National Consumer Disputes Redressal
New India Assurance Co. Ltd. vs Parmod Kumar Singh on 10 January, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 703 OF 2017 (Against the Order dated 14/12/2016 in Appeal No. 167/2008 of the State Commission Bihar) 1. NEW INDIA ASSURANCE CO. LTD. DELHI LEGAL HUB 12/1, SECOND FLOOR, JEEVAN RAKSHA BLDG. ASAF ALI ROAD, NEW DELHI-110002 ...........Petitioner(s) Versus 1. PARMOD KUMAR SINGH S/O. SIYA RAM SINGH, M/S. SHIV DURGA MACHINARY, HARDWERE STORE, VILLAGE & PO SINGHIA GHAT, P.S. VIVUTIPUR, DISTRICT-SAMASTIPUR BIHAR ...........Respondent(s)
BEFORE: HON'BLE MRS. JUSTICE DEEPA SHARMA,PRESIDING MEMBER
For the Petitioner : Mr. J. P. N. Shahi, Advocate For the Respondent : Dr. Ravindra Chingale, Advocate
Dated : 10 Jan 2019 ORDER
ORAL
This Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), has been filed against the order of the State Consumer Disputes Redressal Commission, Bihar, Patna (for short "the State Commission") dated 14.12.2016 in Appeal No.167 of 2008, filed by the Petitioner against the order of the District Consumer Disputes Redressal Forum, Samastipur -2- (for short "the District Forum") dated 12.02.2008 in complaint No.45 of 2007.
2. The District Forum had allowed the complaint and directed the opposite party No. 1 & 2 to pay compensation of the stolen articles worth ₹5 lakh with interest @ 10 % per annum from Jan 2005 to Jan 2008 and compensation of ₹5,000/- and litigation costs of ₹1,000/- and thus granted a total sum of ₹6,60,160/-.
3. The Appeal against the said order was also dismissed on the ground that there was no merit in the Appeal.
4. In brief the undisputed facts are that the Respondent, who is proprietor of the shop in the name of M/s Shiv Durga Machinery and Hardware Stores, purchased a policy against the burglary and theft in his shop which was valid for the period from 24.03.2004 to 23.03.2005. There was a theft in the shop of the Respondent in the night of 15.12.2004. A police report was also lodged. The police did the investigation and found that the incident of theft was correct and filed the challan before the concerned court. The Respondent also informed the Insurance Company, i.e., the Petitioner. Surveyor was appointed by the Petitioner who conducted the survey. The insured, i.e., the Respondent put up a claim of Rs.5,26,045/- to the Petitioner. The Petitioner dismissed -3- the claim on the ground that the claim cannot be sanctioned since the requisite documents were not furnished by the Complainant.
5. Aggrieved by the rejection of his claim by the Petitioner, the Respondent filed the Complaint on the ground that the refusal to sanction the claim was illegal and amounted to deficiency in service.
6. The Petitioner controverted the claim of the Respondent/Complainant. The reply was filed wherein the contentions that the Respondent had taken a loan of Rs.4,00,000/- in 2002 and with that loan opened the shop, have been denied. It is also denied that the value of stolen articles was ₹5,26,045/- and put the Respondent to strict proof of the said fact. It is also contended that the list of stolen articles or value of the stolen articles was based on circumstantial evidence and the eye witness to the theft was neither mentioned in the FIR nor in the final report or in the audit report. No purchase receipt of the stolen articles for the month of December 2004 had been submitted by the Complainant and therefore, the claim was rejected. It is alleged that the documents relied upon by the Complainant along with his Complaint were manufactured and forged documents. The statement of stock position filed by the Complainant along with the Complaint is also denied.
7. Parties had led their evidences before the District Forum. The District Forum gave its findings as under:
8. Petitioner carried this order in Appeal before the State Commission where they filed the surveyor report and relied on it stating that as per the surveyor report there was no deficiency in service on their part since the claim of the Respondent was repudiated only because he had failed to present some documents sought by the surveyor.
9. This contention was rejected by the State Commission. The State Commission has held as under:
"It is admitted fact that the shop of the complainant in the name of M/s Shiv Durga Machinery Hardware Stores situated at -6- Singhia Ghat, Samastipur Finance by the respondent/Opposite Party bank having cash credit facility of ₹4Lacs and the shop was insured with the appellant Insurance Company for sum of ₹5,00,000/- under shop keeper policy covering the risk against Burglary through bank and the incident of theft occurred in the night of 15/16.12.2004 well within the valid period of the policy and the complainant suffered loss to the stocks insured under the policy. Now as far as the quantum of loss is concerned, it appears from the documents filed by the complainant that as per the bank stock statement dtd.12.12.04 to the tune of ₹5,59,663/- and also the estimated value of loss on the basis of the inventory prepared before Police authority in presence of the complainant after the incident to the tune of ₹5,26,045/- as also the audit report and Mukhiya Panchnama, coming to the conclusion the claim of the complainant as valid when no documents as evidence have been produced by the Insurance Company in the District Forum to the contrary. Since, copy of the Surveyor report dt.28.05.05 which has been annexed along with the memo of appeal by the insurance co. at this appellate stage, cannot be taken into consideration as it was not part of evidence in the District Forum."
10. This order has been impugned before me on the ground that the State Commission ought to have considered surveyor report filed before it and that non consideration of the surveyor report on the part of the State Commission amounts to wrong exercise of the Jurisdiction by it and therefore, the State Commission order is liable to be set aside. It is further argued that there was no evidence before the District Forum to give its findings and the State Commission has committed error in confirming the said order.
11. I have heard learned counsel for both the parties and perused the record.
-7-12. The jurisdiction of this Court under Section 21(b) of the Act is limited. This Forum is not required to reassess and reappreciate the evidences. It is the duty of the Petitioner under Section 21(b) of the Act to show that the Fora below has exercised its Jurisdiction wrongly or that any miscarriage of justice has occurred or there is any illegality in the order and the order is against the law. It is so held by the Hon'ble Supreme Court in "Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. - (2011) 11 SCC 269". The Hon'ble Supreme Court has held as under:
"23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora".
13. In light of this settled proposition of law, it is apparent that the Petition has no merit. The argument that the finding of the District -8- Forum is based on no evidence, is contrary to the record in view of the above-mentioned extraction from the order of the District Forum. The order clearly shows that evidences were produced by the Respondent in support of his contentions. Rather it was the Petitioner who did not produce the evidence and even did not produce the surveyor report which was their document. That the document was all along in the possession of Petitioner is not in dispute. While impugning the order of the District Forum, the said surveyor report was filed. The surveyor report was rejected by the State Commission vide impugned order on the ground that since in the District Forum, this document was not produced, the same could not be considered by the District Forum while giving its findings and therefore, the reliance on this document, for the first time, in Appellant was not open to the Petitioner. This finding cannot be founded fault with since based on admitted fact that the Surveyor report was not filed by the Petitioner before the District Forum. The State Commission has rightly rejected the document, which was not filed before the District Forum although, the document was all along in possession of the Petitioner. It is settled preposition of law that when a document is not produced, -9- without any explanation or reason adverse inference can also be drawn.
14. It is apparent that the impugned order does not suffer from any illegality. The Petitioner has failed to show that the State Commission has exceeded its Jurisdiction, I find no merit in the Revision Petition and the Petition is dismissed.
15. The amount deposited by the Petitioner before the District Forum pursuant to the order of this Commission dated 07.04.2017 and the interest accrued thereon shall not be released to the Petitioner in view of this order, unless any direction from the higher court is received to the contrary, within eight weeks.
......................J DEEPA SHARMA PRESIDING MEMBER