State Consumer Disputes Redressal Commission
Reliance General Insurance Co. Ltd. vs Sh. Ajmer Singh. & Anr. on 3 May, 2021
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 94/2018
Date of Presentation: 26.04.2018
Order Reserved on : 31.03.2021
Date of Order : 03.05.2021
......
The Reliance General Insurance Company Ltd. Rain Basera
Building, 1st Floor, Khalini, Shimla, H.P. through its Manager
Legal, SCO 147-148, 2nd Floor, Madhya Marg, Sector 9-C,
Chandigarh-160009
........Appellant/Opposite party No.1.
Versus
1. Ajmer Singh S/o Shri Kabal Singh, Resident of Village
Dehlan, Tehsil and District Una, H.P.
.......Respondent No.1/Complainant.
2. Abhishek Sharma S/o Sh. Inderjit Sharma, resident of
Village and Post Office Dangoli, Tehsil and District Una,
H.P. office and extension branch C/o Ram Saran
Complex, Opposite New Bus Stand, Una, H.P.
.......Respondent No.2/Opposite party No.2.
Coram
Hon'ble Ms. Sunita Sharma, Presiding Member
Hon'ble Mr. R.K.Verma, Judicial Member
Whether approved for reporting?1
For Appellant : Mr.Munish Kumar vice Mr.Jagdish Thakur,
Advocate.
For respondent No.1 : Mr.Atul Verma vice Mr.Gaurav Gautam,
Advocate.
For respondent No.2 : Mr.Rajan Kahol, Advocate.
1
Whether reporters of the local papers may be allowed to see the order?
Reliance General Insurance Co. Ltd. Vs. Sh.Ajmer Singh & Anr..
F.A. No.94/2018
Ms.Sunita Sharma, Presiding Member :
O R D E R :-
1. Present appeal has been filed against order dated 14.03.2018 passed by Learned District Consumer Forum/Commission, Una, H.P. in consumer complaint No.72/2016 titled Ajmer Singh Versus The Reliance General Insurance Company Ltd. & Anr.
Brief facts of consumer complaint:
2. The case of the complainant in brief is that he is owner of vehicle Tata LPT 909 Ex bearing Registration No HP-
20D-2283. Vehicle of the complainant was insured with opposite party No.1 and insurance was valid from 16-03-2015 to 15-03-2016. It is pleaded that vehicle of the complainant met with an accident on 16-07-2015 near Khanpur while trying to save one motorcyclist, the vehicle struck with a culvert, as a result of which, the vehicle of the complainant was badly damaged. The matter was reported to the police at Police Post Santoshgarh vide Rapat No. 10 dated 25-07-2015. Complainant also informed regarding accident and damages of the vehicle to opposite party No.1 and the opposite party No.1 after examination of vehicle, treated the vehicle as total loss and demanded documents of the vehicle for processing claim vide letter dated 30-01-2016. Opposite party No.1 had sent specific letter dated 15-12-2015 vide which opposite party demanded only Driving License of the driver for 2 Reliance General Insurance Co. Ltd. Vs. Sh.Ajmer Singh & Anr.. F.A. No.94/2018 processing the claim and thereafter all the documents were sent to opposite party No.1. But, vide letter dated 15-03-2016 claim of the complainant was repudiated by opposite party No.1 on the ground that five persons were sitting in the vehicle in question at the time of accident. It is pleaded that the complainant is consumer of opposite parties and his claim has been wrongly repudiated. Such act and conduct of opposite parties amount to unfair trade practice and deficiency in service, due to which the complainant has suffered monetary loss, mental tension and harassment. Hence, present complaint.
3. The claim of the complainant has been resisted and contested by the opposite party No.1 by filing reply, wherein preliminary objections that the complainant has concealed the material facts, that the complainant violated terms and conditions of the insurance policy and that the driver of the complainant had consumed liquor, have been taken. On merits, it has been alleged that accident had taken place due to overloading and consumption of liquor. Opposite party No.1 had deputed Investigator Mr.A.P.Singh, for investigating the matter, who thoroughly investigated the matter and recorded statements of complainant and other persons and submitted his report with insurance company. Insurance company also deputed Surveyor-cum-Loss Assessor Satinder Pal to assess the loss who assessed the loss 3 Reliance General Insurance Co. Ltd. Vs. Sh.Ajmer Singh & Anr.. F.A. No.94/2018 of vehicle at Rs.99,530/- and submitted his final report with opposite party. There is no deficiency in service on the part of opposite party. A prayer for dismissal of consumer complaint made.
4. The complainant has filed rejoinder to the reply filed by the opposite party No.1 in which he has controverted the stand taken up by the opposite party No.1 and reaffirmed his stand as taken in the complaint.
5. The complainant and the opposite party No.1 have led evidence by way of affidavits in support of their respective claims and also filed documentary evidence.
6. After hearing the parties, learned District Forum allowed the complaint against the opposite party No.1. Being aggrieved by the same, the appellant/opposite party No.1 filed the instant appeal.
7. We have heard learned counsel for the parties and we have also perused entire record carefully.
8. 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?
2. Final order.
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Reliance General Insurance Co. Ltd. Vs. Sh.Ajmer Singh & Anr.. F.A. No.94/2018 Findings upon point No.1 with reasons:
9. Learned counsel for the appellant has argued that vehicle in question was registered as Goods vehicle and was not meant to carry the passengers as per Section 2 (14) of the Motor Vehicles Act. He also argues that perusal of the DDR/FIR clearly shows that at the time of accident four passengers were travelling in the vehicle in question which is in violation of the terms and conditions of the Insurance policy and therefore, the Insurance company has rightly repudiated the claim of the complainant, which is evident from the perusal of repudiation letter dated 15.03.2016.
Learned counsel for the appellant further argued that claim of the complainant was repudiated on the ground of over loading and carrying the passengers in Goods Vehicle, but the respondent/complainant has not submitted even a single word in his complaint or in the evidence that they were either the owner of the goods or representative of the owner of the goods. He further argued that though it is settled proposition of law that DDR/FIR is not a substantial piece of evidence and is not per se admissible in evidence, but as per the law laid down by the Hon'ble Apex Court in National Insurance Company Ltd. Versus Rattani, 2009 (2) ACJ 925, the Courts/Forums below are bound to look into the same when the same has been made basis for the grant of compensation. He further argues that surveyor's report is valuable piece of 5 Reliance General Insurance Co. Ltd. Vs. Sh.Ajmer Singh & Anr.. F.A. No.94/2018 evidence and same cannot be brushed aside in the absence of something contrary to the same brought on record. As per him, the Surveyor has rightly assessed the loss to the tune of Rs.99,500/- and the same has been proved by the Insurance company by filing affidavit of Surveyor in accordance with the provisions of Section 13 (4) of the Consumer Protection Act. He further argues that learned Forum below has erred in law in awarding interest at the rate of 9% on the award amount, which ought not to have been more than 7.5%. He prays that appeal preferred by the appellant be allowed and the order of learned District Commission be set aside.
10. Per contra learned counsel for the respondent No.1 has supported the order of learned District Forum and also argued that if the Insurance company is challenging the order of learned District Forum on the quantum, the case of the complainant for enhancement of compensation be considered as cross objection under order 41 rule 3 of the Code of Civil Procedure.
11. Similarly, learned counsel for the respondent No.2 also supported the order of learned District Forum and argued that order of learned District Forum is in accordance with law and proved facts and does not call for interference from State Commission.
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Reliance General Insurance Co. Ltd. Vs. Sh.Ajmer Singh & Anr.. F.A. No.94/2018
12. It is settled law that proceedings under the Consumer Protection Act are quasi judicial proceedings and First Information Report/DDR is not per se admissible in evidence, it is a substantial piece of evidence which has to be used for corroboration or contradiction during the course of trial against the accused in the Criminal Court only, but losses are assessed by the Insurance companies if the owner gets registered the FIR. Therefore, we rely upon the FIR/DDR which was got registered by the insured/owner Ajmer Singh in the instant case. Arguments to the effect are accepted. We have carefully perused the FIR, which shows there is nothing to show that four unauthorized passengers were travelling in the vehicle at the time of accident. Gist of the FIR goes to show that insured Ajmer Singh and his driver Bakhshish Singh after unloading the goods at Tahliwal (Una) were coming back and passing in the area of Khanpur, then suddenly one ahead going motorcycle applied brakes and to avoid accident, driver of the vehicle in question turned the vehicle towards one side and lost control and vehicle got stuck with the small bridge and fell down from the bridge and resulted into total damage to the vehicle. Therefore, the arguments advanced by the learned counsel for the appellant is of no consequence that the vehicle was being plied in violation of the terms and conditions of the Insurance policy as it was carrying four unauthorized passengers. The learned 7 Reliance General Insurance Co. Ltd. Vs. Sh.Ajmer Singh & Anr.. F.A. No.94/2018 counsel for the appellant did not press the ground that driver of the vehicle in question was under the influence of liquor at the time of accident. Since no evidence led by the Insurance company to substantiate the arguments, therefore, said grounds are rejected accordingly.
13. It is also not disputed by the Insurance company that vehicle in question was treated as total loss and the Insurance company demanded documents of the vehicle in question for processing the claim of the complainant vide letter dated 30.01.2016. The claim of the complainant was repudiated on the vague ground that five persons were sitting in the vehicle in question at the time of accident. But, there is nothing on record to substantiate the same except the statement of Haravtar Singh that too filed with the Surveyor's report that five persons were sitting in the vehicle at the time of accident. As per the Surveyor's report five persons were sitting in the vehicle in question. But the said report must have been attached with the repudiation letter, but that has not been attached with the repudiation letter. The Hon'ble Apex Court as well as Hon'ble National in their various pronouncements held that surveyors are independent and their report has to be given due weightage and credence unless anything contrary to the same is placed on record. In New India Assurance Company Vs. Pradeep Kumar, 2009 (7) SCC 787, the Hon'ble Apex Court clearly held that report 8 Reliance General Insurance Co. Ltd. Vs. Sh.Ajmer Singh & Anr.. F.A. No.94/2018 of the Surveyor is not last and final approved word. It is not that sacrosanct that it cannot be departed from, it is not conclusive. The approved surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured, but such report is neither binding upon the insurer nor the insured. In Sikka Papers Ltd. Vs. National Insurance Company Ltd. , 2009 (7) SCC 777, the Hon'ble Supreme Court of India has also held that though Surveyor's report is not last and final word, yet there must be legitimate reasons for departing from such report.
14. Now let us examine the report of the Surveyor. The surveyor in the claim history has mentioned that complainant went to Delhi and while coming back on 16.07.2015 from Delhi, he received goods to be delivered at Tahliwal (Una) near Santokhgarh. After unloading the material when he alongwith his driver Bakhshis was coming back and passing in the area of Khanpur, then suddenly one ahead going motorcycle applied brakes and to avoid accident, driver of the vehicle in question turned the vehicle towards one side and lost control and vehicle got stuck with the small bridge and fell down from the bridge and resulted into total damage to the vehicle. The surveyor further mentioned that during the course of investigation, he has taken statement of Haravtar Singh, who is brother-in-law of Ajmer Singh and who stated that they were going in the vehicle in question to 9 Reliance General Insurance Co. Ltd. Vs. Sh.Ajmer Singh & Anr.. F.A. No.94/2018 Khanpur to attend marriage function with 3-4 persons. It is also mentioned that Bakhshish Singh alongwith Haravtar Singh, Balbir Singh and Jodha Singh were in the vehicle. They attended marriage party and also drunk in the marriage and when they were coming back in the vehicle in question, then in order to save one motorcyclist, the driver lost control over the vehicle and it met with an accident. But it is to be noted that affidavit of Haravtar Singh was not filed by the Insurance company to substantiate the report of the surveyor. Mere writing that Haravtar Singh made this statement to the surveyor cannot be believed, when on the very next day of accident, FIR/DDR was got registered by the complainant/owner of the vehicle Ajmer Singh. Nothing as such has been stated by the insured in the police station while registering DDR/FIR. Thus, on close scrutiny of the surveyor's report it could be held that same is based on the sole statement of Haravtar Singh, whose affidavit has not been placed on record by the Insurance company and as such same has not been proved in accordance with the provisions of Section 13 (4) of the Consumer Protection Act and same is required to be ignored and cannot be made basis for coming to the conclusion that there is fundamental breach of terms and conditions of the Insurance policy.
15. We are of the affirmed view that in the instant case, the Insurance company has acted upon only the report of 10 Reliance General Insurance Co. Ltd. Vs. Sh.Ajmer Singh & Anr.. F.A. No.94/2018 the surveyor and not applied independent finding on the basis of the documentary evidence on record. Repudiation of claim in the instant case in part was not justified and could be said to be unfair and unreasonable. The Insurance company has relied upon surveyor report whenever is convenient to them while shutting their eyes to other evidence produced on record. Thus, we are unable to accept the plea that five persons were sitting in the Goods vehicle and the Insurance company failed to explain how the surveyor assessed the loss to vehicle in question to the tune of Rs.99,530/-, when it is admitted by them that vehicle was total loss. In para-4 of the complaint, the complainant has pleaded that vehicle was total loss and in reply to the said para, the Insurance company has not denied that vehicle in question was total loss. Therefore, it is presumed that the Insurance company has accepted that vehicle was total loss.
16. As far as the law laid down by the Hon'ble Apex Court in Lakhmi Chand Vs. Reliance General Insurance Company 2016 (3) CPJ 3 and the Hon'ble National Consumer Commission in Revision petition No. 4581 of 2016 titled Sher Singh Thakur Vs. New India Assurance Company and Oriental Insurance Company Limited Vs. Ashwani Kumar 2013(1) CPJ 21B (CN)(NC), according to which claim was to be settled on non-standard basis is of no consequence, since Insurance company failed to prove that five persons were 11 Reliance General Insurance Co. Ltd. Vs. Sh.Ajmer Singh & Anr.. F.A. No.94/2018 travelling in the vehicle in question at the time of accident in violation of the terms and conditions of the Insurance Policy. These authorities with utmost respect are not applicable in the facts of present case. Therefore, we hereby discard the report of the surveyor, which cannot be made the sole basis for assessment of loss.
17 Besides this, there is no other evidence on record to disprove the claim of the complainant. We, therefore, hold that Insurance company has committed deficiency in service and unfair trade practice in repudiating the genuine claim of the complainant and it is also held that the impugned order dated 14.03.2018 passed by the learned District Forum, Una does not suffer from any legal infirmity and as such the instant appeal filed by the appellant is devoid of any merit.
18. Since no cross appeal has been filed on behalf of respondent No.1/complainant for enhancement of compensation amount, therefore, arguments advanced by learned counsel for the respondent No.1/complainant in this regard cannot be considered and allowed. Point No.1 is decided accordingly.
Point No.2: Final Order
19. In view of findings upon point No.1 above, appeal filed by appellant is dismissed with costs of Rs.3,000/-. Order of learned District Forum/Commission is affirmed. 12
Reliance General Insurance Co. Ltd. Vs. Sh.Ajmer Singh & Anr.. F.A. No.94/2018
20. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. File alongwith certified copy of order be sent back to learned District Forum/Commission forthwith for information and file of State Commission be consigned to record room after due completion forthwith. F.A.No.94/2018 is disposed of. Pending application(s) if any also disposed of.
Sunita Sharma Presiding Member R.K.Verma Judicial Member 03.05.2021 Manoj 13