State Consumer Disputes Redressal Commission
Sh. Ajeet Pathania. vs Shriram General Insurance Co. Ltd. & ... on 6 March, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 172/2018
Date of Presentation: 27.06.2018
Order Reserved on : 14.11.2018
Date of Order : 06.03.2019
......
Ajeet Pathania son of Shri Achhar Singh resident of Village and
Post Office Nalyana Sub-Tehsil Tihra District Mandi H.P.
...... Appellant/Complainant
Versus
1. Shriram General Insurance Company Ltd. through its
Regional Manager STFC Claims Shriram General
Insurance H.O. Jaipur Rajasthan-302 022.
2. Branch Manager Shriram General Insurance Branch Office
Gutkar District Mandi H.P.
3. Mr. Deepak Sood (Surveyor) Behind College colony
Koserian Bilaspur H.P.
......Respondents/opposite parties
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Ashok Kumar Verma Advocate.
For Respondents : Mr. Jagdish Thakur 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 22.05.2018 passed by Learned District Forum in consumer 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Ajeet Pathania Versus Shriram General Insurance Co. Ltd. & Ors. F.A. No.172/2018 complaint No.234/2016 titled Ajeet Pathania Versus Shriram General Insurance Company Ltd. & Ors.
Brief facts of consumer complaint:
2. Shri Ajeet Pathania filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is owner of vehicle No.HP-28-5051.
It is pleaded that vehicle was duly insured with Insurance company w.e.f. 03.03.2016 to 02.03.2017. It is pleaded that on dated 29.03.2016 vehicle met with accident at place Nalyana. It is pleaded that on a curve brakes of vehicle failed and vehicle gone out of order and hit with a tree and ultimately overturned and was badly damaged. It is pleaded that claim was filed before Insurance company but Insurance company did not settle the claim and committed deficiency in service. Complainant sought O.D claim on total loss basis alongwith interest till realization. In addition complainant sought additional relief of payment of Rs.50/-(Fifty) per day w.e.f. 29.03.2016 as parking charges. In addition complainant sought relief of payment of Rs.20000/-(Twenty thousand) per month w.e.f. 29.03.2016 for loss of earning. In addition complainant sought relief of payment of Rs.200000/- (Two lac) for mental pain and agony. In addition complainant sought relief of payment of litigation costs. Prayer for acceptance of consumer complaint sought.
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Ajeet Pathania Versus Shriram General Insurance Co. Ltd. & Ors. F.A. No.172/2018
3. Per contra version filed on behalf of opposite parties No.1 & 2 pleaded therein that Insurance company has duly processed the claim of complainant and claim filed by complainant was closed as no claim vide letter dated 12.05.2016. It is pleaded that Insurance company appointed Surveyor cum Loss Assessor and he recommended loss to the tune of Rs.80801/-(Eighty thousand eight hundred one) on repair basis. It is pleaded that complainant did not accept the loss assessed by Surveyor cum Loss Assessor and did not submit relevant documents and claim was closed as no claim by Insurance company. It is further pleaded that complicated facts are involved in the present matter and complainant be relegated to civil court. It is pleaded that Consumer complaint is bad for non-joinder of necessary party and Himachal Gramin Bank Sarkaghat is necessary party. Prayer for dismissal of consumer complaint sought.
4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. Learned District Forum dismissed the Consumer complaint. Feeling aggrieved against order passed by Learned District Forum complainant 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.
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Ajeet Pathania Versus Shriram General Insurance Co. Ltd. & Ors. F.A. No.172/2018
6. 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:
7. Complainant filed his affidavit in evidence. There is recital in affidavit that deponent is owner of vehicle No.HP-
28-5051. There is recital in affidavit that vehicle was duly insured with Insurance company and premium was also paid to the Insurance company by deponent. There is recital in affidavit that on dated 29.03.2016 vehicle met with accident and claim was submitted before Insurance company. There is recital in affidavit that M/s. Sagar View Automobiles has submitted estimate claim of repair to the tune of Rs.483256/- (Four lac eighty three thousand two hundred fifty six). There is recital in affidavit that Insurance company did not settle the claim and committed deficiency in service.
8. Complainant also filed affidavit of Shri Ajay Kumar Manager of M/s. Sagar View Automobiles in evidence. There is recital in affidavit that estimate of repair of vehicle No.HP- 28-5051 to the tune of Rs.483256/-(Four lac eighty three thousand two hundred fifty six) was prepared by Work Manager. There is recital in affidavit that estimate was 4 Ajeet Pathania Versus Shriram General Insurance Co. Ltd. & Ors. F.A. No.172/2018 submitted without dismantling and actual costs may increase. There is recital in affidavit that vehicle No.HP-28- 5051 is parked at M/s. Sagar View Automobiles w.e.f. 29.03.2016 and Rs.50/-(Fifty) would be charged as parking charges.
9. Complainant also filed affidavit of Shri Virander Pathania in evidence. There is recital in affidavit that vehicle No.HP-28-5051 met with accident on dated 29.03.2016 at Nalyana. There is recital in affidavit that vehicle was took to M/s. Sagar View Automobiles and same was surveyed by Surveyor cum Loss Assessor namely Shri Deepak Sood on dated 31.03.2016 and 04.04.2016 in presence of deponent. There is recital in affidavit that estimate prepared by M/s. Sagar View Automobiles was handed over to Surveyor cum Loss Assessor. There is recital in affidavit that Manager M/s. Sagar View Automobiles would charge Rs.50/-(Fifty) per day as parking charges.
10. Insurance company filed affidavit of Sh. Manoj Kumar in evidence. There is recital in affidavit that claim was duly processed and same was closed as no claim vide letter dated 12.05.2016. There is recital in affidavit that Surveyor cum Loss Assessor has recommended loss to the tune of Rs.80801/-(Eighty thousand eight hundred one) but complainant did not reply to several letters issued by 5 Ajeet Pathania Versus Shriram General Insurance Co. Ltd. & Ors. F.A. No.172/2018 Insurance company. There is recital in affidavit that claim was closed as no claim.
11. Insurance company filed affidavit of Shri Deepak Sood Surveyor cum Loss Assessor in evidence. There is recital in affidavit that deponent is qualified engineer and licensed Surveyor cum Loss Assessor approved by IRDAI and having licence No.SLA-11731 valid upto 27.11.2018. There is recital in affidavit that service of deponent was hired by Insurance company. There is recital in affidavit that deponent has conducted final survey of vehicle No.HP-28- 5051 in the presence of complainant and has recommended amount to the tune of Rs.80801/-(Eighty thousand eight hundred one) on repair basis.
12. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for IDV claim on total loss basis as per estimate submitted by M/s. Sagar View Automobiles and on this ground appeal filed by complainant be allowed is decided accordingly. It is proved on record that Insurance company appointed Surveyor cum Loss Assessor under statutory Insurance Act 1938 and Surveyor cum Loss Assessor has recommended the payment of loss to the tune of Rs.80801/-(Eighty thousand eight hundred one). Complainant did not send any interrogatories 6 Ajeet Pathania Versus Shriram General Insurance Co. Ltd. & Ors. F.A. No.172/2018 to Surveyor cum Loss Assessor namely Shri Deepak Sood. Hence adverse inference is drawn against complainant.
13. M/s. Sagar View Automobiles is not approved Surveyor cum Loss Assessor under statutory Insurance Act 1938. Complainant did not file any counter loss assessment report from duly approved Surveyor cum Loss Assessor licensed under statutory Insurance Act 1938. Insurance Act 1938 is a statutory Act and as per section 64UM(2) of Insurance Act Insurance company is under legal obligation to appoint Surveyor cum Loss Assessor when claim is exceeding Rs.20000/-(Twenty thousand). Admittedly in the present matter claim is exceeding Rs.20000/-(Twenty thousand). State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to override the report of Surveyor cum Loss Assessor appointed under Statutory Act i.e. Insurance Act 1938. It is well settled law that report submitted by Surveyor cum Loss Assessor appointed under section 64UM(2) of Insurance Act 1938 is substantial piece of evidence and is a valuable document and should be given due credence by Insurer. 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 7 Ajeet Pathania Versus Shriram General Insurance Co. Ltd. & Ors. F.A. No.172/2018 Ltd. See 2009(1) CPC 166 NC Pradeep Kumar Versus National Insurance Company Ltd. See 2010(3) CPJ 401 NC New India Assurance Company Ltd. Versus Pushpa Chhabra. See 2010(1) CPC 696 NC Champa Lal Verma Versus Oriental Insurance Company Ltd.
14. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for Rs.200000/-(Two lac) on account of mental pain and agony is decided accordingly. State Commission is of the opinion that complainant is legally entitled for reasonable compensation for mental agony and harassment because Insurance company did not pay amount as assessed by Surveyor cum Loss Assessor appointed under statutory Insurance Act 1938. Insurance company could not be allowed to disbelieve assessment report submitted by its own Surveyor cum Loss Assessor on the concept of equity and on the principles of natural justice.
15. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for litigation costs is decided accordingly. It is proved on record that complainant has engaged Advocate before learned District Forum and has also paid litigation costs. It is held that Insurance company did not pay amount as assessed by Surveyor cum Loss Assessor appointed under statutory 8 Ajeet Pathania Versus Shriram General Insurance Co. Ltd. & Ors. F.A. No.172/2018 Insurance Act 1938. Insurance company is under legal obligation to pay reasonable litigation costs to complainant.
16. Submission of learned Advocate appearing on behalf of complainant that complainant is also legally entitled for parking charges is decided accordingly. State Commission has carefully perused the terms and conditions of Insurance policy. There is no recital in terms and conditions of Insurance policy that complainant will be entitled for parking charges. In view of the above stated facts it is held that complainant is not legally entitled for parking charges as pleaded in consumer complaint.
17. Submission of learned Advocate appearing on behalf of Insurance company that complainant did not accept claim assessed by Surveyor cum Loss Assessor and did not submit requisite documents despite several demand by Insurance company and on this ground appeal filed by complainant be dismissed is decided accordingly. Complainant has specifically mentioned in his affidavit that he has tendered all the documents to Surveyor cum Loss Assessor appointed by Insurance company. Surveyor cum Loss Assessor was appointed by Insurance company under Statutory Act i.e. Insurance Act 1938 and he has recommended loss to the tune of Rs.80801/-(Eighty thousand eight hundred one). State Commission is of the opinion that Insurance company was under legal obligation to pay amount 9 Ajeet Pathania Versus Shriram General Insurance Co. Ltd. & Ors. F.A. No.172/2018 as assessed by Surveyor cum Loss Assessor under statutory Act i.e. Insurance Act 1938 unless contrary is proved against Surveyor cum Loss Assessor by Insurance company. Insurance company has not levelled any personal allegations against Surveyor cum Loss Assessor appointed by Insurance company. Insurance Company did not pay the amount recommended by Surveyor cum Loss Assessor and committed deficiency in service. It is held that documents supplied to Surveyor cum Loss Assessor appointed by Insurance company would be deemed to be documents supplied to Insurance company under law because Insurance company has hired the services of Surveyor cum Loss Assessor under Statutory Insurance Act 1938. Non payment of amount as assessed by Surveyor cum Loss Assessor appointed under Insurance Act 1938 is ipso facto deficiency in service on the part of Insurance company.
18. Submission of learned Advocate appearing on behalf of Insurance company that complicated facts are involved in present matter and complainant be relegated to civil court is decided accordingly. As per section 2(o) of Consumer Protection Act 1986 service of any description rendered by Insurance company would fall within definition of section 2(o) of Consumer Protection Act 1986. It is held that it is not expedient in the ends of justice and on the principle of natural justice to relegate the complainant to civil court. It 10 Ajeet Pathania Versus Shriram General Insurance Co. Ltd. & Ors. F.A. No.172/2018 is held that present consumer complaint could be disposed properly and effectively under Consumer Protection Act 1986.
19. Submission of learned Advocate appearing on behalf of Insurance company that Himachal Gramin Bank is necessary party in the present consumer complaint and complainant has not impleaded Himachal Gramin Bank as co-party in consumer complaint and on this ground appeal filed by complainant be dismissed is decided accordingly. State Commission has carefully perused the Insurance policy placed on record. In the Insurance policy placed on record annexure-A2 name of insured has been mentioned as Sh. Ajeet Pathania and name of insurer has been mentioned as Shriram General Insurance Company Ltd. State Commission is of the opinion that Bipartite agreement was executed between insurer and insured. Tripartite agreement was not executed with Himachal Gramin Bank Sarkaghat as per Insurance policy placed on record. It is well settled law that only in Tripartite agreement Financier is necessary party. Even complainant did not seek any relief against Himachal Gramin Bank Sarkaghat in the present consumer complaint and it is well settled law that complainant is dominus litis of his own consumer complaint. State Commission is of the opinion that Himachal Gramin Bank Sarkaghat has different cause of action if any against the complainant and it is not expedient in the ends of justice and on the principle of 11 Ajeet Pathania Versus Shriram General Insurance Co. Ltd. & Ors. F.A. No.172/2018 natural justice to club different cause of action in the present matter. As per law lease is transfer of right to enjoy property for premium or rent. As per law transferor is called lessor and transferee is called lessee. In view of above stated 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 complainant is partly allowed. Order dated 22.05.2018 passed by learned District Forum in consumer complaint No.234/2016 titled Ajeet Pathania Versus Shriram General Insurance Company Ltd. & Ors. is set aside. It is ordered that opposite parties No.1 & 2 jointly and severally shall pay O.D. claim of vehicle to the tune of Rs.80801/- (Eighty thousand eight hundred one) as assessed by Surveyor cum Loss Assessor namely Shri Deepak Sood alongwith interest @ 9% per annum from the date of institution of complaint till realization after receiving no objection certificate from Himachal Gramin Bank Sarkaghat and if Himachal Gramin Bank Sarkaghat did not give any NOC certificate then O.D amount to the tune of Rs.80801/-(Eighty thousand eight hundred one) will be transmitted directly to Himachal Gramin Bank Sarkaghat in the account of complainant alongwith interest cited supra within one month after receipt of certified copy of order because as per R.C. vehicle in question is leased with Himachal Gramin Bank Sarkaghat (H.P). 12
Ajeet Pathania Versus Shriram General Insurance Co. Ltd. & Ors. F.A. No.172/2018
21. It is further ordered that opposite parties No.1 & 2 jointly and severally shall pay compensation to complainant for mental agony and harassment to the tune of Rs.10000/- (Ten thousand) within one month after receipt of certified copy of order. It is further ordered that opposite parties No.1 & 2 jointly and severally shall pay litigation costs to complainant to the tune of Rs.10000/-(Ten thousand) within one month after receipt of certified copy of order. Insurance policy Annexure-A2 and Surveyor cum Loss Assessor report dated 18.08.2016 submitted by Shri Deepak Sood and R.C of vehicle annexure-A-I 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 Sunita Sharma 06.03.2019 K.D Member 13