ORDER (Per: Mr. C.C. Pant, Member): This appeal is directed against the judgment and order dated 24.03.2012 passed by the District Forum, Dehradun, partly allowing the consumer complaint No. 180 of 2011 and directing the opposite party to pay to the complainant a sum of Rs. 2,14,680/- against damages, Rs. 20,000/- for mental agony and Rs. 5,000/- towards cost of litigation, within a month (30 days) from the date of order, failing which the complainant has been held entitled to interest @ 9% per annum on the above amount from the date of filing the consumer complaint till payment. 2. The facts of the case, in brief, are that the complainant Smt. Sarojini Dasgupta was the owner of Bolero Camper Mahindra & Mahindra vehicle bearing registration No. HP10-A-6969. The vehicle was insured with The Oriental Insurance Co. Ltd. – opposite party for the period from 30.08.2009 to 29.08.2010 at an I.D.V. of Rs. 3,72,000/-. The vehicle met with an accident on 19.07.2010 and got totally damaged. An F.I.R. was lodged with the Police Station and the opposite party was also informed immediately. The opposite party deputed its investigator for spot inspection and later on a Surveyor was deputed for final survey and assessment of loss. However, the opposite party repudiated the claim submitted by the complainant on the ground that the vehicle was carrying 50% more weight than the permissible limit. This led the complainant to file a consumer complaint before the District Forum, Dehradun, alleging deficiency in service and unfair trade practice adopted by the opposite party in repudiating her claim on an unjust ground. The District Forum, after an appreciation of the facts of the case, partly allowed the consumer complaint vide its order dated 24.03.2012 in the above manner. Aggrieved by the order, the opposite party has filed this appeal. 3. We have heard the learned counsel for the parties and perused the material placed on record. 4. The preliminary argument placed by the learned counsel for the appellant is in respect of maintainability of consumer complaint. She submitted that though this point was not raised before the District Forum, but a law point can be raised at any stage of the proceedings. According to the learned counsel, the said vehicle was being used for commercial purpose. The vehicle was given to one Sh. Surender Singh and he was operating it, as is evident from G.R. Nos. She submitted that though this point was not raised before the District Forum, but a law point can be raised at any stage of the proceedings. According to the learned counsel, the said vehicle was being used for commercial purpose. The vehicle was given to one Sh. Surender Singh and he was operating it, as is evident from G.R. Nos. 919 & 901 (Paper Nos. 62 & 69). In these G.Rs., the name of the owner has been shown as “Surender Singh”. In such a case, the learned counsel argued that it cannot be said that the complainant was using the vehicle to earn her livelihood and for self-employment. In support of her contention, she placed reliance on a decision of the Hon’ble National Commission in the case of “Cater Piller India Pvt. Ltd., GMMCO Ltd. & Anr. vs. Santosh Purushan & Ors.; III (2013) CPJ 235 (NC)”. She also referred a decision of Goa State Commission in the case of “Cholamandalam Investment and Finance Company Ltd. vs. Yoganand Shankar Naik; I (2013) CPJ 109”. The next argument placed by the learned counsel was in respect of overloading. She argued that the driver of the said vehicle could not control the vehicle, because of the reason that it was overloaded. G.R. No. 901 shows that there were 88 boxes of apples and pears. M/s Soni & Co., when contacted by the investigator, has clearly certified that weight of the boxes of apples ranges from 15 kgs to 25 kgs. If the average weight is taken as 20 kgs, then the total weight comes to 1760 kgs as against the permissible maximum load of 1170 kgs. That means, there was an excess load of 590 kgs, which is more than 50% of the permissible load. She also pointed out that there is over writing in the G.R. No. 901. Thus, the learned counsel pleaded that the insurance company has not committed any deficiency in service, nor it has adopted any unfair trade practice in repudiating the complainant’s claim. 5. The learned counsel for the respondent reiterated the facts of the case and argued in support of the impugned order. 6. We considered the submissions made by the learned counsel for the parties. The learned counsel for the appellant has raised a preliminary objection at this stage, as to whether the consumer complaint is maintainable before the Consumer Forum or not. 6. We considered the submissions made by the learned counsel for the parties. The learned counsel for the appellant has raised a preliminary objection at this stage, as to whether the consumer complaint is maintainable before the Consumer Forum or not. This preliminary objection was not raised before the District Forum, but the learned counsel’s argument is that such legal questions involving fact of law can be raised at any stage. Though we are of the view that if the maintainability of the consumer complaint has not been challenged before the District Forum either on the point of jurisdiction or on some other point, it cannot be challenged at the appellate stage. Even then we would like to answer to the question raised by the learned counsel and our answer is in affirmative. The consumer complaint is maintainable, because the respondent had purchased the said vehicle for earning her livelihood by way of self employment. Now it is a settled law that engaging a driver for driving the vehicle would not make its use commercial. In the instant case, the owner of the vehicle is a woman and she herself cannot drive a goods vehicle and, therefore, it was necessary for her to engage a driver for driving the vehicle. The learned counsel has cited a decision of the Hon’ble National Commission in the case of “Cater Piller India Pvt. Ltd.” (supra), but the facts of this case are quite different from the instant case. It was a case of machine, which the owner used to give on hire along with its operator. The machine generated a sum of Rs. 21,45,000/- within a year of its purchase. The Hon’ble National Commission observed in the said case that “It is difficult to comprehend as to how earning large scale profits can merely be termed as ‘earning livelihood’ by way of self-employment”. The learned counsel has also referred to a decision of Goa State Commission in the case of “Cholamandalam Investment and Finance Co. Ltd.” (supra) in support of her contention. The facts of this case are also quite different from the instant case. In the said case, the complainant was already having a vehicle and was earning his livelihood from it. He purchased one more vehicle from which he expected to earn Rs. 1,500/- per day. Ltd.” (supra) in support of her contention. The facts of this case are also quite different from the instant case. In the said case, the complainant was already having a vehicle and was earning his livelihood from it. He purchased one more vehicle from which he expected to earn Rs. 1,500/- per day. The State Commission held that it could safely be inferred that the purchase of the vehicle was for commercial purpose. In the instant, there is no such evidence available on record, which shows that the respondent was earning a huge profit and she was having more than one vehicle. Therefore, the preliminary question raised by the learned counsel is answered accordingly. 7. Next we come to the question whether the repudiation of the respondent’s claim by the appellant is justified or not. The view of the District Forum is that the repudiation of the respondent’s claim by the appellant is not just. The District Forum has observed that the vehicle could not be said to be overloaded, because as against the permissible load of 1170 kgs, the weight of the 88 boxes / cases of apple and pear @ 15 kg per box comes to 1320 kgs. We are also of the view that the repudiation of the respondent’s claim by the appellant is not justifiable, because the appellant has failed to adduce any conclusive evidences in support of its contention that the vehicle was overloaded at the time of accident and it was due to overloading that the driver could not control the vehicle. In this regard, we observed that- (i) The main witness of the accident was vehicle’s driver, Sh. Digamber Singh, but neither the spot Surveyor, nor the final Surveyor and neither Sh. S.K. Sharma, Investigator, ever contacted him. No statement of the driver has been recorded. (ii) The vehicle was hired by Sh. Surender Singh and he knew as to how many boxes of apple and pear were loaded in the vehicle. The investigator Sh. S.K. Sharma did not contact him personally and did not record his statement. It is not sufficient to say that the investigator contacted him over phone and confirmed that there were 88 boxes of fruits. (iii) The investigator Sh. S.K. Sharma had drafted a statement of the complainant and got her signature on it (Paper No. 70). The investigator Sh. S.K. Sharma did not contact him personally and did not record his statement. It is not sufficient to say that the investigator contacted him over phone and confirmed that there were 88 boxes of fruits. (iii) The investigator Sh. S.K. Sharma had drafted a statement of the complainant and got her signature on it (Paper No. 70). As per this statement, the complainant – respondent has stated that “— I declare that i do not know the exact weight as my vehicle was on hire by Mr. Surendra and the hirer has declared he was carrying 15 kgs and 20 kgs boxes of apple and pear.” The investigator did not ask the respondent to produce that declaration made by Sh. Surender Singh that he was carrying in the vehicle 15 kg & 20 kg boxes of apple and pear. The respondent has nowhere stated that 88 boxes were loaded in the vehicle. (Paper No. 70) (iv) The investigator Sh. S.K. Sharma has stated in his verification report dated 17.03.2011 (Paper No. 67) that the owner of the vehicle Smt. Sarojini Dasgupta had confirmed that the hirer Sh. Surender Singh had declared that 88 boxes of apple and pear were loaded in the vehicle, which were of 15 kgs and 20 kgs of weight. As pointed out above in para (iii), the respondent has nowhere stated that Sh. Surender Singh had declared that the vehicle was carrying 88 boxes of apple and pear (Paper No. 70). Therefore, this part of the investigator’s verification report is false and misleading. Further, the investigator neither asked the respondent to give that declaration to him, nor he made any attempt to obtain it from Sh. Surender Singh. Instead, the report says that the investigator confirmed the fact narrated by the respondent from Sh. Surender Singh by telephone. So, Sh. Surender Singh, who was the main player in the game, was not contacted personally and no statement of Sh. Surender Singh was recorded by the investigator. (v) We also observed that apart from Sh. Surender Singh, M/s Soni & Company has an important role in this case. Though it appears that this company acts as a commission agent in New Sabji Mandi, Saharanpur, but its agents are spread all over the area from where the apple and pear are purchased. One Sh. (v) We also observed that apart from Sh. Surender Singh, M/s Soni & Company has an important role in this case. Though it appears that this company acts as a commission agent in New Sabji Mandi, Saharanpur, but its agents are spread all over the area from where the apple and pear are purchased. One Sh. Prem Kumar Soni of the company has himself told the investigator that the G.R. was prepared by his Munshi, who lived in Tuni. A Munshi cannot act independently and will always seek directions from his employer with regard to transactions. So, if some boxes of apple and pear were purchased from Neruwa, a place near Kalsi, Vikas Nagar, District Dehradun, then it must be in the knowledge of Sh. Prem Kumar Soni, but Sh. Prem Kumar Soni told the investigator that he was unable to confirm as to how many boxes were loaded in the vehicle, as the loaded goods could not reach Saharanpur. (vi) Most interesting aspect of this case, which the District Forum perhaps could not notice, is that M/s Soni & Company is a commission agent in Saharanpur Sabji Mandi. How can its Munshi issue a G.R. from Neruwa, a village near Kalsi, District Dehradun? Further, this company is neither a transporter nor the said vehicle was hired by it. The vehicle was hired by Sh. Surender Singh. So, how can M/s Soni & Company, Saharanpur issue the G.Rs.? And if it has issued such G.Rs., then these documents are false documents. How can such false documents be accepted as evidences in the case in proof of the fact that the vehicle was carrying 88 boxes of apple and pear? (vii) The so called G.Rs., allegedly to be issued by the Munshi of M/s Soni & Company, are numbered as 901 & 919 (Paper Nos. 69 & 62) but are without any dates. According to G.R. No. 919, the vehicle was carrying 78 boxes and as per G.R. No. 901, the vehicle was carrying 88 boxes of fruits. The investigator has not clarified as to how he could ascertain that the vehicle was carrying fruit boxes, as per G.R. No. 901. In this regard, the statements of Sh. Surender Singh and Munshi of the company were necessary to be recorded which the investigator has not done. So the investigation/verification report submitted by the investigator Sh. The investigator has not clarified as to how he could ascertain that the vehicle was carrying fruit boxes, as per G.R. No. 901. In this regard, the statements of Sh. Surender Singh and Munshi of the company were necessary to be recorded which the investigator has not done. So the investigation/verification report submitted by the investigator Sh. S.K. Sharma is incomplete and inconclusive and cannot be accepted as an evidence that the vehicle was carrying 88 boxes of fruits. (viii) So far as the statement made by the respondent– Smt. Sarojini Dasgupta is concerned, she was quite ignorant about the sale and purchase of the fruits. She was the owner of the vehicle and the same was given to Sh. Surender Singh on hire. So, if she makes a statement on the basis of what she was told by her driver or the hirer, then that is not a conclusive evidence. Her statement must be supported with the statements made by the driver and hirer of the vehicle, which the investigator did not record during the investigation. Merely, confirming the details over telephone is not sufficient. If the telephonic confirmation has a value, then why the investigator recorded a written statement of the respondent. The respondent is a secondary witness. The primary witnesses in this case are the driver Sh. Digamber Singh, hirer of the vehicle Sh. Surender Singh and Munshi of Sh. Prem Kumar Soni. The investigator has not recorded the written statements of these persons. (ix) The respondent has amended her statement through her affidavit dated 05.01.2012 (Paper Nos. 43 to 47). In para No. 16 of the affidavit, she has averred that the weight of the fruits boxes was 936 kgs as per G.R. No. 919. 8. So, all these discussions lead us to the conclusion that the appellant has failed to adduce any conclusive evidence in its attempt to prove that the said vehicle was over-loaded at the time of the accident. We could not go through the spot survey report, as the same was not produced before us. There is a mention of the preliminary survey report in the final survey report, but its contents are not given. The final survey report is also completely silent in respect of the dispute whether the vehicle was overloaded or not at the time of accident. There is a mention of the preliminary survey report in the final survey report, but its contents are not given. The final survey report is also completely silent in respect of the dispute whether the vehicle was overloaded or not at the time of accident. Generally, the Surveyors do note such points and discuss them in their reports. While making an assessment of the net loss, the Surveyors also mention whether the claimant has made any violation of the policy conditions and whether the net liability assessed in the report is payable by the insurer or not. In the instant case, the Surveyor has not made any observation on the point of overloading or any other violation of the policy conditions. The Surveyor has assessed the net liability of the appellant at Rs. 2,14,680/- (2,22,180.00 –10,000.00 + 2,500.00 = 2,14,680.00) and the District Forum has awarded the same amount against the liability of the appellant under the policy. 9. On 02.09.2013, the learned counsel for the appellant pressed into service the following decisions in support of her contention regarding overloading, surveyor’s report and terms of contract:- a) OVERLOADING 1. S.G. Shivamurtheppa vs. Reliance General Insurance Co. Ltd.; I (2012) CPJ 175 (NC) 2. New India Assurance Co. Ltd. vs. Malti Bhikhabhai Bhoya; II (2013) CPJ 483 (NC) 3. National Insurance Co. Ltd. & Anr. vs. Suresh Babu & Anr.; I (2007) CPJ 23 (NC) 4. Jagdish Rana vs. National Insurance Co. Ltd.; II (2013) CPJ 48 (NC) 5. Pratap Singh & Ors. vs. New India Assurance Co. Ltd.; II (2013) CPJ 86 (Himachal Pradesh State Commission) b) SURVEYOR’S REPORT 6. Tellu Ram vs. ICICI Lombard General Insurance Co. Ltd. & Ors.; I (2012) CPJ 167 (U.K. State Commission) 7. National Insurance Co. Ltd. & Anr. vs. Santosh Kumar & Anr.; IV (2006) CPJ 199 (NC) c) TERMS OF CONTRACT 8. United India Insurance Co. Ltd. vs. Harchand Rai Chandan Lal; 2004 A.I.R. Page 4794 (SC) 10. We went through these decisions. In respect of overloading, we have already observed above that the appellant has failed to adduce conclusive evidence to prove that the vehicle was overloaded at the time of accident and, therefore, the ratio of the reported decisions cannot be applied to the instant case. So far as the surveyor’s report is concerned, the final surveyor’s report is silent on the point of overloading. So far as the surveyor’s report is concerned, the final surveyor’s report is silent on the point of overloading. The spot surveyor’s report is not available on record and, as discussed above, the investigator’s report is incomplete and inconclusive on the point of overloading. So far as the assessment of net liability of the insurance company is concerned, the District Forum has awarded the compensation accordingly and the respondent has not challenged the impugned order. 11. For the reasons discussed above, no question of the breach of terms of the policy arises and, therefore, the decision cited in respect of the terms of contract is not applicable in the instant case. The District Forum has taken a just view relying on Surveyor’s report in respect of loss suffered by the respondent and the impugned order does not call for any interference on this point. However, we are of the view that after awarding interest, there is no justification to award an additional amount of Rs. 20,000/- for mental agony. Therefore, the part of the order is liable to be set aside. The interest awarded @ 9% per annum is on the higher side. A just and proper rate of interest would be 7% per annum. Therefore, the appeal deserves to be partly allowed by modifying the impugned order accordingly. 12. The appeal is partly allowed. The impugned order dated 24.03.2012 passed by the District Forum, Dehradun in consumer complaint No. 180 of 2011 is modified by setting aside the order in respect of payment of Rs. 20,000/- for mental agony and by reducing the rate of interest from 9% per annum to 7% per annum. Rest of the order is confirmed. No order as to costs.