State Consumer Disputes Redressal Commission
Sh. Bakshi Ram. vs Div. Senior Manager, National ... on 29 April, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 263/2018
Date of Presentation: 27.12.2017
Order Reserved on : 19.12.2018
Date of Order : 29.04.2019
......
Bakshi Ram Son of Shri Chuni Lal Resident of Village and Post
Office Tikkri Minhassan Tehsil Bhoranj District Hamirpur H.P.
...... Appellant/Complainant
Versus
Divisional Senior Manager National Insurance Co. Ltd. Division
Office Baijnath Road Palampur District Kangra H.P.
......Respondent/Opposite party
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. Naveen Awasthi Advocate
For Respondent : Mr. Bhupinder Pathania 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 12.10.2017 passed by Learned District Forum in consumer complaint No.121/2013 titled Bakshi Ram Versus Divisional Senior Manager National Insurance Company Limited. 1 Whether reporters of the local papers may be allowed to see the order? Yes. Bakshi Ram Versus Divisional Senior Manager National Insurance Co. Ltd. (F.A. No.263/2018) Brief facts of Matter:
2. Complainant filed consumer complaint under Section 12 of Consumer Protection Act 1986 pleaded therein that complainant is owner in possession of vehicle bearing registration No. HP-01H-0610. It is pleaded that vehicle of complainant was insured with opposite party at the time of accident of vehicle in question for a sum of Rs.150723/- (One lac fifty thousand seven hundred twenty three). It is further pleaded that on dated 07.05.2011 at about 11:00 PM vehicle met with accident near Badhar Mor District Hamirpur H.P. It is further pleaded that vehicle was damaged more than 75% of IDV of vehicle in question. It is further pleaded that complainant was legally entitled for entire IDV of vehicle in question but Insurance company did not pay the entire IDV of vehicle in question on total loss basis concept and committed deficiency in service. It is further pleaded that opposite party paid amount to the tune of Rs.89500/- (Eighty nine thousand five hundred) only and did not pay the remaining amount of Rs.50500/- (Fifty thousand five hundred) and committed deficiency in service. Complainant sought relief of payment of Rs.50500/- (Fifty thousand five hundred) alongwith interest @10% per annum. In addition complainant sought relief of payment of Rs.20000/- (Twenty thousand) on account of mental agony and harassment. In addition complainant sought relief of payment of Rs.5000/- (Five thousand) as 2 Bakshi Ram Versus Divisional Senior Manager National Insurance Co. Ltd. (F.A. No.263/2018) litigation costs. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party before Learned District Forum pleaded therein that Surveyor-
cum-loss assessor namely Deepak Sood was appointed by the Insurance Company to assess the loss. It is further pleaded that Shri Deepak Sood Surveyor-cum-loss assessor has submitted report and after deduction of salvage value of vehicle amount to the tune of Rs.89500/- (Eighty nine thousand five hundred) was recommended as full and final settlement. It is further pleaded that complainant has received amount of Rs.89500/-(Eighty nine thousand five hundred) as full and final settlement and complainant has no locus-standi to file the present consumer complaint. It is further pleaded that complainant has no cause of action to file the consumer complaint. Prayer for dismissal of consumer complaint sought.
4. Learned District Forum dismissed the consumer complaint filed by complainant.
5. Feeling aggrieved against order passed by learned District Forum complainant filed present appeal before State Commission.
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Bakshi Ram Versus Divisional Senior Manager National Insurance Co. Ltd. (F.A. No.263/2018)
6. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
7. Following points arise for determination in present appeal.
1. Whether appeal filed by complainant is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
Findings upon point No.1 with reasons:
8. Learned Advocate appearing on behalf of complainant has given statement before learned District Forum on dated 11.03.2015 that he tendered in evidence documents annexures C-1 to C-13 on behalf of complainant and closed the evidence.
9. Opposite party filed affidavit of S.K. Dhiman Branch Manager National Insurance Company Limited in evidence. There is recital in the affidavit that complainant is habitual litigant. There is further recital in affidavit that Surveyor-cum-loss assessor namely Deepak Sood was appointed to assess the loss. There is further recital in affidavit that Surveyor has assessed the loss to the tune of Rs.140000/- (One lac forty thousand) minus Rs.50000/- 4
Bakshi Ram Versus Divisional Senior Manager National Insurance Co. Ltd. (F.A. No.263/2018) (Fifty thousand) as salvage value minus Rs.500/- (Five hundred) as excess clause and recommended the liability to the tune of Rs.89500/- (Eighty nine thousand five hundred). There is further recital in affidavit that complainant has given consent to retain the salvage of vehicle and has given declaration on dated 30.04.2012 that he would retain the salvage. There is further recital in affidavit that after deducting the amount of salvage entire amount to the tune of Rs.89500/- (Eighty nine thousand five hundred) stood paid to the complainant as full and final settlement.
10. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled to the remaining amount to the tune of Rs.50500/- (Fifty thousand five hundred) alongwith interest @10% per annum till realization is decided accordingly. State Commission has carefully perused the declaration Annexure R-7 dated 30.04.2012 signed by complainant. Name of scriber has not been mentioned in the declaration and even no attesting witness has been mentioned in the declaration Annexure R-7 placed on record. It is well settled law that any declaration placed on record in quasi-judicial proceedings should be signed by scriber and should be attested by marginal eye- witnesses. State Commission is of the opinion that in the absence of name of scriber in declaration form Annexure R-7 5 Bakshi Ram Versus Divisional Senior Manager National Insurance Co. Ltd. (F.A. No.263/2018) and in the absence of name of any attesting witness in declaration form and in view of the fact that complainant has refuted the facts mentioned in the declaration form it is not expedient in the ends of justice and on the principles of natural justice to rely upon the defective declaration dated 30.04.2012 submitted by Insurance company.
11. State Commission has also perused the report of Surveyor-cum-loss assessor namely Deepak Sood registered under IRDA. Surveyor-cum-loss assessor has specifically mentioned three modes of settlement (1) On repair basis (2) On total loss basis (IDV) (3) On net of salvage basis. Surveyor- cum-loss assessor has specifically mentioned in his report that damage caused to the vehicle was exceeding 75% of IDV of vehicle in question. Hence matter of complainant falls within the total loss concept. See 2019 (1) CPR 855 NC titled General Manager HDFC Ergo General Insurance Company Ltd. & Anr. Versus Venkata Ramesh Dabbara & Ors.
12. State Commission is of the opinion that affidavit filed by Shri S.K. Dhiman is not helpful to the Insurance Company because alleged declaration dated 30.04.2012 has not been signed by Shri S.K. Dhiman. Shri S.K. Dhiman has filed affidavit on the basis of derived knowledge only. There is no reference in the declaration Annexure R-7 that Branch Manager S.K. Dhiman is scriber or attesting witness of 6 Bakshi Ram Versus Divisional Senior Manager National Insurance Co. Ltd. (F.A. No.263/2018) declaration. In view of above stated facts it is held that Shri S.K. Dhiman has filed affidavit on the basis of derived knowledge only and it is not expedient in the ends of justice and on the principles of natural justice to rely upon the affidavit filed on the basis of derived knowledge. State Commission is of the opinion that Insurance company is under legal obligation to pay the remaining IDV of vehicle in question to the complainant.
13. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for compensation to the tune of Rs.20000/- (Twenty thousand) on account of mental agony and harassment is decided accordingly. It is held that Insurance company did not settle the claim of complainant on total loss concept despite the fact that vehicle in question had sustained damage more than 75% of IDV of vehicle in question. Hence it is held that complainant is entitled for reasonable compensation from the Insurance company.
14. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for ligation costs to the tune of Rs.5000/- (Five thousand) is decided accordingly. State Commission is of the opinion that complainant has engaged Advocate before learned District Forum and has also paid Advocate fees and also incurred 7 Bakshi Ram Versus Divisional Senior Manager National Insurance Co. Ltd. (F.A. No.263/2018) litigation expenses. Hence it is held that complainant is legally entitled for reasonable ligation costs.
15. Submission of learned Advocate appearing on behalf of Insurance company that complainant has himself given consent vide declaration dated 30.04.2012 that he would retain the salvage and after deducting the salvage value remaining amount stood paid to the complainant and on this ground appeal filed by complainant be dismissed is decided accordingly. State Commission is of the opinion that Insurance company did not examine scriber of declaration dated 30.04.2012 and declaration document dated 30.04.2012 is not attested by any marginal eye-witness and complainant has refuted all the contents of declaration dated 30.04.2012. Insurance company did not prove contents of declaration document dated 30.04.2012 from any independent corroborative eye-witness. Even Insurance company did not send any interrogatories to the complainant as required under Consumer Protection Act 1986 relating to declaration dated 30.04.2012. In view of above stated facts it is held that it is not expedient in the ends of justice and on the principles of natural justice to deny relief to the complainant. However Insurance company is legally entitled for subrogation deed relating to salvage of vehicle in question. 8
Bakshi Ram Versus Divisional Senior Manager National Insurance Co. Ltd. (F.A. No.263/2018)
16. Submission of learned Advocate appearing on behalf of Insurance company that complainant has no locus-standi and cause of action to file the present consumer complaint and on this ground appeal filed by complainant be dismissed is decided accordingly. It is proved on record as per report of Surveyor-cum-loss assessor that vehicle has sustained damage more than 75% of IDV of vehicle in question. It is well settled law that when damage exceeds 75% of the IDV of vehicle in question then same falls within the concept of total loss basis. Insurance company has not paid entire IDV of vehicle in question and committed deficiency in service. Point No.1 is decided accordingly.
Point No.2: Final Order
17. In view of findings upon point No.1 above appeal is partly allowed and order of learned District Forum is set aside. It is ordered that Insurance company shall pay remaining amount to the tune of Rs.50500/- (Fifty thousand five hundred) alongwith interest @9% per annum from the date of complaint till actual payment to the complainant within one month after receipt of certified copy of order. It is further ordered that Insurance company shall pay compensation to the tune of Rs.10000/- (Ten 9 Bakshi Ram Versus Divisional Senior Manager National Insurance Co. Ltd. (F.A. No.263/2018) thousand) to the complainant for mental agony and harassment. It is further ordered that Insurance company shall pay litigation costs to the tune of Rs.5000/- (Five thousand) to the complainant.
18. It is further ordered that complainant shall execute subrogation deed in favour of Insurance company qua vehicle in question within one month after receipt of certified copy of order. It is further ordered that complainant shall also hand over all the documents of vehicle in question to the Insurance company and shall also return the salvage of vehicle to the Insurance company within one month after receipt of certified copy of order. It is further ordered that complainant shall file transfer application of R.C. of vehicle in question before licence authority within one month in favour of Insurance company after receipt of certified copy of order. Insurance policy Annexure R-12 and Report of Surveyor-cum-loss assessor namely Shri Deepak Sood Annexure R-4 dated 31.03.2012 shall form part and parcel of order.
19. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Certified copy of order be sent to Learned District Forum for information forthwith and file of State Commission be consigned to record 10 Bakshi Ram Versus Divisional Senior Manager National Insurance Co. Ltd. (F.A. No.263/2018) room after due completion forthwith. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 29.04.2019.
*GUPTA* 11