H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA

Appeal No. 36/2008.

Date of Decision 01.04.2009.

The Oriental Insurance Company Divisional Office,

Mythe Estate, Kaithu, Shimla-3, through its Senior Divisional Manager.

……..Appellant.

Versus



Sh. Charan Singh S/o Sh. Moti Ram R/o VPO Urtoo,

Tehsil Nirmand, Distt. Kullu, HP.

…….Respondent.



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

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether Approved for reporting? Yes.



For the Appellant. Mr. J.S. Bagga, Advocate.



For the Respondent. Mr. Neeraj Sharma, Advocate.





O R D E R:



Justice Arun Kumar Goel (Retd.) President (Oral)



While impugning the order of District Forum Kullu, in Consumer Complaint No. 146/2007, dated 16.1.2008 Mr. Bagga raised following contentions namely; (a) that the vehicle was overloaded beyond its capacity as per its registration certificate; (b) that there were 5 persons sitting in the vehicle including driver at the time of accident in violation of the registration certificate as well as insurance policy; and (c) that the report of the surveyor Mr. Rajesh Kumar Annexure R-3 has been wrongly brushed aside by the District Forum below. Thus he prayed for allowing this appeal by dismissing the complaint filed by the respondent.

2. Vehicle being insured on the date of its accident under a valid policy of insurance with the appellant is not in dispute, as such facts in that behalf have been noted in detail in the impugned order are not being reported.

3. With a view to support his first submission, that the vehicle was over loaded reliance was placed by Mr. Bagga on the reply filed by his client to the complaint, as well as on the report of Mr. Phul Parkash Bakshi Retd. Dy.S.P. Investigator Annexure B-1 dated 12.6.2006 and his affidavit dated 29.11.2007.

4. In his report Annexure B-1 Mr. Phul Parkash Bakshi, Investigator has clearly mentioned about the number of apple boxes being 434, however regarding weight what he has stated and is relevant is extracted hereinbelow:-

“……………..The confirm weight of each apple box is not known.

As per Registration Certificate truck No. HP-35B-0124 having unloaded weight 42.95 Kg but loaded weight is not mentioned hence it may be verified that at the time of accident, truck was overloaded or not”



This clearly indicates that the investigator was not aware what was the actual weight that was carried in the vehicle at the time of its accident. Therefore this report does not advance the case of the appellant so far overloading of vehicle is concerned.

5. Faced with this situation Mr. Bagga laid great emphasis on the affidavit of Mr. Phul Parkash Bakshi dated 29.11.2007. In this he has stated that the total load comes to 8680 Kgs approximately as one box of apple is counted for 20 Kg and according to him on the day of accident the excess load in the vehicle was 2475 Kg approximately. In this affidavit he had spoken about investigation of the matter regarding accident of the said vehicle on 2.10.2005, his report is silent about the weight and its relevant portion is extracted hereinabove how and from which source he could ascertain the weight of one box of apple to be 20 Kg, he had not said a word in the affidavit and Mr. Bagga could not point out anything from record. In these circumstances appellant cannot take any benefit from the aforesaid affidavit of Mr. Phul Parkash Bakshi. Situation would have been totally different if he had stated something to that effect that after submission of report he made enquiries from the persons who had consigned the goods for transportation in the vehicle in question who gave weight of each apple box being 20 Kg. That is admittedly not the situation, therefore, submission of Mr. Bagga that the vehicle was overloaded has no substance being based no evidence, is hereby rejected.

6. Now coming to the plea that there were 5 persons travelling in the vehicle at the time of accident. Suffice it to say in this behalf, that appellant had covered risk of 4 persons and in Annexure R-1 sitting capacity of passengers in the vehicle is also 4. We may notice here that this is not a case of compensation being claimed by the person who was travelling in the vehicle, this is a case of own damage. Appellant may not have followed the provisions of Motor Vehicles Act, 1988 but that cannot be made a ground to reject his claim. In order to succeed on this plea, appellant was further supposed to place on record reliable, cogent and acceptable evidence to the effect, that travelling of one excess person beyond the persons covered in terms of the insurance policy was either the sole or contributory cause of the accident in question. Therefore this plea cannot be accepted. At this stage Mr. Bagga submitted that as per registration certificate 3 persons including driver could travel in the vehicle. Why premium of 4 persons were charged looking to the capacity of vehicle who could travel in the vehicle as per Annexure R-1, learned counsel for the appellant had no answer particularly when registration certificate permitted only 3 persons to travel in the vehicle including driver, therefore this plea urged by Mr. Bagga is also rejected.

7. Now coming to the final survey report of Mr. Rajesh Kumar, Annexure R-3. For the purpose of assessment of loss, it is expected that the appellant would depute a person who is an expert in the branch in relation of which loss is to be assessed. In the instant case it is admitted that the loss was to be assessed was of an automobile, therefore in the ordinary course of things an automobile engineer, may be a diploma holder should have been deputed as a surveyor to assess the loss. With a view to support Annexure R-3 final survey report of the surveyor Mr. Rajesh Kumar, great emphasis was laid by Mr. Bagga on his affidavit which is at page 31 of the complaint file. It clearly shows that he is a qualified engineer having done diploma in electronics engineering from Chandigarh. Though he has also mentioned in his affidavit, that he has been appointed by IRDA (Insurance Sector), to conduct survey and assess the loss and extent of damage caused to the accidental vehicles etc. We cannot overlook the fact that automobile engineering is not the speciality of engineer, who was deputed as surveyor to assess the loss in this case by the appellant. It should have been careful and cautious while appointing a surveyor.

8. It is a matter of common knowledge that experts like Chartered Accountants, Civil Engineers, Electrical Engineers and other persons of different fields are appointed as surveyors by IRDA, but that does not mean and the appellant cannot be allowed to take shelter as an insurer to appoint anyone and everyone whether being expert in the branch of which he has to assess the loss or not. Faced with this situation Mr. Bagga referred to the preliminary survey done by a mechanical engineer, Annexure R-2. We need not look into this. Because he had done spot survey to ascertain what is the situation existing at the spot immediately after the accident. As spot surveyor, he had not assessed the loss to the vehicle in question. If the spot survey is to be accepted, then there was hardly any need for the appellant to have got final loss assessment done from Mr. Rajesh Kumar, surveyor vide Annexure R-3.

9. No other point is urged.

In view of the aforesaid discussion we find no substance in this appeal which is accordingly dismissed, leaving the parties to bear their own costs.

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.



Shimla.

1st April, 2009 (Justice Arun Kumar Goel) Retd.

/K/ President.





(Saroj Sharma)

Member.



(Chander Shekher Sharma)

Member.