State Consumer Disputes Redressal Commission
Oriental Insurance Co. Ltd. & Anr. vs Sh. Munish Kumar. on 10 April, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 277/2018
Date of Presentation: 08.10.2018
Order Reserved on : 05.12.2018
Date of Order : 10.04.2019
......
1. The Oriental Insurance Company Ltd. through its Branch
Manager Branch Office Dharamshala Dewan Complex
Kotwali Bazar Dharamshala H.P.
2. The Oriental Insurance Company Ltd. Head Office
Oriental House A-25/27 Asaf Ali road New Delhi-110002.
...... Appellants/Opposite Parties
Versus
Munish Kumar son of Shri Tek Chand Sharma resident of Village
Dibba P.O. Rirkumar Tehsil Shahpur District Kangra H.P.
......Respondent /Complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant s : Mr. Jagdish Thakur Advocate.
For Respondent : Mr. Gaurav Sharma 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 04.09.2018 passed by Learned District Forum in consumer complaint No.79/2018 titled Munish Kumar Versus The Oriental Insurance Company Ltd. & Anr.
1Whether reporters of the local papers may be allowed to see the order? Yes.
Oriental Insurance Company Ltd. & Anr. Versus Munish Kumar F.A. No.277/2018 Brief facts of consumer complaint:
2. Shri Munish Kumar filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is owner of Mahindra and Mahindra Tractor No.HP-68-4636. It is pleaded that vehicle was insured with opposite parties w.e.f. 09.02.2017 to 08.02.2018 and premium was paid to opposite parties. It is pleaded that on dated 11.11.2017 at about 12.15 P.M tractor met with accident and FIR No.168/2017 dated 11.11.2017 was lodged in police station Shahpur. It is pleaded that complainant submitted the original bills of repair to the tune of Rs.167693/-(One lac sixty seven thousand six hundred ninety three) but opposite party did not settle the claim and committed deficiency in service. Complainant sought relief of payment of Rs.167693/-(One lac sixty seven thousand six hundred ninety three) as repair costs of vehicle in question.
In addition complainant also sought relief of payment of Rs.50000/-(Fifty thousand) as damages for harassment. In addition complainant also sought litigation costs. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite parties pleaded therein that complainant has not approached the Forum with clean hands and suppressed the material facts from learned District Forum. It is pleaded that 2 Oriental Insurance Company Ltd. & Anr. Versus Munish Kumar F.A. No.277/2018 complainant has plied the vehicle in violation of terms and conditions of Insurance policy. It is further pleaded that driver was not holding valid and effective driving licence at the time of accident. It is pleaded that vehicle in question was commercial in nature and there was no endorsement of transport vehicle in driving licence. It is pleaded that complainant has no cause of action and locus standi to file the present consumer complaint. It is pleaded that complainant is estopped by his own act and conduct to file the present consumer complaint. Prayer for dismissal of consumer complaint sought.
4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. Learned District Forum partly allowed the complaint and ordered opposite parties jointly and severally to pay an amount of Rs.167693/- (One lac sixty seven thousand six hundred ninety three) to complainant alongwith interest @ 9% per annum from the date of complaint till payment. In addition learned District Forum ordered that opposite parties would also pay compensation to complainant for mental harassment to the tune of Rs.15000/-(Fifteen thousand). In addition learned District Forum ordered that opposite parties would also pay litigation costs to complainant to the tune of Rs.5000/-(Five thousand). Feeling aggrieved against order passed by Learned 3 Oriental Insurance Company Ltd. & Anr. Versus Munish Kumar F.A. No.277/2018 District Forum opposite parties 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 appellants is liable to be accepted as mentioned in memorandum of grounds of appeal and whether driver holding LMV licence is legally competent to drive transport LMV vehicle?
2. Final order.
Findings upon point No.1 with reasons:
7. Complainant filed affidavit Ext.CW-1 in evidence.
There is recital in affidavit that deponent is owner of Mahindra and Mahindra Tractor No.HP-68-4636. There is recital in affidavit that vehicle was duly insured with opposite parties w.e.f. 09.02.2017 to 08.02.2018 and premium to the tune of Rs.21589/-(Twenty one thousand five hundred eighty nine) was paid to opposite parties. There is recital in affidavit that on dated 11.11.2017 at about 12.15 P.M afternoon tractor in question met with accident and FIR No.168/17 dated 11.11.2017 was registered in police station Shahpur. There is recital in affidavit that opposite party No.2 asked the deponent to repair his tractor and thereafter submit the bills 4 Oriental Insurance Company Ltd. & Anr. Versus Munish Kumar F.A. No.277/2018 to Insurance company. There is recital in affidavit that complainant submitted the bills but opposite parties did not settle the claim and repudiated the claim and committed deficiency in service.
8. Complainant also filed affidavit of Shri Sanjeevan Chambyal Proprietor of M/s. Chambyal Auto Store situated at Dramman District Kangra H.P. There is recital in affidavit that deponent deals in automobiles agriculture implements and tractor spare parts etc. There is recital in affidavit that tractor having registration No.HP-68-4636 belongs to Shri Munish Kumar. There is recital in affidavit that bill voucher No.001 dated 29.12.2017 was issued by him to owner of tractor in question. There is recital in affidavit that repair work of tractor was done by Sh. Amrik Singh who has workshop next to deponent's store.
9. Complainant also filed affidavit of Shri Rajneesh Sharma Ext.CW-3 owner of Sharma Crane Service 39 mils Shahpur. There is recital in affidavit that tractor No.HP-68- 4636 belongs to Sh. Munish Kumar and same was rescued through him by way of tow-chained from Dibba to Dramman. There is recital in affidavit that crane was engaged for two days for rescue work and deponent has claimed an amount of Rs.25000/-(Twenty five thousand).
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Oriental Insurance Company Ltd. & Anr. Versus Munish Kumar F.A. No.277/2018
10. Complainant also filed affidavit of Sh. Amrik Singh Ext.CW-4 in evidence. There is recital in affidavit that workshop of deponent is situated at Dramman District Kangra H.P and deponent is a trained ITI diploma holder and working as tractor mechanic for the last more than twenty years. There is recital in affidavit that tractor was repaired vide bill dated 29.12.2017 for Rs.15000/-(Fifteen thousand). State Commission has carefully perused all the annexures filed by complainant.
11. Opposite parties filed affidavit of Shri Hari Ram Divisional Manager in evidence. There is recital in affidavit that present consumer complaint has been filed without any cause of action. There is recital in affidavit that driver of vehicle was not holding valid and effective driving licence to drive the vehicle in question. There is recital in affidavit that vehicle in question was commercial vehicle and there was no endorsement of transport vehicle in driving licence. There is recital in affidavit that vehicle was plied in violation of terms and conditions of Insurance policy and complainant has no cause of action and locus standi to file the present consumer complaint. There is recital in affidavit that complainant is estopped by his own act and conduct to file the present consumer complaint.
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Oriental Insurance Company Ltd. & Anr. Versus Munish Kumar F.A. No.277/2018
12. Opposite parties also filed affidavit of Shri Sanjay Awasthi Ext.OPSW-2 in evidence. There is recital in affidavit that deponent is qualified Surveyor cum Loss Assessor and Insurance company has hired services of deponent to conduct final survey of alleged loss in respect of vehicle bearing No.HP-68-4636. There is recital in affidavit that deponent has assessed loss to the tune of Rs.100540/-(One lac five hundred forty) as net loss to the vehicle in question. There is recital in affidavit that final survey reported dated 08.02.2018 be read as part and parcel of affidavit.
13. Opposite parties also filed affidavit of Shri Manmohan Sharma in evidence. There is recital in affidavit that deponent is qualified Surveyor and Loss Assessor and Insurance company hired services of deponent to assess loss in respect of vehicle No.HP-68-4636. There is recital in affidavit that after conducting spot survey deponent has submitted the report and same be read as part and parcel of affidavit.
14. Opposite parties also filed affidavit of Shri Hasit Nayyar Ext.OPSW-4 in evidence. There is recital in affidavit that Oriental Insurance Company hired the services of deponent to conduct verification of driving licence of Shri Munish Kumar. There is recital in affidavit that deponent conducted the verification of driving licence from Licensing 7 Oriental Insurance Company Ltd. & Anr. Versus Munish Kumar F.A. No.277/2018 Authority Jalandhar and submitted the report to Insurance company. There is recital in affidavit that contents of same be read as part and parcel of affidavit. State Commission has carefully perused all the annexures filed by Insurance company.
15. Submission of learned Advocate appearing on behalf of Insurance company that Insurance company has appointed Surveyor cum Loss Assessor under Insurance Act 1938 and learned District Forum has not considered the report of Surveyor cum Loss Assessor appointed under Insurance Act 1938 and on this ground appeal filed by Insurance company be allowed is decided accordingly. It is proved on record that Insurance company appointed Surveyor cum Loss Assessor namely Shri Sanjay Awasthi duly licensed under Insurance Act 1938. Shri Sanjay Awasthi Surveyor cum Loss Assessor has personally inspected the vehicle in question and has assessed damage to the tune of Rs.100540/-(One lac five hundred forty).
16. It is well settled law that report of Surveyor cum Loss Assessor appointed under Insurance Act 1938 is a substantial piece of document. There is no evidence on record in order to prove that Sh. Sanjay Awasthi Surveyor cum Loss Assessor has hostile animus against complainant at any point of time. Even complainant did not send any 8 Oriental Insurance Company Ltd. & Anr. Versus Munish Kumar F.A. No.277/2018 interrogatories to Sh. Sanjay Awasthi Surveyor cum Loss Assessor as per Consumer Protection Act 1986. Even complainant did not file any counter assessment report from Surveyor cum Loss Assessor licensed under Insurance Act 1938. State Commission is of the opinion that in view of above stated facts it is expedient in the ends of justice and on the principle of natural justice to rely upon the assessment report submitted by Sh. Sanjay Awasthi Surveyor cum Loss Assessor duly licensed under Insurance Act 1938. 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. See 2009(1) CPC 166 NC Pradeep Kumar Versus National Insurance Company Ltd. See 2018(1) CPR 311 NC Oriental Insurance Company Ltd. Versus Jagdish Chand Gupta. See 2010(3) CPJ 401 NC New India Assurance Company Ltd. Versus Pushpa Chhabra. See 2010(1) CPC 696 NC Champa Lal Verma Versus Oriental Insurance Company Ltd.
17. Submission of learned Advocate appearing on behalf of Insurance company that driver was not holding valid and effective driving licence at the time of accident as there is no endorsement in driving licence relating to transport 9 Oriental Insurance Company Ltd. & Anr. Versus Munish Kumar F.A. No.277/2018 vehicle. State Commission has carefully perused R.C of vehicle. As per R.C. of vehicle in question unladen weight of vehicle in question was 1990 Kg and laden weight of vehicle in question was 3090 Kg. As per section 2(21) of Motor Vehicles Act 1988 LMV vehicle means a transport vehicle or omnibus the gross unladen weight of which does not exceed 7500 kilograms. It is held that vehicle in question falls within definition of LMV vehicle as defined under section 2(21) of Motor Vehicles Act 1988. It is proved on record that driver was holding LMV licence at the time of accident which was valid till 10.03.2028. Hon'ble Apex court of India has held that driver holding LMV licence could drive transport LMV vehicle. It is well settled law that ruling given by Hon'ble Apex court of India is binding upon all courts, Commissions and Tribunals. See AIR 2017 SC 3668 Mukund Dewangan Versus Oriental Insurance Company Ltd. (Three Judges Bench Ruling). See 2008(3) SCC 464 National Insurance Company Versus Annappa Irappa Nesaria and others.
18. Submission of learned Advocate appearing on behalf of Insurance company that learned District Forum has granted excessive damage to the tune of Rs.15000/-(Fifteen thousand) to complainant on account of mental harassment and on this ground appeal filed by Insurance company be allowed is decided accordingly. State Commission is of the 10 Oriental Insurance Company Ltd. & Anr. Versus Munish Kumar F.A. No.277/2018 opinion that Insurance company did not release the amount to complainant as assessed by Surveyor cum Loss Assessor appointed under statutory Act i.e. Insurance Act 1938. It is held that Insurance company has committed deficiency in service. It is held that mental agony was caused to complainant and it is held that reasonable compensation has been granted by learned District Forum to complainant for mental agony and harassment and it is not expedient in the ends of justice and on the principle of natural justice to reduce the damage amount ordered by learned District Forum for mental agony and harassment.
19. Submission of learned Advocate appearing on behalf of Insurance company that learned District Forum has granted excessive litigation costs to complainant to the tune of Rs.5000/-(Five thousand) is decided accordingly. It is proved on record that Advocate was engaged by complainant before learned District Forum and complainant has paid Advocate fee. Even complainant has incurred litigation expenses before 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 reduce the litigation costs as ordered by learned District Forum.
20. Submission of learned Advocate appearing on behalf of complainant that O.D claim as ordered by learned 11 Oriental Insurance Company Ltd. & Anr. Versus Munish Kumar F.A. No.277/2018 District Forum does not warrant any interference by State Commission and on this ground appeal filed by Insurance company be dismissed is decided accordingly. State Commission is of the opinion that complainant is legally entitled to O.D claim as assessed by Surveyor cum Loss Assessor namely Shri Sanjay Awasthi who is holding licence under statutory Act i.e. Insurance Act 1938. State Commission has carefully perused the report of Shri Sanjay Awasthi Surveyor cum Loss Assessor and he has specifically mentioned in his report that when insured was going to Dibba from Rirkumar & was loaded with dry grass suddenly on the way tractor dragged off the road and rolled in deep valley and damage was caused to complainant. Surveyor cum Loss Assessor has recommended the loss to the tune of Rs.100540/-(One lac five hundred forty). State Commission is of the opinion that complainant is legally entitled to O.D claim as assessed by Surveyor cum Loss Assessor appointed under statutory Act i.e. Insurance Act 1938. State Commission is of the opinion that affidavit of Shri Sanjeevan Chambyal, affidavit of Shri Rajneesh Sharma and affidavit of Sh. Amrik Singh are not helpful to complainant because above stated persons are not duly licensed under Insurance Act 1938. Insurance Act 1938 is a special Act and it is well settled law that when there is conflict between Special Act 12 Oriental Insurance Company Ltd. & Anr. Versus Munish Kumar F.A. No.277/2018 and General Act then Special Act always prevails. In view of above stated facts point No.1 is decided accordingly. Point No.2: Final Order
21. In view of findings upon point No.1 above appeal is partly allowed. O.D claim ordered by learned District Forum to the tune of Rs.167693/-(One lac sixty seven thousand six hundred ninety three) is reduced to Rs.100540/-(One lac five hundred forty) and it is ordered that opposite parties shall jointly and severally pay O.D claim to complainant to the tune of Rs.100540/-(One lac five hundred forty) alongwith interest @ 9% per annum from the date of complaint till actual payment. Order of learned District Forum that opposite parties would jointly and severally pay compensation to complainant for mental harassment to the tune of Rs.15000/- (Fifteen thousand) is affirmed. Order of learned District Forum that opposite parties would pay an amount of Rs.5000/-(Five thousand) to complainant as litigation costs jointly and severally is also affirmed.
22. R.C. Annexure-C1 and report of Surveyor cum Loss Assessor namely Sh. Sanjay Awasthi Annexure-R6 dated 08.02.2018 shall form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. Certified copy of order be sent to learned District Forum forthwith for information and file of State Commission be 13 Oriental Insurance Company Ltd. & Anr. Versus Munish Kumar F.A. No.277/2018 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 Sunita Sharma Member 10.04.2019 KD* 14