State Consumer Disputes Redressal Commission
Pawan Kumar vs Icici Home Finance Ltd. & Ors on 31 August, 2011
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. FIRST APPEAL NO.302/2009. ORDER
RESERVED ON 26.8.2011.
DATE OF DECISION: 31.8.2011.
In the matter of:
Sh. Pawan Kumar son of Sh. Madan Gopal, resident of V.P.O. Banuri, Tehsil Palampur, District Kangra-176061 (H.P.) Appellant.
Versus
1. ICICI Home Finance Ltd., Chaman Commercial Complex, Mandi 175 001, H.P.
2. ICICI Lombard, Motor Insurance, Zenith House, Keshavrao Khade Marg, Mahalaxmi, Mumbai-400034.
3. ICICI Lombard, General Insurance ICICI Bank Towers, Bandra Kurla Complex, Mumbai 400051.
Respondents.
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Honble Mr. Chander Shekhar Sharma, Presiding Member.
Honble Mrs. Prem Chauhan, Member.
For the Appellant: Mr. Vivek Negi, Advocate.
For the Respondents: Mr. Shashi Bhushan Singh, Advocate.
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O R D E R Chander Shekhar Sharma, Presiding Member.
1. This appeal is directed against the order of the District Forum, Kangra at Dharamshala, passed in Consumer Complaint No.43/2008, dated 30.6.2009, whereby by the complainant of the complainant was dismissed by holding that it is highly doubtful that Pawan Kumar was driving the vehicle. Since there is cogent and reliable evidence on the file that it was Mr. Sunny son of Sh. Bihari Lal, resident of Palampur, District Kangra (HP) was driving the vehicle, at the time of accident, and there is no proof on the file that he was having a valid driving licence, so, the claim of the complainant was rightly repudiated by the opposite parties.
2. Facts of the case as they emerge from the complaint file are that the complainant who is an unemployed youth owns a Cargo King Pick-up vehicle which he had got insured with the opposite parties vide Policy No.3003/50874772/00/000, dated 20.12.1986, with effect from 12.12.1986 upto 11.12.2007 at Sagar Automobiles, Gaggal through their agent and it is further alleged that on 29.7.2007 at about 2.30 A.M. when complainant was on enroute from Kullu to Hoshiarpur, his vehicle met with accident near Handowal, District Hoshiarpur and report was lodged about this accident in P.S. Hoshiarpur. Thereafter, complainant had approached the Insurance Company to settle his claim but the opposite parties refused to settle his claim. As such there was deficiency of service on the part of the Insurance Company, hence present complaint under Section 12 of the Consumer Protection Act, 1986 was filed wherein complainant had claimed an amount of Rs.3,54,661/- as estimated cost of repair and Rs.10,000/- per day for loss of income with effect from 29.9.2007 onwards and an amount of Rs.10,000/- was claimed as compensation for harassment and inconvenience and litigation cost amounting to Rs.5,000/- was also claimed.
3. This complaint was resisted and contested by the opposite parties wherein they have contended that the driver who was driving the vehicle at the relevant time was not having a valid driving licence and has violated the terms and conditions of the policy and it was also pleaded that the vehicle at the time of accident was being driven by one Sunny son of Shri Bihari Lal since news item was also published in the local newspaper Ajeet Samachar and through the enquiry Surveyor came to know that complainant who had contended that he was driving the vehicle at the relevant time, was not found driving the same, but it was Sunny who was driving the vehicle at the time of incident. As such, claim was rightly repudiated and there is no deficiency of service on their part.
4. Brief summary of evidence led by the parties in nutshell is that the complainant in support of his case had placed reliance upon his own affidavit and documents Annexures C.1 to C.10, viz., copy of the Registration Certificate, driving licence of Shri Pawan Kumar, endorsement schedule of package policy, policy schedule certificate, statement of accounts, copy of notice dated 26.12.2007 served by Shri Vishal Katoch, Advocate, upon the Manager of the O.Ps, undelivered registered letter alongwith acknowledgement of postal authorities who have reported, refused, postal receipt, copy of Rojnamcha dated 10.10.2007 of Police Station, Hoshiarpur, copy of estimated bill dated 29.10.2007 of Sagar Automobiles, Gaggal. O.Ps in support of their case had filed affidavits of Shri Ravinder Dhull, Legal Manager of the O.Ps, Ex. OPW.1 and of Shri Manmohan Sharma, Surveyor, Ex. OPW.2 and had placed reliance upon various documents Ex.OP.1 to OP.7, viz., report of Shri Manmohan Singh, Surveyor and investigation report of Shri A.P. Singh, G.I.C. Claim Investigator, spot survey report of Shri Sukhvinder Singh Notra, Mechanical and Automobile Engineer dated 11.10.2007, copy of police report dated 10.10.2007 lodged at Police Station, Hoshiarpur, various photographs and an extract of news item appeared in Ajeet Samachar (Punjabi Edition). An application for cross examination of Shri Pawan Kumar was also made which was allowed by the Forum below vide order dated 9.9.2008 and Shri Pawan Kumar, complainant was subjected to cross examination by the O.Ps which is at page 74 of the complaint file.
5. We have heard the learned Counsel for the parties and have gone through the record of the case minutely. Mr. Vivek Negi, learned Counsel for the appellant argued that report of the Surveyor is based upon news appeared in Punjabi newspaper Ajeet Samachar wherein it is mentioned that vehicle in question was being driven by one Sunny and not by Shri Pawan Kumar and this report cannot be legally taken into consideration and it is only a hearsay evidence. Moreover, the conclusions drawn in para-7 of the order by the Forum below are not conclusive and even the investigation report of Shri A.P. Singh also cannot be relied upon. No affidavit of Sunny and other occupants of the vehicle who met with accident, had been filed and even the complainant who had given the news, his affidavit had also not been filed and nothing material had come on record from the cross examination of Shri Pawan Kumar who had clearly deposed that he was driving the vehicle in question at the relevant time and he had sustained minor injuries in the accident which fact was mentioned by him in the report made to the police at Hoshiarpur. Hence, the claim was illegally repudiated by the O.Ps and complainant is entitled to compensation as claimed in the complaint.
6. Mr. Shashi Bhushan Singh, learned Counsel for the O.Ps argued that there is no deficiency of service in the present case and claim was rightly repudiated since there is ample evidence on record that the vehicle was being driven by Sunny and not by Pawan Kumar and even there is a delay in lodging report with the police by the complainant and the newspaper reports cannot be brushed aside and the Forum below had rightly taken them into consideration and even it is also very surprising that no injury was found on the person of Shri Pawan Kumar whereas it was a serious accident, as such the claim lodged by the complainant was a bundle of lies and it had been rightly repudiated by the Insurance Company and there is no deficiency of service on the part of the Opposite parties. He had supported the order of the Forum below.
7. After hearing the learned Counsel for the parties and going through the record of the case, we are of the considered view that the judgment of the Forum below is not legally maintainable. Reason being that the report of the Surveyor in the present case is based upon the news which had appeared in newspaper Ajeet Samachar which is evident from his report that one Sunny was driving the vehicle at the relevant time. Legally the newspaper reports are not authentic piece of evidence since this evidence is only hearsay. Moreover, the Correspondent who had given this news, his affidavit has also not been filed. Even Sunnys affidavit and the affidavit of the person who had received injuries in the accident have also not been filed, whereas this fact is clear from the statement made on oath while he was cross examined by the opposite party that the complainant Pawan Kumar was driving the vehicle at the relevant time and he had received very minor injuries. Even the report which was lodged with the police at Hoshiarpur, therein also this fact is mentioned that Pawan Kumar was driving the vehicle at the relevant time.
Even from the cross examination made by the opposite parties of Pawan Kumar, nothing substantial has come on record.
On the other hand Pawan Kumar had clearly deposed that he was driving the vehicle at the time of accident and he had sustained minor injuries. Hence for want of cogent and convincing evidence on record, Forum below had come to a wrong and erroneous conclusion that Pawan Kumar was driving the vehicle at the relevant time.
8. Hence, as per evidence on record, two versions have come on record, one is that Pawan Kumar was driving the vehicle at the relevant time and other is that Sunny was driving the vehicle at the time of accident and legally when two versions have come on evidence, then one which is favourable to the consumer has to be preferred. Moreover, as per evidence on record, Pawan Kumar was holding a valid licence for L.M.V.-Tractor, LMV-Trans which is valid upto 16.2.2010. Finding of the Forum below is also erroneous while it was observed by the Forum below that it is very strange that in such a serious accident, Pawan Kumar had not received any injury and if actually was driving the vehicle, then it would have sustained serious injuries on his person. This fact cannot be taken as a gospel truth, whereas sometimes in accident cases driver does not at all receive injuries and sometime even very minor injury is there. Even the finding of the Forum below in para-7 to the effect that Sunny was driving the vehicle at the relevant time is not conclusive one.
In view of the aforesaid discussion, and facts and circumstances of the case, we set aside the order of the District Forum, Kangra at Dharamshala, passed in Consumer Complaint No.43/2008, dated 30.6.2009 after placing reliance upon the report of the Surveyor, Shri Manmohan Singh, Annexure OP.1. Since report of the Surveyor is an important piece of document in assessing compensation and it cannot be brushed aside normally if it is supported by reasons and this report is a reasoned one. Hence complainant is entitled to compensation amounting to Rs.2,27,532/- (Rs.2,25,032/- + Rs.2,500/-) in case salvage is returned to the Insurance Company and in case salvage is not returned to the Insurance Company, then complainant will only be entitled to compensation for an amount of Rs.2,16,650/-.
However, appellant is not entitled to compensation to the tune of Rs.3,54,661/- as by mere production of estimate of repairs will not entitle the appellant for the said sum since there is no cogent and convincing evidence on record to prove the same. Moreover, this estimated compensation is much on the higher side. Appellant will also be entitled to interest @ 9% per annum for the aforesaid amount from the date of filing the complaint. It is further directed that in case the aforesaid amount is not deposited within 45 days from the date of this order, then the appellant will be entitled to interest @ 9% per annum till the deposit is made by the Insurance Company.
Consequently we partly accept this appeal and there is no order as to costs.
Copy of this order be sent to the parties free of cost as per rules.
Shimla, Announced on August 31, 2011.
( Chander Shekhar Sharma ) Presiding Member ( Prem Chauhan ) Member.