JUDGMENT P.S. Rana (R), President. - Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 08.03.2017 passed by Learned District Forum in consumer complaint No.38/2016 titled Inder Dev & Anr. Versus Royal Sundaram Alliance Insurance Company Ltd. & Anr. Brief facts of consumer complaint: 2. Sh. Inder Dev and Smt. Indu filed consumer complaint under section 12 of Consumer Protection Act 1986 against opposite parties pleaded therein that Sh. Pradeep Kumar son of complainants was owner of vehicle No.HP-66- 4364. It is pleaded that vehicle was duly insured with opposite party w.e.f. 08.06.2015 to 07.06.2016. It is pleaded that on dated 31.12.2015 vehicle met with accident near Malabar Hotel Bhunter District Kullu H.P. It is further pleaded that FIR No.0001 dated 01.01.2016 was registered in police station Bhunter District Kullu H.P. It is pleaded that in the accident son of complainants died and vehicle was damaged in the accident. It is pleaded that complainants filed O.D claim before opposite parties but opposite parties did not settle the O.D claim of damaged vehicle and committed deficiency in service. Complainants sought relief of payment of Rs.510730/-(Five lac ten thousand seven hundred thirty) as O.D claim of vehicle alongwith interest @ 12% per annum from the date of accident i.e. 31.12.2015 till realization of entire amount. In addition complainants sought relief of payment of Rs.20000/-(Twenty thousand) on account of mental harassment and tension. In addition complainants sought relief of payment of Rs.10000/-(Ten thousand) as litigation costs. Prayer for acceptance of consumer complaint sought. 3. On dated 30.09.2016 learned Advocate appeared on behalf of opposite parties and filed Power of Attorney on behalf of opposite parties placed on record and sought time for filing version. Thereafter matter was listed on dated 05.11.2016, 22.11.2016, 06.12.2016, 30.12.2016 and 18.01.2017 but version was not filed by insurance company despite five opportunities. Thereafter on dated 19.01.2017 none appeared on behalf of opposite parties. There is recital in zimni order of learned District Forum dated 19.01.2017 that matter was called several times and at 3.00 P.M learned District Forum proceeded ex-parte against opposite parties because none appeared on behalf of opposite parties before learned District Forum. Thereafter learned District Forum disposed of present consumer complaint finally under section 14 of Consumer Protection Act 1986. There is recital in zimni order of learned District Forum dated 19.01.2017 that matter was called several times and at 3.00 P.M learned District Forum proceeded ex-parte against opposite parties because none appeared on behalf of opposite parties before learned District Forum. Thereafter learned District Forum disposed of present consumer complaint finally under section 14 of Consumer Protection Act 1986. Learned District Forum ordered that opposite parties would settle claim of complainants on non-standard basis within thirty days of order. Learned District Forum ordered that in addition opposite parties shall pay compensation to the tune of Rs.5000/-(Five thousand). Learned District Forum further ordered that opposite parties would also pay litigation costs to the tune of Rs.2000/-(Two thousand). Learned District Forum further ordered that if opposite parties would fail to settle claim of complainants within stipulated period or repudiate the claim of complainants or if complainants would not be satisfied with settlement then in that event complainants would be at liberty to file fresh complaint on same cause of action. Feeling aggrieved against order passed by Learned District Forum opposite parties filed present appeal before State Commission. 4. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully. 5. 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: 6. Complainant No.1 filed affidavit in evidence. There is recital in affidavit that deceased son of complainants namely Sh. Pradeep Kumar was owner of vehicle No.HP-66- 4364. There is recital in affidavit that insurance policy was issued by opposite parties which was operative w.e.f. 08.06.2015 to 07.06.2016. There is recital in affidavit that on dated 31.12.2015 vehicle met with accident at place Malabar Hotel Bhunter District Kullu H.P. There is recital in affidavit that FIR No.0001 dated 01.01.2016 was also registered in police station Bhunter District Kullu H.P. There is further recital in affidavit that O.D claim was submitted before insurance company but insurance company did not settle the O.D claim. 7. Complainants also filed affidavit of Shri Jai Krishan in evidence. There is recital in affidavit that deponent is having effective driving licence to drive LMV vehicle issued by RLA Authority Kullu (H.P). 7. Complainants also filed affidavit of Shri Jai Krishan in evidence. There is recital in affidavit that deponent is having effective driving licence to drive LMV vehicle issued by RLA Authority Kullu (H.P). There is recital in affidavit that on dated 31.12.2015 deponent was sitting alongwith side of driver deceased Pradeep Kumar. There is recital in affidavit that vehicle met with accident and driver of vehicle namely Sh. Pradeep Kumar died. There is recital in affidavit that accident took place due to hole in the road and due to fact that steering of vehicle turn towards left side of road and vehicle hit with tree situated by the side of the road. There is recital in affidavit that deponent sustained injuries and became unconscious and was admitted in the hospital but no one recorded statement of deponent qua accident. 8. Opposite parties did not file any version and did not adduce any evidence under section 13(4) of Consumer Protection Act 1986. 9. Submission of learned Advocate appearing on behalf of insurance company that insurance company engaged Advocate before learned District Forum and also submitted version on behalf of insurance company to learned Advocate but Advocate engaged by insurance company before learned District Forum did not file version before learned District Forum and on this ground appeal filed by insurance company be allowed is decided accordingly. State Commission is of the opinion that privity of contract was between insurance company and learned Advocate engaged by insurance company. It is held that insurance company is at liberty to seek remedy against learned Advocate as per Advocate Act 1961. Insurance company has levelled personal allegations against learned Advocate engaged by insurance company before learned District Forum. Learned Advocate has not been impleaded as co-party in appeal. It is well settled law that no one should be condemned unheard on the concept of "Audi Alteram Partem". Interim order of learned District Forum are uploaded in website and no reason assigned by opposite parties as to why opposite parties did not check interim orders of learned District Forum uploaded in the website. It is well settled law that party could not be allowed to take benefit of its own wrong and laxity. It is well settled law that Consumer Protection Act 1986 is a Special Act passed by Parliament of India with the object to dispose of consumer complaint expeditiously in time bound manner. It is well settled law that party could not be allowed to take benefit of its own wrong and laxity. It is well settled law that Consumer Protection Act 1986 is a Special Act passed by Parliament of India with the object to dispose of consumer complaint expeditiously in time bound manner. It is held that insurance company could not be allowed to defeat the object of Consumer Protection Act 1986 passed by Parliament of India in the interest of consumers. 10. Submission of learned Advocate appearing on behalf of insurance company that vehicle was driven by a person without having valid driving licence and on this ground appeal filed by insurance company be allowed is decided accordingly. It is proved on record that at the time of accident vehicle was driven by Sh. Pradeep Kumar owner of vehicle who had died in the accident. Shri. Pradeep Kumar was having learner''s licence placed on record Annexure-V which was effective w.e.f. 19.11.2015 to 18.05.2016. Insurance company did not send any interrogatories to RLA Kullu H.P in order to prove the factum that Pradeep Kumar was not holding learner''s licence at the time of accident. Hence adverse inference is drawn against insurance company for not sending interrogatories to RLA Kullu H.P. 11. Submission of the learned Advocate appearing on behalf of insurance company that Shri Jai Krishan driver was not travelling in the vehicle in question at the time of accident and on this ground appeal filed by insurance company be allowed is decided accordingly. Insurance company did not place on record any affidavit of eye witness in order to prove that Sh. Jai Krishan was not travelling in the vehicle at the time of accident. On the contrary eye witness Sh. Jai Krishan has filed his personal affidavit placed on record and there is recital in affidavit that Sh. Jai Krishan was holding LMV licence and was sitting by the side of sh. Pradeep Kumar when he was driving the vehicle in question at the time of accident. It is well settled law that under Motor Vehicles Act 1988 a person holding learner''s licence could drive vehicle upon public road subject to condition that valid licence holder should sit by the side of learner''s licence driver. Affidavit filed by Sh. Jai Krishan is trustworthy, reliable and inspire confidence of State Commission. There is no reason to disbelieve affidavit filed by Sh. Affidavit filed by Sh. Jai Krishan is trustworthy, reliable and inspire confidence of State Commission. There is no reason to disbelieve affidavit filed by Sh. Jai Krishan driver. Plea of insurance company that Sh. Jai Krishan Driver was not travelling in the vehicle at the time of accident is defeated on the concept of ipse dixit (An assertion made without proof). 12. Submission of learned Advocate appearing on behalf of insurance company that excess persons were travelling in the vehicle at the time of accident exceeding sitting capacity of vehicle and on this ground appeal filed by insurance company be allowed is decided accordingly. As per R.C sitting capacity of vehicle was five persons. As per record at the time of accident eight persons were travelling in the vehicle i.e. (1) Chirag Sharma (2) Pradeep Sharma (3) Sunny (4) Abhishek Sharma (5) Mahesh Sharma (6) Pankaj (7) Rohit & (8) Jai Krishan. There is no evidence on record that accident was caused due to overloading. There is no evidence on record that there was direct nexus between accident and overloading. In view of the fact that excess persons were travelling in the vehicle State Commission is of the opinion that insurance company is liable to indemnify O.D claim of vehicle on non-standard basis. See 2010(4) SCC 536 Apex Court Amalendu Sahoo Versus Oriental Insurance Company Ltd. See titled National Insurance Company Ltd. Versus Nitin Khandelwal , (2008) 4 CPJ 1 SC. See titled New India Assurance Company Ltd. Versus Narayan Prasad Appaprasad Pathak, 2006 2 CPJ 144 NC. 13. Submission of learned Advocate appearing on behalf of insurance company that as per contents of FIR Shri Jai Krishan was not traveling in vehicle at the time of accident and on this ground appeal filed by insurance company be allowed is decided accordingly. It is well settled law that FIR is not substantive piece of evidence. It is well settled law that contents of FIR are not per-se admissible in quasi judicial proceedings. As per section 162 of Code of Criminal Procedure 1973 statement recorded by police officials could not be used for any purpose in evidence except for contradiction purpose as per manner provided under section 145 of Indian Evidence Act 1872. Even insurance company did not file affidavit of a person who had recorded the FIR and who has conducted the investigation. Even insurance company did not file affidavit of a person who had recorded the FIR and who has conducted the investigation. Hence adverse inference is drawn against insurance company. 14. Submission of learned Advocate appearing on behalf of insurance company that in total loss basis of O.D claim insurance company is entitled for salvage of vehicle and learned District Forum has committed illegality by way of not ordering return of salvage to insurance company is decided accordingly. It is well settled law that in total loss basis of O.D claim of vehicle insurance company is legally entitled for salvage of vehicle. See titled Shankar Lal & Anr. Versus Branch Manager United India Insurance Company Ltd. and Ors , (2005) 1 CPJ 93 NC. 15. Submission of learned Advocate appearing on behalf of complainants 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 it is expedient in the ends of justice and on the principle of natural justice to delete para-12 (Twelve) of order of learned District Forum because learned District Forum has already ordered that insurance company would settle the claim on non-standard basis. It is well settled law that if insurance company would not settle the claim on nonstandard basis then legal heir/complainant No.2 Smt. Indu is legally entitled to file execution petition under section 25 or 27 of Consumer Protection Act 1986 for execution of order. Hence para No.12 (Twelve) of order of learned District Forum passed under section 14 of Consumer Protection Act 1986 is ordered to be deleted forthwith because learned District Forum was under legal obligation to adjudicate the matter finally at one time under section 14 of Consumer Protection Act 1986 and learned District Forum should not order the party to agitate the same matter several times before same learned District Forum on same cause of action. It is also proved on record that deceased Pradeep Kumar was owner of vehicle in question and it is also proved on record that Sh. Pradeep Kumar was unmarried at the time of accident. Deceased Sh. Pradeep Kumar died intestate. Parties are governed under Hindu Succession Act 1956. It is also proved on record that deceased Pradeep Kumar was owner of vehicle in question and it is also proved on record that Sh. Pradeep Kumar was unmarried at the time of accident. Deceased Sh. Pradeep Kumar died intestate. Parties are governed under Hindu Succession Act 1956. Under Hindu Succession Act 1956 father does not fall within class-I heir and only mother falls in class-I of heir under Hindu Succession Act 1956 on account of death of unmarried son who died in intestate manner. Hence it is held that Shri Inder Dev complainant No.1 will not be entitled for O.D claim and will not be entitled to compensation and litigation costs as ordered by learned District Forum. It is held that only mother of deceased Shri Pradeep Kumar shall be entitled to O.D claim of vehicle and compensation claim of mental agony and harassment and litigation costs being legal heir of deceased Shri Pradeep Kumar. 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 partly allowed. It is ordered that opposite parties shall jointly and severally pay O.D claim of vehicle to complainant No.2 namely Smt. Indu on non-standard basis i.e. 75% of IDV value of vehicle alongwith interest @ 9% per annum from the date of institution of complaint till realization within one month from the date of receipt of certified copy of order of State Commission. 17. It is further ordered that in addition opposite parties shall jointly and severally pay compensation to complainant No.2 namely Smt. Indu for mental agony and harassment to the tune of Rs.5000/-(Five thousand) within one month from the date of receipt of certified copy of order of State Commission. It is further ordered that in addition opposite parties shall jointly and severally pay litigation costs to complainant No.2 namely Smt. Indu to the tune of Rs.20000/-(Twenty thousand) within one month from the date of receipt of certified copy of order of State Commission. It is further ordered that complainant No.2 namely Smt. Indu shall execute subrogation deed in favour of insurance company qua salvage of vehicle in question within one month from the date of receipt of certified copy of order of State Commission. It is further ordered that complainant No.2 namely Smt. Indu shall execute subrogation deed in favour of insurance company qua salvage of vehicle in question within one month from the date of receipt of certified copy of order of State Commission. It is further ordered that para No.12 (Twelve) of order passed under section 14 of Consumer Protection Act 1986 by learned District Forum shall be deemed to be deleted forthwith. Order of learned District Forum is modified accordingly. 18. Certificate-Cum- policy schedule annexure-III issued by opposite parties shall form part and parcel of order. 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.