JUDGMENT P.S. Rana, President 1. Present appeal is filed against order dated 25.07.2018 passed by Learned District Consumer Forum/Commission in consumer complaint No.03/2018 titled Nasib Chand Versus Shriram General Insurance Company Ltd. Brief facts of consumer complaint: 2. Shri Nasib Chand filed consumer complaint under Consumer Protection Act pleaded therein that complainant is owner of vehicle bearing registration No.HP12H-5008. It is pleaded that vehicle in question was insured with opposite party at the time of accident. It is pleaded that on dated 05.09.2017 vehicle in question met with an accident at place Mandi Govindgarh Punjab. It is pleaded that cow suddenly came in front of the vehicle and in order to save cow driver of the vehicle applied sudden brakes as a result of which vehicle in question turned turtle on road. It is pleaded that vehicle was damaged in extensive manner. It is pleaded that intimation was given to opposite party immediately and opposite party appointed Surveyor cum Loss Assessor. It is pleaded that opposite party repudiated claim on 19.09.2017. 3. It is pleaded that Surveyor cum Loss Assessor assessed loss to the tune of Rs.99465/- (Ninety nine thousand four hundred sixty five). It is pleaded that complainant spent amount of Rs.240000/- (Two lacs forty thousand) for repair of vehicle. It is pleaded that opposite party did not settle claim and committed deficiency in service. Complainant sought relief of payment of Rs.240000/- (Two lacs forty thousand) as damage to vehicle in question. In addition complainant sought relief of payment of Rs.300000/- (Three lacs) on account of mental torture alongwith interest @ 9% per annum from the date of accident till actual payment. In addition complainant sought litigation costs. Prayer for acceptance of consumer complaint sought. 4. Per contra version filed on behalf of opposite party pleaded therein that opposite party appointed Surveyor cum Loss Assessor namely Shri Rajneesh Gupta. It is pleaded that Surveyor cum Loss Assessor assessed loss to the tune of Rs.99465/- (Ninety nine thousand four hundred sixty five). It is pleaded that loss was suffered due to gross negligence on the part of driver of vehicle. It is pleaded that matter falls within exclusion clause of Insurance policy. It is pleaded that District Consumer Forum has no jurisdiction to dispose of consumer complaint. It is pleaded that opposite party did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought. 5. It is pleaded that matter falls within exclusion clause of Insurance policy. It is pleaded that District Consumer Forum has no jurisdiction to dispose of consumer complaint. It is pleaded that opposite party did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought. 5. Complainant filed rejoinder and reasserted allegations mentioned in consumer complaint. Learned District Consumer Forum/Commission ordered opposite party to pay OD claim of vehicle to complainant to the tune of Rs.240000/- (Two lacs forty thousand) alongwith interest @ 9% per annum from the date of complaint till actual payment. In addition learned District Consumer Forum/Commission ordered opposite party to pay compensation to complainant to the tune of Rs.25000/- (Twenty five thousand). In addition learned District Consumer Forum/Commission ordered opposite party to pay litigation costs to complainant to the tune of Rs.5000/-(Five thousand). Feeling aggrieved against order passed by Learned District Consumer Forum/Commission Insurance company 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 affidavit that complainant is owner of vehicle bearing registration No. HP12H-5008. There is recital in affidavit that vehicle in question was insured at Nalagarh H.P. There is further recital in affidavit that on 05.09.2017 vehicle in question met with an accident at Mandi Govindgarh Punjab on National Highway. There is further recital in affidavit that a cow suddenly came in front of vehicle and driver of vehicle applied brakes and consequently vehicle in question turned turtle and caused damage to vehicle in question. There is recital in affidavit that matter was informed to Insurance company and claim was filed before Insurance company but Insurance company did not settle claim. 9. Complainant also filed affidavit of Shri Bagga Ram. There is recital in affidavit that complainant is registered owner of vehicle bearing registration No. HP12H-5008. There is recital in affidavit that matter was informed to Insurance company and claim was filed before Insurance company but Insurance company did not settle claim. 9. Complainant also filed affidavit of Shri Bagga Ram. There is recital in affidavit that complainant is registered owner of vehicle bearing registration No. HP12H-5008. There is further recital in affidavit that vehicle in question was insured through Shri Kamal Kumar and premium was also paid through Shri Kamal Kumar to opposite party at Nalagarh H.P. There is recital in affidavit that all documents were signed at Nalagarh H.P. There is recital in affidavit that deponent was in vehicle at the time of accident and was performing duty of conductor. There is further recital in affidavit that on 05.09.2017 vehicle in question met with accident at Mandi Govindgarh Punjab on National Highway. There is further recital in affidavit that driver of vehicle applied sudden brakes in order to save a cow and vehicle turned turtle and was damaged. There is further recital in affidavit that information about factum of accident was given to opposite party. 10. Complainant also filed corroborative evidence of Shri Kamal Kumar. There is recital in affidavit that complainant is registered owner of vehicle bearing registration No. HP12H-5008. There is further recital in affidavit that vehicle in question was insured through deponent. There is recital in affidavit that complainant paid premium through deponent in the shape of cheque at Nalagarh H.P. There is further recital in affidavit that on 05.09.2017 vehicle in question met with accident. State Commission has carefully perused all annexures filed by complainant. 11. Opposite party filed affidavit of Shri Manoj Kumar working as Legal Officer in the office of insurance company. There is recital in affidavit that Insurance company appointed Surveyor cum Loss Assessor Shri Rajneesh Gupta and Shri Rajneesh Gupta assessed loss to the tune of Rs.99465/- (Ninety nine thousand four hundred sixty five). There is recital in affidavit that accident took place due to gross negligence on the part of driver of vehicle. There is further recital in affidavit that loss to the vehicle was caused when driver tried to pass bridge when vehicle was loaded with over height machinery. There is further recital in affidavit that vehicle was driven in violation of section 184 of Motor Vehicles Act. State Commission has carefully perused all annexures filed by opposite party. 12. There is further recital in affidavit that loss to the vehicle was caused when driver tried to pass bridge when vehicle was loaded with over height machinery. There is further recital in affidavit that vehicle was driven in violation of section 184 of Motor Vehicles Act. State Commission has carefully perused all annexures filed by opposite party. 12. Submission of learned Advocate appearing on behalf of Insurance company that accident took place at Mandi Govindgarh Punjab and learned District Forum/Commission Solan H.P has no territorial jurisdiction to decide matter and on this ground appeal filed by appellant be allowed is decided accordingly. Shri Kamal Kumar eye witness has specifically mentioned in his affidavit that Insurance policy was obtained by complainant through him on behalf of Insurance company at Nalagarh H.P. Shri Kamal Kumar agent of Insurance company has specifically mentioned in his affidavit that premium was paid by complainant at Nalagarh H.P. 13. In view of affidavit filed by Shri Kamal Kumar it is held that part of cause of action to file consumer complaint accrued to complainant within territorial jurisdiction of District Forum/Commission Solan H.P. because Nalagarh falls within territorial jurisdiction of District Forum/Commission Solan H.P. Insurance company did not send interrogatories to Shri Kamal Kumar as required under Consumer Protection Act. Affidavit of Shri Kamal Kumar is trustworthy, reliable and inspires confidence of State Commission. No reason assigned by Insurance company as to why Insurance company did not send interrogatories to Shri Kamal Kumar adverse inference is drawn against Insurance company for not sending interrogatories to Kamal Kumar. 14. Submission of learned Advocate appearing on behalf of Insurance company that accident took place due to negligence on the part of driver because vehicle was loaded with over height machinery and on this ground appeal filed by appellant be allowed is decided accordingly. Shri Nasib Chand eye witness has specifically mentioned in his affidavit that accident took place when a cow came on road suddenly and driver in order to save cow applied emergency brakes. Affidavit of Shri Nasib Chand is corroborated by Shri Bagga Ram eye witness. Shri Bagga Ram has specifically mentioned in his affidavit that accident took place when a cow suddenly came in middle of road and in order to save cow driver applied emergency brakes and vehicle turned turtle. Affidavit of Shri Nasib Chand is corroborated by Shri Bagga Ram eye witness. Shri Bagga Ram has specifically mentioned in his affidavit that accident took place when a cow suddenly came in middle of road and in order to save cow driver applied emergency brakes and vehicle turned turtle. Affidavits of Shri Kamal Kumar and Shri Bagga Ram are trustworthy, reliable and inspire confidence of State Commission. There is no reason to disbelieve affidavits filed by Shri Kamal Kumar and Shri Bagga Ram. Plea of Insurance company that driver of vehicle in question driven vehicle to pass bridge when vehicle was loaded with over height machinery is defeated on the concept of ipse dixit (An assertion made without proof). 15. Affidavit filed by Shri Manoj Kumar is not helpful to the Insurance company because Shri Manoj Kumar was not present at the place where accident took place. Shri Manoj Kumar is not eye witness of accident. Shri Manoj Kumar filed affidavit on the basis of derived knowledge only. Affidavit filed by Shri Manoj Kumar on derived knowledge is rebutted by eye witness namely Shri Bagga Ram. 16. Submission of learned Advocate appearing on behalf of appellant that agent of Insurance company was Smt. Mathura Devi as per Insurance policy and Shri Kamal Kumar was not agent of Insurance company and on this ground appeal filed by appellant be allowed is decided accordingly. Insurance company did not file affidavit of Smt. Mathura Devi in order to prove that she did not appoint Kamal as sub agent to receive premium on behalf of Insurance company. No reason assigned by Insurance company as to why Insurance company did not file affidavit of Smt. Mathura Devi to the effect that she did not appoint Kamal Kumar to receive premium on behalf of Insurance company. On the contrary Kamal sub agent of Mathura Devi has specifically mentioned in his affidavit that factum of accident was brought to the knowledge of main agent i.e. Mathura Devi. 17. Submission of learned Advocate appearing on behalf of appellant that learned District Consumer Forum/Commission has ordered excessive compensation to the tune of Rs.25000/-(Twenty five thousand) for mental agony and harassment and on this ground appeal filed by appellant be allowed is decided accordingly. 17. Submission of learned Advocate appearing on behalf of appellant that learned District Consumer Forum/Commission has ordered excessive compensation to the tune of Rs.25000/-(Twenty five thousand) for mental agony and harassment and on this ground appeal filed by appellant be allowed is decided accordingly. State Commission is of the opinion that Learned District Consumer Forum/Commission has imposed reasonable compensation upon appellant on account of mental agony and harassment and State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to reduce compensation amount ordered by Learned District Consumer Forum/Commission. 18. Submission of learned Advocate appearing on behalf of appellant that Learned District Consumer Forum/ Commission has granted excessive litigation costs to complainant to the tune of Rs.5000/-(Five thousand) and on this ground appeal filed by appellant be allowed is decided accordingly. State Commission is of the opinion that complainant has engaged Advocate and has also paid litigation costs and other expenses and Learned District Consumer Forum/Commission has granted reasonable litigation costs to complainant. 19. Submission of learned Advocate appearing on behalf of appellant that Insurance company appointed Surveyor cum Loss Assessor namely Sh. Rajneesh Gupta and Shri Rajneesh Gupta assessed loss to the tune of Rs.99465/- (Ninety nine thousand four hundred sixty five) and learned District Forum/Commission has ordered excessive OD claim of vehicle in question and on this ground appeal filed by appellant be allowed is decided accordingly. In the present matter Insurance company did not file affidavit of Surveyor cum Loss Assessor Shri Rajneesh Gupta. However it is well settled laws that report submitted by Surveyor cum Loss Assessor is substantial piece of evidence. 20. State Commission is of the opinion that Insurance company is under legal obligation to pay OD claim of vehicle to the tune of Rs.99465/- (Ninety nine thousand four hundred sixty five) as assessed by Surveyor cum Loss Assessor under section 64UM of Insurance Act 1938. Insurance company has admitted in version that Surveyor cum loss assessor has assessed loss of vehicle in question to the tune of Rs.99465/- (Ninety nine thousand four hundred sixty five). It is well settled law that fact admitted in version by opposite party does not require any proof. Insurance company has admitted in version that Surveyor cum loss assessor has assessed loss of vehicle in question to the tune of Rs.99465/- (Ninety nine thousand four hundred sixty five). It is well settled law that fact admitted in version by opposite party does not require any proof. See Champa Lal Verma Versus Oriental Insurance Company Ltd., (2010) 1 CPC 696 NC, See New India Assurance Company Ltd. Versus Pushpa Chhabra, (2010) 3 CPJ 401 NC. See H.C Saxena Versus New India Assurance Company Ltd., (2012) 1 CPJ 420 NC See National Insurance Company Ltd. Versus Jyothi Tobacco Traders, (2012) 4 CPJ 103 NC. See Nand Kishore Jaiswal Versus National Insurance Company Ltd., (2009) 3 CPJ 194 NC See Ashish Kumar Jaiswal Versus ICICI Lombard General Insurance Company Ltd. and others, (2017) 1 CPJ 529 NC. See Pradeep Kumar Versus National Insurance Company Ltd.,2009 1 CPC 166 NC See Oriental Insurance Company Ltd. Versus Jagdish Chand Gupta, (2018) 1 CPR 311 NC. 21. Facts of rulings cited by learned Advocate appearing on behalf of appellant i.e. (1) Apex Court titled Polymat India Private Limited Vs. National Insurance Company Limited,2009 5 SCC 174 (2) F.A.No.127/2017 (HP) titled SGIC Ltd. Vs. Zalam Singh (3) Magppie Internatinal Limited Vs. Oriental Insurance Company Limited decided by Hon''ble National Commission on 23.01.2017 and facts of present consumer complaint are entirely different. Rulings cited by learned Advocate appearing on behalf of appellant are distinguishable in the present matter. 22. Submission of learned Advocate appearing on behalf of complainant that order of learned District Consumer Forum/Commission is in accordance with laws and proved facts and same does not warrant inference by State Commission is decidedly accordingly. Learned District Forum/Commission has granted OD claim of vehicle to complainant on basis of repair bails submitted by complainant. Complainant did not file affidavits of persons who have submitted repair bills of vehicle in question. Controversial repairs bills submitted by complainant are not per se admissible under Consumer Protection Act. State Commission is of the opinion that complainant is legally entitled for OD claim to the tune of Rs.99465/- (Ninety nine thousand four hundred sixty five) as assessed by Surveyor cum Loss Assessor appointed under section 64UM of Statutory Insurance Act 1938. Point No.1 is decided accordingly. Point No.2: Final Order 23. In view of findings upon point No.1 above appeal filed by appellant is partly allowed. Point No.1 is decided accordingly. Point No.2: Final Order 23. In view of findings upon point No.1 above appeal filed by appellant is partly allowed. OD claim ordered by learned District Consumer Forum/Commission to the tune of Rs.240000/- (Two lacs forty thousand) is reduced to Rs.99465/- (Ninety nine thousand four hundred sixty five) alongwith interest @ 9% per annum from the date of institution of complaint till actual payment. Order of learned District Consumer Forum/Commission that opposite party would pay compensation to complainant to the tune of Rs.25000/- (Twenty five thousand) for mental agony and harassment is affirmed. Order of learned District Consumer Forum/Commission that opposite party would pay litigation costs to complainant to the tune of Rs.5000/- (Five thousand) is also affirmed. Insurance company shall pay OD claim of vehicle in question to complainant after submission of NOC by complainant from HDFC Bank Ltd. because as per RC Annexure C-1 vehicle in question was leased with HDFC Bank Ltd. If complainant will not submit NOC from HDFC Bank Ltd. to Insurance company in that eventuality Insurance company will transit OD claim of vehicle in question in loan account of complainant kept by HDFC Bank Ltd. Insurance company will comply order within one month after receipt of certified copy of order and complainant will also submit NOC from HDFC Bank Ltd. to Insurance company within one month after receipt of copy of order. RC of vehicle in question Annexure C-1 and Insurance policy Annexure C-2 shall form part and parcel of order. Order of learned District Forum/Commission is modified accordingly. 24. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Certified copy of order be sent to learned District Forum/Commission forthwith for information and file of State Commission be consigned to record room after due completion forthwith. is disposed of. Pending application(s) if any also disposed of.