National Consumer Disputes Redressal
Oriental Insurance Co. Ltd. vs Dipak Chandra Kar & Anr. on 3 June, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 653 OF 2018 (Against the Order dated 18/08/2017 in Appeal No. 21/2016 of the State Commission Tripura) 1. ORIENTAL INSURANCE CO. LTD. THROUGH ITS DULY CONSTITUTED ATTORNEY, MANAGER, ORIENTAL INSURANCE CO. LTD. HEAD OFFICE, 88 JANPATH CONNAUGHT PLACE, NEW DELHI-110001 ...........Petitioner(s) Versus 1. DIPAK CHANDRA KAR & ANR. S/O LATE MAKHAN LAL KAR SHIBNAGAR, M.B.B. CLUB ROAD NEAR GALI OF SBS COMPUTER, HOUSE NO. 126, AMC WARD NO. 21, P.S- EAST AGARTALA, P.O. AGARTALA COLLEGE DISTRICT-WEST TRIPURA-799004 TRIPURA 2. HIND MOTORS, TATA MOTORS AUTHORISED SERVICE STATION BY PASS N.H. 44, KALITALA OLD AGARTALA, KHAYERPUR, P.O. KHAYERPUR, P.S. RANIBAZAR, DISTRICT-WEST TRIPURA-799008 ...........Respondent(s)
BEFORE: HON'BLE DR. INDER JIT SINGH,PRESIDING MEMBER
FOR THE PETITIONER : MR. ANSHUL KUMAR, ADVOCATE (THROUGH VC) FOR THE RESPONDENT : EX PARTE VIDE ORDER DATED 07.12.2023
Dated : 03 June 2024 ORDER
1. The present Revision Petition (RP) has been filed by the Petitioners against Respondents as detailed above, under section 21(b) of Consumer Protection Act 1986, against the order dated 18.08.2017 of the State Consumer Disputes Redressal Commission, Tripura (hereinafter referred to as the 'State Commission'), in Case No. A.21.2016 in which order dated 05.04.2016 of District Consumer Disputes Redressal Forum, West Tripura, Agartala (hereinafter referred to as District Forum) in Case No. CC/01 of 2015 was challenged, inter alia praying for setting aside the impugned order dated 18.08.2017 passed by the State Commission in A.21/2016.
2. While the Revision Petitioner(s) (hereinafter also referred to as OP/Insurance Company) was Appellant before the State Commission and OP-1 & 2 before the District Forum and the Respondent No.1 (hereinafter also referred to as Complainant) was Respondent No.1 before the State Commission and Complainant before the District Forum and Respondent No. 2 (hereinafter referred to as OP-3/Hind Motors) was Respondent No. 2 before the State Commission. and OP-3 before the District Forum. Notice was issued to the Respondent(s) on 19.09.2018. Petitioner filed Written Arguments on 07.10.2023. On account of absence despite service, Respondents were proceeded ex parte vide order dated 07.12.2023.
3. Brief facts of the case, as emerged from the Complaint, RP, Order of the State Commission, Order of the District Forum and other case records are that: -
The Respondent No.1/complainant got his vehicle insured from the Petitioner/insurance company on 11.01.2011 and the sum assured was Rs.17,00,000/-(IDV). The insurance was covering the period from 11.01.2011 to 10.01.2012. During the pendency of the insurance, the said vehicle met with an accident on 04.06.2011. The complainant communicated about the incident of accident to the Police Outpost of Abhoynagar immediately after the accident and subsequently to clear the blockade in the road police attached to East Agartala Police Station carried the said vehicle with the help of crane into the premises of East Agartala Police Station. The complainant also communicated the incident of accident to the Insurance Company. Spot Survey was conducted by the Insurance Company at the premises of East Agartala Police Station. Mechanical examination of the damaged vehicle was conducted into the said premises. Thereafter, at the desire of insurer the vehicle was shifted into the workshop of OP-3 for getting necessary repair of the damaged vehicle. The OP-3 furnished an estimate for Rs.9,66,177.76 for repair of damaged vehicle. The OP-1 furnished claim form to be submitted by the complainant along with necessary upto date documents with Police Report, MVI report and copy of estimates. The complainant submitted the claim with all annexures/information. The insured paid Rs.2,00,000/- as advance to OP-3 for repair of vehicle. OP-3 started repair of the vehicle, but failed to complete the repairing works due to non-availability of few spare parts including the cabin. In the meantime OP-1 insisted the complainant for renewal of insurance policy and complainant paid Rs.30,072/- as premium. A new policy covering the period from 11.01.2012 to 10.01.2013 was issued showing IDV of the vehicle at Rs.16,10,526/-. Insurance Company appointed a Surveyor Sh. Shankar Roy. The surveyor sent series of letters to the Respondent/complainant to know the status of the vehicle whether the damaged vehicle was repaired or not and also asked for submission of completion report. The surveyor asked for MVI report, original police report etc. and other documents pertaining to the vehicle, however, the said documents were submitted by the complainant at the time of furnishing claim form. The complainant replied to the letters stating that OP-3 issued him that repairing work would be completed till 15th January, 2012. The OP-3 failed to complete the repairing work on the ground of non-availability of required spare. The Insurance company repudiated the claim due to no submission of required papers/documents as requested by the Insurance Company. Hence, the Complainant/Respondent -1 filed complaint before the District Forum.
4. Vide Order dated 05.04.2016, in the CC/01 of 2015 the District Forum has allowed the complaint. Aggrieved by the said Order dated 05.04.2016 of District Forum, Petitioner appealed in State Commission and the State Commission vide order dated 18.08.2017 in Case No. A21.2016 has dismissed the Appeal.
5. Petitioner has challenged the said Order dated 18.08.2017 of the State Commission mainly on following grounds:
(I)The State Commission failed to appreciate that the Respondent has spent Rs.2,48,500/- towards the total repair of the vehicle and same is an admitted position. In para 10 of the order of the District Forum, it has been clearly stated that M/s Industrial Engineers voucher dated 07.10.2014 only shows the total repairing amount as Rs.2,48,500/-. Therefore, grant of Rs.2,00,000/- in excess to the Respondent-1 is great prejudice to the Petitioner. Merely making an advance payment of Rs.2,00,000/- does not entitle to the Respondent-1 to have any claim against the petitioner. No repair work was done by Respondent No.2 in 2011 after submission of estimates dated 16.06.2011 and same is evident from the fact that the petitioner and surveyor had written numerous letters from 18.07.2011 to 13.12.2012 and the Respondent No.1 could not supply the proof of repairs done by Respondent No.2. The repair was done by M/s Industrial engineers in the year 2014 as per their admitted voucher dated 07.10.2014, therefore, there is no deficiency in service which would further call for payment of Rs.25,000/- in favour of Respondent No.1.
(ii) The claim of Respondent No.1 was treated as no claim on 30.12.2012 and the said claim was barred by disclaimer clause of the insurance company.
(iii) The State Commission has not examined the careless attitude and lack of cooperation on the part of Respondent No.1 which is clear from correspondence between Petitioner, surveyor and Respondent No.1. The State Commission has not considered the Forum below had committed an error on solely relying upon the written version of Respondent No. 2 while allowing the complaint at Rs.4,48,500/-. While passing the impugned order, the State Commission committed an error and acted in exercise of its jurisdiction illegally and with material irregularity thereby committing a miscarriage of justice to the Petitioner.
6. Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
6.1 In addition to the averments made under grounds of Revision Petition (para 7), the petitioner contended that the Respondent purchased a second hand vehicle which was insured under package policy of goods carrying commercial vehicle. The vehicle had met with an accident and as a result, the front portion was damaged extensively. On 16.06.2011, Hind Motor furnished an estimate of Rs.9,66,177/- to Respondent No.1. On 21.09.2011, the Surveyor again sent a reminder to Respondent-1 dismantle the vehicle within 15 days. Again on 02.12.2011, the Petitioner had to write a letter to Respondent -1 that the dismantling of the vehicle has not been done despite serving a number of letters and last opportunity was given to dismantle the vehicle in 15 days, otherwise the claim shall be closed. On 21.12.2011 & 30.03.2012, the Surveyor again gave reminders to Respondent -1 for informing the present status of the vehicle in order to complete the assessment and survey report. In August 2012, the surveyor informed that in the last week of August, 2012, he was in Agartala for some other assignment and had an opportunity to visit the concerned repairer workshop and found that the insured vehicle was lying in partly dismantling condition, the workshop was failed to produce all the dismantled spare except the Driver's Cab Assembly. The surveyor finalized report on 20.09.2012 and quantified the liability at Rs.6,39,463/- stating that the salvage value will be roughly for Rs.50,000/- and the parts allowed for replacement are strictly subject to surrender of salvage and satisfaction. Finally the claim was repudiated and file was closed as 'No Claim' due to no submission of required papers/documents as requested. Both the Fora below erred in entertaining the complaint at the first place as it was barred by limitation, despite taking specific defence of limitation before the State Commission. The claim was rejected on 31.12.2012 , the complaint was filed in the year 2015 i.e. after the expiry of 2 years. The complainant paid Rs.2,00,000/- as advance to Respondent No.2 in cash to the repairer. The repairer failed to complete the work due to non-availability of spare parts and due to failure to complete the repairing work, bills, cash memos, vouchers in original and completion report towards repairing work could not be submitted. The District Forum awarded Rs.4,48,500/- to Respondent No.1 observing that Rs.2,00,000/- paid to Hind Motors as advance and Rs.2,58,500/.-0 to Industrial Engineers, which was upheld by the State Commission. Thus, the impugned orders are illegal, arbitrary, unjustified, unwarranted, perverse and contrary to law and liable to be set aside.
6.2 Respondent No.1/Complainant submitted before the State Commission that admittedly the vehicle was insured with the Insurance Company for a sum assured of Rs.17 lacs only. The said policy was valid till 10.01.2012. The accident of the insured vehicle; occurred on 04.06.2011, within the validity of the insurance policy. The complainant informed regarding the accident to the Insurance Company and also submitted the relevant documents regarding the accident. The vehicle was placed in the repairing unit, i.e. in the premises of Hind Motors/Respondent No. 2 herein and Surveyor was appointed by the Insurance Company to survey the vehicle; for assessment of cost for repairing towards the damage of the insured vehicle. Hind Motors furnished an estimate amounting to Rs.9,66,177/-. The Surveyor of the Insurance Company submitted his report, wherein it was mentioned that total damages assessed for Rs.6,39,463/-. The Respondent-1/complainant paid Rs.2,00,000/- to Hind Motors, but the vehicle was not repaired due to non-payment of the remaining amount. The Respondent/complainant claimed an amount of Rs.7 lacs towards repairing of the damaged vehicle as on cash loss basis to the Insurance Company, but the claim was repudiated. The vehicle was not repaired by Hind Motors for want of remaining amount, the complainant had taken away the vehicle from the workshop of Hind Motors and placed with another Agency- Industrial Engineers and the vehicle was repaired there at a cost of Rs.2,48,500/-. Thus, the complainant has paid in total a cost of Rs.4,48,500/- towards repair of his damaged vehicle. The District Forum directed the Insurance Company to pay the full expenditure for repairing amounting to Rs.4,48,500/- and for deficiency of service Rs.25,000/-, in total Rs.4,73,500/-.
6.3. Respondent No. 2-Hind Motors, as observed by the State Commission in its order dated 18.08.2017 that in its written statement before the District Forum OP-3 stated that the respondent complainant paid Rs.2 lacs to them as advance for repairing the damaged vehicle, but the complete work could not be done as the initial payment of Rs.5,30,000/- was not made. So, the repairing of the vehicle could not be completed.
7. In this case, there are concurrent findings of both the Fora below against the Petitioner Insurance Company. State Commission, based on the facts of the case, documents and evidence before it, observed that the complainant has paid Rs.4,48,500/-, out of which Rs.2 lakh was paid to OP-3, the authorized agency of Insurance Co., as advance and remaining Rs.2,48,500/- was paid to Industrial Engineers. The State Commission has duly addressed the contention of the Insurance Company with respect to limitation stating that claim was repudiated on 31.12.2012 and the complaint was filed on 31.12.2014 i.e. within 2 years.
8. We have carefully gone through the orders of State Commission, District Forum and other relevant records. State Commission has given a well-reasoned order and we do not find any reasons to interfere with its findings. It has been held by Hon'ble Supreme Court in catena of judgments[i] that revisional jurisdiction of the National Commission is extremely limited, it should be exercised only in case as contemplated within the parameters specified in the provision i.e. when State Commission had exercised a jurisdiction not vested in it by law or had failed to exercise jurisdiction so vested or had acted in the exercise of its jurisdiction so vested or had acted in the exercise of its jurisdiction illegally or with material irregularity. It is only when such findings are found to be against any provisions of law or against the pleadings or evidence or are found to be wholly perverse, a case for interference may call for at the second appellate (revisional) jurisdiction. In exercising of revisional jurisdiction, the National Commission has no jurisdiction to interfere with concurrent findings recorded by the District Forum and the State Commission, which are on appreciation of evidence on record.
9. In view of foregoing, we are of the considered view that State Commission has given a well-reasoned order and we find no reason to interfere with its findings. We find no illegality or material irregularity or jurisdictional error in the order of the State Commission, hence the same is upheld. Accordingly, Revision Petition is dismissed.
10. The pending IAs in the case, if any, also stand disposed off.
[i] 1 Ruby (Chandra) Dutta vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269, Sunil Kumar Maity vs. State Bank of India and Ors. (2022) SCC OnLine SC 77, Lourdes Society Snehanjali Girls Hostel and Another Vs. H & R Johnson (India ) Limited and Ors, (2016) 8 SCC 286, T. Ramalingeswara Rao (Dead) Through Legal Representatives and Anr. Vs. N. Madhava Rao and Ors. (2019) 4 SCC 608, Rajiv Shukla Vs. Gold Rush Sales and Services Limited and Anr. (2022) 9 SCC 31 ................................................ DR. INDER JIT SINGH PRESIDING MEMBER