ORDER Justice P.S. Rana (R) President —Present appeal is filed under section 15 of Consumer Protection Act 1986 against order passed by Learned District Forum in consumer complaint No.289 of 2012 title Dinesh Chander v. Oriental Insurance Company Limited decided on 22.04.2016. Brief facts of Case : 2. Complainant namely Dinesh Chander filed complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is contractor by profession and in order to run his profession smoothly he owns escorts JCB machine having engine No. 0705892. It is pleaded that JCB was insured with insurance company for a sum of Rs.9,80,000/-. It is pleaded that in the year 2011 said JCB machine met with accident on dated 16.04.2011 at place Deothi near Solan and damage was caused to vehicle. It is pleaded that vehicle at the time of accident was duly insured with opposite party. It is further pleaded that criminal complaint was also filed in police post Saproon. It is further pleaded that insurance company appointed surveyor who assessed the loss. It is pleaded that complainant submitted all original bills relating to repair of vehicle to the insurance company. It is further pleaded that insurance company repudiated complainant. Complainant sought relief for a sum of Rs.2,18,454.50/- along with interest @ 12% per annum from the date of accident till payment. 3. Per contra version filed on behalf of opposite party pleaded therein that driver of vehicle at the time of accident did not possess valid and effective driving licence. It is pleaded that complainant did not approach District Forum with clean hands and suppressed material facts. It is further pleaded that vehicle was plied in violation of insurance policy and in contravention of Motor Vehicle Act and Rules. It is pleaded that complainant is estopped from filing complaint due to his own act and conduct. It is pleaded that unauthorized person was driving JCB at the time of accident namely Bhupinder. Prayer for dismissal of complaint sought. 4. Learned District Forum allowed the complaint and ordered opposite party to pay a sum of Rs.79,400/- along with interest @ 9% per annum from the date of filing of complaint till actual payment. In addition learned District Forum further ordered opposite party to pay a sum of Rs.20,000/- to the complainant on account of harassment and mental agony. 4. Learned District Forum allowed the complaint and ordered opposite party to pay a sum of Rs.79,400/- along with interest @ 9% per annum from the date of filing of complaint till actual payment. In addition learned District Forum further ordered opposite party to pay a sum of Rs.20,000/- to the complainant on account of harassment and mental agony. Learned District Forum further ordered that opposite party will also pay litigation costs to the tune of Rs.10,000/- to the complainant. 5. Feeling aggrieved against order passed by Learned District Forum insurance company filed present appeal before State Commission. 6. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully. 7. Following points arises for determination in present appeal. 1. Whether appeal filed by the appellant is liable to be accepted as mentioned in memorandum of grounds of appeal. 2. Final order. Findings upon point No.1 with reasons: 8. Complainant filed affidavit in evidence. There is recital in affidavit that JCB machine was insured with opposite party for a sum of Rs.9,80,000/- in the year 2011. There is further recital in affidavit that vehicle met with accident on dated 16.04.2011 at place Deothi near Solan and heavy damage was caused to the machine. There is further recital in affidavit that at the time of accident vehicle was duly insured with insurance company. There is further recital in the affidavit that first information report was filed in police post Saproon and matter was also reported to insurance company. There is further recital in affidavit that insurance company appointed surveyor who prepared report. There is further recital in affidavit that total bills of Rs.218454.50/- were submitted to insurance company. It is further pleaded that insurance company repudiated claim. 9. Per contra opposite party also filed affidavit of Prem Nath Senior Divisional Manager in evidence. There is recital in affidavit that driver of vehicle No. HP-09A-1978 JCB was not having valid and effective driving licence at the time of accident. It is pleaded that complainant has breached terms and conditions of insurance policy. It is pleaded that at the time of accident JCB was driven by one unauthorized person namely Bhupinder. It is further pleaded that one another unauthorized person namely Ukti was also sitting in JCB at the time of accident. It is pleaded that complainant has breached terms and conditions of insurance policy. It is pleaded that at the time of accident JCB was driven by one unauthorized person namely Bhupinder. It is further pleaded that one another unauthorized person namely Ukti was also sitting in JCB at the time of accident. There is further recital in affidavit that surveyor assessed loss to the tune of Rs.79,399/-. There is further recital in affidavit that value of salvage was assessed to the tune of Rs.5479/-. 10. Insurance company also filed affidavit of Manoj Kukreja surveyor in evidence. There is recital in affidavit that surveyor conducted survey of JCB having registration No. HP-09A-1978 owned by Shri Dinesh Chander and submitted survey report to insurance company. 11. We have also perused report of surveyor namely Manoj Kukreja placed on record carefully. Surveyor has submitted report to insurance company that at the time of accident disputed vehicle was driven by Shri Bhupinder. It is held that surveyor has submitted report on the basis of statements of eye-witnesses Lakh Ram Sharma of Village Dhalla and Shri Shyam Lal shopkeeper of Village Dhalla. Insurance company did not file affidavits of eye-witnesses namely Lakh Ram Sharma and Shyam Lal in the present case. Shri Manoj Kukreja is not eye-witness of accident and Shri Manoj Kukreja has submitted his report on the basis of derived knowledge. Surveyor Manoj Kukreja was not present at the spot at the time of accident. No reason has been mentioned by insurance company as to why insurance company did not file affidavits of eye-witnesses namely Lakh Ram Sharma and Shyam Lal in evidence as required under section 13(4)(iii) of Consumer Protection Act 1986. It is held that insurance company has withheld evidence of material witnesses i.e. Lakh Ram Sharma and Shyam Lal. Hence adverse inference is drawn against insurance company for non-submission of affidavits of direct eye-witnesses i.e. Lakh Ram Sharma and Shyam Lal. 12. Submission of learned advocate appearing on behalf insurance company that report was not filed in police immediately and on this ground appeal be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. There is recital in affidavit filed by complainant that factum of accident was reported to insurance company immediately and surveyor visited the spot. 12. Submission of learned advocate appearing on behalf insurance company that report was not filed in police immediately and on this ground appeal be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. There is recital in affidavit filed by complainant that factum of accident was reported to insurance company immediately and surveyor visited the spot. As factum of accident was reported immediately to insurance company it is not expedient in the ends of justice to dismiss complaint. 13. Submission of learned advocate appearing on behalf of insurance company that vehicle was driven by Bhupinder who was not possessing valid and effective driving licence at the time of accident and on this ground appeal be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Onus to prove fact by way of evidence that vehicle was driven by Bhupinder at the time of accident was upon insurance company being issue of fact. Insurance company did not file affidavits of eye-witnesses in order to prove fact alleged by insurance company. Affidavit of Prem Nath and affidavit of Manoj Kukreja are not helpful to insurance company because Prem Nath and Manoj Kukreja were not present at the spot at the time of accident. Plea of insurance company that vehicle was driven by Bhupinder at the time of accident is defeated on the concept of ipse-dixit (An assertion made without proof). It is well settled law that findings should be based upon cogent evidence. See 1999 (2) CPC 178 Punjab Surjan Singh v. LIC of India. See 1997 (2) CPC NC 223 New India Assurance Co. Ltd. v. P.P. Khanna. 14. Submission of learned advocate appearing on behalf of insurance company that at the time of accident one extra gratuitous person was sitting upon JCB machine and on this ground appeal be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. It is held that onus to prove that one extra person was sitting upon JCB was upon insurance company being issue of fact. It is admitted case of insurance company that eye-witnesses of accident were Lakh Ram Sharma and Shyam Lal. Insurance company did not file affidavits of eye-witnesses in order to prove that one gratuitous person was also sitting upon JCB machine. It is admitted case of insurance company that eye-witnesses of accident were Lakh Ram Sharma and Shyam Lal. Insurance company did not file affidavits of eye-witnesses in order to prove that one gratuitous person was also sitting upon JCB machine. Insurance company failed to prove by affidavits of eye-witnesses that one extra person was travelling in vehicle as gratuitous passenger at the time of accident. It is held that it is not expedient in the ends of justice to interfere in the order of learned District Forum. In view of above stated facts and case law cited supra point No.1 is answered in negative. Point No.2: Final Order 15. In view of findings upon point No.1 appeal is dismissed. Order of Learned District Forum is affirmed. Parties are left to bear their own costs. File of learned District Forum along with certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.