National Consumer Disputes Redressal
United India Insurance Copmany Ltd. vs Bir Dei on 17 January, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2690 OF 2019 (Against the Order dated 26/08/2019 in Appeal No. 136/2018 of the State Commission Himachal Pradesh) 1. UNITED INDIA INSURANCE COPMANY LTD. THROUGH ASSISTANT MANAGER, REGIONAL OFFICE I, 18, BARAKHAMBA ROAD, 8TH FLOOR, KANCHENJUNGA BUILDING NEW DELHI-110001 ...........Petitioner(s) Versus 1. BIR DEI W/O. SH. NARENDER KUMAR, R/O. VILLAGE CHAMBER, TEHSIL NALAGARH, DISTRICT-SOLAN HIMACHAL PRADESH ...........Respondent(s)
BEFORE: HON'BLE DR. INDER JIT SINGH,PRESIDING MEMBER
FOR THE PETITIONER : MR. MAIBAM N. SINGH, ADVOCATE FOR THE RESPONDENT : MS. BINITA SHAH, ADVOCATE
Dated : 17 January 2024 ORDER
1. The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, against the order dated 26.08.2019 of the State Consumer Disputes Redressal Commission, H.P. (hereinafter referred to as the 'State Commission'), in First Appeal (FA) No. 136 of 2018 in which order dated 18.01.2017 of District Consumer Disputes Redressal Forum, Solan District, H.P. (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 96 of 2015 was challenged, inter alia praying for setting aside the order dated 26.08.2019 passed by the State Commission in FA/136/2018 and for restoring the order/judgment dated 18.01.2017 passed by the District Forum in CC/96/2015.
2. While the Revision Petitioner (hereinafter also referred to as OP/Insurance Company) was Respondent before the State Commission and OP before the District Forum, the Respondent (hereinafter also referred to as Complainant) was Appellant before the State Commission and Complainant before the District Forum.
3. Notice was issued to the Respondent on 13.04.2021. Parties filed Written Arguments/Synopsis on 22.09.2021(Petitioner) and 11.09.2023 (Respondent) respectively.
4. Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that:
The Respondent/complainant had purchased a vehicle No. HP-64-A-1709 for earning her livelihood by means of self employment and to maintain her family. The complainant obtained an Insurance Policy for her vehicle for the period from 26.05.2012 to 25.05.2013 from the OP/Insurance Company. On 13.01.2013 the insured vehicle met with an accident near Gamberpul area and the driver of the vehicle died in the accident. An FIR was registered under Section 279, 337 & 304A of IPC in Ramshaher Police Station. In the accident the insured vehicle was damaged. The information of the said accident was given to the OP/Insurance Company and upon which the OP/Insurance Company deputed a Surveyor. The Surveyor visited the spot and estimated the loss to the tune of Rs.2,17,344/-. The complainant submitted all the documents so required by the OP for the compensation with regard to the damage of the vehicle. The complainant had filed a verification report of the driving license of Som Raj issued by District Transport Officer, Mon Nagaland, wherein it has been mentioned that the license was renewed upto 13.02.2016 and is genuine. The complainant spent on mechanical charges and then sent the vehicle to M/s Ramgaria Body Builders at Badhaur, Distt. Ferozpur (Pb) for installation of bus body on the said vehicle and spent Rs.4,00,000/-. The complainant spent Rs.4,75,000/- upon the vehicle to brought it on road. The Respondent/Complainant submitted all the documents as required by the OP for the claim but the Insurance Company did not settle the claim. The complainant issued a legal notice on 22.10.2014 to the OP through his counsel but the OP failed to give any response or any reply to the notice. Hence, the complainant filed complaint before the District Forum.
5. Vide Order dated 18.01.2017, in the CC 96/2015, the District Forum has dismissed the complaint with liberty to approach appropriate Court for the redressal of grievances.
6. Aggrieved by the said Order dated 26.08.2019 of District Forum, the complainant appealed in State Commission and the State Commission vide order dated 26.08.2019 in FA No. 136/2018, partly allowed the complaint and passed the following order: -
"25. In view of findings upon point No.1 above appeal is partly allowed. Order of learned District Forum (Nomenclature changed to District Consumer Commission as per la Consumer Protection Act 2019) is set aside. It is ordered Insurance company shall pay O.D. claim of vehicle in question to the tune of Rs.217344/-(Two lac seventeen thousand three hundred forty four) as assessed by Surveyor cum Loss Assessor namely Sh. R.P. Bhasin alongwith interest @ 9% annum from the date of institution of complaint till actual payment. It is further ordered that Insurance company shall pay compensation to complainant for mental agony and harassment to the tune of Rs.20000/-(Twenty thousand). It is further ordered that Insurance company shall also pay litigation costs to complainant to the tune of Rs.4000/- (Four thousand). Insurance company shall comply order within month after receipt of certified copy of order.
26. Surveyor cum Loss Assessor report annexure-R4 dated 29.04.2013 and verification of driving licence rep submitted by District Transport Officer Mon Nagaland relating to deceased driver Sh. Som Raj annexure-H dated 04.07.2014 wherein it is mentioned that driving licence of deceased driver was genuine shall form part and parcel of order. File of learned District Consumer Commission alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal disposed of. Pending application(s) if any also disposed of."
7. Petitioner has challenged the said Order dated 26.08.2019 of the State Commission mainly on following grounds:-
The State Commission has failed to consider that the Insurance Company had repudiated the claim on the ground that the driving licence of Shri Som Raj was not valid and effective at the time of accident. The State Commission has failed to consider that there were two different verification report of the license of Sh. Som Raj issued by the same DTO, one submitted by the Complainant and other submitted by Petitioner Insurance Company, therefore the District Forum had sought clarification from the DTO, Mon Nagaland. In response to the clarification sought by District Forum, the DTO had clarified that DL No.65034/Mon/TV/2010 is not found in any of the office record and hence, the licence is false. Inspite of the report which was on record, the State Commission has erroneously observed that two contradictory reports were available as such the report which is favourable to the consumer should be adopted.
The State Commission failed to appreciate that the Driver Shri Som Raj was resident of Village Chadog, District Solan, H.P. and he has no link/relation in anywhere in Nagaland, therefore, it is surprising that a person who is permanently settled in Solan, H.P. would make driving licence from Mon Nagaland which is more than about 2500 kilometers from Solan. The State Commission failed to appreciate that the complainant has miserably failed to produce/file any document as regards to the reason for the driver Shri Som Raj to make the driving license from Mon Nagaland. There is no report except purported report issued by the DTO, Mon Nagaland. After seeing the purported report it appears that the report has been fraudulently prepared by the complainant as the same has been written in handwriting and the stamp, attest in the report is not legible and furthermore, the complainant has miserably failed to produce original of the said report. The State Commission failed to appreciate that the DTO, Mon Nagaland had directly sent a verification report of DL No. 650934/MON/TV/2010 to the District Forum in response to the query raised by the District Forum, therefore, there is no requirement for filing any affidavit by DTO, Mon Nagaland. The report filed by the Petitioner/Insurance Company was issued by the DTO on an application under RTI made by the Investigator Shri Devender Sharma appointed by the Petitioner-Insurance Company. The report issued by the DTO, Mon Nagaland addressed to the Investigator Devender Sharma is a typed copy and the stamp attested in the report is also prominent.
The State Commission failed to appreciate that the assessment made by the Surveyor does not necessarily mean to be satisfied by the Insurance Company. The Insurance Company is not bound to indemnify the assessment made by the surveyor if it is found that after verification of the claim there is any violation of terms and conditions of the policy. The State Commission failed to appreciate the observations made by the District Forum that the complicated question of fact is involved in the present case as such the District Forum cannot decide the issue and the complainant was given liberty to approach the appropriate Court for redressal of its grievances in accordance with law.
8. 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.
8.1 It is contended that the Respondent submitted a claim form claiming compensation for the damages incurred to the insured vehicle due to the accident. The Insurance Company on receiving the claim form, appointed R.P. Bhasin and Co. Surveyors and Loss Assessors. The surveyor after considering the spot survey and the bills submitted by the complainant had assessed the loss to the tune of Rs.2,17,344/-. The question of genuineness of the driver's license was under scrutiny as the surveyor had not gone into the issue of genuineness of driving license of the driver. The Insurance Co. accordingly appointed an investigator Shri Devinder Sharma to verify the genuineness of the driving license. During the said period, the complainant filed a verification report of the driving license of Som Raj issued by District Transport Officer, Mon Nagaland, wherein it has been mentioned that the license was renewed upto 13.02.2016 and is genuine. The Investigator Shri Devinder Sharma as per instruction received from the Insurance Company had filed an application under RTI Act, 2005 seeking information of the genuineness of driving license of Som Raj from the DTO. In response to the application of the Investigator, the DTO vide its letter dated 16.04.2015 had clarified that on scrutiny and verification of the above license, it was found that no license pertaining to DL No. 65034/MON/TV/10 is available in any of the office file. Hence, this driving license may be false and fraudulent. The Insurance company denied all the allegations made in the complaint by the Respondent/complainant. The insurance company filed the report dated 16.04.2015 issued by the DTO. Since there were to reports contrary to each other, the District Forum sent a letter to the DTO for verifying the license No. 65034/MON/TV/10. The DTO in response to the query raised by the District Forum had sent the verification report to the District Forum vide its letter No. DTO-MON/RTI/16/817/19739 dated 29.08.2016. In the said report, DTO had clarified that DL/No. 65034/MON/TV/10 is not found in any of the office record and hence, the license is false. The DTO, further informed that any license in non digitized (Sarathi) format stands cancelled w.e.f. 01.12.2014 as per Transport Commissioners' notification order No. TC No.23/MV/2007 (PT-1) dated 1st Aug. 2014. After considering the verification reports of DTO, District Forum observed that in view of the contradictory reports, it cannot be said with certainty that the driving license of the driver is genuine or fake. Accordingly, the District Forum concluded that the present complaint cannot be decided in a summary manner, as complicated question of fact is involved. Hence, the order passed by the State Commission is erroneous.
8.2 On the other hand Respondent/complainant contended that the Respondent hired the service of the Petitioner and got her vehicle/bus bearing No. HP-64-1709 insured with the petitioner through its branch office for the period of one year from 26.05.2012 to mid night of 25.05.2013 and paid insurance premium of Rs.37704.46. The petitioner assured to provide service of all kinds of risk covered under the policy issued by Petitioner which includes the damages caused to the vehicle in any manner whatsoever. The said vehicle got damaged in an accident on 13.01.2013 and driver of the vehicle died in the accident. FIR has been registered with the Police Station Ramshaer and the vehicle got damaged and suffered huge loss. The information of the said accident was given to the Petitioner and the surveyor appointed by the insurance company visited the spot and estimated the loss and the Respondent submitted all the documents required by the insurance company for the compensation with regard to the damage of the vehicle under insurance. The Respondent requested time and again to pay the claim of damage of Rs.4,75,000/- but every time Petitioner made one pretext to others for refusal of the same. The Respondent issued a legal notice to the Petitioner through his counsel on 22.10.2014 but the Petitioner failed to give any response or any reply of this notice. Hence, filed complaint before the District Forum. The District Forum dismissed the complaint. Aggrieved by the order of the District Forum, the Complainant appealed before the State Commission. The State Commission after considering the submissions of the parties has observed that there are two contradictory reports relating the driving license of deceased driver submitted by the DTO. The State Commission further observed that the Insurance Company did not file affidavit of DTO to verify two contradictory reports submitted by the same authority. The State Commission has observed that it is well settled law that when two views are possible then the view favourable to consumer should be adopted by the Consumer Fora. The State Commission has rightly held that the the insurance company is under legal obligation to pay damage assessed by the surveyor cum loss assessor and also awarded compensation for mental agony and harassment to the tune of Rs.20,000/- and Rs.4,000/- as costs of litigation.
9. We have carefully gone through the orders of the State Commission, District Forum, other relevant records and rival contentions of the parties. The main issue in the present case is with respect to the genuineness of the driving licenses of the driver Mr. Som Raj, who died in the accident on way to the hospital. Extract of relevant paras of State Commission's order is given below:
"16. Submission of learned Advocate appearing on behalf of complainant that complainant verified driving licence from District Transport Officer Mon Nagaland Annexure-H on dated 09.07.2014 and District Transport Officer Mon Nagaland has specifically mentioned in his report that licence issued in the name of Som Raj was genuine licence and on this ground appeal filed by complainant be allowed is decided accordingly. Insurance company appointed Surveyor cum Loss Assessor and Surveyor cum Loss Assessor namely Shri R.P. Bhasin appointed under section 64UM of statutory Insurance Act 1938 has submitted report relating to driving licence dated 09.07.2014 relating to driver particulars and Surveyor cum Loss Assessor has specifically mentioned in his report name of driver as Som Raj. Surveyor cum Loss Assessor has specifically mentioned in his report that driver was holding licence No.65034/ /MON/TV/2010 for MC/LMV/LTV/HTV/HPV. Surveyor cum Loss Assessor has specifically mentioned that date of issue of licence was 15.02.2010 and issuing authority was Nagaland and date of validity was 13.02.2016.
17. Surveyor cum Loss Assessor has not mentioned in his report that licence of Sh. Som Raj was fake in nature. ............."
x x x x
23. Submission of learned Advocate appearing on behalf of Insurance company that in view of report submitted by District Transport Officer Mon Nagaland placed on record dated 29.08.2016 that driving licence of deceased driver was fake and on this ground appeal filed by complainant be dismissed is decided accordingly. State Commission is of the opinion that there are two contradictory reports relating to driving licence of deceased driver submitted by District Transport Officer Mon Nagaland. One report Annexure-H placed on record dated 04.07.2014 issued by District Transport Officer Mon Nagaland clearly reported that licence in name of deceased driver namely Som Raj was genuine in nature. Other report submitted by District Transport Officer Mon Nagaland dated 29.08.2016 revealed that licence was false. District Transport Officer Mon Nagaland has submitted two contradictory reports. Insurance company did not file affidavit of District Transport Officer Mon Nagaland to verify authenticity of two contradictory reports submitted by same authority. It is well settled law that when two views are possible then view favourable to consumer should be adopted by consumer Fora in view of ruling announced by Hon'ble National Consumer Commission in case reported in 2018(1) CLT 468 NC titled Union of India through GM Western Railway Versus Smt. Vinaya Vilas Sawant."
10. The report dated 09.07.2014 of DTO Mon, Nagaland states the licence to be 'genuine', with a validity upto 13.02.2016. The report dated 16.04.2015 of DTO Mon, Nagaland, is not categorical in stating whether the licence is genuine or not. Extent of relevant portion of the report is reproduced below:
"In response to your letter No.DL VERI UIIC/MKT DO/RTI/2014 Dated 16th March 2015, I have the honour to inform you that, on proper scrutiny and verification the above mentioned driving license, it is found that no record pertaining to DL No.65034/MON/TV/10, is available in any of the office file. Hence, this Driving License may be false and fraudulent."
11. Perusal of copy of licence of Mr. Som Raj shows that it would be natural for any one on seeking this licence to believe it to be a genuine one. In this regard report dated 29.08.2016 of DTO Mon, Nagaland, addressed to District Forum is also reproduced below:
"In reference to your letter No. DCDRF/KGR/1553 Dated 18-08-2016 on the subject cited above, I have the honour to inform you that DL/No.65034/Mon/TV/2010 is not found in any of the Office record and hence, the license is false.
However, for your information, any driving license in non digitized (Sarathi) format stands cancelled w.e.f. 01-12-2014 as per Transport Commissioners' notification order No. TC No.23/MV/2007 (PT-I) dated 1st Aug.2014."
12. Keeping in view the entirety of facts & circumstances of the case, 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. As was held by the Hon'ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] held that "the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the 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 illegally or with material irregularity."
13. We find no illegality or material irregularity or jurisdictional error in the order of the State Commission, hence, the same is upheld. Accordingly, the Revision Petition is dismissed.
14. The pending IAs in the case, if any, also stand disposed off.
................................................ DR. INDER JIT SINGH PRESIDING MEMBER