State Consumer Disputes Redressal Commission
Sh. Vinod Kumar vs I.C.I.C.I. General Insurance Co. Ltd. on 11 July, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 77/2017
Date of Presentation: 30.12.2016
Order Reserved On : 04.05.2017
Date of Order : 11.07.2017
......
Vinod Kumar s/o Shri Hukmi Ram
R/o Village Panjah Post Office Badol
Tehsil Sangrah District Sirmour H.P.
...... Appellant/Complainant
Versus
ICICI General Insurance Company Limited
Plot No.149 4th Floor Near Hotel Hometel Industrial Area
Phase-I Chandigarh through its Branch Manager.
......Respondent /Opposite party
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 : Ms. Ruma Kaushik Advocate.
For Respondent : Mr. Jagdish Thakur Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 18.11.2016 passed by Learned District Forum in consumer complaint No.68/2015 title Vinod Kumar Versus ICICI General Insurance Company Limited.
1 Whether reporters of the local papers may be allowed to see the order? Yes. Vinod Kumar Versus ICICI General Insurance Company Ltd. (F.A. No.77/2017) Brief facts of Case:
2. Complainant Vinod Kumar filed consumer complaint under section 12 of Consumer Protection Act 1986 against opposite party pleaded therein that complainant is owner of Mahindra Pickup bearing registration No. HP-71-
2573 which was insured with opposite party w.e.f. 04.04.2014 to 03.04.2015. It is pleaded that on dated 05.09.2014 Shri Amar Singh s/o Shri Bhajju Ram r/o village Pab Mannal Tehsil Shillai was driving vehicle from village Karnal to Haripurdhar. It is further pleaded that vehicle was loaded with hatchery item/broiler chicken. It is pleaded that Shri Vipan had hired the said vehicle for transportation of hatchery item/broiler chicken from Karnal to Haripurdhar and when the said vehicle reached near Dhanoi Tehsil Sangrah at about 8:30 AM then driver of vehicle stopped his vehicle on the curve of road in his side in order to give pass to HRTC bus coming from opposite direction. It is pleaded that a canter/truck No. HP-18B-5105 was following the pickup and hit the pick-up from back side on account of which pickup rolled down in the river resulting in the death of driver at the spot. It is further pleaded that vehicle was also damaged badly. It is further pleaded that FIR was lodged in police station Sangrah on the same day vide FIR No. 32/2014 dated 05.09.2014 under sections 279, 304A, 337 IPC and section 187 of MV Act. It is further pleaded that after accident 2 Vinod Kumar Versus ICICI General Insurance Company Ltd. (F.A. No.77/2017) complainant intimated opposite party telephonically about the accident and surveyor namely Harish Kumar Chopra was sent by opposite party. It is further pleaded that on dated 20.09.2014 complainant submitted claim before opposite party but opposite party did not settle the claim. Complainant sought relief of payment of Rs.503348/- (Five lac three thousand three hundred forty eight) alongwith interest @24% per annum from the date of accident. In addition complainant also sought relief of room rent to the tune of Rs.20000/- (Twenty thousand). In additional complainant also sought relief of damages to the tune of Rs.30000/- (Thirty thousand). In addition complainant also sought relief of Rs.50000/- (Fifty thousand) on account of tension and mental torture. In addition complainant also sought litigation costs to the tune of Rs.10000/- (Ten thousand). Prayer for acceptance of complaint sought.
3. Per contra version filed on behalf of opposite party pleaded therein that complaint is not maintainable. It is pleaded that more persons were travelling in the vehicle at the time of accident exceeding the seating capacity of vehicle. It is further pleaded that complainant does not fall within the definition of Consumer because vehicle was commercial vehicle and was used for commercial purpose. It is further pleaded that learned District Forum has no territorial jurisdiction to entertain and decide the complaint because 3 Vinod Kumar Versus ICICI General Insurance Company Ltd. (F.A. No.77/2017) opposite party has no office within the jurisdiction of District Forum. Factum of accident is admitted by opposite party in version. It is denied that Shri Vipin had hired vehicle for transportation of hatchery items. It is further pleaded that immediately after accident surveyor was appointed who submitted his report and assessed the loss to the tune of Rs.386072/- (Three lac eighty six thousand seventy two). It is further pleaded that claim of complainant was repudiated on dated 22.01.2015 on the ground that vehicle was carrying persons more than its seating capacity. Prayer for dismissal of complaint sought.
4. Learned District Forum dismissed the complaint. Feeling aggrieved against order passed by Learned District Forum complainant 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 arises for determination in present appeal.
1. Whether appeal filed by the appellant is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Final order.
4 Vinod Kumar Versus ICICI General Insurance Company Ltd. (F.A. No.77/2017) Findings upon point No.1 with reasons:
7. Complainant filed affidavit in evidence. There is recital in the affidavit that deponent is owner of Mahindra Pickup bearing registration No. HP-71-2573 which was insured with opposite party vide insurance policy No. 3003/1-
26012860/00/000 w.e.f. 04.04.2014 to 03.04.2015. There is further recital in the affidavit that on dated 05.09.2014 Shri Amar Singh s/o Shri Bhajju Ram r/o Village Pab Mannal Tehsil Shillai was driving vehicle from village Karnal to Haripurdhar. There is further recital in the affidavit that vehicle was loaded with hatchery items/broiler chicken. There is further recital in the affidavit that when vehicle reached near Dhanoi Tehsil Sangrah at about 8:30 AM then driver of vehicle stopped his vehicle on the curve of road in his side in order to give pass to HRTC bus coming from opposite direction. There is further recital in the affidavit that a canter/truck No. HP-18B-5105 came and hit the pick-up from back side. There is further recital in the affidavit that vehicle rolled down in the river resulting in the death of driver at the spot. There is further recital in the affidavit that vehicle was also damaged badly. There is further recital in the affidavit that FIR was lodged on the same day in police station Sangrah vide FIR No. 32/2014 dated 05.09.2014 under sections 279, 304A, 337 IPC and section 187 of MV Act. There is further recital in the affidavit that after accident deponent 5 Vinod Kumar Versus ICICI General Insurance Company Ltd. (F.A. No.77/2017) on the same day intimated opposite party telephonically about the accident. There is further recital in the affidavit that opposite party sent surveyor namely Harish Kumar Chopra. There is further recital in the affidavit that on dated 20.09.2014 deponent submitted his claim alongwith all necessary documents to the opposite party but opposite party did not settle the claim.
8. Opposite party did not file any evidence by way of affidavits as per modes mentioned under section 13(4) of Consumer Protection Act 1986 relating to adjudication of consumer disputes. Learned advocate appearing on behalf of opposite party has given statement before learned District Forum on dated 09.08.2016 that reply alongwith annexures A to E be read in evidence and closed the evidence on behalf of opposite party.
9. Submissions of learned advocate appearing on behalf of appellant that vehicle No. HP-71-2573 Mahindra Bolero Pickup was duly insured with insurance company at the time of accident under Goods Carrying Vehicle Package Policy w.e.f. 04.04.2014 to 03.04.2015 and insurance company is under legal obligation to indemnify owner of vehicle qua damage caused to vehicle is decided accordingly. In the present case it is proved on record vide annexure A that vehicle involved in the accident was itself insured with opposite party at the time of accident under Goods Carrying 6 Vinod Kumar Versus ICICI General Insurance Company Ltd. (F.A. No.77/2017) Vehicle Package Policy. It is also proved on record that complainant has paid premium to the opposite party relating to own damage claim and third party risk. It is also proved on record that FIR No.32 dated 05.09.2014 was also registered in police station Rainuka District Sirmour H.P. under sections 279, 337 IPC and under section 187 of M.V. Act. It is proved on record that cause of accident was that a truck hit the vehicle from back side and vehicle went out of road and thereafter fell in the deep river. It is also proved on record that one person died and one person was injured and one person is still missing in the accident.
10. It is proved on record that opposite party appointed Shri Harish Kumar Chopra as surveyor and loss assessor who submitted his report placed on record. It is proved on record that Shri Harish Kumar Chopra has assessed total loss of vehicle to the tune of Rs.386072.50 (Three lac eighty six thousand seventy two rupees and fifty paisa).
11. Submission of learned advocate appearing on behalf of insurance company that insurance company is not liable to indemnify owner of vehicle because vehicle was used for commercial purpose and complainant did not fall within the definition of consumer is rejected being devoid of any force for the reasons hereinafter mentioned. State Commission is of the opinion that complainant has hired 7 Vinod Kumar Versus ICICI General Insurance Company Ltd. (F.A. No.77/2017) service of opposite party as insurance company. State Commission is of the opinion that service has been defined under section 2(o) of Consumer Protection Act 1986 which is quoted in toto:-
"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
State commission is of the opinion that service of any description relating to insurance company falls within the definition of section 2(o) of Consumer Protection Act 1986. State Commission is of the opinion that service of any description is very material. State Commission is of the opinion that service of any description includes service given by insurance company under Goods Carrying Vehicle Package Policy. Hence it is held that present case falls within the definition of service of insurance company as defined under section 2(o) of Consumer Protection Act 1986 and Consumer Forum has jurisdiction to entertain and decide the present dispute.
8 Vinod Kumar Versus ICICI General Insurance Company Ltd. (F.A. No.77/2017)
12. Submission of learned advocate appearing on behalf of insurance company that insurance company is not liable to indemnify complainant because three persons were travelling in the vehicle at the time of accident contrary to seating capacity of vehicle of two persons and as such complainant has committed breach of terms & conditions of insurance policy and on this ground appeal be dismissed is decided accordingly. In the present case overloading is not the cause of accident. On the contrary as per surveyor appointed by opposite party the accident caused because a truck hit the vehicle from backside and vehicle went out of road and rolled in a deep river. In view of view of the fact that overloading is not nexus of accident it is held that insurance company is under legal obligation to indemnify the owner of vehicle. See 2016(3) CPJ I SC Lakhmi Chand Versus Reliance General Insurance Co. Ltd. See. 2017 (1) CPJ 88 J&K United India Insurance Co. Ltd. Versus S. Avtar Singh.
13. It is also proved on record that insurance company appointed Harish Kumar Chopra as surveyor and loss assessor. It is proved on record that Shri Harish Kumar Chopra has assessed loss to the tune of Rs.386072.50 (Three lac eighty six thousand seventy two rupees and fifty paisa). It is well settled law that insurance company is under legal obligation to accept the loss assessed by surveyor unless contrary is proved. Insurance company did not adduce any 9 Vinod Kumar Versus ICICI General Insurance Company Ltd. (F.A. No.77/2017) evidence on record in order to prove that surveyor has hostile animus against any party at any point of time. Report submitted by surveyor Harish Kumar Chopra is trustworthy, reliable and inspires confidence of State Commission. See 2017 (2) CPR 784 NC Kanhaiya Lal Prakash Chand Versus New India Assurance Company Ltd. & others. In view of above stated facts point No.1 is decided accordingly. Point No.2: Final Order
14. In view of findings upon point No.1 above appeal is partly allowed and order of learned District Forum dated 18.11.2016 announced in consumer complaint No. 68/2015 title Vinod Kumar Versus ICICI General Insurance Company is set aside. Opposite party/insurance company is ordered to pay a sum of Rs.386072/-(Three lac eighty six thousand seventy two) to the appellant within one month. In addition compensation to the tune of Rs.3000/- (Three thousand) is also awarded in favour of appellant and against opposite party. In addition litigation costs to the tune of Rs.3000/- (Three thousand) is also awarded in favour of appellant. Report of surveyor and loss assessor namely Harish Kumar Chopra placed on record dated 12.11.2014 will form part and parcel of order. Opposite party will pay the entire amount within one month after receipt of certified copy of order failing which interest @9% per annum from the date of institution of 10 Vinod Kumar Versus ICICI General Insurance Company Ltd. (F.A. No.77/2017) complaint till realization will be charged. 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 11.07.2017.
*GUPTA* 11