State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd. & Ors. vs Smt. Kiran. & Ors. on 26 February, 2020
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 87/2018
Date of Presentation: 03.01.2018
Order Reserved on : 09.08.2019
Date of Order : 26.02.2020
......
1. The New India Assurance Company Ltd. 3rd Floor Block
No.7 SDA Complex Shimla (H.P) 171009 through its
Divisional Manager.
2. The New India Assurance Company Ltd. Head Office New
India Assurance Building 87 M.G. Road Fort Mumbai-
400001.
3. The New India Assurance Company Ltd. 1512 12th Floor
Naurang House 21 Kasturba Gandhi Marg New Delhi-
110070.
...... Appellants/Opposite Parties
Versus
1. Smt. Kiran wife of late Sh. Tulsi Ram.
2. Amit son of late Sh. Tulsi Ram.
3. Ankita (Minor) D/o late Sh. Tulsi Ram through natural
guardian Smt. Kiran Co-respondent No.1.
4. Bumik (Minor) S/o late Sh. Tulsi Ram through natural
guardian Smt. Kiran Co-respondent No.1.
5. Smt. Sumitra wife of late Sh. Deep Ram.
All residents of Village Dakana Tehsil Theog District Shimla
(H.P).
......Respondents/Complainants
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellants : Mr. Jagdish Thakur Advocate.
For Respondents : Ms. Kiran Kanwar vice Mr. G.S.
Rathour Advocate.
1
Whether reporters of the local papers may be allowed to see the order? Yes.
New India Assurance Company Ltd. & Ors. Versus Kiran & Ors.
F.A. No.87/2018
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 15.11.2017 passed by Learned District Consumer Forum/ Commission in consumer complaint No.236/2016 titled Kiran & Ors. Versus The New India Assurance Company Ltd. & Ors. Brief facts of consumer complaint:
2. Complainants filed consumer complaint under Consumer Protection Act pleaded therein that Maruti Car No.HP-09C-2731 was owned by deceased insured. It is pleaded that vehicle in question met with accident on 25.01.2015 near Kashdhar Theog District Shimla (H.P). It is pleaded that on account of accident vehicle in question was damaged completely. It is further pleaded that FIR was lodged in police station Theog. It is pleaded that Insurance claim was submitted before Insurance company but Insurance company did not settle the Insurance claim and repudiated claim in an illegal manner and committed deficiency in service.
3. Complainants sought relief to the effect that Insurance company be directed to pay an amount of Rs.241633/-(Two lac forty one thousand six hundred thirty three) alongwith interest @ 18% per annum w.e.f. 17.03.2015 2 New India Assurance Company Ltd. & Ors. Versus Kiran & Ors. F.A. No.87/2018
till actual payment. In addition complainants sought relief of damage to the tune of Rs.100000/-(One lac) for deficiency in service and unfair trade practice. In addition complainants sought litigation costs to the tune of Rs.55000/-(Fifty five thousand). Prayer for acceptance of consumer complaint sought.
4. Per contra version filed on behalf of opposite parties pleaded therein that vehicle in question was driven by deceased insured Shri Tulsi Ram in intoxicating condition at the time of accident. It is pleaded that ethyl alcohol to the extent of 101.14mg% was found in the blood of deceased Sh. Tulsi Ram who was driving vehicle in question at the time of accident. It is pleaded that deceased insured has violated fundamental terms and conditions of Insurance policy and Insurance company has legally repudiated Insurance claim. It is further pleaded that Insurance company appointed Surveyor cum Loss Assessor and Surveyor cum Loss Assessor has recommended payment of Rs.170033/-(One lac seventy thousand thirty three) on net of salvage basis. It is pleaded that as per report submitted by FSL Junga Shimla deceased insured was driving vehicle in question in intoxicating condition at the time of accident. It is pleaded that vehicle in question was hypothecated with State Bank of India and 3 New India Assurance Company Ltd. & Ors. Versus Kiran & Ors. F.A. No.87/2018 financier State Bank of India is the necessary party. Prayer for dismissal of consumer complaint sought.
5. Learned District Consumer Forum/Commission ordered Insurance company to pay a sum of Rs.231068/-(Two lac thirty one thousand sixty eight) alongwith interest @ 9% per annum from the date of filing complaint till payment within forty five days from date of order. In addition learned DCF/DCC ordered Insurance company to pay punitive compensation to the tune of Rs.10000/-(Ten thousand) on account of mental agony and harassment. In addition learned DCF/DCC ordered Insurance company to pay litigation costs to complainants to the tune of Rs.5000/-(Five thousand).
6. Feeling aggrieved against order passed by Learned District Consumer Forum/Commission opposite parties filed present appeal before State Commission.
7. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
8. Following points arise for determination in present appeal.
1. Whether appeal filed by appellants is liable to be accepted as mentioned in memorandum of grounds of appeal?
4 New India Assurance Company Ltd. & Ors. Versus Kiran & Ors. F.A. No.87/2018
2. Final order.
Findings upon point No.1 with reasons:
9. Complainant No.1 filed affidavit in evidence.
There is recital in affidavit that deponent is wife of deceased insured and complainants No.2 to 4 are children of deceased insured and complainant No.5 is mother of deceased insured. There is recital in affidavit that deceased insured Sh. Tulsi Ram was owner of vehicle in question. There is recital in affidavit that insured obtained loan from bank at a higher rate of interest. There is recital in affidavit that vehicle in question was insured with opposite parties and IDV of vehicle was Rs.241633/-(Two lac forty one thousand six hundred thirty three). There is recital in affidavit that Insurance premium was also duly paid by deceased insured. There is recital in affidavit that on dated 25.01.2015 vehicle in question met with accident near Kashdhar Tehsil Theog District Shimla (H.P). There is recital in affidavit that on account of accident vehicle in question was damaged in extensive manner. There is recital in affidavit that FIR was lodged in police station and Insurance claim was also submitted before opposite parties. There is recital in affidavit that opposite parties repudiated the claim in illegal manner and committed deficiency in service and also committed unfair trade practice. 5
New India Assurance Company Ltd. & Ors. Versus Kiran & Ors. F.A. No.87/2018
10. Complainants also filed affidavit of Sh. M.S. Negi in evidence. There is recital in affidavit that deponent is working as Work Manager in Joshi Motors Maruti Authorised Service Station Rahighat. There is recital in affidavit that deponent visited spot on 08.04.2015 when vehicle in question met with accident and conduct survey of above mentioned car. There is further recital in affidavit that deponent has submitted estimate annexure-A4 after inspection of ill-fated vehicle.
11. Opposite parties filed affidavit of Dr. Harjeet Singh Sr. Divisional Manager New India Assurance Company Ltd. in evidence. There is recital in affidavit that version filed by opposite parties alongwith annexures-OP1 to OP7 be read in evidence on behalf of opposite parties. There is recital in affidavit that after receipt of Insurance claim matter was processed and Insurance claim was repudiated by competent authority.
12. Opposite parties also filed affidavit of Sh. Dinesh Kumar in evidence. There is recital in affidavit that deponent is authorised Surveyor cum Loss Assessor. There is recital in affidavit that deponent conducted final survey of vehicle in question on dated 18.04.2015 at Kashdhar District Shimla (H.P) and submitted report annexure-OP4. There is further recital in affidavit that deponent has recommended a sum of 6 New India Assurance Company Ltd. & Ors. Versus Kiran & Ors. F.A. No.87/2018 Rs.170033/-(One lac seventy thousand thirty three) on net of salvage basis.
13. Opposite parties also filed affidavit of Sh. Kamal Narain Retd. HPS Officer in evidence. There is recital in affidavit that deponent is retired HPS Officer and was appointed as investigator by opposite parties. There is recital in affidavit that deponent investigated the matter and obtained FSL report and thereafter submitted his report annexure-OP5 and also submitted FSL report Annexure-OP6.
14. Opposite parties also filed affidavit of Sh. Prashant Kumar in evidence. There is recital in affidavit that deponent is authorized Surveyor cum Loss Assessor. There is recital in affidavit that deponent has conducted spot survey of vehicle in question at Kashdhar and thereafter submitted his report dated 31.01.2016 annexure-OP3. There is recital in affidavit that report annexure-OP3 is true and correct as per original and same be read in evidence. State Commission has carefully perused all annexures filed by opposite parties.
15. Submission of learned Advocate appearing on behalf of Insurance company that driver of vehicle in question namely Shri Tulsi Ram was under the influence of liquor and quantity of alcohol in blood of driver was found to the extent of 101.14mg% which was in violation of terms and conditions of Insurance policy and in violation of section 185 of Motor 7 New India Assurance Company Ltd. & Ors. Versus Kiran & Ors. F.A. No.87/2018 Vehicles Act and on this ground appeal filed by Insurance company be allowed is decided accordingly. Insurance company relied upon photostat report of SFSL Junga Annexure-OP6 placed on record signed by Sh. Rajesh Kumar Scientific Officer and Dr. V.S. Jamwal Assistant Director. State Commission has carefully perused photostat report submitted by FSL Junga. There is recital in photostat report that report is admissible under section 293 of Code of Criminal Procedure 1973. As per section 293 of Code of Criminal Procedure 1973 report of scientific expert is per se admissible in any inquiry, trial or other proceedings under Code of Criminal Procedure 1973. It is well settled law that proceedings of original consumer complaint under Consumer Protection Act are not criminal proceedings in nature but are civil proceedings in nature. State Commission is of the opinion that section 293 of Code of Criminal Procedure 1973 relates to certified copy of public document and does not relates to photostat copy of public document. It is well settled law that photostat copy is not primary evidence of document but is only secondary evidence of document.
16. In view of fact that proceedings of original consumer complaint under Consumer Protection Act are civil proceedings in nature State Commission is of the opinion that photostat report of scientific expert is not per se admissible in 8 New India Assurance Company Ltd. & Ors. Versus Kiran & Ors. F.A. No.87/2018 civil proceedings. Insurance company did not file affidavit of Sh. Rajesh Kumar Scientific Officer and Dr. V.S. Jamwal Assistant Director in order to prove controversial facts mentioned in photostat FSL report. Even Insurance company did not send any interrogatories to Sh. Rajesh Kumar Scientific Officer and Dr. V.S. Jamwal Assistant Director. Hence adverse inference is drawn against Insurance company by State Commission. It is well settled law that party could not be allowed to take benefits of its own laxity & non action in quasi judicial proceedings under Consumer Protection Act. Admittedly proceedings under Consumer Protection Act are quasi judicial proceedings.
17. Plea of Insurance company that Alcohol to the extent of 101.14mg% was found in the blood of insured driver time of accident as per photostat FSL report Annexure-OP6 is defeated on the concept of ipse dixit (An assertion made without proof). It is well settled law that photostat copy of FSL report is not per se admissible in the absence of certified copy of public document FSL report with certificate written at the foot of certified copy of pubic document that certified copy of public document is true copy of original public document with name and official title and seal of public official who is custodian of original public document as per section 76 of Indian Evidence Act 1872. Word true copy has been written 9 New India Assurance Company Ltd. & Ors. Versus Kiran & Ors. F.A. No.87/2018 by learned Advocate in photostat copy of FSL report placed on record. Learned Advocate is not custodian of original SFSL report and is not legally competent to give certificate under section 76 of Indian Evidence Act 1872 relating to SFSL report. As per section 77 of Indian Evidence Act 1872 only certified copy of public document could be produced in proof of contents of public document. There is no recital in section 77 of Indian Evidence Act 1872 that photostat copy could be produced in proof of contents of public document. Insurance company did not seek permission to prove SFSL report by way of secondary evidence. Plea of Insurance company that insured driver was intoxicated at the time of accident is defeated on the concept of ipse dixit (An assertion made without proof).
18. It is well settled law that contents of controversial document in civil proceedings should be proved by way of affidavit of a person who has signed controversial document. See 2018(3) CLT 432 H.P. High Court titled Bharat Bhushan Vaid Versus National Insurance Company Ltd. See 2019(1) Himachal Law Reporter 294 H.P. High Court titled Shaminder Kumar Chaudhary Versus Sukhdev Chand and others. As per section 13(4)(ii) of Consumer Protection Act 1986 and as per section 38(9) of Consumer Protection Act 2019 learned DCF/DCC shall have same power as are vested in civil court 10 New India Assurance Company Ltd. & Ors. Versus Kiran & Ors. F.A. No.87/2018 under Code of Civil Procedure 1908 for production of any document or other material object as evidence. It is well settled law that proceedings under Consumer Protection Act are quasi judicial proceedings.
19. Submission of learned Advocate appearing on behalf of Insurance company that Surveyor cum Loss Assessor has recommended loss on total loss basis on net of salvage basis to the tune of Rs.170033/-(One lac seventy thousand thirty three) and learned DCF/DCC has ordered Insurance company to pay Rs.231068/-(Two lac thirty one thousand sixty eight) contrary to report submitted by Surveyor cum Loss Assessor and on this ground appeal filed by Insurance company be allowed is decided accordingly. State Commission has carefully perused Insurance policy issued by Insurance company. IDV of vehicle in question has been mentioned as Rs.241633/-(Two lac forty one thousand six hundred thirty three) and repair costs assessed by Sh. Dinesh Kumar is Rs.231068/-(Two lac thirty one thousand sixty eight). State Commission is of the opinion that when repair costs exceeds 75% of IDV of vehicle then claim of vehicle should be assessed on the concept of total loss basis. Admittedly in present matter costs of repair exceeds 75% of IDV of vehicle in question. State Commission is of the opinion that complainants are entitled for damage amount on 11 New India Assurance Company Ltd. & Ors. Versus Kiran & Ors. F.A. No.87/2018 the concept of total loss basis because repair charges exceed 75% of IDV value of vehicle in question.
20. Submission of learned Advocate appearing on behalf of Insurance company that on the concept of total loss basis Insurance company is under legally entitled for salvage of vehicle in question is decided accordingly. It is well settled law that in total loss cases Insurance company is legally entitled for salvage of vehicle in question. See 2005(1) CPJ 93 NC titled Shankar Lal and Anr. Versus Branch Manager United India Insurance Company Ltd. and Ors.
21. Submission of learned Advocate appearing on behalf of Insurance company that as per FIR filed under section 154 Cr.P.C at the time of accident vehicle in question was driven by Sh. Tulsi Ram son of Sh. Deep Ram insured and on this ground appeal filed by Insurance company be allowed is decided accordingly. Complainants did not plead in original consumer complaint that vehicle in question at the time of accident was driven by some other person. Complainants themselves filed driving licence of deceased insured. It is well settled law that facts admitted need not to be proved. Shri Tulsi Ram was holding valid LMV driving licence w.e.f. 16.05.2014 to 03.05.2020 and class of vehicle in question was also LMV (Car) as per report of Surveyor cum 12 New India Assurance Company Ltd. & Ors. Versus Kiran & Ors. F.A. No.87/2018 Loss Assessor Sh. Dinesh Kumar Annexure-OP4 dated 11.05.2015 placed on record.
22. Submission of learned Advocate appearing on behalf of Insurance company that financier i.e. State Bank of India is necessary party in the present matter and on this ground appeal filed by Insurance company be allowed is decided accordingly. State Commission has carefully perused relief clause. Complainants did not seek any relief against financier i.e. State Bank of India. In view of fact that complainants did not seek any relief against financier State Commission is of the opinion that financier is not necessary party in order to dispose of present matter properly and effectively and to impart substantial justice inter se parties.
23. Submission of learned Advocate appearing on behalf of Insurance company that learned DCF/DCC has granted excessive punitive compensation on account of mental agony and harassment to the tune of Rs.10000/-(Ten thousand) and on this ground appeal filed by Insurance company be allowed is decided accordingly. State Commission is of the opinion that learned DCF/DCC has granted equitable punitive compensation and it is not expedient in the ends of justice and on the principles of natural justice to interfere in punitive compensation order passed by learned DCF/DCC.
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New India Assurance Company Ltd. & Ors. Versus Kiran & Ors. F.A. No.87/2018
24. Submission of learned Advocate appearing on behalf of Insurance company that learned DCF/DCC has granted excessive litigation costs to complainants to the tune of Rs.5000/-(Five thousand) and on this ground appeal filed by Insurance company be allowed is decided accordingly. State Commission is of the opinion that complainants have engaged Advocate and have also paid litigation costs & other expenses and Learned District Consumer Forum/Commission has granted equitable litigation costs to complainants.
25. Submission of learned Advocate appearing on behalf of Insurance company that vehicle was financed by State Bank of India and complainants are not directly entitled for damage amount of vehicle unless NOC is issued by financier is decided accordingly. It is well settled law that financier is owner of vehicle till loan amount is not liquidated by loanee. It is well settled law that loanee is simply trustee of vehicle till loan amount is not liquidated. See 2012(II) CPJ 8 (SC) titled Suryapal Singh Versus Siddha Vinayak Motors & Anr. See AIR 1979 SC 850 titled Trilok Singh and others Versus Satya Deo Tripathi. See 1996(7) Supreme Court Cases 212 titled K.A. Mathai alias Babu & Anr. Versus Kora Bibbikutty & Anr.
26. Submission of learned Advocate appearing on behalf of Insurance company that learned DCF/DCC has 14 New India Assurance Company Ltd. & Ors. Versus Kiran & Ors. F.A. No.87/2018 granted excessive interest @ 9% per annum and on this ground appeal filed by Insurance company be allowed is decided accordingly. State Commission is of the opinion that grant of interest rate is discretion of learned DCF/DCC and State Commission is of the opinion that learned DCF/DCC has granted equitable rate of interest and it is not expedient in the ends of justice and on the principles of natural justice to interfere in interest rate ordered by learned DCF/DCC.
27. Facts of case laws cited by learned Advocate appearing on behalf of Insurance company i.e. (1) R.P. No.3117/2018 dated 04.04.2019 NC titled New India Assurance Company Ltd. Versus Suksham Chauhan (2) 2014(4) ACJ 2421 SC titled Narinder Singh Versus New India Assurance Company Ltd. (3) 2009(2) ACJ 925 SC titled National Insurance Company Ltd. Versus Rattani & others (4) 2009(5) SCC 136 titled Bhuwan Singh Versus Oriental Insurance Company Ltd. (5) 2016(3) CPJ 678 NC titled Maya Pandey Versus Oriental Insurance Company Ltd. (6) 2016(4) CPJ 267 NC titled Lakshmi Rohit Ahuja Versus SBI Life Insurance Co. Ltd. and facts of present case are entirely different. It is held that ruling cited supra are distinguishable in present matter due to distinguishable facts.
28. Submission of learned Advocate appearing on behalf of complainants that order of learned DCF/DCC is in 15 New India Assurance Company Ltd. & Ors. Versus Kiran & Ors. F.A. No.87/2018 accordance with laws and proved facts and does not warrant any interference by State Commission is decided accordingly. State Commission is of the opinion that order of learned DCF/DCC partly warrants interference by State Commission because on the concept of total loss basis Insurance company is legally entitled for salvage of vehicle in question. In view of above stated facts point No.1 is decided accordingly. Point No.2: Final Order
29. In view of findings upon point No.1 above appeal filed by Insurance company is partly allowed. It is ordered that Insurance company shall pay IDV value of vehicle in question to complainants to the tune of Rs.241633/-(Two lac forty one thousand six hundred thirty three) alongwith interest @ 9% per annum from the date of institution of complaint till actual payment subject to production of NOC from financier i.e. State Bank of India. If complainants will not produce NOC from financier in that eventuality IDV of vehicle in question to the tune of Rs.241633/-(Two lac forty one thousand six hundred thirty three) will be directly transmitted to financier i.e. State Bank of India in loan account of deceased insured for liquidation of loan amount.
30. Complainants will return salvage of vehicle to Insurance company and complainants will also execute 16 New India Assurance Company Ltd. & Ors. Versus Kiran & Ors. F.A. No.87/2018 subrogation deed in favour of Insurance company and complainants shall transfer R.C of vehicle in question in the name of Insurance company. Insurance claim of vehicle in question to the tune of Rs.241633/-(Two lac forty one thousand six hundred thirty three) will be divided equally among all complainants. Shares of minors namely Ankita and Bumik shall be deposited in nationalized bank in fixed deposit till minors attained age of majority if NOC is produced by complainant from financier.
31. Order of learned DCF/DCC that Insurance company would pay sum of Rs.10000/-(Ten thousand) as punitive compensation for harassment and mental agony is affirmed. Order of learned DCF/DCC that Insurance company would pay litigation costs to complainants to the tune of Rs.5000/-(Five thousand) is also affirmed. Insurance company and complainants shall comply their parts within one month after receipt of certified copy of order. Report submitted by Surveyor cum Loss Assessor Shri Dinesh Kumar dated 11.05.2015 annexure-OP4 shall form part and parcel of order.
32. Parties are left to bear their own litigation costs before State Commission. File of learned DCF/DCC alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due 17 New India Assurance Company Ltd. & Ors. Versus Kiran & Ors. F.A. No.87/2018 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 Sunita Sharma Member 26.02.2020 K.D 18