State Consumer Disputes Redressal Commission
Shriram General Insurance Co. Ltd. vs Sh. Mohan Lal. on 6 December, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 87/2017
Date of Presentation: 19.04.2017
Order Reserved on : 04.08.2017
Date of Order : 06.12.2017
......
Shriram General Insurance Company Limited SCO-178 Floor 1st
Sector 38-C Chandigarh Punjab-160017 through its Branch
Manager Branch Office Near P.G. College Bilaspur Roura
Sector-III NH-21 Bilaspur District Bilaspur H.P.
...... Appellant/Opposite Party
Versus
Mohan Lal son of Shri Relu Ram R/o. Village Sihanana P.O.
Makrog Chopal District Shimla H.P.
......Respondent /Complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Meena Verma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Jagdish Thakur Advocate.
For Respondent : Mr. Raman Sethi 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 06.03.2017 passed by Learned District Forum in consumer complaint No.106/2013 title Mohan Lal Versus Shriram General Insurance Company Ltd.
1 Whether reporters of the local papers may be allowed to see the order? Yes. Shriram General Insurance Company Ltd. Versus Mohan Lal (F.A. No.87/2017) Brief facts of consumer complaint:
2. Mohan Lal complainant filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is registered owner of vehicle No.HP08A-1017. It is pleaded that vehicle was insured with opposite party. It is further pleaded that vehicle met with accident on 27.06.2012 near Deha Police Station Theog District Shimla H.P. and FIR No.95 dated 27.06.2012 was lodged. It is pleaded that complainant engaged his son as driver in the vehicle and driver was holding valid and effective driving licence at the time of accident. It is further pleaded that accident was intimated to insurance company and claim was also filed. It is pleaded that claim was rejected by insurance company. It is further pleaded that insurance company has committed deficiency in service. Complainant sought relief of payment of Rs.5.00 lac (Five lac) alongwith interest @ 18% per annum. In addition complainant sought additional relief of payment of Rs.10000/- for mental harassment. In addition complainant also sought additional relief of Rs.10000/- as litigation costs.
3. Per contra version filed on behalf of opposite party pleaded therein that complainant is not consumer. It is pleaded that vehicle was purchased for commercial purpose.
It is pleaded that at the time of accident vehicle was 2 Shriram General Insurance Company Ltd. Versus Mohan Lal (F.A. No.87/2017) overloaded. It is pleaded that five persons died and three persons sustained injuries. It is further pleaded that driver was not possessing valid and effective driving licence at the time of accident. It is pleaded that complainant has not approached the Forum with clean hands and suppressed the material facts from the Forum. It is further pleaded that complainant has no cause of action to file the consumer complaint and complainant is estopped to file consumer complaint due to his own acts, conducts, deeds and commissions. It is pleaded that complicated question of facts and law are involved and complainant be relegated to civil court. It is further pleaded that insurance company appointed surveyor cum loss assessor and insurance company did not commit any deficiency in service and did not commit any unfair trade practice. Prayer for dismissal of complaint sought.
4. Learned District Forum allowed the complaint and ordered opposite party to pay a sum of Rs.375000/-(Three lac seventy five thousand) alongwith interest @ 9% per annum from the date of filing of complaint till payment within 45 days. In addition learned District Forum also ordered opposite party to pay a sum of Rs.10000/- as punitive compensation on account of harassment and mental agony. In addition learned District Forum further ordered opposite 3 Shriram General Insurance Company Ltd. Versus Mohan Lal (F.A. No.87/2017) party to pay a sum of Rs.5000/- as litigation costs. 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 of Sh. Mohan Lal in evidence. There is recital in affidavit that complainant intimated the opposite party in time and also submitted the documents to opposite party in time. There is recital in affidavit that vehicle was not overloaded with passengers at the time of accident. There is further recital in affidavit that persons were travelling in vehicle as owners of goods. There is recital in affidavit that complainant has not breached the terms and conditions of insurance policy. There is further recital in affidavit that driver was holding valid and effective driving licence at the time of accident.
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Shriram General Insurance Company Ltd. Versus Mohan Lal (F.A. No.87/2017)
8. Opposite party filed affidavit of Sh. M.K. Banawari Legal Officer posted in insurance company. There is recital in affidavit that after receiving information surveyor cum loss assessor namely Nitin Sood was appointed by insurance company. There is further recital in affidavit that surveyor cum loss assessor investigated the matter and visited the spot. There is recital in affidavit that there was overloading in vehicle at the time of accident and complainant has committed fundamental breach of terms and conditions of insurance policy. There is further recital in affidavit that Driving Licence No.9639/TV/Z/2011 was fake licence.
9. Opposite party also filed affidavit of Nitin Sood Surveyor cum loss assessor. There is recital in affidavit that deponent was appointed to conduct survey and to assess the damage sustained by complainant. There is further recital in affidavit that deponent has submitted report to the best of professional ability of deponent and on the basis of actual loss sustained by complainant.
10. Opposite party also filed affidavit of Shri Virender Advocate in evidence. There is recital in affidavit that deponent is practising Advocate since 1995. There is further recital in affidavit that DL No.9639/TV/Z/2011 was found fake licence. There is recital in affidavit that deponent has verified the licence and after verification submitted the report. 5
Shriram General Insurance Company Ltd. Versus Mohan Lal (F.A. No.87/2017)
11. Submission of learned Advocate appearing on behalf of insurance company that vehicle involved in accident was purchased for commercial purpose and does not fall within the definition of consumer and on this ground appeal be allowed is decided accordingly. As per section 2(o) of Consumer Protection Act 1986 any service relating to insurance company fall within the definition of consumer. It is held that present consumer complaint falls within the definition of section 2(o) of Consumer Protection Act 1986. It is proved on record that at the time of accident insurance company has received premium from the complainant and it is also proved on record that insurance policy was under
operation at the time of accident. It is held that complainant fall within the definition of consumer as defined under section 2(o) of Consumer Protection Act 1986.
12. Submission of learned Advocate appearing on behalf of insurance company that at the time of accident vehicle was overloaded and on this ground appeal be allowed is decided accordingly. There is no evidence on record in order to prove that there was direct nexus between overloading and accident. Hon'ble Apex court of India has given ruling that in overloading cases claim should be settled on the basis of non-standard basis and 75% of assessed amount should be paid. See 2006(II) CPJ 144 NC titled 6 Shriram General Insurance Company Ltd. Versus Mohan Lal (F.A. No.87/2017) New India Assurance Company Ltd. Versus Narayan Prasad Appaprasad Pathak Also see 2010(4) SCC 536 Apex Court Amalendu Sahoo Versus Oriental Insurance Company Ltd. It is well settled law that ruling given by Hon'ble Apex Court of India is binding upon all courts, Tribunals and Commissions as per Article-141 of Constitution of India.
13. Submission of learned Advocate appearing on behalf of insurance company that driver did not hold valid and effective driving licence at the time of accident and on this ground appeal be allowed is decided accordingly. State Commission has carefully perused D.L. No.9639/TV/Z/2011. Driving licence was issued to driver by District Transport Officer Zunheboto Nagaland and licence was issued on 22.02.2010 and it was valid till 25.07.2014 and driver was legally competent to drive MC, LMV & LTV. As per section 2(21) of Motor Vehicles Act 1988 LMV vehicle means a transport vehicle or omnibus the gross unladen vehicle weight of which does not exceed 7500 kilograms. It is proved on record that vehicle involved in the accident falls within the definition of LMV because as per Registration Certificate unladen weight of vehicle was 1725 Kg.
14. Submission of learned Advocate appearing on behalf of insurance company that as per verification report 7 Shriram General Insurance Company Ltd. Versus Mohan Lal (F.A. No.87/2017) submitted by Sh. Virender Advocate DL No.9639/TV/Z/2011 was false licence and on this ground appeal be allowed is decided accordingly. It is proved on record that on dated 22.02.2010 District Transport Officer Zunheboto Nagaland has given No Objection Certificate. No Objection Certificate given by District Transport Officer Zunheboto Nagaland is quoted in toto :-
GOVERNMENT OF NAGALAND OFFICE OF THE DISTRICT TRANSPORT OFFECER MOTER VEHICLE DEPARTMENT NAGALAND No. DTO.. Zunheboto Nagaland DATE 22.02.2010.
To,
The District Transport Officer
Sub:- NO OBJECTIONS CERTIFICATE
Sir,
The Driving Licence No.9639/TV/Z/2011 in respect of Shri /Smt. Ramesh Chand S/o. Mohan Lal has been issued from the this office and renewed upto 25.07.2014. This office have no objection for renewed and authorization of the aforesaid driving licence in your office.
Sd/-
District transport Officer Zunheboto Nagaland
15. District Transport Officer Zunheboto Nagaland has given certificate that licence No.9639/TV/Z/2011 has been issued from office of District Transport Officer Zunheboto Nagaland and renewed up to 25.07.2014. It is also proved on record that vide annexure-OP9 same District Transport Officer Zunheboto Nagaland has given contradictory information under RTI Act 2005 that DL No.9639/TV/Z/2011 was not found in the office record. District Transport Officer Zunheboto Nagaland has given two contrary reports. 8
Shriram General Insurance Company Ltd. Versus Mohan Lal (F.A. No.87/2017) Insurance company did not file affidavit of District Transport Officer Zunheboto Nagaland who has given two contradictory driving licence reports relating to same driving licence. It is well settled law that when two contradictory driving licence reports are given by the same person relating to D.L. then report beneficial to consumer should be adopted because Consumer Protection Act 1986 is a beneficial legislature enacted in favour of consumers. Affidavit filed by Shri Virender is not sufficient to reject the claim because Shri Virender Sharma Advocate has filed the affidavit on the basis of derived knowledge from third person. Sh. Virender Sharma has not personally visited the office of District Transport Officer Zunheboto Nagaland. No reason assigned by insurance company as to why insurance company did not file affidavit of District Transport Officer Zunheboto Nagaland. State Commission has drawn adverse inference against insurance company for non-filing of affidavit of District Transport Officer Zunheboto Nagaland who had submitted two contradictory driving licence reports.
16. Submission of learned Advocate appearing on behalf of insurance company that surveyor has given two different mode of settlement i.e. Total loss mode and repairs mode and learned District Forum has committed illegality by way of adopting total loss mode and on this ground appeal be 9 Shriram General Insurance Company Ltd. Versus Mohan Lal (F.A. No.87/2017) allowed is decided accordingly. It is held that when surveyor cum loss assessor has given two mode of settlement then it is discretion of learned District Forum to adopt one mode. It is held that learned District Forum has adopted the mode which was beneficial to consumer keeping in view the fact that Consumer Protection Act 1986 is consumer protected Act. It is held that it is not expedient in the ends of justice and on the principle of natural justice to interfere in the mode of settlement adopted by learned District Forum.
17. It is held that surveyor cum loss assessor report is substantial document and should be given due credence. 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.
18. Submission of learned Advocate appearing on behalf of insurance company that complicated question of facts are involved in the present complaint and complainant be relegated to civil court and on this ground appeal be allowed is decided accordingly. We have carefully perused the contents of complaint, contents of version, entire evidence adduced by parties and entire annexures placed on record. We are of the opinion that consumer complaint could be 10 Shriram General Insurance Company Ltd. Versus Mohan Lal (F.A. No.87/2017) disposed of properly and effectively under Consumer Protection Act 1986 and it is not expedient in the ends of justice to relegate the complainant to civil court in the ends of justice and on the principle of natural justice.
19. Submission of learned Advocate appearing on behalf of insurance company that complainant has suppressed the material facts from learned District Forum and complainant is estopped from filing the consumer complaint and on this ground appeal be allowed is decided accordingly. It is held that complainant did not suppress any material facts from learned District Forum and it is held that consumer has filed consumer complaint in order to protect his legal right as defined under Consumer Protection Act 1986.
20. In the present consumer complaint insurance company is impleaded through Branch Manager. Branch Manager of insurance company did not file his personal affidavit qua controversial facts. Hence adverse inference is drawn against insurance company. See AIR 1999 SC 1441 titled Vidyadhar Versus Mankik Rao & Anr. See AIR 1999 SC 1341 titled Ishwar Bhai C. Patel Versus Harihar Bahera. Sh. M.K. Banwari who has filed affidavit on behalf of insurance company is not co-party in consumer complaint. Sh. M.K. Banwari is third person appointed as legal officer of insurance company.
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Shriram General Insurance Company Ltd. Versus Mohan Lal (F.A. No.87/2017)
21. Submission of learned Advocate appearing on behalf of insurance company that claim was granted to consumer by learned District Forum on the basis of total loss and insurance company is legally entitled for return of salvage is decided accordingly. We are of the opinion that in case of total loss damage the insurance company is legally entitled for return of salvage of vehicle. It is held that learned District Forum has committed illegality by way of not ordering return of salvage to insurance company.
22. Submission of learned Advocate appearing on behalf of complainant that order passed by learned District Forum is in accordance with law and in accordance with proved facts and on this ground appeal filed by appellant be dismissed is decided accordingly. We are of the opinion that insurance company is legally entitled for return of salvage of damaged vehicle and in alternative insurance company is legally entitled for the deduction of salvage value of vehicle from final payment. In view of above stated facts point No.1 is decided accordingly.
Point No.2: Final Order
23. In view of findings upon point No.1 above appeal is partly allowed. It is ordered that complainant would return salvage of vehicle to insurance company within one month. It is further order that complainant will hand over all documents of vehicle to insurance company. It is further 12 Shriram General Insurance Company Ltd. Versus Mohan Lal (F.A. No.87/2017) order that complainant will execute subrogation deed qua vehicle in favour of insurance company. It is further ordered that if complainant will not return salvage of vehicle to insurance company within one month then in alternative insurance company will be entitled to deduct the amount of value of salvage from final payment awarded by learned District Forum. Driving Licence annexure-C4 issued by District Transport Officer Zunheboto Nagaland and No Objection Certificate given by District Transport Officer Zunheboto Nagaland dated 22.02.2010 relating to renewal of driving licence will form part and parcel of order. 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 Meena Verma Member 06.12.2017.
KD* 13