Haryana

StateCommission

A/354/2015

ORIENTAL INSURANCE CO. - Complainant(s)

Versus

DHARAMBIR AND OTHERS - Opp.Party(s)

S.S.SIDHU

25 Mar 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                                  First Appeal No.354 of 2015

                                                                Date of Institution:21.04.2015

                                                                    Date of decision:25.03.2016

 

Oriental Insurance Company Ltd., Divisional Office, Kalra Niwas, 2^nd Floor, GT Road, Palwal, District Palwal, through its Divisional Manager/Principal Officer, through its Authorized Signatory, Regional Office, SCO No.109-111, Sector-17-D, Chandigarh.

…Appellants

                                      Versus

Dharambir, aged about 30 years son of Sh. Giriraj Singh, resident of Sohna Road, Palwal, District Palwal.                                                                                                                                               …Respondent

CORAM:   Mr. R.K. Bishnoi, Judicial Member.

                   Mrs. Urvashi Agnihotri, Member.

 

Present:     Mr.S.S. Sidhu, Advocate counsel for appellant.

                   Mr. Bharat Bhushan Sharma, Advocate counsel for respondent.

 

                                                ORDER

 

Mr. R.K. Bishnoi, Judicial Member

 

It was alleged by the complainant that he was registered owner of truck bearing registration No.HR-38/M-3536, which was insured with opposite party (O.P.) and policy valid from 31.03.2012 to 30.03.2013 for Rs.3,85,000/-.  The Vehicle met with an accident and was totally damaged.  Intimation was sent immediately to insurer.  Surveyor was appointed and he directed him to get the vehicle repaired.  He spent Rs. 1,98,477/- on repairs. Claim was submitted, but, O.P. failed to pay any amount. He sent legal notice dated 10.09.2013, but, no reply was received.   eHe

 

2.      O.P. filed reply controverting his averments and alleged that engine no. and chassis no. in the registration certificate, insurance cover note and fitness certificate were different, so the complainant was not entitled for claim.  Objections about maintainability, jurisdiction, false and frivolous complaint etc. were also raised and requested to dismiss the complaint.

3.      After hearing both the parties learned District Consumer Disputes Redressal Forum, Palwal (In short “District Forum”) allowed the complaint vide impugned order dated 19.01.2015 and directed as under:-

“Hence the complaint is allowed and opposite party is directed to pay the amount paid by the complainant as per bills i.e. Rs.1,98,477/- less Rs.7000/- as it is a quotation not the bill ( i.e. Rs.1,91,477/-) alongwith interest @ 9% per annum from the date of filing of the complaint and to pay further Rs.5000/- towards compensation as well as Rs.2100/- for litigation expenses within 45 days from the receipt of the copy of this order.  If the opposite party fails to comply with this order within 45 days opposite party would further be burdened Rs.10,000/- apart from the above awarded amount.”

4.      Feeling aggrieved therefrom, appellant-opposite party has preferred this appeal.

5.      Arguments heard. File perused.

6.      Learned counsel for the complainant vehemently argued that the appellant/OP has not placed report of the surveyor on the record of the District Forum. Ex.R-1 is report submitted by Satpal Singh about the verification of the bills. After this report, OP did not produce the concerned persons to prove that the bills were not issued by them or that they were fake. So, learned District Forum rightly discarded the stand of the OP that bills were fake. If original bills were not produced it does not mean that his claim be repudiated. Appeal has no merits and the same be dismissed.

7.         These arguments are of no avail. It is well settled proposition lf law that initially the party who alleges any fact is to prove the same. The other party is to rebut the same. In this way, onus to prove any fact goes on changing. When one party has discharged it’s onus then the burden shifts on the other party to disprove the same or to prove it’s claim, which Opposite parties have miserably failed to do.  These views are fortified by the opinion of Hon’ble Supreme Court expressed in ADDAGADA RAGHAVAMMA AND ANR.Vs. ADDAGADA CHENCHAMMA AND ANR. AIR 1964 SC, Page136.

8.      It was the duty of the complainant to prove that bills produced by him were genuine. When report Ex.R-1 came on the file, wherein it was mentioned that bill Ex.C-2 was fake, it was the duty of the complainant to disprove the same. He should have produced owner of that shop to prove this fact. It was also mentioned by concerned  person that bill Ex.C-2/Ex.R-4 was not issued by them. As per report Ex.C-7/R-5 it was only quotation. It was also mentioned by owner of concerned firm of Ex.R-5 that it was only a quotation, not a bill and was not bearing his signature. As per report Ex.R-1 the firm who issued bill Ex.C-5/Ex.R-6 was not existing at the concerned place and the Phone number mentioned thereupon was traceable at Jind. Likewise, the firm who issued bills Ex.C-6/Ex.R-8 and C-7/Ex.R-7 were also not available at the given address. In these circumstances it was the duty of the complainant to prove that said firms were existing at the given address and the bills were genuine. Instead of proving this fact he is alleging that OP has failed to prove this fact. He is trying to put cart before the horse. Learned District Forum failed to take into consideration all these aspects. So, amount mentioned in Ex.C-2, Ex.C-5, Ex.C-6, Ex.C-7 and Ex.C-8 is also to be deducted from the amount of compensation awarded by the learned District Forum. However, there is no dispute that production of photocopies is not sufficient ground to reject the claim, but, when their genuineness is doubted complainant should have produced original. In the present matter the manner of accident is not mentioned by the complainant. He might have alleged in FIR that the accident took place due to fault of other vehicle. He might have filed a petition for compensation against the same and might have produced the original bills in that case. To clear the doubt, the complainant should have not only produced the copy of FIR, but also the original documents. In these circumstances the amount mentioned in Ex.C-2 i.e. Rs.40,000/-, Ex.C-5 i.e. Rs.91,690/-, Ex.C-6 i.e. Rs.30,000/-, Ex.C-8 i.e. Rs.2100/- amounting to Rs.1,63,790/- to be deducted from the amount of compensation awarded by the learned District Forum which comes to Rs.1,91,477 - Rs.1,63,790=Rs.27,687/-. Impugned order is modified accordingly. With this modification appeal stand disposed off.

9.      The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules.

March, 25th, 2016                 Urvashi Agnihotri                   R.K. Bishnoi

                                                Member                        Judicial Member

                                                Addl. Bench                 Addl. Bench

S.K.