Keshav Natu Mhatre vs Manager, New India Assurance Co. Ltd.

PRESENT revision has been filed against impugned order dated 23rd December, 2010 passed by State Consumer Disputes Redressal Commission, Mumbai (for short as "State Commission"), vide which appeal filed by the petitioner against order dated 27th July, 2010 passed by District Consumer Redressal Forum, Solapur (for short as "District Forum") was dismissed.

BRIEF facts of this case are that complainant has filed consumer complaint against the Insurance Company with the allegation that he had owing a truck bearing No.MH-13R-3315 and it was insured with the OP/Insurance Company. Insured declared value of the truck was Rs.13,08,742/-. Complainant had paid necessary premium and during the period 30.6.2008 to 29.6.2009 insurance cover was available to the said truck. It so happened that on 4.3.2009 while coming from Umerga to Solapur on National Highway near Bhairavnath Poultry Farm, vehicle was break down. Despite efforts made vehicle could not be restarted. Therefore, it was the case of the complainant in the fora below that they had locked the vehicle and gone to Solapur to bring mechanic. They left the vehicle at about 5.00 a.m. and came back from Solapur on the spot of break down at about 10.30 a.m. with mechanic. However, they found that the vehicle was missing from said place. They had searched the vehicle, but in vain. Ultimately, they filed complaint of theft in the police station having jurisdiction. Police registered the offence of theft in Naldurga police station. However, police could not find out stolen vehicle of the complainant. Ultimately, police procured a summary of the concerned Magistrate. Complainant lodged claim with the insurance company. Some documents were sought and were supplied by the complainant. Insurance company repudiated the claim by sending letter dated 2.2.2010. As such, complainant filed consumer complaint alleging deficiency n service on the part of insurance company. Complaint was filed by the complainant for compensation as per insured declared value as mentioned in the policy, compensation of Rs.10,000/- for mental agony and Rs.5,000/- towards costs. Petitioner/opposite party in its written statement admitted the issuance of insurance policy with regard to the vehicle in question but has stated that the same was issued subject to certain terms and conditions. The insured vehicle was stolen on 4.3.2009 whereas the petitioner/complainant has given the intimation of loss to the office of respondent on 13.3.2009. It is further stated that respondent appointed Investigator who has mentioned in his report that petitioner/complainant had left the vehicle unattended and nobody was in the vehicle when theft has taken place. On this count alone, the respondent has rightly repudiated the claim and as such it was not guilty of deficiency in service.

District Forum vide its order held that there was no deficiency in the service on the part of the respondent and petitioner himself has committed breach of important terms and conditions of the contract and accordingly dismissed the complaint of the petitioner.

AGGRIEVED by the order of the District Forum, petitioner filed an appeal before the State Commission. State Commission, vide impugned order dismissed the appeal of the petitioner. It is contended by learned counsel for the petitioner that Fora below have wrongly held that the vehicle was left without precaution, when admittedly, the driver and cleaner had locked the vehicle. Moreover, the keys of the locked vehicle were deposited with the insurance company, which have been duly received by them. So under these circumstances, it cannot be presumed that the vehicle was left without any precaution when petitioner is paying premium for comprehensive insurance. It is also contended that the words "Unattended without proper precaution" have not been interpreted rightly by the courts below and as such have failed to exercise the jurisdiction as vested by law in it. Accordingly, the impugned order is liable to be set aside.

ARGUMENTS were concluded on 22.7.2011 and the matter was reserved. Thereafter, on 25.07.2011, petitioner has filed an application stating that the keys of the stolen truck were handed over to the respondents and documents to this effect are already on the paper book. It is admitted case of the petitioner himself that vehicle was left unattended on the road for about 5 hours. Mere fact that the same was locked still make no difference in this case. State Commission in its impugned order has observed as under; "We are finding that the dismissal order passed by the Form below is appearing to be just and proper. Insurance policy was issued by the respondent/Insurance Company upon certain terms and conditions. The terms required the insured to take all the steeps to safeguard the vehicle from loss and damage and to maintain in the event of any accident or break down, the vehicle insured shall not be left unattended without taking proper precaution. It is this portion of the condition mentioned in the policy which prompted the Learned District Consumer Forum to dismiss the complaint on finding that after the break down of the vehicle at the National Highway near Bhairavanath Poultry Farm, the driver and cleaner, both of them had left the vehicle unattended and ad gone to Solapur to bring mechanic with them. In the process, they consumed 4-5 hours and since, break down vehicle was left unattended, somebody had stolen said vehicle. Forum below rightly held tat the complainant had not taken reasonable and proper precaution in respect of "break down vehicle". It has come on record that when the vehicle broke down at midnight, there were two persons in the insured vehicle, one was driver and another was cleaner. It is their case that till 5 a.m. both of them sat in the vehicle itself and when at about 5 a.m. there was traffic on the National Highway, they locked the vehicle and went to Solapur to bring mechanic. Mere locking of vehicle is not tantamount to attending the vehicle. Vehicle can be said to be found attended when somebody is there to take care of the vehicle. When the truck in question was having two persons, one driver and one cleaner, it was duty of either of them to stay back in the vehicle and other should have gone to Solapur to bring mechanic. This was expected in the circumstances obtainable. Thus, we are of the view that in respect of break down vehicle, the complainant?s driver and cleaner had deliberately left the vehicle unattended and the consumed 4-5 hours to come back with the mechanic. By that time somebody has played mischief and stolen the vehicle despite the fact it was break down vehicle. So, there was breach of important term and condition of the policy which disentitled the complainant to get insurance claim. That apart, we agree with the Advocate for the respondent when submitted that the claim should have been filed with Tata Motors Finance as ?co-complainant?, since vehicle was under hypothecation of Tata Motors finance. Under the Hire Purchase scheme, vehicle was sold to the complainant and he had committed default and it is improper on the part of the complainant not to join Tata Motor Finance as co-complainant for making payment, if at all they are entitled to get the same. In the circumstances, we find no merits in the appeal filed by the complainant".

PRESENT revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 ( for short ?Act?).

IT is well settled that the powers of this Commission as a Revisional Court are very limITed and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order. Recently, Hon?ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011(3) Scale 654 has observed; "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, any 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 for a".

In the present case, there are concurrent finding of facts of two fora below that petitioner has left the vehicle unattended on road for 5 hours and thus there was breach of important terms and conditions of the insurance policy, which disentitled the petitioner to get the insurance claim. Moreover, as the vehicle was being hypothecated with Tata Motors Finance, Tata Motor was the necessary party in this case.

WE find no reason to disagree with the findings given by the forabelow. Thus, no jurisdictional or legal error has been shown to us for interference to power under Section 22(b) of the Consumer Protection Act, 1986, since, two fora below have given cogent reasons in their orders, which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction . It is not that every order passed by the judicial authority is to be challenged, even if the same is based on sound reasoning. Under these circumstances, present revision petition is not maintainable and same is hereby dismissed with costs of Rs. 10,000/-( Rupees Ten Thousand only). Petition is directed to deposit the costs in the "Consumer Legal Aid Account" within a period of four weeks from today, failing which he shall be liable to pay interest @ 9% p.a. till realization.

LIST the matter on 2.9.2011 for compliance.