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2017 DIGILAW 738 (HP)

Sharif Mohammad v. Oriental Insurance Company

2017-06-29

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

body2017
ORDER P.S. Rana (R), President. - Present appeal is filed against order dated 11.11.2016 passed by Learned District Forum in consumer complaint No. 151/2015 title Sharif Mohammad v. Oriental Insurance Company Limited. Brief facts of Case: 2. Complainant Sharif Mohammad filed consumer complaint under section 12 of Consumer Protection Act 1986 against opposite party pleaded therein that complainant is owner of bus No. HP-65A-0786. It is pleaded that bus was insured with opposite party vide insurance policy no. 263200-31-2015-375 w.e.f. 16.04.2014 to 15.04.2016. It is pleaded that bus met with accident on dated 18.02.2015. It is pleaded that bus was damaged in the accident. It is pleaded that bus was 2012 year model. It is pleaded that bus was repaired at National Motor Body Builders Jallandhar and amount of Rs. 87491/- (Eight seven thousand four hundred ninety one) was spent on the repairs of bus. It is further pleaded that surveyor has wrongly assessed the loss to the tune of Rs. 27535/- (Twenty seven thousand five hundred thirty five). Complainant sought relief of payment of Rs. 87491/-(Eight seven thousand four hundred ninety one) along-with interest. 3. Per contra version filed on behalf of opposite party pleaded therein that complainant did not approach the District Forum with clean hands. It is pleaded that excessive bills were submitted by the complainant. It is denied that complainant has paid amount to the tune of Rs. 87491/- (Eight seven thousand four hundred ninety one) for repairs, replacement and other charges. It is pleaded that amount released to the complainant strictly as per assessment submitted by the surveyor. Prayer for dismissal of complaint sought. 4. Learned District Forum dismissed the complaint and held that complainant had accepted amount of Rs. 27535/- (Twenty seven thousand five hundred thirty five) as full and final settlement and now complainant is estopped to file present complaint due to his act and conduct. 5. Feeling aggrieved against order passed by Learned District Forum complainant 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. 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 deponent is owner of bus No. HP-65A-0786. There is further recital in the affidavit that bus was insured with opposite party at the time of accident. There is further recital in the affidavit that bus met with accident on dated 18.02.2015 and was damaged. There is further recital in the affidavit that report of surveyor Prashant Kumar Sood and report of surveyor Sanjeev Kumar clearly show that complainant had suffered huge damage. There is further recital in the affidavit that complainant has spent amount of Rs. 87491/- (Eight seven thousand four hundred ninety one) on repairs. There is further recital in the affidavit that agent took signature of complainant on blank papers. There is further recital in the affidavit that deponent did not give consent for amount to the tune of Rs. 27535/-(Twenty seven thousand five hundred thirty five) as full and final settlement. 9. Opposite party filed affidavit of Jeet Ram Negi Divisional Manager in evidence. There is recital in the affidavit that after receiving information from insured Prashant Kumar Sood was deputed who visited the spot and submitted his spot survey report regarding damage to the bus. There is further recital in the affidavit that Sanjeev Kumar surveyor and loss assessor was also deputed who had submitted his independent report dated 05.04.2015 and recommended loss to the tune of Rs. 27535/-(Twenty seven thousand five hundred thirty five). There is further recital in the affidavit that claimant has submitted fabricated, manipulated and enhanced bills. 10. Opposite party also filed affidavit of Sanjeev Kumar surveyor and loss assessor. There is recital in the affidavit that deponent is licensed surveyor and loss assessor having licence No. 4843 which is valid till 03.08.2019. There is further recital in the affidavit that services of deponent were hired by Divisional Officer Jallandhar for survey of vehicle No. HP-65A-0786 at M/s. National Motor Body Builder Jallandhar. There is further recital in the affidavit that deponent inspected the vehicle and noted down the damages. There is further recital in the affidavit that deponent has assessed loss to the tune of Rs. There is further recital in the affidavit that deponent inspected the vehicle and noted down the damages. There is further recital in the affidavit that deponent has assessed loss to the tune of Rs. 29534.93/- (Twenty nine thousand five hundred thirty four rupees and ninety three paisa). There is further recital in the affidavit that after considering less salvage value deponent assessed net loss to the tune of Rs. 27535/-(Twenty seven thousand five hundred thirty five). There is further recital in the affidavit that deponent has submitted survey report on dated 05.04.2015 annexure R-1. 11. Opposite party also filed affidavit of Shri Prashant Kumar surveyor and loss assessor. There is recital in the affidavit that deponent is licensed surveyor and loss assessor having licence No. 73847. There is further recital in the affidavit that deponent visited the spot and observed the damages and mentioned the damages in his survey report annexure R-7. 12. Submission of learned advocate appearing on behalf of appellant that mechanic had given estimate for the repairs of vehicle to the tune of Rs. 120000/- (One lac twenty thousand) but appellant got the vehicle repaired at the costs of Rs. 87491/-(Eighty seven thousand four hundred nine one) 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 facts asserted by a party should be proved by the party who asserts the facts. In the present case complainant has asserted that he had spent Rs. 87491/- (Eighty seven thousand four hundred nine one) for the repairs of vehicle but complainant did not file affidavit of mechanic who had conducted the repairs. Even complainant did not file affidavit of owner of National Motor Body Builders G.T. Road Bypass Jallandhar who had issued bill in order to prove the facts. No reason assigned by the complainant as to why complainant did not file affidavit of mechanic who had conducted the repairs and as to why complainant did not file the affidavit of owner of National Motor Body Builders who had issued repairs bill. Hence adverse inference is drawn against complainant and plea of complainant is defeated on the concept of ipse-dixit (An assertion made without proof). 13. Submission of learned advocate appearing on behalf of appellant that original bill annexure-II issued by National Motor Body Builders ipso-facto proves that complainant had incurred expenditure of Rs. Hence adverse inference is drawn against complainant and plea of complainant is defeated on the concept of ipse-dixit (An assertion made without proof). 13. Submission of learned advocate appearing on behalf of appellant that original bill annexure-II issued by National Motor Body Builders ipso-facto proves that complainant had incurred expenditure of Rs. 87491/-(Eighty seven thousand four hundred nine one) for the repairs of vehicle and on this ground appeal be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. It is held that bill submitted by National Motor Body Builder ipso-facto is not sufficient to prove that complainant had spent Rs. 87491/-(Eighty seven thousand four hundred nine one) for repairs of vehicle unless affidavit of proprietor/Manager is placed on record who had issued bill annexure-II. It is well settled law that contents of document should be proved only by a person who had issued the original document with his own signature as per law. Even complainant did not place on record original bill and complainant has only placed on record carbon copy of bill. It is held that carbon copy of bill is secondary evidence as per law. Complainant did not seek permission of District Forum to adduce secondary evidence before District Forum. 14. Submission of learned advocate appearing on behalf of appellant that District Forum did not consider the photographs of damaged vehicle filed by complainant and on this ground appeal be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. We have carefully perused photographs of damaged vehicle placed on record. Complainant did not place on record negatives of photographs of damaged vehicle. It is well settled law that negatives of photographs should be placed along-with original photographs and it is also well settled law that affidavit of person who took the photographs of damaged vehicle should be filed on record. In the absence of negatives of photographs on record and in the absence of affidavit of person who took the photographs of damaged vehicle it is not expedient in the ends of justice and on the principles of natural justice to allow the appeal filed by appellant. 15. Submission of learned advocate appearing on behalf of appellant that surveyor namely Sanjeev Kumar obtained full and final settlement certificate from the complainant on dated 30.03.2015 to the tune of Rs. 15. Submission of learned advocate appearing on behalf of appellant that surveyor namely Sanjeev Kumar obtained full and final settlement certificate from the complainant on dated 30.03.2015 to the tune of Rs. 27535/- (Twenty seven thousand five hundred thirty five) in illegal manner and on this ground appeal be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. We have carefully perused the full and final settlement certificate signed by complainant to the tune of Rs. 27535/-(Twenty seven thousand five hundred thirty five). Complainant had signed the certificate in English language. It is not the case of complainant that complainant is illiterate rustic villager. On the contrary State Commission is of the opinion that complainant is educated person as he has signed full and final settlement certificate in English language. Complainant did not file any application before District Forum for cross examination of Sanjeev Kumar surveyor by way of interrogatories as permissible under Consumer Protection Act 1986. There is recital in full and final settlement certificate signed by complainant in English language that complainant would not submit supplementary claim and same be treated as full and final settlement. We have also carefully perused damaged report submitted by Sanjeev Kumar. Damaged report submitted by Sanjeev Kumar surveyor is trustworthy, reliable and inspires confidence of State Commission. There is no reason to disbelieve the damaged report submitted by Sanjeev Kumar surveyor. There is no evidence on record that Sanjeev Kumar has hostile animus against complainant at any point of time. Complainant did not file any counter survey report. Survey report submitted by Sanjeev Kumar remained unrebutted on record. See 2017 (1) CPR 368 NC Omaxe Construction Ltd. & Ors. v. Santosh Jain . See 2017 (II) CPJ 546 NC Babu Paul v. National Insurance Company . In view of above stated facts point No. 1 is answered in negative. Point No. 2: Final Order 16. In view of findings upon point No. 1 above appeal is dismissed and order of learned District Forum is affirmed. Final survey report submitted by Sanjeev Kumar dated 05.04.2015 will form part and parcel of order. Full and final settlement certificate signed by complainant dated 30.03.2015 will form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. Final survey report submitted by Sanjeev Kumar dated 05.04.2015 will form part and parcel of order. Full and final settlement certificate signed by complainant dated 30.03.2015 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.