H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA

Appeal No. 407/2007

Reserved on 15.6.2009

Date of Decision 18.6.2009.

Shri Akash Garb S/o late Shri Rattan Chand,

R/o VPO Sunam, Tehsil Pooh, District Kinnaur, HP.



……..Appellant.

Versus



The New India Assurance Company Ltd., Kasumpti,

Shimla-9, HP through its Divisional Manager.

…….Respondent.

Hon’ble Mr. Justice Arun Kumar Goel, President.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether Approved for reporting? No.





For the Appellant. Mr. Peeyush Verma, Advocate.



For the Respondent. Mr. Ratish Sharma, Advocate.



O R D E R:



Justice Arun Kumar Goel (Retd.) President.



Appellant has filed this appeal for enhancement of compensation as claimed in the complaint, filed by him. District Forum below while disposing of his complaint No. 454/2004, vide its order dated 30.7.2007 has allowed compensation in the sum of Rs. 5,416/-, besides interest on this amount @ 9% per annum from 4.10.2004, the date of filing of the complaint till realization, as well as costs of litigation Rs. 1500/-. Appellant has been directed to pay this amount within 45 days from the date of receipt of copy of the order.



2. At this stage it may be appropriate to notice that according to learned counsel for the parties the amount awarded in terms of the impugned order has already been received by the appellant, in addition to Rs. 11,743/- that was paid by the respondent to the financier of the appellant. Insurance Company-respondent is not aggrieved from the impugned order.

3. Mahindra Bolero Camper Jeep insured with the respondent rolled down 30 meters below the road when it was parked at Khwangi near Reckong Peo. This was due to sagging of the road below the jeep where it was parked. Further facts revealed from the complaint are, that vehicle was stationary.

4. The vehicle was got repaired by the appellant and bill in this behalf is Annexure A-3 on the complaint file. As per this bill a sum of Rs. 38,913/- was paid in cash by him to the authorized dealer who repaired it. On the other hand on receipt of information regarding accident in question, insurance company deputed Mr. Umesh Kumar Sood, Surveyor. His Motor Spot/Final Survey report is Annexure R-5. As per his report, appellant was entitled to only Rs. 17,159.35 paise. This amount stands paid partly before filing of the complaint and remaining as a consequence of the passing of the impugned order.

5. From the report of the surveyor, it is evident that he visited the workshop where the vehicle was brought for repair. This is evident from his report, Annexure R-5. However most of the items he has either disallowed or has substantially reduced their cost. When reference is made to Annexure R-5 in this behalf, there are no reasons assigned by him. What is its effect we shall deal with it later on.

6. Mr. Verma learned counsel for the appellant submitted that there is no reason to disallow the claim of his client in respect of the repair that was got carried out by his client after accident of his vehicle. In this behalf he submitted that Annexure A-3 gives the details of the work that was got done of spare parts, as well as labour charges paid by his client. Why, appellant was not entitled to the amount as contained in Annexure A-3, Annexure R-5, the surveyor’s report is silent. Only silver lining in it is regarding the bonnet which earlier was to be got repaired, whereas the authorized dealer said it was required to be replaced. Similarly radiator was replaced, whereas it was required to be dented for reshaping it, as per the surveyor.

7. In the aforesaid background Mr. Verma, learned counsel for the appellant prayed for enhancement of compensation, whereas Mr. Sharma on behalf of the respondent submitted that the impugned order may be upheld and he prayed for dismissal of the appeal.

8. While buttressing this submission, Mr. Sharma urged that the vehicle at the time of its accident was being plied in violation of the provisions of Motor Vehicles Act, 1988 because it did not possess a valid and effective fitness certificate before bringing it on road. This ground is enough to dismiss this appeal per Mr. Sharma.

9. After having given thoughtful consideration to the submissions of learned counsel for the parties, as well as for reasons to be recorded hereinafter, we are of the view that this appeal deserves to be allowed.

10. Admittedly the vehicle at the time of accident was in a stationary position. In these circumstances, whether the vehicle was having a fitness certificate and or was not having route permit will not make any difference may be if it was being plied, then situation might have been different. Even if it be assumed for the sake of argument, that the vehicle was having a fitness certificate but was in a stationary condition, and then the road would have sagged, it would make no difference. It is settled in a number of decisions by now by the Apex Court that where a vehicle was stationary and it was hit from behind by another vehicle, in such a situation licence of the driver having been found to be either fake or there-under the vehicle could not have been driven by such driver, will make no difference because there is no correlation between the cause of accident and the driver having or not having licence in accordance with the provisions of Motor Vehicles Act, 1988.

11. Vehicle was stationary when road sagged and resulted in causing accident is established from overwhelming evidence on record. Immediately after accident, driver of the vehicle complained about it at Police Station, Reckong Peo. Annexure R-3 is the copy of Rapat No. 20 dated 1.6.2004 coupled with the statement of the driver Jitender Kumar. This is also the version given by the appellant in the claim form submitted by him to the respondent. It has been filed in original by the respondent-insurance company as Annexure R-2, alongwith its reply to the complaint.

12. On the totality of the circumstances of this case, it is felt that the vehicle was not having a valid fitness certificate makes no difference in the context of accident which is proved beyond any shadow of doubt to be the result of sagging of the road.

13. So far emphasis laid by Mr. Sharma on the report of surveyor Annexure R-5 is concerned, in our opinion it does not in any manner improve the case of his client. Reason being that no doubt he is an expert and his report is a prerequisite for settlement of cases where loss is beyond Rs. 20,000/- but he is not the last word on the subject and it cannot be taken as a gospel truth. This is the substance of the judgment of the Hon’ble Supreme Court in the case of New India Assurance Company Ltd. Vs. Pradeep Kumar, 2009 CTJ 599 (Supreme Court) (CP). Besides this, as an expert it is his duty to give reasons howsoever brief those may be, as to what is the basis for allowing/disallowing/partly allowing/wholly disallowing the compensation Once this conclusion is arrived at, then his affidavit also is not in proper shape and condition.

14. Faced with this situation, Mr. Sharma learned counsel for the respondent submitted that appellant is not entitled to the enhancement as being claimed by him and in this behalf he referred to the revised guidelines on settlement of claims on compromise basis and so also to the document at page 25 of the complaint file. For the view that we have taken of the accident as well as the manner in which it took place, we reject his submission to treat it as on compromise basis, and then allow it at 75% of the admissible claim. With a view to dismiss this appeal he referred to the decision of Tamil Nadu State Commission in the case of United India Insurance Co. Ltd. Vs. A.V. Arasu, I (2006) CPJ 266. In this decision repudiation of claim was justified when vehicle was being plied in contravention of Motor Vehicles Act, 1988 without fitness certificate. This decision is distinguishable because in the case before us the vehicle was admittedly stationary and was not being plied at the time of its accident.

15. Reliance was also placed by Mr. Sharma on the decision of Gujarat State Commission in the case of New India Assurance Co. Ltd. Vs. Rasul Mohammadbhai Akbarbhai Mirza, I (2002) CPJ 244. In support of his plea that it needs to be treated as “non standard claim.” According to us this decision does not improve the case of Insurance Company-respondent, because of the manner in which the accident had taken place. For the same reasons, no benefit can be derived on behalf of the appellant from the decision of the Chhatisgarh State Commission in the case of Om Prakash Baghel Vs. Oriental Insurance Co. Ltd. I (2007) CPJ 90, as well as of Tamil Nadu State Commission in the case of United India Insurance Co. Ltd & Ors. Vs. G. Kodhainachiar, I (2005) CPJ 86.

16. Likewise case of the respondent is not in any manner improved for treating the present claim on “compromise basis”, based on the decision of National Commission in the case of New India Assurance Co. Ltd. Vs. Jhankar Singh, I (2007) CPJ 341 (NC).

17. No other point was urged.

In view of the aforesaid discussion, this appeal is allowed and as a result of it, appellant is held entitled to Rs. 38,913/- alongwith interest @ 9% per annum from the date of filing of the complaint till the date of payment/deposit whichever is earlier. It is made clear in this context that amount that was paid before filing of the complaint shall carry no interest. The amount that was paid in terms of the impugned order, shall carry interest till the date of payment only. Only rest of the amount shall carry interest from the date of filing of the complaint, i.e. 4.10.2004 till the date of payment/deposit whichever is earlier. Appeal is allowed subject to this modification and stands disposed of.

Office is directed to supply copy of this order to the learned counsel for the parties free of cost as per rules.

Shimla.

18th June, 2009. (Justice Arun Kumar Goel) Retd.

/K/ President.



(Chander Shekher Sharma)

Member.