ORDER : P.S. Rana, (President) 1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 24.03.2017 passed by Learned District Forum in consumer complaint No. 128/2015 title Sanjeev Kumar Versus Oriental Insurance Company Limited. Brief facts of Consumer Complaint: 2. Complainant Sanjiv Kumar filed consumer complaint under section 12 of Consumer Protection Act 1986 against opposite party pleaded therein that complainant is owner of vehicle No. HP-63-4041. It is pleaded that complainant purchased vehicle to earn his livelihood by way of self-employment. It is further pleaded that vehicle was insured with opposite party w.e.f. 25.07.2013 to 24.07.2014 in consideration amount of Rs. 750000 (Seven lac fifty thousand). It is further pleaded that on dated 23.08.2013 vehicle met with accident and sustained total loss. It is further pleaded that FIR annexure C-2 was also filed. It is further pleaded that complainant filed claim before opposite party but opposite party did not pay claim amount and committed deficiency in service. Complainant sought relief of payment of Rs. 750000 (Seven lac fifty thousand) alongwith interest @9% per annum. In addition complainant also sought relief of payment of Rs. 50000 (Fifty thousand) as compensation and punitive damages. In addition complainant also sought litigation costs. Prayer for acceptance of consumer complaint sought. 3. Per contra version filed on behalf of opposite party pleaded therein that opposite party did not commit any deficiency in service. It is pleaded that claim of complainant was repudiated by opposite party in accordance with law. It is further pleaded that opposite party also appointed independent surveyor-cum-loss assessor. It is further pleaded that surveyor-cum-loss assessor assessed loss to the tune of Rs. 199000 (One lac ninety nine thousand). It is further pleaded that at the time of accident unauthorized gratuitous passengers were travelling in the goods carrying vehicle. It is further pleaded that three persons namely Prem Singh, Inder Dutt and Deep Sain were travelling in the vehicle at the time of accident. It is further pleaded that complainant has no cause of action to file consumer complaint. It is further pleaded that complainant has committed fundamental breach of terms and conditions of insurance policy. Prayer for dismissal of complaint sought. 4. Learned District Forum allowed the complaint and ordered opposite party to pay a sum of Rs. 200000 (Two lac) alongwith interest @9% per annum from the date of filing complaint within 45 days. It is further pleaded that complainant has committed fundamental breach of terms and conditions of insurance policy. Prayer for dismissal of complaint sought. 4. Learned District Forum allowed the complaint and ordered opposite party to pay a sum of Rs. 200000 (Two lac) alongwith interest @9% per annum from the date of filing complaint within 45 days. In addition learned District Forum ordered opposite party to pay sum of Rs. 10000 (Ten thousand) to the complainant as punitive compensation on account of harassment and mental agony. In addition learned District Forum ordered opposite party to pay sum of Rs. 5000 (Five thousand) as litigation costs. 5. Feeling aggrieved against order passed by Learned District Forum opposite party 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 arise for determination in present appeal. 1. Whether appeal filed by 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 the affidavit that no gratuitous passengers were travelling in the vehicle at the time of accident. There is recital in the affidavit that Deep Sain deceased was owner of apple trays which were carried in the vehicle. There is further recital in the affidavit that fact is patently clear from the perusal of receipt annexure E-1 dated 23.08.2013. There is further recital in the affidavit that due to deficiency in service on the part of opposite party deponent has suffered mental and physical harassment. Complainant also tendered in evidence annexures C-1 to C-8. State Commission perused entire annexures filed by complainant carefully. 9. Opposite party filed affidavit of P.N. Bodh Senior Divisional Manager Oriental Insurance Company Limited. There is recital in the affidavit that complainant has no cause of action and locus-standi to file consumer complaint against opposite party. 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-cum-loss assessor was appointed by insurance company which has assessed net loss to the tune of Rs. 199000 (One lac ninety nine thousand). 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-cum-loss assessor was appointed by insurance company which has assessed net loss to the tune of Rs. 199000 (One lac ninety nine thousand). There is further recital in the affidavit that complainant has committed fundamental violation of terms and conditions of insurance policy as unauthorized gratuitous passengers were travelling in goods vehicle at the time of accident. There is further recital in the affidavit that as per challan filed by police agency under section 173 of Code of Criminal Procedure vehicle was going for loading apple boxes and vehicle was empty at the time of accident. There is further recital in the affidavit that on the date of accident in the vehicle there were three persons namely Prem Singh, Inder Dutt and Deep Sain. There is further recital in the affidavit that in the accident driver sustained minor injuries whereas cleaner and Deep Sain died. There is further recital in the affidavit that vehicle was goods carrying vehicle and was used to carry passengers against terms and conditions of insurance policy. There is further recital in the affidavit that insured declared value of vehicle was Rs. 200000 (Two lac). 10. Opposite party also filed affidavit of Mohinder Kumar Sharma surveyor-cum-loss assessor in evidence. There is recital in the affidavit that deponent is licensed surveyor-cum-loss assessor having licence No. SLA/3320. There is further recital in the affidavit that deponent was appointed by insurance company to assess the loss caused to vehicle bearing registration No. HP-63-4041. There is further recital in the affidavit that deponent has assessed loss to the tune of Rs. 199000 (One lac ninety nine thousand). State Commission perused all annexures filed by opposite party carefully. 11. Submission of learned advocate appearing on behalf of insurance company that at the time of accident gratuitous passenger namely Deep Sain was travelling in the vehicle and complainant has committed fundamental breach of terms and conditions of insurance policy and on this ground appeal be allowed is decided accordingly. State Commission has perused annexure E-1 placed on record. At the time of accident driver, cleaner and Deep Sain were travelling in the vehicle. It is proved on record that accident took place on dated 23.08.2013. State Commission has perused annexure E-1 placed on record. At the time of accident driver, cleaner and Deep Sain were travelling in the vehicle. It is proved on record that accident took place on dated 23.08.2013. It is proved on record that vide annexure E-1 Deep Sain hired vehicle No. HP-63-4041 on dated 23.08.2013 for carrying apple boxes. It is also proved on record that insurance company hired services of surveyor-cum-loss assessor namely Mohinder Kumar Sharma. Mohinder Kumar Sharma surveyor-cum-loss assessor has submitted report annexure OP-1 placed on record. State Commission has carefully perused report submitted by surveyor-cum-loss assessor. Surveyor-cum-loss assessor has specifically mentioned in the report that at the time of accident vehicle was on way to Pakta from Sarswati Nagar Hatkoti for loading apple consignment and when it reached at the spot of accident then driver while negotiating a curve observed a pick-up vehicle from opposite side and while giving safe pass to pick-up vehicle vehicle got unbalanced and fell into deep gorge. Surveyor-cum-loss assessor has specifically mentioned in the report that at the time of accident vehicle was on way to Pakta from Sarswati Nager for loading apple consignment. State Commission is of the opinion that vehicle was engaged by Deep Sain by paying consideration amount of Rs. 2450 (Two thousand four hundred fifty). The vehicle at the time of accident was in the process of lifting apple boxes owned by Deep Sain. It is held that Deep Sain was not travelling as gratuitous passenger at the time of accident of vehicle. It is held that Deep Sain was travelling in the vehicle at the time of accident as hirer of vehicle for loading apple boxes. 12. Even there was no nexus of accident and travelling of Deep Sain in the vehicle. Hence Insurance Company could not be exonerated from liability. 13. Submission of learned advocate appearing on behalf of insurance company that no claim bonus certificate was given by the insurance company to complainant and on this ground appeal be allowed is decided accordingly. State Commission has carefully perused No Claim Bonus certificate placed on record annexure OP-7. In annexure OP-7 the column of date has been kept blank. There is no evidence on record in order to prove that on which date annexure OP-7 was issued. State Commission has carefully perused No Claim Bonus certificate placed on record annexure OP-7. In annexure OP-7 the column of date has been kept blank. There is no evidence on record in order to prove that on which date annexure OP-7 was issued. In the absence of date in annexure OP-7 insurance company could not be allowed to take benefit of annexure OP-7 placed on record. 14. Submission of learned advocate appearing on behalf of insurance company that surveyor-cum-loss assessor has assessed loss to the tune of Rs. 199000 (One lac ninety nine thousand) and learned District Forum has granted amount to the tune of Rs. 200000 (Two lac) to the complainant contrary to loss assessed by surveyor-cum-loss assessor and on this ground appeal be allowed is decided accordingly. State Commission has carefully perused report submitted by surveyor-cum-loss assessor. Surveyor-cum-loss assessor has assessed loss to the tune of Rs. 199000 (One lac ninety nine thousand). There is no evidence on record in order to prove that surveyor-cum-loss assessor has hostile animus against complainant at any point of time. It is well settled law that report of surveyor-cum-loss assessor is substantial piece of evidence. Hence it is held that complainant is legally entitled for claim assessed by surveyor-cum-loss assessor because complainant did not file any counter assessment report from any other surveyor-cum-loss assessor and report submitted by surveyor-cum-loss assessor Mohinder Kumar Sharma remained unrebutted on record. 2012 (1) CPJ 420 NC, H.C. Saxena v. New India Assurance Company Limited. 2012 (4) CPJ 103 NC, National Insurance Company Limited v. Jyothi Tobacco Traders. 2009 (3) CPJ 194 NC, Nand Kisore Jaiswal v. National Insurance Company Limited. 15. Submission of learned advocate appearing on behalf of insurance company that in view of police report placed on record appeal be allowed is decided accordingly. It is held that under section 162 of Code of Criminal Procedure 1973 no statement or any record thereof whether in police diary or otherwise could be used for any purpose except to contradict under section 145 of Indian Evidence Act 1872. It is well settled law that proceedings under Consumer Protection Act 1986 are quasi-judicial proceedings. 16. 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. It is well settled law that proceedings under Consumer Protection Act 1986 are quasi-judicial proceedings. 16. 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. It is held that complainant is legally entitled to the loss as assessed by surveyor-cum-loss assessor. Point No. 1 is decided accordingly. Point No. 2: Final Order 17. In view of findings upon point No. 1 above appeal is partly allowed and damage to vehicle granted by learned District Forum to the tune of Rs. 200000 (Two lac) is reduced to Rs. 199000 (One lac ninety nine thousand) alongwith interest @9% per annum from the date of filing of complaint till realization. Order of learned District Forum wherein learned District Forum has granted compensation to the tune of Rs. 10000 (Ten thousand) to the complainant on account of harassment and mental agony is affirmed. Order of learned District Forum wherein learned District Forum has granted litigation costs to the tune of Rs. 5000 (Five thousand) to the complainant is also affirmed. Order of learned District Forum is modified to this extent only. Report of surveyor-cum-loss assessor annexure OP-1 and receipt annexure E-1 will form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith 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 Oriental Insurance Company Ltd. v. Sanjeev Kumar (F.A. No. 215/2017) of costs strictly as per rules. Appeal is disposed of. Pending applications if any also disposed of.