ORDER P.S. Rana (R) President. - Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 29.03.2017 passed by Learned District Forum in consumer complaint No. 81/2015 title Jai Parkash v. United India Insurance Company Ltd. & Ors. Brief facts of consumer complaint: 2. Shri Jai Parkash filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is sole proprietor of J.P. Orchard and used to sell fruits, vegetable and garlic in different markets. It is pleaded that opposite party No. 2 is owner of vehicle No. HP-49-1436 and opposite party No. 3 is driver of the vehicle. It is further pleaded that on dated 14.08.2015 complainant loaded 92 boxes of Apples for sale at Bahu Tehsil Banjar District Kullu H.P in vehicle No. HP-49-1436. It is further pleaded that on dated 15.08.2015 at about 2.45 AM at place Bania Devi temple Tehsil Arki vehicle met with accident and rolled down. It is pleaded that apple boxes were totally damaged in the accident. It is further pleaded that complainant sustained total damage to the tune of Rs. 2.00 lac(Two lac) and FIR was also lodged. It is pleaded that vehicle was duly insured with opposite party No. 1. It is further pleaded that complainant asked the opposite parties to pay damage but opposite parties did not pay damage sustained by complainant and committed deficiency in service. Complainant sought relief of Rs. 2.00 lac(Two lac) on account of damage of apple boxes and also sought additional relief to the tune of Rs. 5000/-(Five thousand) as litigation charges. Prayer for acceptance of consumer complaint sought. 3. Per contra version filed on behalf of opposite party No. 1 pleaded therein that complainant has no cause of action to file the present consumer complaint against opposite party No. 1. It is pleaded that complainant has no locus standi to file consumer complaint against opposite party No. 1. It is further pleaded that complainant has suppressed and concealed material facts. It is pleaded that opposite party No. 1 did not commit deficiency in service and complainant is not the consumer as defined under Consumer Protection Act 1986. It is admitted that vehicle No. HP-49-1436 was insured with the insurance company and vehicle met with accident. It is further pleaded that sitting capacity of vehicle was only three persons. It is pleaded that opposite party No. 1 did not commit deficiency in service and complainant is not the consumer as defined under Consumer Protection Act 1986. It is admitted that vehicle No. HP-49-1436 was insured with the insurance company and vehicle met with accident. It is further pleaded that sitting capacity of vehicle was only three persons. It is further pleaded that insurance company deputed Deepak Sood Surveyor and loss assessor to submit his report. It is pleaded that Surveyor cum loss assessor has assessed loss to the tune of Rs. 335500/-(Three lac thirty five thousand five hundred). It is further pleaded that complainant has not paid the premium to insurance company for carrying 92 Apple boxes from Banjar to Parwanoo. It is pleaded that insurance company did not commit any deficiency in service. Prayer for dismissal of complaint sought. 4. Per contra separate version filed on behalf of opposite parties No. 2 & 3 pleaded therein that opposite party No. 2 is the owner of the vehicle and opposite party No. 3 is the driver of vehicle involved in the accident. It is further pleaded that accident took place due to sudden brake down of vehicle. It is admitted that opposite party No. 1 is insurer of the vehicle involved in the accident. Prayer for dismissal of complaint sought. 5. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. Learned District Forum allowed the complaint and learned District Forum ordered opposite parties No. 2 & 3 jointly and severally to pay a sum of Rs. 75000/-(Seventy five thousand) to complainant for the loss sustained by him in respect of 92 apple boxes. Learned District Forum further ordered that opposite parties No. 2 & 3 would also pay interest @ 9% per annum from the date of filing of present complaint till actual payment jointly and severally. Learned District Forum further ordered that opposite parties No. 2 & 3 would also pay a sum of Rs. 15000/-(Fifteen thousand) as damages. Learned District Forum further ordered that opposite parties No. 2 & 3 would also pay a sum of Rs. 4000/-(Four thousand) as litigation charges. Feeling aggrieved against order passed by Learned District Forum opposite parties No. 2 & 3 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. 4000/-(Four thousand) as litigation charges. Feeling aggrieved against order passed by Learned District Forum opposite parties No. 2 & 3 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 appellants 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 sole proprietor of J.P. Orchard situated at village and P.O. Bachhoot Tehsil Banjar. There is recital in affidavit that opposite party No. 2 is owner of the vehicle No. HP-49-1436 and opposite party No. 3 is driver of vehicle. There is recital in affidavit that on dated 14.08.2015 deponent loaded 92 boxes of apple for sale at Bahu Tehsil Banjar in vehicle No. HP-49-1436 owned by opposite party No. 2. There is further recital in affidavit that loaded apples were to be handed over at Parwanoo District Solan H.P. There is recital in affidavit that on 15.08.2015 vehicle met with accident and was totally damaged. There is further recital in affidavit that deponent sustained loss to the tune of Rs. 138000/-(One lac thirty eight thousand) and also suffered mental agony. There is recital in affidavit that deponent is legally entitled for Rs. 2.00 lac (Two lac). There is further recital in affidavit that complainant requested opposite parties to pay damage but damages were not paid to the complainant despite request. 9. Opposite party No. 1 also filed affidavit of Shri M.L. Gupta surveyor cum loss assessor. There is recital in affidavit that deponent is qualified surveyor and loss assessor and licence No. SLA 17220 is issued to the deponent. There is recital in affidavit that deponent was deputed by insurance company to assess the loss. There is further recital in affidavit that deponent has assessed loss of vehicle to the tune of Rs. 335500/-(Three lac thirty five thousand five hundred). 10. Opposite party No. 2 filed affidavit of Pratap Singh. There is recital in affidavit that deponent is registered owner of vehicle No. HP-49-1436. There is recital in affidavit that accident did not take place due to negligence of driver but accident took place due to sudden brake down of vehicle. 335500/-(Three lac thirty five thousand five hundred). 10. Opposite party No. 2 filed affidavit of Pratap Singh. There is recital in affidavit that deponent is registered owner of vehicle No. HP-49-1436. There is recital in affidavit that accident did not take place due to negligence of driver but accident took place due to sudden brake down of vehicle. There is further recital in affidavit that vehicle met with accident near Bania Devi temple Tehsil Arki District Solan and fell down due to sudden brake down. There is recital in affidavit that vehicle was duly insured with opposite party No. 1 at the time of accident. There is further recital in affidavit that driver was holding valid driving licence at the time of accident. State Commission has also perused entire annexures filed by complainant and opposite parties. 11. Submission of the learned Advocate appearing on behalf of opposite parties No. 2 & 3 that damage to third party property was also insured as per insurance policy placed on record and on this ground appeal be allowed is decided accordingly. State Commission has carefully perused the insurance policy issued by insurance company. The limits of liability mentioned in the insurance policy is quoted in toto :- Limits of Liability - Under Section II-I(i) Death or bodily injury in respect of any one accident; As per Motor Vehicles Act 1988 Under Section II-I(ii) Damage to third party property in respect of any one claim or series of claims arising out of one event: 750000/-. 12. As per insurance policy damage to third party property was also included in insurance policy. It is proved on record that at the time of accident 92 apple boxes were loaded in the vehicle owned by opposite party No. 2. It is also proved on record that 92 apple boxes damaged in the accident. It is held that terms and conditions mentioned in the insurance policy is binding upon opposite parties No. 1 & 2. It is held that there is privity of contract between opposite parties No. 1 & 2 to indemnify insured against damage to third party property in insurance policy. 13. It is proved on record that insurance policy of vehicle was operative w.e.f. 22.04.2015 to 21.04.2016 qua vehicle No. HP-49-1436 owned by opposite party No. 2. It is also proved on record that insurance company has also received premium to the tune of Rs. 13. It is proved on record that insurance policy of vehicle was operative w.e.f. 22.04.2015 to 21.04.2016 qua vehicle No. HP-49-1436 owned by opposite party No. 2. It is also proved on record that insurance company has also received premium to the tune of Rs. 22035/-(Twenty two thousand thirty five) from opposite party No. 2 and it is also proved on record that insurance company is under legal obligation to indemnify opposite party No. 2 qua damage sustained to third party as per terms and conditions of insurance policy. It is held that learned District Forum has committed illegality by way of exonerating insurance company qua damage sustained by third party. 14. Submission of learned Advocate appearing on behalf of opposite parties Nos. 2 & 3 that excessive loss has been assessed by learned District Forum qua 92 apple boxes and on this ground appeal be allowed is decided accordingly. We are of the opinion that learned District Forum has assessed the damage of 92 boxes of apple in a reasonable manner keeping in view the market price of boxes of apple. It is held that learned District Forum took judicial notice of market value of apples prevalent at the time of accident. 15. 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. State Commission is of the opinion that learned District Forum has committed illegality by way of directing opposite parties No. 2 & 3 to pay damage amount to complainant contrary to terms and conditions mentioned in certificate of insurance placed on record. We are of the opinion that insurance company has took the liability to indemnify the insured namely Shri Partap Singh qua third party damage. As per terms and conditions of insurance policy insurance company is under legal obligation to pay an amount of Rs. 750000/-(Seven lac fifty thousand) arising out of one event qua damage sustained by third party. It is held that party cannot be allowed to approbate and reprobate the terms and conditions of insurance policy. It is held that terms and conditions of insurance policy is binding upon insurer and insured. See CPR 2016(4) 487 NC Amandeep Kaur v. DLF Universal Ltd. & other . See 2017(1) CPR 315 NC M/s. Krishna Kunj v. Rabindra Nath Basu and others . It is held that terms and conditions of insurance policy is binding upon insurer and insured. See CPR 2016(4) 487 NC Amandeep Kaur v. DLF Universal Ltd. & other . See 2017(1) CPR 315 NC M/s. Krishna Kunj v. Rabindra Nath Basu and others . In view of above stated facts point No. 1 is decided accordingly. Point No. 2: Final Order 16. In view of findings upon point No. 1 above appeal is allowed. Order of learned District Forum that opposite parties No. 2 & 3 would pay a sum of Rs. 75000/-(Seventy five thousand) to complainant (Third party) for the loss sustained by third party in respect of 92 apple boxes alongwith interest @ 9% per annum from the date of filing of present complaint till actual payment is set aside. It is ordered that insurance company i.e. opposite party No. 1 would indemnify opposite party No. 2 insured and it is ordered that insurance company would pay a sum of Rs. 75000/-(Seventy five thousand) loss assessed to complainant (Third party) alongwith interest @ 9% per annum from the date of filing of complaint till actual payment. Order of learned District Forum that opposite parties No. 2 & 3 would pay jointly and severally an amount of Rs. 15000/-(Fifteen thousand) to complainant (Third party) as damage is also set aside. It is ordered that damage to the tune of Rs. 15000/-(Fifteen thousand) would be paid by insurance company to complainant (Third party) and insurance company would indemnify namely Shri Partap Singh insured. Order of learned District Forum that opposite parties No. 2 & 3 would pay litigation costs to the tune of Rs. 4000/-(Four thousand) to complainant (Third party) is also set aside. It is ordered that litigation costs to the tune of Rs. 4000/-(Four thousand) would be paid to complainant (Third party) by insurance company and insurance company would indemnify the insured qua third party damage. Certificate of insurance placed on record at page No. 56 of record of learned District Forum issued by opposite party No. 1 would form part and parcel of order. Order of learned District Forum is modified accordingly. 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. Order of learned District Forum is modified accordingly. 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 of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.