ORDER P.S. Rana (R), President. - Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 17.01.2017 passed by Learned District Forum in consumer complaint No. 34 of 2016 title M/s. R.P. Earth Movers & Builders v. National Insurance Company Limited . Brief facts of Case: 2. Complainant M/s. R.P. Earth Movers and Builders filed consumer complaint under section 12 of Consumer Protection Act 1986 against opposite party pleaded therein that complainant is owner of Volvo Crawler Excavating machine which was purchased by complainant vide invoice No. VCE/BLR/0636/2011-12 on dated 19.12.2011. It is pleaded that complainant insured his excavator with opposite party vide policy No. 421102/31/13/6300004080 which was valid w.e.f. 22.11.2013 to 21.11.2014. It is further pleaded that IDV of vehicle was Rs. 4500000/- (Forty five lacs). It is further pleaded that complainant was awarded excavating work of four laning on Kirtpur-Nerchowk road and machine was operational near village Dharwani Bilaspur. It is further pleaded that on dated 18.03.2014 when machine was operating on the site it suddenly penetrated in the soil and turned turtle and caused loss to machine and also caused unfortunate death of Arvind Kumar driver. It is further pleaded that FIR No. 58 dated 18.04.2014 was also filed. It is further pleaded that opposite party was informed about incident and spot survey was conducted by Shri Vineet Kaura on dated 30.04.2014. It is further pleaded that spot was also visited by M.L. Mehta & Co. surveyor and loss assessor. It is further pleaded that machine was also brought to the authorized dealer for repair. It is further pleaded that as per report excavator suffered loss to the tune of Rs. 890189/- (Eight lac ninety thousand one hundred eighty nine) and loss was recommended by the surveyor and loss assessor. It is further pleaded that claim was repudiated by opposite party on the ground that driver was not holding valid and effective driving licence at the time of accident. It is further pleaded that driver of excavator Shri Arvind Kumar was holding driving licence and there was endorsement to drive MC, LMV and there was also endorsement in the licence to drive HTV, HPV. It is further pleaded that complainant had engaged driver after verifying his driving licence and after verifying his endorsement of HTV licence. It is further pleaded that the person holding HTV licence could drive excavator. It is further pleaded that complainant had engaged driver after verifying his driving licence and after verifying his endorsement of HTV licence. It is further pleaded that the person holding HTV licence could drive excavator. It is further pleaded that repudiation committed by opposite party is illegal. Complainant sought relief to the effect that opposite party be ordered to pay a sum of Rs. 1267357/- (Twelve lac sixty seven thousand three hundred fifty seven) for repair of machine along-with interest @12% per annum. Complainant also sought additional relief of litigation costs and compensation to the tune of Rs. 25000/- (Twenty five thousand). 3. Per contra version filed on behalf of opposite party pleaded therein that complaint is not maintainable and complainant has no cause of action to file present complaint. It is pleaded that opposite party did not commit any deficiency in service. It is further pleaded that soon after receipt of information opposite party immediately registered claim and appointed independent and qualified surveyor and loss assessor namely Vineet Kaura who submitted his spot surveyor report on dated 30.04.2014. It is further pleaded that M.L. Mehta and Co. conducted final survey and submitted loss assessment report to the tune of Rs. 890189/-(Eight lac ninety thousand one hundred eighty nine) to the opposite party. It is further pleaded that at the time of accident driver namely Arvind Kumar was legally competent to drive HTV and HPV type of vehicle and was not legally entitled to drive excavator. It is further pleaded that claim was repudiated by insurance company legally because driver was not holding valid and effective driving licence at the time of incident. It is further pleaded that excavator falls within the definition of construction equipment. It is further pleaded that driver should hold driving licence of specific description. It is further pleaded that vehicle was financed by Mahindra & Mahindra Financial Service Limited and same is necessary party in the present complaint. It is denied that drive holding HTV licence could drive excavator. Prayer for dismissal of complaint sought. 4. Complainant filed rejoinder and reasserted allegations mentioned in complaint. 5. Learned District Forum allowed complaint and ordered opposite party to pay a sum of Rs. 890189/-(Eight lac ninety thousand one hundred eighty nine) to complainant along-with interest @9% per annum from the date of complaint till payment. Learned District further ordered opposite party to pay a sum of Rs. 4. Complainant filed rejoinder and reasserted allegations mentioned in complaint. 5. Learned District Forum allowed complaint and ordered opposite party to pay a sum of Rs. 890189/-(Eight lac ninety thousand one hundred eighty nine) to complainant along-with interest @9% per annum from the date of complaint till payment. Learned District further ordered opposite party to pay a sum of Rs. 10000/- (Ten thousand) as compensation to complainant for mental harassment. In addition learned District Forum further ordered opposite party to pay a sum of Rs. 5000/- (Five thousand) as costs of litigation. 6. Feeling aggrieved against order passed by Learned District Forum insurance company filed present appeal before State Commission. 7. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully. 8. Following points arise 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: 9. Complainant filed affidavit of Paras Verma proprietor of M/s. R.P. Earth Movers and Builders in evidence. There is recital in the affidavit that deponent is owner of Volvo Crawler Excavating machine which deponent had purchased vide invoice No. VCE/BLR/0636/2011-12 on dated 19.12.2011 in consideration amount of Rs. 5145000/- (Fifty one lac forty five thousand). There is further recital in the affidavit that excavator was insured with opposite party vide policy No. 421102/31/13/6300004080 which was valid w.e.f. 22.11.2013 to 21.11.2014. There is further recital in the affidavit that IDV of vehicle was Rs. 4500000/- (Forty five lacs). There is further recital in the affidavit that complainant was awarded excavating work of four laning on Kirtpur-Nerchowk road and machine was operational near village Dharwani Bilaspur. There is further recital in the affidavit that on dated 18.03.2014 when machine was operating on the site it suddenly penetrated in soil and turned turtle and caused damage to machine. There is further recital in the affidavit that driver of excavator namely Arvind Kumar died. There is further recital in the affidavit that FIR No. 58 dated 18.04.2014 was also filed. There is further recital in the affidavit that opposite party was informed about incident and opposite party appointed spot surveyor namely Shri Vineet Kaura and also appointed surveyor and loss assessor namely M.L. Mehta & Co. There is further recital in the affidavit that FIR No. 58 dated 18.04.2014 was also filed. There is further recital in the affidavit that opposite party was informed about incident and opposite party appointed spot surveyor namely Shri Vineet Kaura and also appointed surveyor and loss assessor namely M.L. Mehta & Co. There is further recital in the affidavit that as per survey report excavator suffered loss to the tune of Rs. 890189/-(Eight lac ninety thousand one hundred eighty nine). There is further recital in the affidavit that loss was recommended by the surveyor. There is further recital in the affidavit that claim of complainant was repudiated by opposite party illegally on the ground that driver was not holding valid and effective driving licence at the time of incident. There is further recital in the affidavit that excavator does not fall within the category of motor vehicle of specified description. 10. Opposite party filed in evidence affidavit of Jagdish Kumar Senior Branch Manager National Insurance Company Limited. There is recital in the affidavit that complaint filed by complainant is not maintainable and complainant has no cause of action. There is further recital in the affidavit that opposite party did not commit any deficiency in service. There is further recital in the affidavit that surveyor and loss assessor assessed loss to the tune of Rs. 890189/-(Eight lac ninety thousand one hundred eighty nine). There is further recital in the affidavit that at the time of loss excavator/Volvo crawler was operated by driver Shri Arvind Kumar. There is further recital in the affidavit that driving licence of driver was verified by the opposite party from DTO Tuensang Nagaland. There is further recital in the affidavit that driver was not authorized to drive excavator/Volvo crawler. There is further recital in the affidavit that claim was repudiated by opposite partly legally. There is further recital in the affidavit that present complaint is bad for non-joinder of necessary parties because excavator was hypothecated with M/s. Mahindra and Mahindra Financial Services Limited and there is further recital in the affidavit that M/s. Mahindra and Mahindra Financial Services Limited is necessary party. 11. There is further recital in the affidavit that present complaint is bad for non-joinder of necessary parties because excavator was hypothecated with M/s. Mahindra and Mahindra Financial Services Limited and there is further recital in the affidavit that M/s. Mahindra and Mahindra Financial Services Limited is necessary party. 11. Submission of learned advocate appearing on behalf of insurance company that driver namely Shri Arvind Kumar was holding only HTV, HPV licence at the time of incident and was not competent to drive excavator/Volvo crawler and on this ground appeal be allowed is decided accordingly. Driving licence verification report annexure OP-7 was submitted by Narendra Tapodhan investigator insurance wherein it is specifically mentioned that as per report of DTO Tuensang Nagaland driver was not competent to drive excavator/Volvo crawler type of vehicle. Insurance company did not file affidavit of Narendra Tapodhan in evidence in order to prove contents of annexure OP-7. Similarly insurance company did not file affidavit of District Transport Officer Tuensang Nagaland in order to prove contents of annexure OP-8. It is well settled law that as per section 13(4)(ii) of Consumer Protection Act 1986 documentary evidence could be produce which is producible as evidence. State Commission is of the opinion that contents of document can be producible as evidence by way of affidavits of persons who had issued documents. Even clarification annexure-K had been given by Additional Director Transport Himachal Pradesh Shimla-4 that holder of HTV licence could drive excavator/construction equipments which are essentially non-transport vehicle. Even as per explanation of Central Motor Vehicles Rules 1989 construction equipment vehicle would fall in the category of non-transport vehicle. Even H.P. State Consumer Commission in case reported in Latest HLJ 2015 (HP) 1380 titled National Insurance Co. Ltd. v. M/s. Dharam Singh, Mohar Singh has held that excavator was a motor car for the purpose of Motor Vehicles Act 1988 and comes within the definition of LMV vehicle only. 12. Submission of learned advocate appearing on behalf of insurance company that complaint is not legally entitled for payment of Rs. 890189/-(Eight lac ninety thousand one hundred eighty nine) as awarded by learned District Forum and on this ground appeal be allowed is decided accordingly. It is proved on record that in the present case insurance company appointed two surveyors namely Vineet Kaura and M.L. Mehta & Co. 890189/-(Eight lac ninety thousand one hundred eighty nine) as awarded by learned District Forum and on this ground appeal be allowed is decided accordingly. It is proved on record that in the present case insurance company appointed two surveyors namely Vineet Kaura and M.L. Mehta & Co. It is also proved on record that both the surveyors and loss assessors submitted report that accident occurred on dated 18.03.2014 due to slip of excavator from the hill side. Surveyor namely M.L. Mehta & Co. assessed the damage to the vehicle to the tune of Rs. 890189/-(Eight lac ninety thousand one hundred eighty nine). Learned District Forum has ordered the opposite party to pay Rs. 890189/-(Eight lac ninety thousand one hundred eighty nine) to the complainant strictly as per loss assessment report of surveyor and loss assessor M.L. Mehta & Co. It is well settled law that report of surveyor is important document which should not be brushed aside by Consumer Fora without valid reasons and it is also well settled law that survey report should be given due credence by insurer. See 2012 (1) CPJ 420 NC titled H.C. Saxena v. New India Assurance Co. Ltd. See 2012 (4) CPJ 103 NC titled National Insurance Company v. Jyothi Tobacco Traders . See 2009 (3) CPJ 194 NC titled Nand Kishore Jaiswal v. National Insurance Co. Ltd. 13. Submission of learned advocate appearing on behalf of insurance company that ruling announced by H.P. State Consumer Commission i.e. Latest HLJ 2015 (HP) 1380 titled National Insurance Co. Ltd. v. M/s. Dharam Singh, Mohar Singh is sub-judice before National Consumer Commission and on this ground appeal be allowed is decided accordingly. State Commission is of the opinion that National Insurance Company did not place on record any certified copy of order of Hon''ble National Commission in order to prove that ruling of State Consumer Commission is set aside by Hon''ble National Commission or Hon''ble Apex Court of India. No stay order qua ruling of State Commission placed on record by Insurance Company in the present case till today. 14. Submission of learned advocate appearing on behalf of insurance company that learned District Forum has granted compensation to the tune of Rs. 10000/- (Ten thousand) to the complainant on higher side is also decided accordingly. No stay order qua ruling of State Commission placed on record by Insurance Company in the present case till today. 14. Submission of learned advocate appearing on behalf of insurance company that learned District Forum has granted compensation to the tune of Rs. 10000/- (Ten thousand) to the complainant on higher side is also decided accordingly. It is proved on record that complainant filed consumer complaint before learned District Forum and it is also proved on record that complainant hired services of advocate namely Gaurav Thakur and it is also proved on record that complainant paid other litigation charges. It is held that compensation awarded by learned District Forum is not excessive in nature keeping in view the facts cited supra. 15. Submission of learned advocate appearing on behalf of insurance company that learned District Forum has awarded interest @ 9% per annum on higher side is also decided accordingly. State Commission is of the opinion that learned District Forum has awarded reasonable interest keeping in view facts and circumstances of the case. State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to interfere in the order of interest passed by learned District Forum. 16. Submission of learned advocate appearing on behalf of insurance company that financier namely Mahindra & Mahindra is necessary party in present complaint is decided accordingly. We have carefully perused insurance policy annexure OP-11 placed on record. In insurance policy name of insured has been mentioned as M/s. R.P. Earth movers and Builders. Privity of contract of insurance policy was executed between complainant and opposite party only. Complainant did not seek any relief against financier in present complaint. It is held that financier has separate cause of action against complainant if any. 17. Submission of learned advocate appearing on behalf of complainant that order passed by learned District Forum is in accordance with law and in accordance with proved facts is decided accordingly. We have carefully perused order of learned District Forum. After perusal of entire contents of complaint and version and after perusal of evidence adduced by parties and after perusal of entire annexures in the complaint State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to interfere in the order passed by learned District Forum. After perusal of entire contents of complaint and version and after perusal of evidence adduced by parties and after perusal of entire annexures in the complaint State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to interfere in the order passed by learned District Forum. It is held that order of learned District Forum is based on proved facts and is in consonance with law. Point No.1 is decided accordingly. Point No.2: Final Order 18. In view of findings upon point No.1 above appeal is dismissed and order of learned District Forum is affirmed. Driving licence of driver Shri Arvind Kumar annexure-J, clarification report regarding driving licence for excavator/earthmoving equipment annexure-K, loss assessment report of surveyor & loss assessor namely M.L. Mehta & Co. annexure-OP-9 and insurance policy annexure OP-11 will form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. 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 free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.