State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs Sh. Lok Raj Siani. on 14 August, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 248/2017
Date of Presentation: 05.07.2017
Order Reserved on : 17.05.2018
Date of Order : 14.08.2018
......
National Insurance Company Limited Divisional Office Moti
Bazar Mandi Town District Mandi H.P through its
Administrative Officer Divisional Office National Insurance
Company Ltd. Himland Hotel Circular Road Shimla H.P
171001.
...... Appellant/Opposite Party
Versus
Lok Raj Saini son of Shri Inder Dev resident of Village Sihan
Post Office Gagal Tehsil Balh District Mandi H.P.
......Respondent /Complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellant : Shri Jagdish Thakur Advocate.
For Respondent : Shri Vivek Negi 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 23.05.2017 passed by Learned District Forum in consumer complaint No.466/2014 titled Lok Raj Saini Versus National Insurance Company Ltd.
1 Whether reporters of the local papers may be allowed to see the order? Yes.
National Insurance Company Ltd. Versus Lok Raj Saini (F.A. No.248/2017) Brief facts of consumer complaint:
2. Lok Raj filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is government contractor and purchased Hyundai 220 Excavator machine for his self employment purpose. It is pleaded that excavator machine was insured with opposite party w.e.f. 18.02.2012 to 17.02.2013. It is pleaded that during operation of insurance policy on dated 09.07.2012 due to heavy rain when the excavator machine was plied at Sidhyani to parking place at Nerchowk then suddenly at about 10.00 P.M retaining wall of road collapsed and excavator machine fell into deep rivulet. It is further pleaded that accident was intimated to the insurance company and all relevant documents were submitted to insurance company. It is pleaded that opposite party did not settle the claim and repudiated the claim of complainant illegally and committed deficiency in service. Complainant sought relief of payment of Rs.1645278/-(Sixteen lac forty five thousand two hundred seventy eight) alongwith interest @ 12% per annum w.e.f. 16.01.2014 till realization. In addition complainant sought relief of payment of Rs.200000/-(Two lac) for mental tension and harassment. Prayer for acceptance of consumer complaint sought.
2
National Insurance Company Ltd. Versus Lok Raj Saini (F.A. No.248/2017)
3. Per contra version filed on behalf of opposite party pleaded therein that no cause of action accrued to the complainant and complainant has suppressed the material facts from the Forum. It is pleaded that opposite party did not commit any deficiency in service. It is further pleaded that driver Durga Singh was not holding effective and valid driving licence at the time of accident. It is pleaded that complainant committed violation of terms and conditions of insurance policy. It is further pleaded that insurance company is not liable to indemnify the damage in transit process from one location to another location. It is pleaded that excavator machine was plied by complainant for commercial purpose and consumer complaint is not maintainable. It is further pleaded that opposite party appointed surveyor cum loss assessor to assess the loss. It is pleaded that loss was caused to complainant due to negligence of complainant himself and insurance company is not liable to indemnify the complainant. Prayer for dismissal of consumer complaint sought.
4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. Learned District Forum directed insurance company to settle the claim of complainant in view of bills filed by complainant annexures- C6/A to C6/F within thirty days of order. Learned District 3 National Insurance Company Ltd. Versus Lok Raj Saini (F.A. No.248/2017) Forum ordered complainant to submit all relevant documents of his excavator machine including driving licence of the driver within seven days of order to insurance policy. In addition learned District Forum ordered insurance company to pay lump-sum compensation to the tune of Rs.20000/- (Twenty thousand). In addition learned District Forum ordered insurance company to pay litigation costs to complainant to the tune of Rs.4000/-(Four thousand). In addition learned District Forum ordered that complainant would be at liberty to file fresh complaint on same cause of action if the complainant would not be satisfied with the settlement offered by insurance company. Feeling aggrieved against order passed by Learned District Forum opposite party 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 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 affidavit in evidence. There is recital in affidavit that deponent is government contractor and 4 National Insurance Company Ltd. Versus Lok Raj Saini (F.A. No.248/2017) has purchased Hyundai 220 excavator machine for self employment purpose. There is recital in affidavit that excavator machine was insured with opposite party w.e.f. 18.02.2012 to 17.02.2013. There is recital in affidavit that on dated 09.07.2012 due to heavy rain when the machine was plied from working place at Sidhyani to parking place at Ner Chowk then suddenly at about 10.00 P.M at Kalkhar-
Nerchowk road retaining wall of road collapsed and machine fell into deep rivulet and sustained heavy damage. There is recital in affidavit that claim was submitted before insurance company but insurance company repudiated the claim in an illegal manner and committed deficiency in service. There is further recital in affidavit that complainant spent an amount of Rs.1645278/-(Sixteen lac forty five thousand two hundred seventy eight) for repair of machine and submitted entire bills/cash memos in original to opposite party. There is recital in affidavit that opposite party is liable to pay amount as mentioned in relief clause of consumer complaint. State Commission has perused all the annexures filed by complainant.
8. Opposite party filed affidavit of Shri Darshan Singh in evidence. There is recital in affidavit that consumer complainant is not maintainable and complainant has no cause of action against the insurance company. There is 5 National Insurance Company Ltd. Versus Lok Raj Saini (F.A. No.248/2017) recital in affidavit that complainant has suppressed the material facts. There is further recital in affidavit that driver namely Durga Singh was not holding valid and effective driving licence at the time of accident. There is recital in affidavit that insurance company is not liable to indemnify the loss because excavator machine was in transit from one location to another location. There is recital in affidavit that excavator machine was used for commercial purpose and consumer complaint is not maintainable. There is recital in affidavit that complainant has submitted bill on higher side. State Commission has perused all the annexures filed by opposite party carefully.
9. Submission of learned Advocate appearing on behalf of insurance company that order of learned District Forum that insurance company would settle the claim of complainant in view of bills annexures-C-6A to C-6F within thirty days of order is contrary to law and contrary to proved facts is decided accordingly. It is proved on record that excavator machine of complainant was insured with opposite party w.e.f. 18.02.2012 to 17.02.2013 vide insurance policy annexure-R-II placed on record in IDV value of Rs.3438001/- (Thirty four lac thirty eight thousand one). It is well settled law that insurance company is under legal obligation to indemnify the complainant as per proved damaged sustained 6 National Insurance Company Ltd. Versus Lok Raj Saini (F.A. No.248/2017) by complainant during subsistence of insurance policy. It is well settled law that when the claim is more than Rs.20000/- (Twenty thousand) then insurance company is under legal obligation to appoint surveyor cum loss assessor under section 64UM of Insurance Act 1938. It is proved on record that insurance company appointed surveyor cum loss assessor namely Jasvinder S. Josan under section 64UM of Insurance Act 1938. Mr. Jasvinder S. Josan has submitted his report and surveyor cum loss assessor has recommended an amount of Rs.808848.25/-(Eight lac eight thousand eight hundred forty eight rupees & twenty five paise). Complainant did not file any interrogatory to surveyor cum loss assessor namely Jasvinder S. Josan. Complainant also did not file any counter surveyor cum loss assessor report. It is well settled law that report of surveyor cum loss assessor is substantial piece of evidence and due credence should be given to the report of surveyor cum loss assessor. See 2010(3) CPJ 401 NC New India Assurance Company Ltd. Versus Pushpa Chhabra. 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.
10. Submission of learned Advocate appearing on behalf of insurance company that excavator machine was in 7 National Insurance Company Ltd. Versus Lok Raj Saini (F.A. No.248/2017) transit process from Sidhyani workplace to Nerchowk and as per terms and conditions of insurance policy insurance company is not liable to pay any amount to complainant is decided accordingly. State Commission has carefully perused the insurance policy i.e. Annexure-RII. In insurance policy annexure-RII location details has been specified in a positive manner as Mandi Himachal Pradesh. State Commission is of the opinion that location of excavator machine has been mentioned as Mandi Himachal Pradesh. In the insurance policy location Mandi city has not been mentioned in a positive manner but location identified as Mandi H.P. It is proved on record that at the time of accident excavator machine was brought back from workplace i.e. Sidhyani to parking place Nerchowk. It is proved on record that place Sidhyani and place Nerchowk falls within location of district Mandi H.P and both the stations falls within District Mandi Himachal Pradesh. State Commission is of the opinion that when vehicle is brought from working place to parking place then as per law it does not amount to change of location of work place of machine.
11. Submission of the learned Advocate appearing on behalf of insurance company that driver was not holding valid and effective driving licence at the time of accident and on this ground appeal filed by insurance company be allowed is decided accordingly. State Commission has carefully perused 8 National Insurance Company Ltd. Versus Lok Raj Saini (F.A. No.248/2017) the repudiation letter annexure-C-5. Insurance company has not repudiated the claim on the ground of non-driving licence but repudiated the claim on the ground that accident was caused when vehicle was in transit process from one place to another place. State Commission is of the opinion that after filing the consumer complaint insurance company could not be allowed to take additional ground for repudiation not mentioned in repudiation letter in the ends of justice and on the principle of natural justice. See 2018(2) CPR 537 NC National Insurance Company Ltd. Versus Pankaj Kapoor.
12. Submission of learned Advocate appearing on behalf of insurance company that vehicle was driven for commercial purpose and insurance company is not liable is also decided accordingly. Complainant has specifically mentioned in the complaint that vehicle was used for earning his livelihood by means of self employment. Insurance Company did not adduce any positive, cogent and reliable evidence that excavator machine was not used by complainant for earning his livelihood by means of self employment. Hence plea of insurance company that vehicle was not used by complainant for earning his livelihood by means of self employment is defeated on the concept of ipse dixit (An assertion made without proof).
13. Submission of learned Advocate appearing on behalf of insurance company that insurance company is not 9 National Insurance Company Ltd. Versus Lok Raj Saini (F.A. No.248/2017) liable to pay lump-sum compensation to the tune of Rs.20000/-(Twenty thousand) for harassment is decided accordingly. State Commission is of the opinion that insurance company did not pay amount to the complainant as assessed by surveyor cum loss assessor and mental agony and harassment was caused to complainant. State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to reduce the compensation amount granted by learned District Forum relating to mental agony and harassment.
14. Submission of learned Advocate appearing on behalf of insurance company that insurance company is not liable to pay litigation costs to complainant to the tune of Rs.4000/-(Four thousand) is decided accordingly. State Commission is of the opinion that complainant approached learned District Forum and complainant has also engaged advocate and also paid litigation costs charges. Hence State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of justice to interfere in the costs order passed by learned District Forum.
15. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for amount of bills submitted to insurance company issued by Integrated Constructive Solutions, Integrated constructive Solutions, Verma Auto Works, M/s. Yog Raj Painter and Som 10 National Insurance Company Ltd. Versus Lok Raj Saini (F.A. No.248/2017) Auto Traders to the tune of Rs.1645278.74/-(Sixteen lac forty five thousand two hundred seventy eight rupees & seventy four paise) is decided accordingly. State Commission is of the opinion that bills submitted by complainant are not per-se admissible under Consumer Protection Act 1986. Complainant did not file affidavits of authorised persons of Integrated Constructive Solutions, Integrated constructive Solutions, Verma Auto Works, M/s. Yog Raj Painter and Som Auto Traders in order to prove contents of controversial bills. Even complainant did not file any counter surveyor report and even complainant did not file any interrogatory to surveyor cum loss assessor namely Jasvinder S. Josan. State Commission is of the opinion that loss assessed by surveyor cum loss assessor appointed by insurance company is binding upon complainant because loss submitted by surveyor cum loss assessor namely Jasvinder S. Josan is trustworthy, reliable and inspire confidence of State Commission. In view of above stated facts point No.1 is decided accordingly.
Point No.2: Final Order
16. In view of findings upon point No.1 above appeal is partly allowed. It is ordered that insurance company shall pay an amount to the tune of Rs.808848.25/-(Eight lac eight thousand eight hundred forty eight rupees & twenty five paise) as assessed by surveyor cum loss assessor namely 11 National Insurance Company Ltd. Versus Lok Raj Saini (F.A. No.248/2017) Jasvinder S. Josan alongwith interest @9% per annum from institution of complaint till realization. Order of learned District Forum that opposite party would pay compensation amount to complainant to the tune of Rs.20000/-(Twenty thousand) for mental agony and harassment is affirmed. Order of learned District Forum that opposite party would pay litigation costs to complainant to the tune of Rs.4000/-(Four thousand) is also affirmed. Report of Surveyor cum loss assessor annexure-RVI dated 16.04.2013 and insurance policy annexure-RII shall form part and parcel of order. Order of learned District Forum is modified accordingly. 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. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 14.08.2018 KD* 12