National Consumer Disputes Redressal
Ishwar Singh vs Icici Lombard General Insurance Co. ... on 30 January, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.30 OF 2013 (From the order dated 28.9.2012 in Appeal No.306/2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula) Ishwar Singh Petitioner s/o Shri Khacheru r/o Village Rajupur Khadar, Tehsil Palwal, District Faridabad Versus 1. ICICI Lombard General Insurance Co. Ltd. ... Respondent S-13, Ist & 2nd Floors, Green Park Extension Opposite Uphar Cinema, New Delhi Through its Divisional Manager / Principal Officer 2. The Manager, ICICI Lombard General Insurance Company Limited HP15, Krishna Tower, 2nd Floor, Neelam Bala Road, NIT, Faridabad BEFORE: HONBLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HONBLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Mr. Narendra Singh Yadav, Advocate For the Respondent : Mr. Sashwata Pandey, Advocate PRONOUNCED ON : 30th JANUARY, 2015 ORDER
JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER The petitioner being aggrieved of the dismissal of his consumer complaint by State Commission Haryana in appeal has preferred this revision petition.
2. The subject vehicle bearing registration no. HR30-F-0283 was insured with the respondent / opposite party no.1.
The vehicle met with an accident on 03.02.2008 resulting in damage. The incident was reported to the police and intimation was given to the insurance company. The opposite party / insurance company, however, repudiated the claim vide letter dated 05.06.2008 on the premise that at the time of accident, subject vehicle was carrying passengers in excess of sanctioned seating capacity.
Being aggrieved of the repudiation, the petitioner preferred a consumer complaint.
3. The respondent / opposite party in its written statement took the plea that there was no deficiency in service. The insurance claim was rightly repudiated because at the time of accident, the subject vehicle was being driven by a person not holding an effective and valid driving license and also that the vehicle was carrying passengers in excess of the sanctioned seating capacity.
4. The District Forum on consideration of the pleadings and evidence came to the conclusion that the subject vehicle at the time of accident was carrying two passengers in addition to the driver in violation of the rules which amounted to violation of terms and conditions of the insurance policy. The District Forum, however, did not go into the question of validity of the driving license and relying upon the judgment of the Supreme Court in the case of Amalendu Sahoo Vs. Oriental Insurance Company 2010 CTJ 485 allowed the insurance claim on non -standard basis and directed the opposite party to pay to the petitioner 75% of the claim amounting to Rs.1,81,995/- with 9% interest per annum from the date of complaint and to pay Rs.5000/- as litigation expenses and mental harassment.
5. Being aggrieved of the order of the District Forum, the petitioner approached State Commission Haryana for enhancement of the compensation. The State Commission, however, vide the impugned order taking note of the fact that at the time of accident subject vehicle was being driven by a driver not having a valid driving license to drive a commercial vehicle, set aside the order of the District Forum and dismissed the complaint. This has led to the filing of the revision petition.
6. Shri Narender Yadav, learned counsel for the petitioner has firstly contended that State Commission has committed a grave error in looking into the validity of the driving license particularly when the validity of the driving license was not given as a reason for repudiating the claim in the repudiation letter dated 05.06.2008. We do not find merit in this contention because repudiation letter by itself is not a sine qua non of the dispute between the parties. On perusal of record, we find that in the written statement filed in response to the complaint, the opposite party in the first instance took the plea that the insurance claim filed by the petitioner was not maintainable because of violation of terms and conditions of the insurance policy inasmuch as that the driver of the subject vehicle was not holding a valid driving license to drive a transport / commercial vehicle. As the plea regarding the validity of the driving license was taken in the written statement, the State Commission was justified in looking into the validity of the driving license and it cannot be said to have been acted beyond the scope of the pleadings. Counsel for the petitioner has failed to show anything to suggest that the driver of the vehicle at the relevant time was holding a valid driving license. Therefore, order of the State Commission on this count cannot be faulted.
7. Secondly, it is contended that the State Commission has exceeded its jurisdiction in dismissing the complaint by failing to appreciate that the opposite party had accepted the order of the District Forum by not challenging the order in appeal. We do not find merit in this contention. Order XLI Rule 33 of the CPC deals with the power of the Court of Appeal which is reproduced as under:
33. Power of Court of Appeal
- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.
Provided that the Appellate Court shall not make any order under Section 35-A in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.
8. On reading of the above, it is clear that this provision gives very wide power to the Appellate Court to do complete justice between the parties. The provision enables the appellate Court to pass such decree or order as ought to have been passed under the circumstances notwithstanding that the party in whose favour the order is sought to be exercised has not filed any appeal or cross objection. In the instant case also, the State Commission having noticed that the driver of the subject vehicle was not holding the valid driving license came to the conclusion that it is a case of violation of terms and conditions of the insurance policy and dismissed the complaint. The said order is in consonance with the powers of the Appellate Court while hearing the appeal from original decree, which cannot be faulted.
9. In view of the discussion above, we are of the view that petitioner has failed to show any material irregularity or jurisdictional error which may call for interference in exercise of revisional jurisdiction. Revision petition is, therefore, dismissed.
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(AJIT BHARIHOKE, J) (PRESIDING MEMBER) .Sd/-
(REKHA GUPTA) (MEMBER) Am