nagrot from Narkanda. There is recital in affidavit that FIR No.29/2013 dated 18.03.2013 was also recorded in police station. There is recital in affidavit that at the time accident Shri Gian Chand, late Shri Laiq Ram, Madan Lal and Shri Jai Gopal Rajta @ Sunil were travelling in the vehicle. There is recital in affidavit that at the time of accident Shri Gian Chand and Laiq Ram died and Madan Lal sustained severe injuries. There is recital in affidavit that at the time of accident vehicle was driven by Shri Jai Gopal Rajta @ Sunil. There is recital in affidavit that insurance company did not settle the claim and committed deficiency in service.
9. Complainant filed affidavit of Shri Jai Gopal Rajta @ Sunil in evidence. There is recital in affidavit that deponent was driving the vehicle No.HP-63B-1562 from Narkanda to Nagrot and accident took place on dated 18.03.2013 at about 4.30 P.M. There is recital in affidavit that accident was caused due to skidding of vehicle from the road. There is recital in affidavit that vehicle fell into deep gorge. There is further recital in affidavit that in the accident Shri Gian Chand and Sh. Laiq Ram died. There is recital in affidavit that Sh. Madan Lal sustained severe injuries in the accident. There is recital in affidavit that name of father of deponent has been inadvertently mentioned as Jeewan Dass in the driving 6 National Insurance Company Ltd. Versus Smt. Indra Devi & Ors. (F.A. No.169/2017) licence. There is further recital in affidavit that father's name of deponent is Shri Joban Dass. State Commission has perused all the annexures filed by complainants carefully.
10. Insurance Company filed affidavit of Shri Vivek Suman working as Administrative Officer Legal. There is recital in affidavit that version filed on behalf of insurance company alongwith annexures OP1 to OP15 be read in evidence as part and parcel of affidavit.
11. Insurance company also filed two affidavits of Sanjay Singh Chauhan in evidence. There is recital in affidavits that deponent was appointed as Investigator by the opposite party for investigation of third party loss. There is further recital in the affidavits that deponent investigated the matter and submitted facts finding report annexure OP-12 with respect to third party claim. There is further recital in the affidavits that report annexure OP-12 is true as per original and same be read in evidence.
12. Insurance company filed affidavit of Rajneesh Sharma in evidence. There is recital in the affidavit that deponent is duly authorized surveyor and loss assessor under Insurance Development Regulatory Authority. There is further recital in the affidavit that deponent on the instructions of opposite party conducted spot survey of vehicle on dated 7 National Insurance Company Ltd. Versus Smt. Indra Devi & Ors. (F.A. No.169/2017) 20.03.2013 at about 12 noon at Nagrot Tehsil Kumarsain District Shimla in the presence of complainant and her son and thereafter submitted spot survey report dated 24.03.2013 annexure OP-10. There is further recital in the affidavit that spot survey report annexure OP-10 is true and correct as per the original and has been prepared as per factual position existing at the spot and same be read in evidence.
13. Insurance company filed affidavit of Girish Sharma in evidence. There is recital in the affidavit that deponent is duly authorized surveyor and loss assessor under Insurance Development Regulatory Authority. There is further recital in the affidavit that on the instructions of opposite party deponent conducted final survey of vehicle No. HP-63B-1562 on dated 07.04.2013 at Nagrot Narkanda Tehsil Kumarsain District Shimla in the presence of complainant and thereafter submitted final survey report annexure OP-11 on dated 27.10.2013. There is further recital in the affidavit that final survey report annexure OP-11 is true and correct as per the original and has been prepared as per position existing on the spot and same be read in evidence. State Commission has carefully perused all annexures filed by opposite party.
14. Submission of learned Advocate appearing on behalf of insurance company that as per FIR lodged vehicle 8 National Insurance Company Ltd. Versus Smt. Indra Devi & Ors. (F.A. No.169/2017) was driven by Sh. Gian Chand at the time of accident and on this ground appeal filed by insurance company be allowed is decided accordingly. It is well settled law that FIR is not substantial piece of evidence. It is well settled law that as per Section 162 of Code of Criminal Procedure 1973 statement given to police officials could not be used in evidence for any purpose except to contradict the witness in the manner provided under section 145 of Indian Evidence Act 1872. Insurance company did not sent any interrogatories to Sh. Amar Chand eye witness at whose instance FIR was recorded in order to prove contents of FIR. Hence adverse inference is drawn against insurance company. Complainants have refuted contents of FIR relating to driving of vehicle in evidence filed by way of affidavits.
15. Insurance company did not file affidavit of any eye witness who was present at the time of accident in order to prove that at the time of accident the vehicle was driven by deceased Gian Chand. The persons whose affidavits have been filed by insurance company were not present at the spot at the time of accident and they are not eye witnesses of accident. On the contrary Shri Jai Gopal Rajta @ Sunil is eye witness of the accident as he was travelling in the vehicle himself at the time of accident.
16. Submission of learned Advocate appearing on behalf of insurance company that name of driver was changed 9 National Insurance Company Ltd. Versus Smt. Indra Devi & Ors. (F.A. No.169/2017) from Shri Gian Chand Dogra to Shri Jai Gopal Rajta @ Sunil by police official in final report submitted under section 173 of Code of Criminal Procedure 1973 in collusion with complainants and on this ground appeal filed by insurance company be allowed is decided accordingly. Insurance company did not file interrogatories to investigating officer who has submitted final investigation report under section 173 of Code of Criminal Procedure 1973. Hence adverse inference is drawn against the insurance company for non filing interrogatories to police official who has submitted final investigation report under section 173 of Code of Criminal Procedure 1973. Allegation of collusion of complainants with investigation officer has not been admitted by complainants.
17. Submission of learned advocate appearing on behalf of insurance company that facts admitted need not to be proved as per section 58 of Indian Evidence Act 1872 and on this ground appeal filed by insurance company be allowed is decided accordingly. State Commission is of the opinion that complainants have not admitted contents of controversial documents. Even as per proviso of Section 58 of Indian Evidence Act 1872 District Forum or Commission may in its discretion require facts admitted to be proved otherwise than by such admissions. State Commission is of the opinion that insurance company was under legal obligation to prove contents of controversial documents relied by insurance 10 National Insurance Company Ltd. Versus Smt. Indra Devi & Ors. (F.A. No.169/2017) company by way of filing interrogatories to the author or by way of filing affidavits of persons who have signed the documents. State Commission is of the opinion that in view of the fact that proceedings under Consumer Protection Act 1986 are quasi-judicial proceedings contents of controversial documents should be proved strictly as per modes mentioned under Section 13(4) of Consumer Protection Act 1986.
18. Submission of learned Advocate appearing on behalf of insurance company that as per claim form submitted by Smt. Indra Devi accident of vehicle was caused when vehicle was stopped upon slide slope and on this ground appeal filed by insurance company be allowed is decided accordingly. Insurance company did not file any interrogatories to Indra Devi who had submitted claim form before insurance company. No reason assigned by insurance company as to why insurance company did not file any interrogatories to Indra Devi to contradict the fact mentioned in the claim form. Adverse inference is drawn against insurance company for non filing interrogatories to Smt. Indra Devi as per provision of Consumer Protection Act 1986 in order to prove contents of controversial documents. Smt. Indra Devi has refuted facts mentioned in claim form in evidence adduced by way of affidavit qua place of accident.
19. Submission of learned Advocate appearing on behalf of insurance company that in the driving licence 11 National Insurance Company Ltd. Versus Smt. Indra Devi & Ors. (F.A. No.169/2017) father's name of Shri Jai Gopal Rajta @ Sunil has been shown as Jeewan Dass and in MLC, birth certificate, family register father's name of Shri Jai Gopal Rajta @ Sunil has been mentioned as Sh. Joban Dass and on this ground appeal filed by insurance company be allowed is decided accordingly. State Commission has carefully perused the aforesaid documents. In aforesaid documents address has been mentioned as same. Insurance company did not file affidavit of any person on record in order to prove that Shri Jai Gopal Rajta @ Sunil S/o Jeewan Dass and Shri Jai Gopal Rajta @ Sunil S/o. Sh. Joban Dass are two different persons. Onus was upon insurance company to prove that Shri Jai Gopal Rajta @ Sunil S/o. Jeewan Dass and Shri Jai Gopal Rajta @ Sunil S/o. Joban Dass are entirely two different persons. Plea of insurance company that Shri Jai Gopal Rajta @ Sunil S/o. Jeewan Dass and Shri Jai Gopal Rajta @ Sunil S/o. Sh. Joban Dass are two different persons is defeated on the concept of ipse dixit (An assertion made without proof). Even Shri Jai Gopal Rajta @ Sunil has refuted the contents of documents in evidence adduced by way of affidavits and controversial contents of documents should be proved by party who asserts controversial facts as per law in quasi- judicial proceedings.
20. Submission of learned Advocate appearing on behalf of insurance company that excessive rate of interest to 12 National Insurance Company Ltd. Versus Smt. Indra Devi & Ors. (F.A. No.169/2017) the tune of 9% per annum has been granted by learned District Forum and on this ground appeal of insurance company be allowed is decided accordingly. State Commission is of the opinion that learned District Forum has granted reasonable rate of interest and it is not expedient in the ends of justice and on the principles of natural justice to reduce interest rate.
21. Submission of learned advocate appearing on behalf of insurance company that complicated facts are involved in the consumer complaint and complainants be relegated to civil court for adjudication of matter 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 relegate the complainants who are L.R's of deceased Gian Chand Dogra to civil court. Age of Smt. Indra Devi widow of Gian Chand Dogra is above fifty years as of today. State Commission is of the opinion that present consumer complaint could be disposed of in summary manner under Consumer Protection Act 1986 properly and effectively.
22. Insurance company has appointed surveyor-cum- loss assessor namely Shri Girish Sharma and Shri Girish Sharma has submitted final survey report. Shri Girish Sharma surveyor-cum-loss assessor has recommended payment of Rs.260000/- (Two lac sixty thousand) on net of 13 National Insurance Company Ltd. Versus Smt. Indra Devi & Ors. (F.A. No.169/2017) salvage basis. State Commission is of the opinion that insurance company could not be allowed to disbelieve the report submitted by surveyor-cum-loss assessor because surveyor-cum-loss assessor was appointed by insurance company. It is well settled law that report submitted by surveyor-cum-loss assessor is substantial piece of evidence and due credence should be given to the damage assessment 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 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.
23. Submission of learned advocate appearing on behalf of insurance company that learned District Forum has granted excessive compensation to the complainant to the tune of Rs.10000/- (Ten thousand) for mental agony and on this ground appeal filed by insurance company be allowed is decided accordingly. State Commission is of the opinion that one of the legal hairs of owner Gian Chand is widow aged about 50 years and compensation granted by learned District 14 National Insurance Company Ltd. Versus Smt. Indra Devi & Ors. (F.A. No.169/2017) Forum is reasonable and it is not expedient in the ends of justice and on the principles of natural justice to interfere in the order of compensation amount passed by learned District Forum.
24. Submission of learned advocate appearing on behalf of insurance company that learned District Forum has granted excessive litigation costs to the complainant and on this ground appeal filed by insurance company be allowed is decided accordingly. State Commission is of the opinion that complainants have to file consumer complaint for redressal of their grievances before learned District Forum and have to engage advocate and have to pay other litigation expenses. 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 litigation costs ordered by learned District Forum.
25. Submission of learned Advocate appearing on behalf of complainants that order passed by learned District Forum is in accordance with law and in accordance with proved facts 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 the order of learned District Forum and it is held that order of learned District Forum is in consonance with law and is in 15 National Insurance Company Ltd. Versus Smt. Indra Devi & Ors. (F.A. No.169/2017) consonance with proved facts. In view of above stated facts point No.1 is decided accordingly.
Point No.2: Final Order
26. In view of findings upon point No.1 above appeal is dismissed. Order of learned District Forum is affirmed. Parties are left to bear their own litigation costs before State Commission. Report submitted by surveyor-cum-loss assessor namely Shri Girish Sharma annexure OP-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 30.08.2018.
*GUPTA* 16