State Consumer Disputes Redressal Commission
Iffco Tokio Gen. Ins. Co. Ltd. vs Sh. Satish Chand Goktu. on 28 June, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 240/2018
Date of Presentation: 22.07.2017
Order Reserved on : 01.03.2019
Date of Order : 28.06.2019
......
IFFCO Tokio General Insurance Co. Ltd. Plot No.2-B & C Sector
28-A Madhya Marg Chandigarh through Shri Mridul Ranjan
DGM Legal Corporate Office IFFCO Tokio General Insurance
Co. Ltd. IFFCO Tower Plot No.3 Sector-29 Gurgaon-122001.
...... Appellant/Opposite Party
Versus
Satish Chand Goktu son of late Sh. Krishan Chand resident of
Village Deorighat (Dhullu) P.O. & Sub Tehsil Tikkar 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. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Virender Sharma Advocate.
For Respondent : Mr. Peeyush Verma 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 07.04.2017 passed by Learned District Forum in consumer complaint No.288/2009 titled Satish Chand Goktu Versus IFFCO Tokio General Insurance Co. Ltd.
1 Whether reporters of the local papers may be allowed to see the order? Yes. IFFCO Tokio General Insurance Co. Ltd. Versus Satish Chand Goktu F.A. No.240/2018 Brief facts of consumer complaint:
2. Complainant filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is exclusive owner of RCC building constructed over land comprised in khasra Nos.601, 601/4 and 601/5 situated at village Deori Ghat (Dhullu) P.O and Sub Tehsil Tikkar District Shimla (H.P). It is pleaded that complainant insured his residential house alongwith articles with opposite party in consideration amount of Rs.2000000/-
(Twenty lac). It is pleaded that in the intervening night of 19/20th September 2008 due to heavy rain entire building of complainant damaged and cracks developed in the walls of residential house and residential house was declared unfit for human habitation.
3. It is pleaded that complainant filed FIR in police chowki Tikkar on 22.09.2008 and police official also inspected the site. It is further pleaded that claim was submitted before Insurance company but Insurance company did not settle claim and committed deficiency in service. Complainant sought relief of payment of Rs.1851030/-(Eighteen lac fifty one thousand thirty) as damage caused to property of complainant. In addition complainant sought relief of payment of Rs.50000/-(Fifty thousand) on account of mental 2 IFFCO Tokio General Insurance Co. Ltd. Versus Satish Chand Goktu F.A. No.240/2018 harassment and agony alongwith interest @ 12% per annum. Prayer for acceptance of consumer complaint sought.
4. Per contra version filed on behalf of opposite party pleaded therein that consumer forum has no jurisdiction to entertain consumer complaint as complicated questions of facts and laws are involved. It is pleaded that complainant be relegated to civil court for adjudication of his dispute. It is further pleaded that complainant has no cause of action and opposite party did not commit any deficiency in service. It is pleaded that complainant is estopped from filing consumer complaint due to his act and conduct. It is pleaded that complaint is bad for non-joinder of necessary parties. It is pleaded that opposite party has repudiated the claim of complainant in accordance with laws & rules and in accordance with terms and conditions of Insurance company. It is pleaded that building in question was not residential building and same was not intended to be insured under Insurance policy. It is pleaded that complainant has submitted false and frivolous claim. It is further pleaded that Insurance company has appointed Surveyor cum Loss Assessor namely Sh. Manuj Doger and Surveyor cum Loss Assessor has assessed the loss. Prayer for dismissal of consumer complaint sought.
3
IFFCO Tokio General Insurance Co. Ltd. Versus Satish Chand Goktu F.A. No.240/2018
5. On dated 23.04.2014 learned District Forum dismissed consumer complaint and held that consumer complaint filed by complainant is beyond pecuniary jurisdiction of District Forum. Learned District Forum returned consumer complaint to complainant for presentation before appropriate authority of law.
6. Thereafter complainant filed revision petition No.58/2014 before State Commission and same was disposed of on dated 10.03.2015. State Commission set aside the order of learned District Forum and remanded the matter to learned District Forum. Thereafter again on dated 03.10.2015 learned District Forum dismissed consumer complaint and held that intricate questions of facts and laws are involved. Thereafter again complainant filed appeal No.116/2016 before State Commission and same was disposed of on dated 04.08.2016.
7. State Commission set aside the order of learned District Forum and again remanded back the matter to learned District Forum for deciding the same on merits. Thereafter again learned District Forum decided consumer complaint on dated 07.04.2017 and learned District Forum ordered that opposite party would pay a sum of Rs.1851030/- (Eighteen lac fifty one thousand thirty) to complainant alongwith interest @ 9% per annum from the date of filing of 4 IFFCO Tokio General Insurance Co. Ltd. Versus Satish Chand Goktu F.A. No.240/2018 complaint till actual payment within forty five days of order. Learned District Forum further ordered that opposite party would pay a sum of Rs.20000/-(Twenty thousand) to complainant on account of mental harassment and agony. In addition learned District Forum ordered opposite party to pay a sum of Rs.10000/-(Ten thousand) as litigation costs.
8. Feeling aggrieved against order passed by Learned District Forum opposite party filed present appeal before State Commission.
9. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
10. 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 and whether genuine claim should be paid by Insurance company in view of ruling reported in AIR 2017 SC 4836 (DB) titled Om Prakash Versus Reliance General Insurance & Anr.?
2. Final order.
Findings upon point No.1 with reasons:
11. Learned Advocate appearing on behalf of complainant on dated 16.06.2010 submitted before learned 5 IFFCO Tokio General Insurance Co. Ltd. Versus Satish Chand Goktu F.A. No.240/2018 District Forum that documents already filed with complaint be read as evidence of complainant and closed the evidence.
Order of learned District Forum dated 16.06.2010 is quoted in toto:-
16/06/2010 Present: Mr. Raman Jamalta Adv. counsel for the complainant.
Mr. Virender Sharma Adv.counsel for the OP. Ld. Counsel for the complainant stated that documents already filed with complaint be read in evidence and closed. Separate statement recorded and placed on record. Be listed for OPE on 03/08/10.
Sd/- -sd-
Member Member.
12. Opposite party filed affidavit of Shri Rajeev
Chaudhary Assistant Vice President in evidence. There is
recital in affidavit that Surveyor cum Loss Assessor namely Sh. Manuj Doger was appointed to assess the loss and he has submitted report. There is recital in affidavit that complainant did not submit requisite documents despite repeated requests from Surveyor cum Loss Assessor. There is further recital in affidavit that opposite party has no option except to close the claim as no claim.
13. Opposite party also filed affidavit of Sh. Manuj Doger Surveyor cum Loss Assessor licenced under SLA in evidence. There is recital in affidavit that report submitted by deponent is correct as per factual position. There is recital in affidavit that Assistant Engineer HPPWD Rohru District 6 IFFCO Tokio General Insurance Co. Ltd. Versus Satish Chand Goktu F.A. No.240/2018 Shimla has submitted damage to the tune of Rs.1851030/-
(Eighteen lac fifty one thousand thirty) qua entire building and has not submitted damage of actual portion. State Commission has perused all annexures filed by opposite party carefully.
14. Submission of learned Advocate appearing on behalf of Insurance company that complainant is not legally entitled for any compensation and order of learned District Forum warrants interference by State Commission is decided accordingly. It is proved on record that residential house in question was insured with the opposite party w.e.f. 03.03.2006 to 02.03.2016 for a sum of Rs.2000000/-(Twenty lac). It is proved on record that at the time of incident Insurance policy was in operation. It is also proved on record that Insurance company has received premium to the tune of Rs.7714/-(Seven thousand seven hundred fourteen) from complainant.
15. State Commission has also perused report of Patwari Halqa and Executive Magistrate dated 15.10.2008. There is recital in report that due to heavy rain cracks developed in residential building of complainant and became inhabitable for residential purpose and same was vacated at the spot. Report submitted by Patwari Halqa and Executive Magistrate is used by State Commission for corroborative 7 IFFCO Tokio General Insurance Co. Ltd. Versus Satish Chand Goktu F.A. No.240/2018 purpose. Report has been submitted by public officers in discharge of their duties and is a relevant fact. Even rapat No.7 dated 22.09.2008 was recorded in police station Rohru and there is recital in report that cracks have developed in residential house and same would fall at any time and the house was vacated by complainant as same was dangerous to the life of inhabitants of house. State Commission is of the opinion that claim of complainant is genuine in nature. Insurance company is under legal obligation to settle the genuine claim of complainant. See 2019(1) CPR 471 NC titled ICICI Lombard General Insurance Company Ltd. Versus Honest Bio-vet Pvt. Ltd. See AIR 2017 SC 4836 (DB) titled Om Prakash Versus Reliance General Insurance & Anr.
16. Insurance company has appointed Surveyor cum Loss Assessor namely Sh. Manuj Doger and Sh. Manuj Doger has specifically mentioned in his report in para-6 that claim filed by complainant is admissible with regard to insured perils. Surveyor cum Loss Assessor has assessed loss to the tune of Rs.32076/-(Thirty two thousand seventy six) on reinstatement value basis. Surveyor cum Loss Assessor has reduced the value of depreciation and has also reduced the value of loss on the basis of average clause and has also reduced value of salvage. Sh. Manuj Doger Surveyor cum Loss Assessor has submitted the report under statutory Act 8 IFFCO Tokio General Insurance Co. Ltd. Versus Satish Chand Goktu F.A. No.240/2018 i.e. Insurance Act 1938. Report submitted by Surveyor cum Loss Assessor under section 64UM of Insurance Act 1938 is substantial piece of evidence. See 2010(3) CPJ 401 NC New India Assurance Company Ltd. Versus Pushpa Chhabra. 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 2017 (1) CPJ 529 NC Ashish Kumar Jaiswal Versus ICICI Lombard General Insurance Company Ltd. & others. 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. Complainant did not send any interrogatories to Sh. Manuj Doger Surveyor cum Loss Assessor. Sh. Manuj Doger Surveyor cum Loss Assessor has recommended the claim to the tune of Rs.32076/-(Thirty two thousand seventy six). State Commission is of the opinion that Insurance company could not be allowed to disbelieve report of its own Surveyor cum Loss Assessor appointed under statutory Act i.e. Insurance Act 1938.
17. Submission of learned Advocate appearing on behalf of Insurance company that complainant did not file his own affidavit in evidence and also did not file affidavit of 9 IFFCO Tokio General Insurance Co. Ltd. Versus Satish Chand Goktu F.A. No.240/2018 Assistant Engineer HPPWD Rohru and on this ground appeal filed by Insurance company be allowed is decided accordingly. State Commission is of the opinion that opposite party appointed Surveyor cum Loss Assessor under statutory Act i.e. Insurance Act 1938 and Insurance company could not be allowed to disbelieve the report of its own Surveyor cum Loss Assessor appointed under statutory Act i.e. Insurance Act 1938.
18. Submission of learned Advocate appearing on behalf of Insurance company that insured house is joint owned property and complainant is not legally entitled to claim whole claim is decided accordingly. State Commission is of the opinion that Insurance company has insured house in individual capacity of complainant to the tune of Rs.2000000/-(Twenty lac) and complainant is legally entitled for loss assessed by Surveyor cum Loss Assessor appointed under statutory Act i.e. Insurance Act 1938.
19. Submission of learned Advocate appearing on behalf of complainant that order of learned District Forum does not warrant interference by State Commission and same is in accordance with law and proved facts and same be affirmed is decided accordingly. In the present matter complainant did not file personal affidavit in support of his claim. Even complainant did not file any corroborative 10 IFFCO Tokio General Insurance Co. Ltd. Versus Satish Chand Goktu F.A. No.240/2018 evidence in support of his claim as required under section 13(4) of Consumer Protection Act 1986.
20. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for a sum of Rs.1851030/-(Eighteen lac fifty one thousand thirty) as damage assessed by Assistant Engineer HP PWD Rohru is decided accordingly. Complainant did not file his personal affidavit and also did not file affidavit of Assistant Engineer HP PWD Rohru. It is well settled law that contents of controversial document should be proved by way of affidavit of a person who has signed the document as per section 13(4)(ii) of Consumer Protection Act 1986. Even as per section 13(4)(ii) of Consumer Protection Act 1986 documentary evidence could be adduced under Consumer Protection Act 1986 which is producible as evidence. State Commission is of the opinion that contents of controversial document is producible as evidence by way of affidavit of a person who has signed controversial document. It is well settled law that when there is conflict between report of Surveyor cum Loss Assessor appointed under Insurance Act 1938 and between report of a person not appointed under statutory Act i.e. Insurance Act 1938 then report submitted by person appointed under Insurance Act 1938 should prevail unless contrary is proved. Hence adverse inference is drawn 11 IFFCO Tokio General Insurance Co. Ltd. Versus Satish Chand Goktu F.A. No.240/2018 against complainant for non filing his personal affidavit under section 13(4) of Consumer Protection Act 1986 and for non filing personal affidavit of Assistant Engineer Rohroo. It is well settled law that affidavit filed in support of consumer complaint which is part of pleading only could not be treated as evidence of controversial facts under section 13(4) of Consumer Protection Act 1986. It is well settled law that pleadings are not substitute for evidence. See latest HLJ 2017 H.P 1011 titled Oriental Insurance Company Ltd. Versus Champa Devi & others. As per Consumer Protection Act 1986 complaint is only allegations against opposite party and complaint is not evidence against opposite party. Report submitted by Assistant Engineer HP PWD Rohru is not considered by State Commission in view of the fact that contents of report is not per se admissible.
21. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for compensation for mental harassment to the tune of Rs.50000/-(Fifty thousand) alongwith interest @ 12% per annum is decided accordingly. Insurance company did not settle the claim as assessed by Surveyor cum Loss Assessor appointed under Insurance Act 1938. Hence it is held that Insurance company could not be exonerated from liability. Complainant is entitled for reasonable compensation for 12 IFFCO Tokio General Insurance Co. Ltd. Versus Satish Chand Goktu F.A. No.240/2018 mental agony and harassment. In view of above stated facts point No.1 is decided accordingly.
Point No.2: Final Order
22. In view of findings upon point No.1 above appeal is partly allowed. It is ordered that Insurance company shall pay a sum of Rs.32076/-(Thirty two thousand seventy six) to complainant as assessed by Surveyor cum Loss Assessor appointed under Insurance Act 1938 alongwith interest @ 9% per annum from the date of institution of complaint till actual payment. Order of learned District Forum that Insurance company would pay compensation to complainant on account of harassment and mental agony to the tune of Rs.20000/- (Twenty thousand) is affirmed. Order of learned District Forum that Insurance company would pay an amount of Rs.10000/-(Ten thousand) to complainant as litigation costs is also affirmed.
23. Surveyor cum Loss Assessor report dated 13.07.2009 annexure-E/1 submitted by Sh. Manuj Doger and Report submitted by Patwari Halwa and Executive Magistrate dated 15.10.2008 shall form part and parcel of order. Order of learned District Forum is modified accordingly. Parties are left to bear their own litigation costs before State Commission. Certified copy of order be sent to learned District Forum for information forthwith and file of State Commission be 13 IFFCO Tokio General Insurance Co. Ltd. Versus Satish Chand Goktu F.A. No.240/2018 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 28.06.2019 KD* 14