Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 273 (HP)

National Insurance Company Limited v. Om Parkash

2017-03-30

MEENA VERMA, P.S.RANA, VIJAY PAL KHACHI

body2017
ORDER 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.29 of 2013 title Om Parkash v. Kangra Central Cooperative Bank Limited and Anr. decided on 27.05.2016. Brief facts of Case: 2. Complainant namely Om Parkash filed complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant took loan from opposite party No.1 for the purpose of construction of residential house. It is pleaded that residential house was insured with opposite party No.2 w.e.f. 21.12.2006 to 20.12.2016 for Rs.500000/- (Five lac). It is pleaded that premium to the tune of Rs.1974/- (One thousand nine hundred seventy four) was also paid. It is further pleaded that house of complainant was damaged due to blast of LPG cylinder on dated 15.08.2012 at about 8:15 AM. It is further pleaded that complainant assessed damage to the tune of Rs.550000/- (Five lac fifty thousand). It is further pleaded that daily diary report was lodged in police station on dated 15.08.2012 and it is further pleaded that Forensic Expert also inspected spot and submitted report. It is pleaded that claim was submitted before insurance company but insurance company did not allow claim. Complainant sought following reliefs (i) Relief of Rs.500000/- (Five lac) along with interest @18% per annum from the date of accident till recovery of amount (ii) Additional relief of Rs.50000/- (Fifty thousand) along with interest @ 18% per annum for mental harassment and torture sought (iii) Additional relief of compensation to the tune of Rs.50000/- (Fifty thousand) along with interest @ 18% per annum also sought (iv) Additional relief of litigation expenses to the tune of Rs.20000/- (Twenty thousand) also sought. 3. Per contra version filed on behalf of opposite party No.1 pleaded therein that intimation regarding blast of house of complainant was given to opposite party No.1 and thereafter opposite party No.1 immediately brought this factum in the knowledge of opposite party No.2 vide letter dated 31.08.2012 for settlement of claim. Prayer for dismissal of complaint against opposite party No. 1 sought. 4. Per contra version filed on behalf of opposite party No.2 pleaded therein that complainant has no cause of action. It is pleaded that complainant did not approach District Forum with clean hands and suppressed material facts. Prayer for dismissal of complaint against opposite party No. 1 sought. 4. Per contra version filed on behalf of opposite party No.2 pleaded therein that complainant has no cause of action. It is pleaded that complainant did not approach District Forum with clean hands and suppressed material facts. It is pleaded that two different opinions were submitted by Forensic Experts which are contradictory to each other. It is pleaded that Dr. Neeti Parkash Dubey posted in Regional Forensic Science Laboratory at Dharamshala has opined in his report dated 24.08.2012 that no inflammable material could be detected in the contents of parcels P-1 and P-2. It is pleaded that Dr. Vijay Kumar expert gave another report on dated 08.10.2012 and contradicted report submitted by Dr. Neeti Parkash Dubey. It is further pleaded that opposite party No.2 had appointed surveyor to assess loss and surveyor evaluated loss to the tune of Rs.20000/- (Twenty thousand) subject to terms and conditions of policy. It is pleaded that learned District Forum has no jurisdiction to decide complaint in view of arbitration clause in the insurance contract. Prayer for dismissal of complaint sought. 5. Complainant filed replication and reasserted contents made in the main complaint. Learned District Forum allowed the complaint and ordered opposite party No.2 i.e. Insurance Company to pay a sum of Rs.150000/- (One Lac fifty thousand) on account of cost of construction of kitchen to the complainant within thirty days from the date of receipt of copy of order. Learned District Forum further ordered that if the amount is not paid within thirty days then insurance company would pay interest @9% per annum from the date of filing of complaint till amount is paid or realized. Learned District Forum further ordered that opposite party No.2 would pay punitive compensation to the tune of Rs.5000/- (Five thousand). Learned District Forum further ordered that opposite party No.2 would pay litigation costs to the tune of Rs.5000/- (Five thousand). 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 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: 9. 7. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully. 8. 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: 9. Complainant Om Parkash filed affidavit in evidence. There is recital in affidavit that complainant took loan from opposite party No.1 for the purpose of construction of residential house. There is recital in affidavit that residential house was insured with opposite party No.2 w.e.f. 21.12.2006 to 20.12.2016 for Rs.500000/- (Five lac). There is further recital in affidavit that premium to the tune of Rs.1974/- (One thousand nine hundred seventy four) was also paid to insurance company. There is further recital in affidavit that house of complainant was damaged due to blast of LPG cylinder on dated 15.08.2012 at about 8:15 AM and complainant assessed damage to the tune of Rs.550000/- (Five lac fifty thousand). There is further recital in the affidavit that DDR dated 15.08.2012 was also recorded in police station Amb. There is further recital in the affidavit that Forensic Expert also inspected the spot and submitted report. There is further recital in affidavit that legal notice was also sent to opposite parties by complainant. 10. Opposite party No.1 also filed affidavit of Shri Kulwant Singh Jaswal Manager Kangra Central Cooperative Bank by way of evidence. There is recital in affidavit that intimation regarding blast in the house of complainant was given to opposite party No.2 vide letter dated 31.08.2012. 11. Opposite party No.2 also filed affidavit of Shri Pawan Kumar Administrative Officer posted in National Insurance Company Limited by way of evidence. There is recital in affidavit that complainant has no cause of action. There is further recital in affidavit that complainant did not approach learned District Forum with clean hands and suppressed material facts. There is further recital in affidavit that two different opinions were submitted by Forensic Experts which are contradictory to each other. There is further recital in affidavit that opposite party No.2 appointed surveyor M/s Hi Tech Surveyors and Valuers of Pathankot to assess the loss and there is further recital in affidavit that surveyor assessed loss to the tune of Rs.20000/- (Twenty thousand) 12. We have perused report dated 08.10.2012 submitted by Dr. There is further recital in affidavit that opposite party No.2 appointed surveyor M/s Hi Tech Surveyors and Valuers of Pathankot to assess the loss and there is further recital in affidavit that surveyor assessed loss to the tune of Rs.20000/- (Twenty thousand) 12. We have perused report dated 08.10.2012 submitted by Dr. Vijay Kumar Scientific Officer Regional Forensic Science Laboratory Himachal Pradesh at Dharamshala placed on record. Dr. Vijay Kumar has submitted report that Kitchen walls/windows were damaged and cracked due to combination of accumulated LPG which leaked from the vent whole of regulator and spark ignition source. We have also perused report submitted by Dr. Neeti Parkash Dubey Assistant Director Regional Forensic Science Laboratory Himachal Pradesh at Dharamshala. Dr. Neeti Parkash Dubey mentioned that no inflammable material could be detected in the contents of parcels P-1 and P-2. 13. Submission of learned advocate appearing on behalf insurance company that house of complainant was damaged on dated 15.08.2012 and intimation to insurance company was given after a period of 17 days and on this ground appeal be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Onus to prove that complainant has violated terms and conditions of insurance policy is upon insurance company. Insurance company did not place on record terms and conditions of insurance policy. There is recital in the report of surveyor that date of loss was 15.08.2012 at 8:30 AM and date of intimation was 16.08.2012. In view of report of surveyor it is held that intimation was given to insurance company and thereafter insurance company intimated surveyor to visit spot and surveyor visited the spot on 17.08.2012. Hence it is held that plea of insurance company that complainant has violated terms and conditions of insurance policy is defeated on the concept of ipse-dixit (As assertion made without proof). 14. Submission of learned advocate appearing on behalf of insurance company that complaint cannot be filed by complainant because insurance policy was obtained by Kangra Central Cooperative Bank Limited and was not obtained by complainant Om Parkash and on this ground appeal be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that Kangra Central Cooperative Central Bank obtained insurance policy for the benefit of complainant Om Parkash. It is proved on record that Kangra Central Cooperative Central Bank obtained insurance policy for the benefit of complainant Om Parkash. As per section 2(d) of Consumer Protection Act 1986 beneficiary can file complaint under Consumer Protection Act 1986. In the present case insurance policy was obtained by Kangra Central Cooperative bank for the benefit of complainant Om Parkash. Hence it is held that complaint filed by beneficiary Om Parkash was maintainable before learned District Forum. 15. Submission of learned advocate appearing on behalf of insurance company that in view of two contradictory reports submitted by Dr. Neeti Parkash Dubey and Dr. Vijay Kumar present appeal be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. We have perused report submitted by Dr. Vijay Kumar Scientific Officer posted in Regional Forensic Science Laboratory Himachal Pradesh at Dharamshala. Dr. Vijay Kumar has specifically mentioned in his report placed on record that Kitchen walls/windows were damaged and cracked due to combination of accumulated LPG which leaked from the vent whole of regulator and spark ignition source. Dr. Vijay Kumar has personally visited spot and submitted report. Report submitted by Dr. Vijay Kumar is trustworthy and reliable and there is no reason to disbelieve the report submitted by Dr. Vijay Kumar because report submitted by Dr. Vijay Kumar is based upon factual situation after visiting spot of incident. 16. We have also perused report submitted by Dr. Neeti Parkash Dubey Assistant Director Regional Forensic Science Laboratory Himachal Pradesh at Dharamshala. Dr. Neeti Parkash has submitted that no inflammable material could be detected in the contents of parcels P-1 and P-2. Dr. Neeti Parkash Dubey did not personally visit the spot of incident and only examined contents of parcels P-1 and P-2 in the office. It is held that in view of above stated facts it is not expedient in the ends of justice to disbelieve report submitted by Dr. Vijay Kumar. 17. Submission of learned advocate appearing on behalf of insurance company that learned District Forum has illegally not relied upon the report submitted by surveyor and on this ground appeal be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Vijay Kumar. 17. Submission of learned advocate appearing on behalf of insurance company that learned District Forum has illegally not relied upon the report submitted by surveyor and on this ground appeal be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. In the present case insurance company did not file affidavit of surveyor by way of evidence or insurance company also did not examine the surveyor by way of oral evidence as required under section 13(4)(i) and 13(4)(iii) of Consumer Protection Act 1986. Adverse inference is drawn against insurance company. Surveyor has specifically mentioned in his inspection report that walls of kitchen were collapsed. Onus to prove violation of terms and conditions of insurance policy is upon insurance company. See 2016 (3) SCC 100 Apex Court Lakhmi Chand v. Reliance General Insurance Company Limited. 18. Submission of learned advocate appearing on behalf of insurance company that due to arbitration clause complaint is not maintainable and on this ground appeal be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that arbitration clause between parties does not oust consumer court jurisdiction. Remedy under Consumer Act is additional remedy. See 2005 (2) CPC 162 NC Juliet V. Quadros v. Mrs. Malti Kumar and Ors. See 2008(1) CPC 622 NC Associated Road Carriers Limited v. Kamlender Kashyap and Ors. In view of above stated facts and case law cited supra point No.1 is answered in negative. Point No.2: Final Order 19. 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 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 strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.