State Consumer Disputes Redressal Commission
Icici Lombard General Insurance ... vs Sh. Karam Chand. on 21 March, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 350/2016
Date of Presentation: 03.11.2016
Order Reserved on : 09.03.2018
Date of Order : 21.03.2018
......
ICICI Lombard General Insurance Company Limited near New
Suketi Bridge Main Bazar Mandi District Mandi H.P through its
Manager (Legal) ICICI Lombard General Insurance Company
Ltd. Plot No.149 4th Floor The Statesman Building Industrial
Area Phase-I Chandigarh-160002.
...... Appellant/Opposite Party
Versus
Karam Chand son of Shri Janglu Ram resident of Village
Bhadarnu Post Office and Tehsil Karsog 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 : Mr. H.S. Rangra Advocate vice
Mr. Jagdish Thakur Advocate.
For Respondent : None.
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 29.09.2016 passed by Learned District Forum in consumer 1 Whether reporters of the local papers may be allowed to see the order? Yes.
ICICI Lombard General Insurance Co. Ltd. Versus Karam Chand (F.A. No.350/2016) complaint No.65/2015 title Karam Chand Versus ICICI Lombard General Insurance Company Ltd. Brief facts of consumer complaint:
2. Karam Chand filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is registered owner of Bolero vehicle bearing registration No.HP-30-3473 which was insured with opposite party. It is pleaded that on 04.08.2014 at about 4.00 A.M vehicle met with accident at place near Devi curve under police station Theog District Shimla H.P. It is further pleaded that in the accident driver Surender Kumar @ Pankaj died at the spot. It is pleaded that accident took place when insurance policy was in operation. It is further pleaded that opposite party did not settle the claim and committed deficiency in service. Complainant sought relief for payment of Rs.537605/-(Five lac thirty seven thousand six hundred five) alongwith interest @ 18% per annum. In addition complainant sought relief of payment of Rs.1.00 lac for causing mental harassment. In addition complainant also sought relief of litigation costs to the tune of Rs.1.00 lac.
Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party pleaded therein that surveyor was appointed by opposite party who assessed the loss to the tune of Rs.479205.14/- 2
ICICI Lombard General Insurance Co. Ltd. Versus Karam Chand (F.A. No.350/2016) (Four lac seventy nine thousand two hundred five rupees & fourteen paise). It is pleaded that opposite party demanded load challan from complainant and complainant did not submit the requisite documents to insurance company. It is further pleaded that vehicle was overloaded at the time of accident. It is pleaded that complainant has violated the terms and conditions of insurance policy. It is pleaded that as per FIR vehicle was driven by Pankaj Kumar whereas in the claim submitted by complainant the name of driver has been mentioned as Surender Kumar. It is pleaded that Pankaj Kumar and Surender Kumar are two different persons. It is further pleaded that vehicle was used for commercial purpose. It is pleaded that vehicle was hypothecated with Punjab National Bank and PNB is necessary party. It is pleaded that opposite party did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. Learned District Forum ordered opposite party to pay a sum of Rs.479205.14/-(Four lac seventy nine thousand two hundred five rupees & fourteen paise) to complainant alongwith interest @ 9% per annum from date of filing of complaint till actual payment minus salvage. Learned District Forum in addition further ordered that opposite party would pay a sum 3 ICICI Lombard General Insurance Co. Ltd. Versus Karam Chand (F.A. No.350/2016) of Rs.5000/-(Five thousand) as damages. In addition learned District Forum further ordered that opposite party would pay costs of litigation to the tune of Rs.3000/-(Three thousand). Feeling aggrieved against order passed by Learned District Forum insurance company filed present appeal before State Commission.
5. We have heard learned advocate appearing on behalf of appellant 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 complainant is registered owner of vehicle No.HP-30-3473. There is recital in affidavit that vehicle was insured with the opposite party w.e.f. 05.08.2013 to 04.08.2014. There is recital in affidavit that insured value of the vehicle was Rs.537605/-(Five lac thirty seven thousand six hundred five). There is further recital in affidavit that driver of the vehicle died in the accident. There is further recital in affidavit that the name of driver of vehicle was 4 ICICI Lombard General Insurance Co. Ltd. Versus Karam Chand (F.A. No.350/2016) Surender Kumar @ Pankaj. There is recital in affidavit that accident occurred during the period when insurance policy was in operation. There is further recital in affidavit that complainant purchased the vehicle to earn his livelihood by means of self employment.
8. Opposite party filed affidavit of Meenu in evidence.
There is recital in affidavit that vehicle No.HP-30-3473 met with accident on 04.08.2014 at place Devi curve Theog District Shimla H.P and insurance policy was issued from Mumbai. There is further recital in affidavit that present complaint before learned District Forum is not maintainable. There is recital in affidavit that vehicle was used for commercial purpose. There is recital in affidavit that vehicle was driven by Pankaj Kumar who was paid driver. There is further recital in affidavit that vehicle was overloaded at the time of accident. There is recital in affidavit that complainant did not submit load receipt. There is further recital in affidavit that present complaint is bad for non-joinder of necessary party i.e. Punjab National Bank. There is recital in affidavit that surveyor was appointed by insurance company and surveyor assessed loss to the tune of Rs.479205.14/- (Four lac seventy nine thousand two hundred five rupees & fourteen paise).
5
ICICI Lombard General Insurance Co. Ltd. Versus Karam Chand (F.A. No.350/2016)
9. Submission of learned Advocate appearing on behalf of appellant that in the FIR name of driver has been mentioned as Pankaj Kumar and in the claim form the name of driver has been mentioned as Surender Kumar and on this ground appeal be allowed as Surender and Pankaj are two different persons is decided accordingly. State Commission is of the opinion that onus was upon insurance company to adduce evidence that Pankaj Kumar and Surender Kumar were two different persons. Complainant has specifically mentioned in the rejoinder that Pankaj and Surender are one and the same person. Even surveyor appointed by insurance company has specifically mentioned in his report that Netar Singh father of deceased Pankaj Kumar has given affidavit to the effect that Surender Kumar alias Pankaj Kumar is same person. Insurance company did not adduce any evidence on record in order to prove that Pankaj and Surender are two different persons. Plea of insurance company that Pankaj and Surender are two different persons is defeated on the concept of ipse dixit (An assertion made without proof).
10. Submission of learned Advocate appearing on behalf of insurance company that Punjab National Bank is necessary party is decided accordingly. State Commission has carefully perused the insurance policy placed on record and in the insurance policy name of insured has been 6 ICICI Lombard General Insurance Co. Ltd. Versus Karam Chand (F.A. No.350/2016) mentioned as Karam Chand S/o. Jandlu Ram. Insurance policy was not issued in the name of Punjab National Bank. There is no privity of contract between insurance company and Punjab National Bank. The privity of contract relating to insurance was executed between insurance company and complainant Karam Chand. Complainant did not seek any relief against Punjab National Bank in consumer complaint. It is held that Punjab National Bank has different cause of action against complainant if any. It is held that it is not expedient in the ends of justice and on the principle of natural justice to club the different cause of action in the present consumer complaint. It is held that PNB is not necessary party in the present complaint because in the insurance policy name of Punjab National Bank did not figure and complainant did not seek any relief against PNB in consumer complaint.
11. Submission of the learned Advocate appearing on behalf of insurance company that vehicle was used for commercial purpose and complainant also employed some independent driver and consumer forum has no jurisdiction to entertain the complaint and complainant did not fall within the definition of consumer and on this ground appeal be allowed is decided accordingly. Service has been defined under section 2(O) of Consumer Protection Act 1986. As per 7 ICICI Lombard General Insurance Co. Ltd. Versus Karam Chand (F.A. No.350/2016) section 2(O) of Consumer Protection Act 1986 services means service of any description relating to insurance company. It is held that present consumer complaint falls within the definition of section 2(O) of Consumer Protection Act 1986.
12. Submission of learned Advocate appearing on behalf of insurance company that vehicle was overloaded at the time of accident and on this ground appeal be allowed is decided accordingly. State Commission is of the opinion that onus was upon insurance company to prove that vehicle was overloaded at the time of accident. Insurance company did not adduce any positive, cogent and liable evidence on record in order to prove that vehicle was overloaded at the time of accident. Hence plea of insurance company is defeated on the concept of ipse dixit (An assertion made without proof). Complainant has specifically mentioned in the rejoinder that total weight of 81 apple boxes was 1035 KG and insurance company did not adduce any positive, cogent and reliable evidence in order to prove that load of apple boxes was exceeding 1100 KG. Insurance company has appointed surveyor cum loss assessor namely Mohinder K. Sharma and surveyor cum loss assessor has submitted report dated 12.12.2014. Surveyor has assessed loss to the tune of Rs.479205.14/-(Four lac seventy nine thousand two hundred five rupees & fourteen paise) after deducting salvage value. 8
ICICI Lombard General Insurance Co. Ltd. Versus Karam Chand (F.A. No.350/2016) State Commission is of the opinion that insurance company is under legal obligation to comply the report of surveyor appointed by insurance company. It is well settled law that report submitted by surveyor is substantial piece of evidence unless contrary is proved against the 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 2018(1) CPR 311 NC Oriental Insurance Company Ltd. Versus Jagdish Chand Gupta. In view of the above stated facts and case law cited supra State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to interfere in the order passed by learned District Forum. Point No.1 is decided accordingly.
Point No.2: Final Order
13. In view of findings upon point No.1 above appeal is dismissed. Order passed by learned District Forum in consumer complaint No.65/2015 dated 29.09.2016 title Karam Chand Versus ICICI Lombard General Insurance Company Ltd. is affirmed. Report submitted by surveyor cum loss assessor namely Mohinder K. Sharma dated 12.12.2014 would form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of 9 ICICI Lombard General Insurance Co. Ltd. Versus Karam Chand (F.A. No.350/2016) 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 21.03.2018.
KD* 10 ICICI Lombard General Insurance Co. Ltd. Versus Karam Chand (F.A. No.350/2016) H. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION SHIMLA Misc. Application No. : 680/2016 First Appeal No. : 350/2016 Date of Presentation of application : 03.11.2016 Date of Order in application : 21.03.2018 ICICI Lombard General Insurance Company Limited near New Suketi Bridge Main Bazar Mandi District Mandi H.P through its Manager (Legal) ICICI Lombard General Insurance Company Ltd. Plot No.149 4th Floor The Statesman Building Industrial Area Phase-I Chandigarh-160002.
...... Applicant/Appellant Versus Karam Chand son of Shri Janglu Ram resident of Village Bhadarnu Post Office and Tehsil Karsog District Mandi H.P. ......Non-applicant/Respondent Coram Hon'ble Justice P.S. Rana (R) President Hon'ble Mr. Vijay Pal Khachi Member Whether approved for reporting?2 Yes.
For Applicant : Mr. H.S. Rangra Advocate vice Mr. Jagdish Thakur Advocate.
For Non -applicant : None. JUSTICE P.S. RANA (R) PRESIDENT : O R D E R :-
1. Present application is filed for adducing additional evidence at appellate stage. It is pleaded that permission be granted to adduce additional evidence i.e. Driving licence report received under RTI Act from DTO Tuensang Nagaland annexure A-I and annexure A-2. It is pleaded that learned 2 Whether reporters of the local papers may be allowed to see the order? Yes. 11
ICICI Lombard General Insurance Co. Ltd. Versus Karam Chand (F.A. No.350/2016) Advocate who was conducting case before learned District Forum did not submit report received under RTI Act. Prayer for acceptance of application sought.
2. Non-applicant did not file any response.
3. We have heard learned Advocate for applicant and also perused the entire record carefully.
4. Following points arise for determination in present application.
1. Whether application filed by applicant for adducing additional evidence in appeal is liable to be accepted as mentioned in memorandum of grounds of application.
2. Final order.
Findings upon point No.1 with reasons:
5. Submission of learned Advocate appearing on behalf of applicant that permission to adduce additional evidence as prayed be allowed is decided accordingly. State Commission is of the opinion that at the appellate state appellant is under legal obligation to fulfill following conditions to adduce addition evidence. (i) That learned District Forum has refused to admit the document in evidence which ought to have been admitted (ii) That parties seeking to produce additional evidence in appellate stage established that notwithstanding after exercise of due diligence such evidence was not within the knowledge of party or could not after exercise of due diligence be produced at the time when 12 ICICI Lombard General Insurance Co. Ltd. Versus Karam Chand (F.A. No.350/2016) final order was passed by learned District Forum (iii) That appellate authority require the document to pronounce order or for any other substantial cause.
6. We are of the opinion that applicant did not fulfill the above stated mandatory conditions and appeal could be disposed of properly and effectively without allowing the application. In the present case opposite party appointed surveyor namely Mohinder K. Sharma and surveyor has submitted driver particulars in his report placed on record.
Surveyor specifically mentioned in his report that driving licence No.43411/TV/T/2010 was valid w.e.f. 21.07.2010 to 20.12.2016 and surveyor has specifically mentioned in his report that driving licence was verified by the surveyor. State Commission is of the opinion that now insurance company could not be allowed to adduce additional evidence contrary to report submitted by his own surveyor cum loss assessor.
7. State Commission is of the opinion that applicant has specifically mentioned in the application that Advocate appointed by applicant did not submit driving licence verification report received under RTI Act before learned District Forum. In the present application applicant did not implead advocate as co-non-applicant. It is well settled law that no one should be condemned unheard in quasi judicial proceedings. It is well settled law that proceedings under Consumer Protection Act 1986 are quasi judicial proceedings. 13
ICICI Lombard General Insurance Co. Ltd. Versus Karam Chand (F.A. No.350/2016) It is well settled law that additional evidence could not be permitted to fill in lacuna or to patch up weak points in the consumer complaint at appellate stage. See 2017(4) SCC 760 Satish Kumar Gupta and others Versus State of Haryana and others.
8. Even applicant did not fulfill the condition for adducing additional evidence cited supra. It is held that it is not expedient in the ends of justice and on the principle of natural justice to allow the application at appellate stage. Point No.1 is decided accordingly.
Point No.2: Final Order
9. In view of findings upon point No.1 above application for adducing additional evidence in appellate stage is dismissed. Observations will not effect the merits of appeal in any manner. It be tagged with the main appeal after due completion. M.A. No.680/2016 is disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 21.03.2018 K.D * 14