State Consumer Disputes Redressal Commission
Smt. Dolma Devi. & Ors. vs National Insurance Co. Ltd. on 24 April, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
(A) First Appeal No. : 319/2016
Date of Presentation: 28.09.2016
Order Reserved On : 28.02.2018
Date of Order : 24.04.2018
......
1. Smt. Dolma Devi wd/o Shri Om Prakash
2. Sartaju Devi w/o Shri Vikram Singh (Mother of late Shri
Om Prakash)
3. Kusum Lata minor aged 2 years d/o Late Shri Om Prakash
4. Kumari Mamta minor aged 5 years d/o Late Shri Om
Prakash
Both minors through their next friend-cum-natural
guardian Smt. Dolma Devi wd/o Shri Om Prakash
All residents of Village and Post Office Bathad Tehsil
Banjar District Kullu H.P.
...... Appellants/Complainants
Versus
National Insurance Company Branch Office Moti Bazar Mandi
Tehsil and District Mandi H.P. through its Branch Manager.
......Respondent /Opposite party
For Appellant s : Mr. Amit Jamwal Advocate
For Respondent : Mr. Jagdish Thakur Advocate.
(B) First Appeal No. : 320/2016
Date of Presentation: 28.09.2016
Order Reserved On : 28.02.2018
Date of Order : 24.04.2018
......
1. Smt. Dolma Devi wd/o Shri Om Prakash
2. Sartaju Devi w/o Shri Vikram Singh (Mother of late Shri
Om Prakash)
3. Kusum Lata minor aged 2 years d/o Late Shri Om Prakash
4. Kumari Mamta minor aged 5 years d/o Late Shri Om
Prakash
Both minors through their next friend-cum-natural
guardian Smt. Dolma Devi wd/o Shri Om Prakash
All residents of Village and Post Office Bathad Tehsil
Banjar District Kullu H.P.
...... Appellants/Complainants
Dolma Devi & Ors.Versus National Insurance Company (F.A. No.319/2016)
&
Dolma Devi & Ors.Versus National Insurance Company (F.A. No.320/2016)
Versus
National Insurance Company Branch Office Moti Bazar Mandi
Tehsil and District Mandi H.P. through its Branch Manager.
......Respondent /Opposite party
For Appellant s : Mr. Amit Jamwal Advocate
For Respondent : Mr. Jagdish Thakur Advocate.
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Both appeals i.e. F.A. No.319/2016 and F.A. No. 320/2016 are clubbed together for disposal in order to avoid conflicting orders because both appeals filed against the same accident relating to vehicle No. HP-49A-0717 which took place in the intervening night of 31.12.2011 and 01.01.2012 qua one insurance policy No.121468511 dated 18.07.2011 annexure C-10.
Brief facts of Consumer Complaint:
2. Complainants Smt. Dolma Devi & Ors. filed consumer complaint under section 12 of Consumer Protection Act 1986 against opposite party pleaded therein that Shri Om 1 Whether reporters of the local papers may be allowed to see the order? Yes. 2 Dolma Devi & Ors.Versus National Insurance Company (F.A. No.319/2016) & Dolma Devi & Ors.Versus National Insurance Company (F.A. No.320/2016) Prakash deceased was owner of vehicle No. HP-49A-0717. It is pleaded that in the intervening night of 31.12.2011 and 01.01.2012 at about 12:15 AM vehicle met with accident and Om Prakash who was driving the vehicle died alongwith other persons. It is further pleaded that eight claim petitions were filed before the Motor Accident Claims Tribunal and same were allowed by the Motor Accident Claims Tribunal. It is further pleaded that complainants who are legal-heirs of deceased filed OD claim of vehicle and death claim of policy holder before opposite party. It is further pleaded that opposite party did not settle the OD claim of vehicle and death accident claim of policy holder. Prayer for acceptance of OD claim of vehicle and death accident claim of policy holder sought.
3. Per contra version filed on behalf of opposite party pleaded therein that driver did not hold valid and effective driving licence at the time of accident. It is pleaded that present consumer complaint could not be disposed of in summary proceedings under Consumer Protection Act 1986. It is pleaded that seating capacity of vehicle was five persons but nine persons were travelling in the vehicle at the time of accident. It is pleaded that owner of vehicle has violated terms and conditions of insurance policy. It is pleaded that there was overloading in the vehicle at the time of accident. It is 3 Dolma Devi & Ors.Versus National Insurance Company (F.A. No.319/2016) & Dolma Devi & Ors.Versus National Insurance Company (F.A. No.320/2016) pleaded that driving licence was not produced for verification. Prayer for dismissal of consumer complaints sought.
4. Complainants filed rejoinder and reasserted the allegations mentioned in the complaints.
5. Learned District Forum dismissed both the complaints filed by complainants.
6. Feeling aggrieved against orders passed by learned District Forum complainants filed two appeals i.e. F.A. No.319/2016 and F.A. No. 320/2016 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 appeals.
1. Whether appeal No.319/2016 and appeal No. 320/2016 are liable to be accepted as mentioned in memorandum of grounds of appeals and in view of minority of co-complainants namely Kusum Lata & Kumari Mamta aged two years and five years respectively?
2. Final order.
4
Dolma Devi & Ors.Versus National Insurance Company (F.A. No.319/2016) & Dolma Devi & Ors.Versus National Insurance Company (F.A. No.320/2016) Findings upon point No.1 with reasons:
9. Dolma Devi filed affidavit in evidence. There is recital in the affidavit that deceased Om Prakash was husband of deponent and was father of minor complainants namely Kusum Lata and Kumari Mamta aged two years and five years respectively. There is further recital in the affidavit that vehicle No.HP-49A-0717 met with accident in the intervening night of 31.12.2011 and 01.01.2012. There is further recital in the affidavit that Om Prakash was holding valid and effective driving licence at the time of accident.
There is further recital in the affidavit that vehicle was totally damaged in the accident. There is further recital in the affidavit that deponent also served legal notice to the opposite party for settlement of claim but claim was not settled by opposite party. There is further recital in the affidavit that driving licence of driver was lost in river at the time of accident and could not be traced out. There is recital in the affidavit that Om Prakash owner-cum-driver died in the accident.
10. Complainants also filed affidavit of Raghubir Singh in evidence. There is recital in the affidavit that deponent is the eye-witness of incident. There is further recital in the affidavit that in the intervening night of 31.12.2011 and 01.01.2012 vehicle met with accident and nine persons died. 5 Dolma Devi & Ors.Versus National Insurance Company (F.A. No.319/2016) & Dolma Devi & Ors.Versus National Insurance Company (F.A. No.320/2016) State Commission has carefully perused all annexures filed by complainants.
11. Opposite party filed affidavit of surveyor-cum-loss assessor in evidence. There is recital in the affidavit that deponent is duly licensed by Insurance Regulatory Development Authority of India. There is further recital in the affidavit that insurance company hired services of deponent and deponent submitted report. There is further recital in the affidavit that loss was assessed by deponent after physical inspection of damaged vehicle. State Commission has carefully perused all annexures filed by opposite party.
12. Submission of learned advocate appearing on behalf of appellants that co-appellants No.3 and 4 are minors aged about two years and five years and learned District Forum has not properly watched the interest of minors Kusum Lata and Kumari Mamta and did not properly appreciate evidence adduced by way of affidavits and annexures and on this ground appeals be allowed is decided accordingly. In the present appeals co-appellants No.3 & 4 namely Kusum Lata and Kumari Mamta are minors aged two years and five years respectively. It is well settled law that courts, tribunals and commissions are under legal obligation to protect the interest of the minors. In the present consumer 6 Dolma Devi & Ors.Versus National Insurance Company (F.A. No.319/2016) & Dolma Devi & Ors.Versus National Insurance Company (F.A. No.320/2016) complaint insurance company has appointed surveyor namely Sanjay Vaidya and surveyor has specifically mentioned in the affidavit that he has submitted his final survey report on dated 27.02.2012 annexure R-III. State Commission has carefully perused record of learned District Forum but document annexure R-III is missing from the record of learned District Forum. In view of the fact that document annexure R-III is missing from the original file of learned District Forum State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to give benefit to the opposite party simply on the basis of affidavit filed by surveyor because opposite party could not be allowed to take benefit of its own laxity and wrongs on the concept of "Nullus commodum capere potest de injuria sua propria".
13. Submission of learned advocate appearing on behalf of insurance company that deceased driver was not holding effective and valid driving licence at the time of accident and original driving licence was not produced for verification and on this ground appeals be dismissed is decided accordingly. There is evidence on record that original driving licence was lost in river when vehicle rolled down in river and nine persons died in accident. State Commission is of the opinion that it is not expedient in the interest of justice 7 Dolma Devi & Ors.Versus National Insurance Company (F.A. No.319/2016) & Dolma Devi & Ors.Versus National Insurance Company (F.A. No.320/2016) and on the principle of natural justice to ask the minors aged two years and five years to produce original licence of driver when there is positive evidence on record that original driving licence of deceased driver was lost in river at the time of accident. Even opposite party did not file affidavit of Branch Manager relating to controversial facts. Hence adverse inference is drawn against opposite party. See AIR 1999 SC 1441 Vidhyadhar Versus Mankikrao & Ors. See AIR 1999 SC 1341 Iswar Bhai C. Patel Versus Harihar Behera.
14. Submission of learned advocate appearing on behalf of insurance company that as per RC seating capacity of vehicle was five and nine persons were travelling in the vehicle as per FIR and on this ground both appeals be dismissed is decided accordingly. State Commission is of the opinion that claim of complainants could be settled on the basis of non-standard basis keeping in view the fact that complainants No.3 and 4 are minors aged two years and five years and keeping in view the fact that courts, tribunals and commission are under legal obligation to protect the interest of minors and keeping in view the fact that minors namely Kusum Lata and Kumari Mamta aged two years and five years are the legal-heirs of deceased. It is held that minor complainants alongwith widow of deceased and mother of deceased are legally entitled for claim not exceeding 75% of 8 Dolma Devi & Ors.Versus National Insurance Company (F.A. No.319/2016) & Dolma Devi & Ors.Versus National Insurance Company (F.A. No.320/2016) the admissible claim on non-standard basis. The IDV of vehicle is Rs. 230890/- (Two lac thirty thousand eight hundred ninety). See 2010 (2) CPJ 9 SC Amalendu Sahoo Versus Oriental Insurance Co. Ltd. See 2008 (4) CPJ (1) SC National Insurance Co. Ltd. Versus Nitin Khandelwal. See 2006 (II) CPJ 144 NC New India Assurance Co. Ltd. Versus Narayan Prasad Appa Prasad Pathak.
15. State Commission has carefully perused insurance policy annexure C-10. In the insurance policy annexure C-10 IDV value has been shown as Rs.230890/- (Two lac thirty thousand eight hundred ninety) qua OD claim and PA Claim. It is well settled law that amount exceeding IDV could not be granted in OD Claim and PA Claim in one insurance policy. It is proved on record that predecessor in interest of complainants acquired only one insurance policy qua OD claim and PA claim placed on record annexure C-10.
16. Submission of learned advocate appearing on behalf of insurance company that matter is complicated in nature and complainants be relegated to civil court for adjudication of dispute is decided accordingly. State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to relegate complainants to civil court keeping in view factum of 9 Dolma Devi & Ors.Versus National Insurance Company (F.A. No.319/2016) & Dolma Devi & Ors.Versus National Insurance Company (F.A. No.320/2016) minority of complainants Kasum Lata and Kumari Mamta and keeping in view factum that Smt. Dolma Devi is widow of deceased policy holder and keeping in view factum that Sartaju Devi is old aged mother of deceased policy holder. Point No.1 is decided accordingly.
Point No.2: Final Order
17. In view of findings upon point No.1 above orders of learned District Forum announced in consumer complaint No.4 of 2015 and consumer complaint No.5 of 2015 dated 27.08.2016 both titled Smt. Dolma Devi & Ors. Versus National Insurance Co. are set aside. It is ordered that insurance company would pay in total 75% of IDV of vehicle mentioned in insurance policy on non-standard basis to the complainants on account of OD claim of vehicle and PA claim of deceased. It is further ordered that insurance company would be legally entitled for salvage value of vehicle. It is further ordered that in alternative insurance company would be legally entitled to deduct the salvage value of vehicle from non-standard 75% principal amount. In addition insurance company would also pay amount to the tune of Rs.10000/- (Ten thousand) to the complainants for mental harassment. In addition insurance company would also pay amount to the tune of Rs.10000/- (Ten thousand) to the complainants for 10 Dolma Devi & Ors.Versus National Insurance Company (F.A. No.319/2016) & Dolma Devi & Ors.Versus National Insurance Company (F.A. No.320/2016) litigation costs. Insurance company would pay entire amount to the complainants within thirty days after the receipt of certified copy of order of State Commission. Amount will be divided equally between complainants. Shares of minor complainants would be deposited in nationalized bank till minors attain age of majority. Insurance policy No. 121468511 dated 18.07.2011 annexure C-10 issued by opposite party will form part and parcel of order. Certified copy of order be placed in the original file of appeal No. 320 of 2016 forthwith. File of learned District Forum alongwith certified copy of order be sent back forthwith and files 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. Both appeals are disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 24.04.2018.
*GUPTA* 11 Dolma Devi & Ors.Versus National Insurance Company (F.A. No.319/2016) & Dolma Devi & Ors.Versus National Insurance Company (F.A. No.320/2016) H. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION SHIMLA In re:-
(A) Misc Application No. : 624/2016
First Appeal No. : 319/2016
Date of Order of CMP: 24.04.2018
1. Smt. Dolma Devi wd/o Shri Om Prakash
2. Sartaju Devi w/o Shri Vikram Singh (Mother of late Shri Om Prakash)
3. Kusum Lata minor aged 2 years d/o Late Shri Om Prakash
4. Kumari Mamta minor aged 5 years d/o late Shri Om Prakash Both minors through their next friend-cum-natural guardian Smt. Dolma Devi wd/o Shri Om Prakash All residents of Village and Post Office Bathad Tehsil Banjar District Kullu H.P. ...... Applicants/Complainants /Appellants Versus National Insurance Company Branch Office Moti Bazar Mandi Tehsil and District Mandi H.P. through its Branch Manager.
......Non-applicant/Opposite party/Respondent For Applicants : Mr. Amit Jamwal Advocate For Non-applicant : Mr. Jagdish Thakur Advocate.
(B) Misc Application No. : 625/2016
First Appeal No. : 320/2016
Date of Order of CMP: 24.04.2018
1. Smt. Dolma Devi wd/o Shri Om Prakash
2. Sartaju Devi w/o Shri Vikram Singh (Mother of late Shri Om Prakash)
3. Kusum Lata minor aged 2 years d/o Late Shri Om Prakash
4. Kumari Mamta minor aged 5 years d/o late Shri Om Prakash 12 Dolma Devi & Ors.Versus National Insurance Company (F.A. No.319/2016) & Dolma Devi & Ors.Versus National Insurance Company (F.A. No.320/2016) Both minors through their next friend-cum-natural guardian Smt. Dolma Devi wd/o Shri Om Prakash All residents of Village and Post Office Bathad Tehsil Banjar District Kullu H.P. ...... Applicants/Complainants/Appellants Versus National Insurance Company Branch Office Moti Bazar Mandi Tehsil and District Mandi H.P. through its Branch Manager.
......Non-applicant/Opposite party/Respondent For Applicants : Mr. Amit Jamwal Advocate For Non-applicant : Mr. Jagdish Thakur Advocate. Coram Hon'ble Justice P.S. Rana (R) President Hon'ble Mr. Vijay Pal Khachi Member Whether approved for reporting?2 Yes.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Both applications i.e. M.A. No. 624/2016 and M.A. No. 625/2016 are filed for adducing additional evidence at appellate stage of matter. Both applications are consolidated for purpose of disposal in order to avoid conflicting orders. It is pleaded in the applications that statement of Nika Bharti recorded before Motor Accident Claims Tribunal-II Kullu H.P. is essential in order to dispose of appeals properly and effectively and to impart substantial 2 Whether reporters of the local papers may be allowed to see the order? Yes. 13
Dolma Devi & Ors.Versus National Insurance Company (F.A. No.319/2016) & Dolma Devi & Ors.Versus National Insurance Company (F.A. No.320/2016) justice inter se parties. Prayer for acceptance of both applications sought.
2. No response filed on behalf of non-applicant.
3. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
4. Following points arise for determination in present applications.
1. Whether M.A. No.624/2016 and M.A. No.625/2016 filed by applicants for adducing additional evidence at appellate stage are liable to be accepted as mentioned in memorandum of grounds of applications.
2. Final order.
Findings upon point No.1 with reasons:
5. Submission of learned advocate appearing on behalf of applicants that applications for additional evidence in both appeals be allowed at appellate stage of case is decided accordingly. It is well settled law that in appeal additional evidence could not be adduced by parties as of right. It is well settled law that in appeal additional evidence 14 Dolma Devi & Ors.Versus National Insurance Company (F.A. No.319/2016) & Dolma Devi & Ors.Versus National Insurance Company (F.A. No.320/2016) could be adduced by parties if following conditions are completed:
(i) That District Forum has refused to admit evidence which ought to have been admitted.
(ii) That parties seeking to produce additional evidence in appeal should establish that notwithstanding the exercise of due diligence such evidence was not within the knowledge of parties or could not after exercise of due diligence be produced by the parties at the time when order appealed against was passed by learned District Forum.
(iii) That appellate authority requires the document to enable it to pronounce orders or for any substantial cause.
6. State Commission is of the opinion that applicants did not mention the above stated facts in the applications. It is held that it is not expedient in the ends of justice to allow applicants to adduce additional evidence at appellate stage. It is well settled law that party could not be allowed to fill up lacuna in appellate stage of matter. It is held that present applications have been filed by applicants in order to fill up lacunas in the appeals. State Commission is of the opinion that applicants could not be allowed to fill up lacuna because due opportunities were given to the applicants to adduce evidence before learned District Forum.
7. Submission of learned advocate appearing on behalf of non-applicant that applications have been filed at belated stage just to fill up lacunas and same be dismissed is 15 Dolma Devi & Ors.Versus National Insurance Company (F.A. No.319/2016) & Dolma Devi & Ors.Versus National Insurance Company (F.A. No.320/2016) decided accordingly. It is held that applicants could not be allowed to fill up lacunas at appellate stage. It is held that Statement of Nika Bharti recorded before Motor Accident Claims Tribunal-II Kullu H.P. is not essential in order to dispose of both appeals. It is held that both appeals could be disposed of effectively without obtaining additional evidence of applicants. Point No.1 is decided accordingly. Point No.2: Final Order
8. In view of findings upon point No.1 both applications i.e. M.A. No.624/2016 and M.A.625/2016 filed by applicants for adducing additional evidence in appellate stage are dismissed. Observations will not effect merits of appeals in any manner and would be confined strictly for the disposal of applications filed for additional evidence. Both applications be tagged with the main files after due completion. M.A. No.624/2016 & M.A. No.625/2016 are disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 24.04.2018.
*GUPTA* 16