ORDER P.S. Rana (R) President - Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 11.11.2016 passed by Learned District Forum in consumer complaint No. 116/2013 title Vijay Thakur vs. Bharti Axa General Insurance Company Limited. Brief facts of Consumer Complaint: 2. Complainant Vijay Thakur filed consumer complaint under section 12 of Consumer Protection Act 1986 against opposite party pleaded therein that tractor of complainant which was purchased by complainant for earning his livelihood by way of selfemployment was insured with opposite party in consideration amount of Rs. 475000/-(Four lac seventy five thousand) w.e.f. 23.07.2011 to 22.07.2012. It is pleaded that tractor was in stationary condition and was damaged extensively resulting into total loss on dated 05.01.2012. It is further pleaded that loss was caused to the tractor in stationary condition due to landslide. It is further pleaded that complainant completed all codal formalities. It is further pleaded that insurance company did not settle the claim of complainant and committed deficiency in service. Complainant sought relief of payment of Rs. 425000/- (Four lac twenty five thousand) along-with interest @ 9% per annum. In addition complainant sought payment of Rs. 50000/- (Fifty thousand) as compensation for mental, financial and physical harassment. In addition complainant sought litigation costs. Prayer for acceptance of consumer complaint sought. 3. Per contra version filed on behalf of opposite party pleaded therein that complaint is not maintainable. It is pleaded that complainant does not fall within the definition of consumer. It is further pleaded that vehicle was used for commercial purpose. It is further pleaded that complainant has no cause of action. It is further pleaded that driver was not holding valid and effective driving licence at the time of accident. It is further pleaded that licence was valid for LMV non-transport and was not valid for commercial purpose. It is further pleaded that complainant has suppressed material facts. It is further pleaded that opposite party appointed surveyor and surveyor has reported that at the time of accident tractor was used by the driver and tractor was not in stationary condition. It is further pleaded that opposite party did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought. 4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. 5. Learned District Forum allowed the complaint and ordered opposite party to pay a sum of Rs. It is further pleaded that opposite party did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought. 4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. 5. Learned District Forum allowed the complaint and ordered opposite party to pay a sum of Rs. 388515/- (Three lac eighty eight thousand five hundred fifteen) along-with interest @9% per annum to the complainant. In addition learned District Forum ordered that opposite party would pay sum of Rs. 10000/- (Ten thousand) to the complainant on account of inconvenience, harassment and mental agony. In addition learned District Forum ordered that opposite party would pay sum of Rs. 5000/- (Five thousand) to the complainant as litigation costs. 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 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 Sarabjit Singh in evidence. There is recital in the affidavit that deponent was appointed as temporary driver in the tractor having registration No. HP-63-5116 owned by complainant. There is further recital in the affidavit that in fact complainant personally used to drive the tractor in dispute. There is further recital in the affidavit that complainant has purchased tractor for earning his livelihood by means of self-employment. There is further recital in the affidavit that on dated 05.01.2012 tractor was to be taken to a nearby village. There is further recital in the affidavit that at the time of accident tractor was in stationary condition and was empty. There is further recital in the affidavit that all of a sudden due to landslide tractor met with accident and sustained total loss. State Commission has perused all annexures filed by complainant carefully. 10. Opposite party filed affidavit of Shivali Sharma Legal Executive in evidence. There is recital in the affidavit that at the time of accident vehicle was not in stationary condition and was being driven by Sarabjit Singh. There is further recital in the affidavit that at the time of accident driver was not holding valid and effective driving licence. 10. Opposite party filed affidavit of Shivali Sharma Legal Executive in evidence. There is recital in the affidavit that at the time of accident vehicle was not in stationary condition and was being driven by Sarabjit Singh. There is further recital in the affidavit that at the time of accident driver was not holding valid and effective driving licence. State Commission has 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 vehicle was driven by driver namely Sarabjit Singh and was not in stationary condition and on this ground appeal filed by insurance company be allowed is decided accordingly. State Commission has carefully perused affidavit filed by Sarabjit Singh who is eye-witness of incident. There is positive recital in the affidavit that at the time of accident tractor was in stationary condition and was empty. There is no evidence on record in order to prove that at the time of accident vehicle was in running condition. Insurance company did not file any affidavit of eye-witness in order to prove that at the time of accident vehicle was in running condition. The fact mentioned in the affidavit filed by Sarabjit Singh eye-witness that at the time of accident vehicle was in stationary condition as well as empty remained unrebutted on record. Affidavit filed by opposite party of Shivali is not sufficient to rebut affidavit of Sarabjit Singh because Shivali was not present at the place of accident and Shivali is not eye-witness of incident. Shivali has filed affidavit on the basis of derived knowledge only. It is well settled law that controversial facts could be proved only by way of affidavit of eye-witness under Consumer Protection Act 1986. 12. Submission of learned advocate appearing on behalf of insurance company that driver was not holding valid and effective driving licence at the time of accident and on this ground appeal filed by insurance company be allowed is decided accordingly. It is proved on record by way of affidavit of Sarabjit Singh who is eye-witness of incident that at the time of accident vehicle was in stationary condition. It is was held by Hon''ble Apex Court of India in case reported in 2003 (6) SCC 420 titled Jitendra Kumar vs. Oriental Insurance Company Limited & Anr. It is proved on record by way of affidavit of Sarabjit Singh who is eye-witness of incident that at the time of accident vehicle was in stationary condition. It is was held by Hon''ble Apex Court of India in case reported in 2003 (6) SCC 420 titled Jitendra Kumar vs. Oriental Insurance Company Limited & Anr. that question of validity of driving licence is irrelevant when loss was occurred during the stationary condition of vehicle. 13. Even in registration certificate placed on record unladen weight of vehicle is shown as 1850 Kg. and laden weight of vehicle is shown as 4940 Kg. As per section 2(21) of Motor Vehicles Act 1988 LMV means a transport vehicle the unladen weight of which does not exceed 7500 Kg. It is held that as per Section 2(21) of Motor Vehicles Act 1988 vehicle falls within the definition of LMV Vehicle. Hon''ble Apex Court of India has held that driver holding LMV driving licence could drive LMV transport vehicle. See 2017 (IV) CPJ 13 SC Mukund Dewangan vs. Oriental Insurance Company Limited. Law laid down by Hon''ble Apex Court of India is binding upon all Courts, Tribunals, Commissions as per Article 141 of the Constitution of India. 14. Submission of learned advocate appearing on behalf of insurance company that vehicle was used for commercial purpose and does not fall within the definition of consumer as defined under Consumer Protection Act 1986 and on this ground appeal filed by insurance company be allowed is decided accordingly. Service has been defined under section 2(o) of the Consumer Protection Act 1986 which means service of any description relating to insurance company. Complainant has specifically mentioned in the complaint that vehicle was purchased for earning livelihood by means of self-employment. Vehicle was used for agricultural purpose only. There is no evidence on record in order to prove that vehicle was used by complainant for commercial purpose. 15. Submission of learned advocate appearing on behalf of insurance company that insurance company appointed surveyor namely Harish Kumar Chopra and surveyor has assessed liability of the insurance company to the tune of Rs. 360000/- (Three lac sixty thousand) after deducting salvage value of vehicle and on this ground appeal filed by insurance company be allowed is decided accordingly. It is well settled law that report submitted by surveyor-cum-loss assessor is substantial piece of evidence. 360000/- (Three lac sixty thousand) after deducting salvage value of vehicle and on this ground appeal filed by insurance company be allowed is decided accordingly. It is well settled law that report submitted by surveyor-cum-loss assessor is substantial piece of evidence. Complainant did not submit any counter surveyor-cum-loss assessor report. Report of Harish Kumar Chopra surveyor-cum-loss assessor remained unrebutted on record. State Commission is of the opinion that complainant is legally entitled to loss as assessed by surveyor-cum-loss assessor to the tune of Rs. 360000/- (Three lac sixty thousand). See 2012 (1) CPJ 420 NC H.C. Saxena vs. New India Assurance Co. Ltd . See 2012 (4) CPJ 103 NC National Insurance Co. Ltd. vs. Jyothi Tobacco Traders. See 2009 (3) CPJ 194 NC Nand Kishore Jaiswal vs. National Insurance Co. Ltd. It is well settled law that report of surveyor-cum-loss assessor should be read as whole and should not be read in isolation. Surveyor-cum-loss assessor has recommended the liability of the insurance company to the tune of Rs. 360000/- (Three lac sixty thousand). It is well settled law that party could not be allowed to approbate and reprobate at the same time. See AIR 1993 SC 352 R.N. Gosain vs. Yashpal Dhir. 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 and on this ground appeal filed by insurance company be dismissed is decided accordingly. State Commission is of the opinion that complainant is legally entitled to the loss as assessed by surveyor-cum-loss assessor namely Harish Kumar Chopra because complainant did not file any interrogatories to surveyor-cum-loss assessor and complainant even did not challenge the report of surveyor-cum-loss assessor before learned District Forum by way of interrogatories and complainant also did not file any counter surveyor-cum-loss assessor report. 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 amount of Rs. 388515/- (Three lac eighty eight thousand five hundred fifteen) ordered by learned District Forum to the complainant is reduced to Rs. 360000/- (Three lac sixty thousand) alongwith interest @ 9% per annum from the date of filing complaint till realization. Order of learned District Forum that opposite party would pay Rs. 10000/- (Ten thousand) to the complainant on account of mental agony and inconvenience is affirmed. 360000/- (Three lac sixty thousand) alongwith interest @ 9% per annum from the date of filing complaint till realization. Order of learned District Forum that opposite party would pay Rs. 10000/- (Ten thousand) to the complainant on account of mental agony and inconvenience is affirmed. Order of learned District Forum that opposite party would pay Rs. 5000/- (Five thousand) to the complainant on account of litigation costs is also affirmed. Order of learned District Forum is modified to this extent only. Report of surveyor-cum-loss assessor namely Harish Kumar Chopra would 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 of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.