State Consumer Disputes Redressal Commission
Shriram General Insurance Company Ltd vs Sh. Anil Kumar. on 21 March, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 346/2016
Date of Presentation: 01.11.2016
Order Reserved On : 08.03.2017
Date of Order : 21.03.2017
......
Shriram General Insurance Company Limited H.Q E-8 EPIP
RIICO Industrial Area Sitapur Jaipur Rajasthan 302022 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
Anil Kumar son of Shri Sada Ram resident of Village Bahot
Kasol Tehsil Sadar District Bilaspur H.P. at present resident of
House No.142/2 Village Dehri Post Office Sunder Nagar-1 Tehsil
Sunder Nagar District Mandi 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 : Ex-parte.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :- Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 23.09.2016 passed by Learned District Forum Mandi Camp at Sunder Nagar in consumer complaint No.247/2015 title Anil Kumar Versus Shriram General Insurance Company Ltd. 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Shriram General Insurance Company Ltd. Versus Anil Kumar (F.A. No.346/2016) Brief facts of Case:
2. Shri Anil Kumar filed complainant under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is owner in possession of vehicle No.HP-69-1916.
It is pleaded that vehicle is insured with opposite party w.e.f. 11-05-2014 to 10-05-2015. It is further pleaded that vehicle met with accident on 13-07-2014 and rolled down in a deep river when complainant was approaching from Rampur to Karchham. It is pleaded that vehicle was damaged totally. It is further pleaded that complainant reported the matter to police station Jhakhari Shimla vide rapat No.13(a) dated 13- 07-2014. It is further pleaded that after the accident vehicle was examined by surveyor appointed by insurance company. It is further pleaded that complainant submitted the claim of damage before insurance company. It is further pleaded that legal notice was issued to insurance company. It is pleaded that damage of vehicle alongwith litigation costs be granted.
3. Per contra version filed on behalf of opposite parties pleaded therein that complaint is not maintainable. It is pleaded that present complaint is bad for non-joinder of necessary party. It is further pleaded that claim of complainant was closed by insurance company for willful and deliberate misrepresentation of facts by complainant. It is further pleaded that vehicle was plied for commercial purpose and complaint under Consumer Protection Act 1986 is not 2 Shriram General Insurance Company Ltd. Versus Anil Kumar (F.A. No.346/2016) maintainable. It is pleaded that learned District Forum has no jurisdiction to entertain complaint. Prayer for dismissal of complaint sought. Complainant also filed rejoinder and reasserted the allegations mentioned in complaint.
4. Learned District Forum directed opposite party i.e. insurance company to settle the claim of complainant on the basis of total loss within thirty days of the order. Learned District Forum further held that if opposite party fails to settle the claim of complainant or if complainant is not satisfied with the settlement of claim then complainant would have every right to file fresh complaint on the same cause of action. Learned District Forum further held that opposite party would pay compensation to complainant to the tune of Rs.5000/- (Five thousand) and would pay litigation costs to the tune of Rs.3000/- (Three thousand) to complainant.
5. Feeling aggrieved against the order of learned District Forum Shriram General Insurance Company filed present appeal before State Commission. None appeared on behalf of respondent at the time of final hearing. Respondent is proceeded ex-parte. State Commission decided to dispose of appeal on merits. We have heard learned advocate appearing on behalf of appellant and we have also perused entire record carefully.
6. Following points arises for determination in present appeal.
3
Shriram General Insurance Company Ltd. Versus Anil Kumar (F.A. No.346/2016)
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. Anil Kumar complainant filed affidavit by way of evidence. There is recital in the affidavit that deponent is owner in possession of vehicle No.HP-69-1916. There is further recital in the affidavit that vehicle is insured with opposite party w.e.f. 11.05.2014 to 10.05.2015. There is further recital in the affidavit that vehicle met with accident on 13.07.2014 and rolled down in a deep river when vehicle was approaching from Rampur to Karchham. There is further recital in the affidavit that due to accident of vehicle of deponent vehicle was totally damaged. There is further recital in affidavit that deponent reported the matter in local police District Shimla. There is further recital that after the accident deponent preferred claim before insurance company and submitted all the documents to insurance company.
There is further recital in affidavit that deponent also issued legal notice to insurance company.
8. Opposite party also filed affidavit of Manoj Kumar by way of evidence. There is recital in the affidavit that complainant was requested by opposite party to produce the vehicle for final survey but complainant did not produce the 4 Shriram General Insurance Company Ltd. Versus Anil Kumar (F.A. No.346/2016) vehicle for final survey. There is further recital in the affidavit that opposite party hire the service of independent and qualified surveyor & loss assessor who has recommended payment of Rs.594200/- (Five lac ninety four thousand two hundred) on repair basis. There is further recital in the affidavit that vehicle was plied for commercial purpose. There is further recital in the affidavit that dispute cannot be adjudicated under Consumer Protection Act 1986.
9. Submission of learned Advocate appearing on behalf of appellant that learned District Forum has no territorial jurisdiction to decide the complaint is decided accordingly. It is proved on record that accident took place within the territorial jurisdiction of police station Jhakhari District Shimla. It is also proved on record that address of opposite party was mentioned as industrial area Sitapur Jaipur Rajasthan. It is also proved on record that present appeal is filed by Shriram General Insurance Company Ltd. through its Branch Manager Branch Office near P.G. College Bilaspur H.P. Jurisdiction of learned District Forum under Consumer Protection Act 1986 is defined under section 11 of Consumer Protection Act 1986. As per section 11 of Consumer Protection Act 1986 complaint can be instituted in District Forum within whose local jurisdiction the opposite party or each of the parties reside at the time of institution of the complaint or carry on business or has a branch office or 5 Shriram General Insurance Company Ltd. Versus Anil Kumar (F.A. No.346/2016) personally work for gain or where any of the opposite party resides or carries on business or has a branch office or where cause of action wholly or in part arises. It is informed to the State Commission that Shriram General Insurance Company Ltd. has a branch office at Gutkar Mandi Himachal Pradesh. State Commission took judicial notice of fact that branch office of Shriram General Insurance Company Ltd. is situated at Gutkar Mandi Himachal Pradesh. Section-11 of Consumer Protection Act 1986 was amended w.e.f. 18.06.1993 and a word carries on business or has a branch office was added in section-11 w.e.f. 18.06.1993. In view of the fact that Shriram General Insurance Company Ltd. has its branch office at Gukar District Mandi at H.P. it is held that learned District Forum has territorial jurisdiction to entertain and decide the complaint filed by complainant.
10. Submission of the learned Advocate appearing on behalf of appellant that surveyor appointed by the appellant has recommended a sum of Rs.594200/- (Five lac ninety four thousand two hundred) and on this ground appeal be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Insurance Company did not examine surveyor on oath before learned District Forum or insurance company also did not file affidavit of surveyor before learned District Forum in evidence as required under section 13(4)(i) & (iii) of Consumer Protection Act 1986. In the absence of 6 Shriram General Insurance Company Ltd. Versus Anil Kumar (F.A. No.346/2016) affidavit on behalf of surveyor and in the absence of examination of surveyor on oath by insurance company before learned District Forum it is not expedient in the ends of justice to hold that complainant has suffered loss to the tune of Rs.594200/- (Five lac ninety four thousand two hundred). Plea of the insurance company that complainant has suffered loss to the tune of Rs.594200/- (Five lac ninety four thousand two hundred) is defeated on the concept of ipse dixit ( An assertion made without proof). Affidavit filed by Manoj Kumar is not sufficient to prove that complainant has sustained damage to the tune of Rs.594200/- (Five lac ninety four thousand two hundred) because Manoj Kumar is not eye witness of the incident and Manoj Kumar was not present at spot at the time of accident. It is held that Manoj Kumar has filed affidavit on the basis of derived knowledge. It is held that it is not expedient in the ends of justice to decide the case on the basis of derived knowledge. Insurance company did not file affidavit of any eye witness of the incident and insurance company also did not file any affidavit of any witness who has personally seen the damaged vehicle.
11. Submission of learned Advocate appearing on behalf of appellant that learned District Forum has illegally relied upon photographs and came to the conclusion of total loss is rejected being devoid of any force for the reasons hereinafter mentioned. We have carefully perused the 7 Shriram General Insurance Company Ltd. Versus Anil Kumar (F.A. No.346/2016) photographs placed on record and we have also carefully perused daily station dairy report No.13(a) dated 13.07.2014 placed on record. ASI reporting official i.e. S.S. Negi has submitted reported on dated 13.07.2014 that vehicle was damaged totally. There is no reason to disbelieve photograph and report submitted by ASI Shri S.S. Negi placed on record. Insurance company did not adduce any rebuttal evidence contrary to photographs or contrary to report submitted by ASI Shri S.S. Negi.
12. Submission of learned Advocate appearing on behalf of appellant that vehicle was registered as Heavy Goods vehicle for commercial purpose and complaint under Consumer Protection Act 1986 is not maintainable is rejected being devoid of any force for reasons hereinafter mentioned. It is proved on record that vehicle No.HP-69-1916 was insured with opposite party for own damage and for third party. IDV of vehicle was Rs. 1776154/- (Seventeen lac seventy six thousand one hundred fifty four). Opposite party has received premium from complainant for own damage to the tune of Rs.17767/- (Seventeen thousand seven hundred sixty seven). Opposite party has received additional premium from complainant for third party liability to the tune of Rs.16671/- (Sixteen thousand six hundred seventy one). Insurance company has received final premium to the tune of Rs.38695/- (Thirty eight thousand six hundred ninety five) 8 Shriram General Insurance Company Ltd. Versus Anil Kumar (F.A. No.346/2016) including additional charge from complainant. Insurance company cannot escape liability of own damage of vehicle after receiving premium. W.e.f. 15.03.2003 service rendered by insurance company relating to own damage of vehicle comes within domain of Consumer Protection Act 1986 as defined under section 2(o) of Consumer Protection Act 1986. Even explanation is added in section 2(d) w.e.f. 15.03.2003 wherein it is specifically mentioned that commercial purpose would not include any goods bought and used by complainant for earning his livelihood by means of self employment. Insurance company did not produce any evidence on record in order to prove that vehicle involved in accident was not purchased by complainant to earn his livelihood by means of self employment. Complainant has not admitted in complaint that he purchased vehicle for commercial purpose. Plea of opposite party that vehicle was used for commercial purpose and not for earning livelihood is defeated on the concept of ipse dixit (An assertion made without proof). Plea of insurance company that complainant hired service of paid driver is rejected being devoid of any force for reasons hereinafter mentioned. Insurance company did not disclose name of paid driver. Insurance company also did not file any affidavit of paid driver in order to prove commercial usage of vehicle.
9
Shriram General Insurance Company Ltd. Versus Anil Kumar (F.A. No.346/2016)
13. Submission of learned Advocate appearing on behalf of appellant insurance company that on total loss basis salvage be returned to insurance company is accepted for the reasons hereinafter mentioned. It is held that if the liability of the insurance company is on the basis of total loss of vehicle then insurance company is legally entitled for salvage of vehicle. See 2005(1) CPJ 93 (NC) Shankar Lal & Anothers Versus United India Insurance Company Limited and others. In view of above stated facts point No.1 is answered party in yes and partly in no.
Point No.2: Final Order
14. In view of findings upon point No.1 above appeal is partly allowed. It is ordered that complainant will surrender entire salvage to insurance company within one month. It is further ordered that registration certificate of the vehicle in the name of complainant will be cancelled forthwith and Registration Certificate in the name of insurance company will be issued in accordance with law. Order of learned District Forum to settle the claim of the complainant on the basis of total loss is affirmed. Order of learned District Forum to pay compensation to the complainant to the tune of Rs.5000/- (Five thousand) is also affirmed. Order of learned District Forum to pay litigation costs to the complainant to 10 Shriram General Insurance Company Ltd. Versus Anil Kumar (F.A. No.346/2016) the tune of Rs.3000/- (Three thousand) is also affirmed. Order of learned District Forum that if opposite party fails to settle claim of complainant or if the complainant is not satisfied with the settlement of claim then complainant would have right to file fresh complaint on the same cause of action is set aside. It is held that parties can enforce final order of total loss in accordance with law as defined under section 25 & 27 of Consumer Protection Act 1986. It is held that it is not expedient in the ends of justice to allow the complainant to file fresh complaint on the same cause of action. Order of learned District Forum is modified accordingly as stated above. Parties are left to bear their own costs in 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. 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 21.03.2017.
11