NATIONAL INSURANCE COMPANY LTD vs ARUN KUMAR

THIS revision petition has been filed by National Insurance Company, Kolkata and its Divisional Manager. Respondents herein who were the complainants before the District Forum filed a consumer complaint case stating that their deceased father had insured his TATA LPT bearing registration No. HR-69/3120 with the OP-Insurance Company under policy No. 140100/31/06/6300024496 for the period commencing from 21.12.2006 to 30.12.2007. It was stated that during the currency of insurance policy on 23.4.2007, the aforesaid vehicle met with an accident and got badly damaged. In the said accident, the father of the complainants, Jai Bhagwan Singh also died on the spot. Intimation of the accident was given to the OP-Company and FIR was also lodged on the same day with the local police station. According to the complainant, the vehicle suffered damaged to the extent of Rs. 1,60,000 but when the claim was submitted, the same was repudiated by the OP-Insurance Company and hence the consumer complaint before the District Forum.

ON being noticed, the OP-Insurance Company resisted the complaint by filing its written statement, in which it was stated that claim of the complainants had been repudiated vide OP''s letter dated 23.4.2008 because Jai Bhagwan, who was driving the vehicle was not holding effective driving licence to drive a vehicle with gross vehicle weight of 24150 kgs. It was further stated by the OP Insurance Company that driver Jai Bhagwan Singh possessed the driving licence bearing No. 28963/MKG/Prof. with an endorsement to drive SC and LMV only and hence the claim had to be repudiated and there is no deficiency on the part of the OP-Insurance Company. On appraisal of the issues and evidence adduced by the parties, the District Forum found the OP Nos. 1 and 2 guilty of unfair trade practices and deficiency in service. They were, therefore, directed to reimburse the complainants an amount of Rs. l,60,000 on account of expenses made by them for the repairs of damaged vehicle within a period of thirty days, failing which the amount shall carry interest @ 8% from the date of this contempt. Complaint against the OP No. 3, against whom no specific relief had been claimed by the complainants was dismissed by the District Forum.

AGGRIEVED by the aforesaid order of the District Forum, the OP-Insurance Company challenged the same by filing an appeal before the State Consumer Disputes Redressal Commission, Haryana, Panchkula (''State Commission'' for short). State Commission vide its order impugned order dated 2.12.2010, dismissed the appeal and upheld the order of the District Forum.

LEARNED Counsel for the petitioners has contended that the impugned order of the State Commission is illegal and erroneous because the State Commission failed to appreciate that the cause of action arose within the State of West Bengal and, hence, the complaint ought to have been filed in West Bengal and not within the State of Haryana. It is submitted by him that although the point of jurisdiction of Karnal District Forum was raised for the first time by the petitioner-Company before the State Commission, the State Commission was wrong in rejecting the plea simply on the ground that it was not raised before the District Forum.

IN support of his contention regarding raising the plea of jurisdiction for the first time before the State Commission, the Counsel has placed reliance on the judgment of the Apex Court in the case of Kunal Singh v. Union of India and Others, II (2003) SLT 33=(2003) 4 SCC 524. As regards the territorial jurisdiction, reliance has been placed by the Counsel on the judgment of the Apex Court in the case of Sonic Surgical v. National Insurance Company Limited, IV (2009) CPJ 40 (SC)=IX (2009) SLT 111=(2010) 1 SCC 135 and the order of the National Commission in the case of Ritu Bhuwania v. Vatsa Corporation Ltd. and Anr., I (2010) CPJ 27 (NC), Another contention raised by the Counsel is that the Fora below have ignored the recommendations of the Surveyor appointed by the Insurance Company, who had assessed the loss to the vehicle only to the tune of Rs. 72,992.13 in his report, while directing the Insurance Company to reimburse the sum of Rs. 1,60,000 on account of expenses on the repairs of the damaged vehicle without giving any reasons for discarding the report of the Surveyor, which is against the provisions of law. He has relied on the order of this Commission in the case of Paam Eatables Ltd. v. United India Insurance Co. and Ors., IV (2004) CPJ 22 (NC), in which it has been held that the report of the Surveyor is an important document and sufficient reasons must be shown to reject it and reasons for not accepting it. In view of these three contentions, raised by the Counsel for the petitioners, he pleaded that the impugned order is liable to be set aside as being erroneous, and against the provisions of law.

WE have carefully considered the contentions raised by the learned Counsel for the petitioners and perused the record. So far as the territorial jurisdiction of the District Forum is concerned, he has raised two issues firstly, that Karnal District Forum cannot be deemed to have jurisdiction in this matter simply because the petitioner-Company has a branch office in that District keeping in view the ratio laid down by the Apex Court in the case of Sonic Surgical (supra), because the cause of action in this case arose in the State of West Bengal, near Kolkata and secondly, non-raising of the plea regarding the territorial jurisdiction before the District Forum and raising it at the first time before the State Commission, should not be barred because the plea raising a pure question of law as per the ratio laid down by the Apex Court in the case of Kunal Singh (supra), it can be entertained although raised for the first time. Out of the two issues raised in regard to the jurisdiction of the District Forum, in our considered view, it would be appropriate to deal with the second issue first. It is not disputed that on being noticed by the District Forum, Karnal, the OPs filed their reply and resisted the complaint for the reasons and grounds stated in their reply. They, however, did not take any objection to the jurisdiction of the District Forum to try the complaint. In view of this, the District Forum proceeded to hear the parties and decide the matter on merits based on appraisal of the issues and evidence adduced by them. In view of this, when the objection regarding the territorial jurisdiction of Karnal District Forum was taken as a plea for the first time before the State Commission, the State Commission rejected the same in view of the specific provisions of law as contained in Section 21 of the C.P.C. We have gone through the order of the Apex Court in case of Kunal Singh (supra), relied upon by the Counsel for the petitioners but the context in which the Apex Court has laid down that ratio was different and hence the same would not be applicable to the present case where plea pertains to objection in contravention of the specific provisions of law. We do not agree with the submissions made by the Counsel for the petitioners to the effect that the dispute being a consumer dispute, the provisions of the CPC contained under Section 21 thereof will not be applicable to this dispute. Provisions in respect of the plea regarding objection to jurisdiction is specific provision under Section 21 of the CPC and there is nothing in the Consumer Protection Act, 1986 contrary to that provision which would prevent the Consumer Fora to act according to that provision. Under these circumstances, we agree with the view taken by the State Commission while rejecting the plea of objection to the territorial jurisdiction of the Consumer Forum, Karnal taken by the OP-Insurance Company. This being the position, we do not consider it necessary to get into the first issue regarding the applicability of the provisions of Section 11(2)(b) of the Consumer Protection Act, 1986. We, therefore, hold that since the petitioner-Company did not take any objection regarding its jurisdiction before the District Forum, which was the first Court dealing with the matter, the issue with regard to the provisions of Section 11(2)(b) of the Consumer Protection Act, 1986 is not relevant at this stage before us.

COMING to the aspect of the report of Surveyor and assessment of the loss, contained in that report, we find that issue has been dealt with appropriately by the District Forum while returning its findings in favour of the complainants. District Forum in para 5 of its order has recorded its observations as under: "It is admitted fact between the parties that Sh. Jai Bhagwan Singh was owner of the vehicle and the vehicle was insured with the OP Nos. 1 and 2 and at the time of accident Sh. Jai Bhagwan Singh was driving the vehicle but still of rejected the claim only on the ground that Sh. Jai Bhagwan Singh was not holding effective driving licence to drive a vehicle with gross weight of 24150 kgs. But the documents produced by the OPs nowhere prove that there was any such condition under the policy or that driving licence the copy of which is placed on record as Ex. 07 was not a valid and effective license. The perusal of the copy of licence shows that he was authorized to drive motor cycle, LMV, MMV and HMV and the licence was valid up to 5.1.2009. Besides, the OP has not led any specific evidence in support of the objections that under licence Ex. 07, he was not authorized to drive a vehicle having the gross weight of 24150 Kgs. as alleged by them. Therefore, denying the claim merely on such flimsy objections definitely amounts to unfair trade practices and deficiency in services. Now the next question to be determined is how much amount the complainants are entitled to. There is no denial that the insured Bhagwan Singh father of the complainants had expired in that accident. The evidence produced by the complainants proves that on information a surveyor to assess the loss was deputed by the OP and at the instance of OP and surveyor the vehicle was got repaired at the costs of the complainants. The complainants claimed a sum of Rs. 1,60,000 spent by them on the repairs on the basis of bills and receipts Ex. C13 to Ex. C-30 but the OP has not led any evidence to rebut the claim of the complainants nor filed the report of the surveyor who assessed the loss to the tune of Rs. 72992.13 as alleged by them in the written reply. In the absence of any report of the surveyor on the basis of which he assessed the amount of Rs. 72,992.12, the plea of the OP cannot be accepted on assumptions and presumptions and in presence and in view of the evidence produced by the complainant with regard to expenditure of Rs. 1,60,00. As per insurance policy the vehicle was insured against ID value of Rs. 7,35,000 w.e.f. 31.3.2006 to 30.1.2007."

IT is not disputed by the Counsel for the petitioners that report of the surveyor was not produced by the petitioner-Company before the District Forum. This being the undisputed position, the State Commission was right in upholding the findings of District Forum and rejecting the plea taken by the petitioner-Company in its appeal in regard to the quantum of loss, assessed by the surveyor. It is also to be noted that the main ground on which the petitioner-Company repudiated the claim of the respondents/complainants was in respect of the driver not holding a valid and effective driving licence at the time of accident. We find that both the Fora below have returned their concurrent findings in favour of the complainants in this regard unsuiting the claim of the petitioner-Insurance Company. We also find any jurisdictional error in the concurrent orders of the Fora below. Under these circumstances, we do not see any reason or justification to interfere with the impugned order while exercising our revisional jurisdiction. The revision petition, therefore, stands dismissed at the threshold. Revision Petition dismissed.