State Consumer Disputes Redressal Commission
Advocate Jatinder Mohan Bajaj vs Rajendra Singh Panwar on 1 November, 2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH. Misc. Application No.139/2011 in F.A No.443 of 2009 Date of decision: 1.11.11 Advocate Jatinder Mohan Bajaj . Applicant/Appellant Versus Rajendra Singh Panwar ---- Respondent/complainant Application for restoration of appeal No.443 of 2009 dismissed in default and for want of prosecution vide order dated 29.8.2011 CORAM : Justice Sham Sunder, President Mrs.Neena Sandhu, Member
Present : Sh.N.K.Nanda and Sh.Rajinder Singh Raj,Advocates alongwith applicant/appellant in person.
Per Justice Sham Sunder , President This application for restoration of the appeal, which was dismissed in default and for want of persecution on 29.8.2011, has been filed by the applicant / appellant.
2. The grounds, set up in the application, under disposal, are that the applicant/appellant inadvertently noted the date as 29.8.2010, and when, on that date (29.8.2010), he came to attend the Commission, the case was not found to have been listed. It was stated that thereafter, the applicant/appellant met with an accident, and got brain injuries and remained admitted in the Post Graduate Institute of Medical Education and Research, Chandigarh. Thereafter, he was advised bed rest. It was further stated that the absence of the applicant/appellant, on 29.8.2011 was neither willful nor intentional, but due to the reasons, mentioned above. Accordingly the prayer, referred to, in the opening para of the instant order, was made.
3. We have heard the Counsel for the applicant/appellant, as also the applicant/appellant, in person, and have gone through the record, carefully.
4. The Counsel applicant/appellant, submitted that the absence of the applicant/appellant or his Counsel on 29.8.2011, when the appeal was dismissed in default and for want of prosecution, was neither intentional, nor deliberate, but on account of the reasons, mentioned in the application, under disposal. He further submitted that it is well settled principle of law that every lis should be decided on merits, than by default. He further submitted that substantial questions of law, and fact, are involved, in the appeal, and if the same is not restored, an irrepairable loss shall be caused to the applicant/appellant. He further submitted that the appeal be restored to its original number, and the applicant/appellant be afforded an opportunity of being heard and thereafter it be decided on merits.
5. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the applicant/appellant, we are of the considered opinion, that the application is liable to be dismissed, for the reasons, to be recorded hereinafter. First Appeal No.443 of 2009 was filed on 18.9.2009 against the order dated 17.7.2009, rendered by the District Consumer Disputes Redressal Forum(I), U.T, Chandigarh vide which the complaint of Rajendera Singh Panwar, complainant/respondent filed U/s 12 of the Consumer Protection Act,1986(hereinafter to be called as the Act only), was allowed and the applicant/appellant was directed to refund a sum of Rs.4600/- charged by him as fee; pay Rs.25,000/- as compensation, for harassment, and for not filing the Writ Petition promptly and not pursuing the same, in the Honble High Court, as also litigation costs of Rs.5000/.- On 29.8.2011, when the appeal was fixed for final arguments, neither the applicant/appellant nor any legally authorized representative, on his behalf appeared, whereas the respondent was present in person. On that date, the following order was passed ;
None has put in appearance, on behalf of the appellant, though three calls have been given, to the appeal, and it is already 2.00 p.m. Shri R.S.Raj, Advocate, who was earlier appearing, on behalf of the appellant, has submitted that, he was only appearing, by way of courtesy, but was never given any Vakaltnama by the appellant, for appearing in this appeal.
Even earlier, on 29.7.2010, 12.11.2010 and 27.7.2011, neither the appellant, nor any duly authorized representative, on his behalf, put in appearance.
It, thus, appears that the appellant is not interested in prosecuting the appeal. The same is, accordingly, dismissed in default of appearance of the appellant, and for want of prosecution.
6. The order extracted above , clearly goes to show that even on 29.7.2010, 12.11.2010 and 27.7.2011, neither the appellant, nor any legally authorized representative, on his behalf, put in appearance. It was not that, on one date, the applicant/appellant or his legally authorized representative did not appear, in the appeal, when it was fixed for arguments, but, on a number of dates, as mentioned above, he failed to appear. The appeal had already grown about 2 years old. It was, under these circumstances, that it was found that the applicant/appellant was not at all interested in prosecuting the appeal and, as such, the same was dismissed in default of his appearance, and for want of prosecution, as envisaged by Section 13(2)(c) read with Section 18 of the Act, and Rule 8(6) of the Chandigarh Consumer Protection Rules, 1987. No document, in support of the pleas taken up, in the application, under disposal, has even been produced by the applicant/appellant. The absence of the applicant/appellant on 29.8.2011, was, thus, intentional and deliberate.
7. The principal question, that arises for consideration, is, as to whether, the State Commission is empowered to restore the appeal dismissed by it, in default of appearance of the appellant, and for want of prosecution. There is no provision, in the Act, empowering the State Commission, to review/recall its own order, like the one, passed in this case. In Rajeev Hitendra Pathak and others vs Achyut Kashinath Karekar and another IV(2011)CPJ 35(SC), a case decided by a three judge Bench of the Apex Court, the facts were that the State Consumer Disputes Redressal Commission, Maharashtra, issued notice of the complaint filed before it, to the Opposite Parties. On 9.9.2004, the State Commission dismissed the complaint, for want of prosecution. On 4.11.2004, the complainants, filed an application, for recalling the order dated 9.9.2004. The State Commission recalled the order dated 9.9.2004, and restored the complaint. Feeling aggrieved, the appellants/OPs filed a revision petition, before the National Consumer Disputes Redressal Commission, New Delhi, which was dismissed by it. Still feeling aggrieved, the appellants/OPs, filed Civil Appeal No.4307 of 2007 in the Apex Court. The Apex Court in Rajeev Hitendra Pathak and otherss case (supra), held that, on careful analysis of the provisions of the Act, it is abundantly clear, that the Tribunals are creatures of Statute and derive their power from the express provisions of the same (Statute). The District Forums and the State Commissions have not been empowered, to set aside the ex parte orders and review/recall the same. The powers, which have not been expressly given, by the Statute, cannot be exercised by them. Ultimately, Appeal No.4307 of 2007 was accepted by the Apex Court, and the findings of the National Commission, holding that the State Commission, was empowered to review/recall its own order, were set aside. The principle of law, laid down in Rajeev Hitendra Pathak and otherss case (supra), is fully applicable, to the facts of the instant case. This Commission is bound by the principle of law, laid down, in the aforesaid case, by the Apex Court. Since, this Commission has no power to review/recall or set aside its order, dismissing the appeal, in default of appearance of the appellant, and for want of prosecution, on 29.8.2010, the application is not maintainable, before it. The application is,thus, liable to be dismissed, on this ground alone.
8. For the reasons recorded above, the application, seeking restoration of appeal is dismissed, being not maintainable, with no order as to costs.
9. Certified Copies of this order be sent to the parties, free of charge. 10. The file be consigned to Record Room.
Announced 1st Nov.,2011 Sd/-
(JUSTICE SHAM SUNDER) President Sd/- ( NEENA SANDHU) *js Member STATE COMMISSION Appeal case NO.194/2011 Argued by: Applicant/appellant in person.
Sh.Anish Babbar,Advocate, proxy for Sh.G.C.Babbar,Advocate for the respondents.
Dated the 1st November.,2011 ORDER Vide our detailed order of the even date, recorded separately, the application for condonation of delay is dismissed and consequently, the appeal, being barred by time, is also dismissed.
(Neena Sandhu) (Justice Sham Sunder) Member President DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [ Complaint Case No:136 of 2010] Date of Institution : 05.03.2010 Date of Decision : 16.09.2011
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Sh.
Anurag Sharma son of Late Sh. Vijay Sharma, resident of House No.509, Sector 35-A, Chandigarh.
---Complainant.
V E R S U S The Manager, Iffco Tokio General Insurance Company Limited, Plot No.2, B&C, 4th Floor, Sector 28-A, Madya Marg-160002.
---Opposite Party.
BEFORE: SHRI LAKSHMAN SHARMA PRESI DENT SMT. MADHU MUTNEJA MEMBER SH.
JASWINDER SINGH SIDHU MEMBER Argued By: Sh. Sandeep Bhardwaj, Advocate for the complainant.
Sh.
Raj Karan, Advocate for the OP.
PER LAKSHMAN SHARMA, PRESIDENT Sh. Anurag Sharma has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein for the following directions to OPs:-
i) To pay a sum of Rs.2,34,581/- as repair charges of the car along with interest @18% per annum w.e.f. 12.1.2010 till payment;
ii) To pay a sum of Rs.1,00,000/- as compensation for mental agony and harassment;
iii) To pay a sum of Rs.21,000/- as costs of litigation.
2. In brief the case of the complainant is that on 16.4.2008, he purchased a Ford Fiesta car from Chandigarh and got it insured from M/s Bajaj Allianze Insurance Company Limited for the period from 16.4.2008 to 15.4.2009 vide Cover Note (Annexure C-1). Thereafter, he shifted to Karnal. So, he could not get the insurance renewed in time. On 24.11.2009, he got the said car insured from the OP for the period from 24.11.2009 to 23.11.2010 vide Cover Note (Annexure C-3). He paid a premium of Rs.15,804/-.
It has been pleaded by the complainant that on 14.12.2009, the car met with accident near Mullanpur. He informed the OP immediately. Thereafter, he took the vehicle to Saluja Motors, Industrial Area, Phase III, Mohali for repairs. The OP appointed a surveyor who surveyed the vehicle. According to the complainant, he was told that the case for indemnification of the loss was being processed. He was further told that as there was no facility for cashless claim settlement, the complainant should get the vehicle released from the workshop after making payment of the bill, which would be reimbursed. So, according to the complainant, he paid a sum of Rs.2,34,581/- to Saluja Motors for repairs of the vehicle vide bills (Annexures C-5 to C-8). Thereafter, he submitted all the documents along with his claim form for indemnification of the loss. However, to his surprise, according to the complainant, he received letter dated 16.2.2010 (Annexure C-9) whereby his claim was repudiated on the ground that the complainant has submitted wrong particulars regarding the previous insurance policy. According to the complainant, he had not given the particulars of any previous policy to the agent of the OP as he had not claimed the discount for no claim on the previous policy. Thus, the repudiation of the claim, according to the complainant, is illegal and amounts to deficiency in service.
In these circumstances, the present complaint has been fled by the complainant seeking the reliefs mentioned above.
3. In its written reply filed by OP the factum of having insured the car for the period from 24.11.2009 to 23.11.2010 has been admitted. It has also been admitted that the complainant had paid the requisite premium. According to the OP, when the claim for indemnification was received from the complainant, OP verified the documents submitted by the complainant at the time of getting the said vehicle insured. It was found that the complainant had never got the car insured from Reliance Insurance Company Limited vide cover note (Annexure R-1). The case of OP is that at the time of issuance of cover note, the complainant had submitted Cover Note (Annexure R-1) stating that the car was insured with Reliance Insurance Company Limited for the previous year. Thus, according to OP, the complainant did not disclose true particulars regarding the previous insurance. According to Op, it is well settled proposition of law that the insurance contract like any other contract is based on utmost good faith. Therefore, if any information is found to be wrong, the contract goes. In these circumstances, according to OP, the claim has been rightly repudiated and the claim deserves dismissal.
4. We have heard the learned counsel for the parties and have gone through the entire record including documents, annexures, affidavits etc.
5. The claim filed by the complainant has been repudiated vide letter (Annexure C-9). The relevant portion of the same reads as under:-
We wish to inform you that the vehicle no.CH 04C 1602 was insured with us under policy no.71168418 for the period 24.11.09 to 23.11.10. While procuring insurance coverage from us to your vehicle, you had submitted the previous insurance particulars. The concerned insurer has denied that the said documents not issued by them.
The information furnished by you is a misrepresentation of material fact to procure insurance from us.
In view of the above, the contract becomes void and the captioned claim is not admissible under the policy. The claim is, therefore, being closed as No Claim.
6. From the bare perusal of this letter, it is apparent that the claim has been repudiated on the ground that for procuring insurance coverage from the Reliance Insurance Company Limited, the complainant submitted wrong particulars regarding the insurance of the car for the previous year. Annexure C-3 is the Insurance Cover Note issued by the OP. From perusal of the same, it is apparent that the complainant has not claimed any discount on account of not claiming any indemnification from the previous insurer. In these circumstances, the complainant had no reason to submit a false document regarding the insurance of his car for the previous year. The OP has failed to point out as to how it has been adversely affected by wrong submission of the said particulars.
7. Furthermore, the OP should have verified the facts mentioned above before issuance of the policy. If the complainant had furnished wrong facts, the vehicle should not have been insured and the premium should have been returned. Now at the time of indemnification of loss, the OP cannot take the stand that insurance was procured by furnishing wrong facts.
8. Reference may be made to Oriental Insurance Company Limited, Chandigarh Vs. Khursheed and another, Civil Writ Petition No.3996 of 2011 of Honble Punjab & Haryana High Court, decided on 22.3.2011, wherein it has been held that :-
Insurance Companies are charging hefty premium for insuring the vehicles. Once the question of liability arises, the companies resort to one technical objection and the other. These Companies really chase people and literally promise everything at the time of selling policy. It is usual to see people struggle to run after agents and surveyors to get their rightful claims. Such agents then look other way and make insurers to make rounds to Company offices. Insurers are then made to approach the Courts and are even dragged to this Court on one technical plea or the other. No one really is made to read the terms while making him to sign on the printed forms for selling policies. This attitude must change. At least, the Courts should not be burdened with this uncalled for litigation
9. To our mind, OP is trying to find out a false excuse to repudiate the claim in order to avoid its liability. So, in these circumstances, the repudiation of the claim amounts to deficiency in service.
10. In view of the above findings, this complaint is allowed with the following direction to OP (Insurance Company): -
(i) to pay an amount of Rs.2,34,581/- to the complainant being the repair charges of the car;.
(ii) to pay a sum of Rs.50,000/- to the complainant as compensation for harassment and mental agony.
(iii) to pay a sum of Rs.7,000/- to the complainant as costs of litigation.
11. This order be complied with by the OP within 30 days from the date of receipt of its certified copy, failing which OP shall be liable to refund Rs.2,84,581/- i.e. (Rs.2,34,581 + Rs.50,000) to the complainant along with penal interest @18% p.a. from the dates of filing the complaint i.e.05.03.2010 till its realization besides payment of Rs.7,000/- as costs of litigation.
12. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.
Announced.
16th September 2011.
Sd/-
(LAKSHMAN SHARMA) PRESIDENT Sd/-
(MADHU MUTNEJA) MEMBER Sd/-
(JASWINDER SINGH SIDHU) MEMBER Ad/-