NEW INDIA ASSURANCE CO. LTD. vs DEBI PRASAD DOA ANR.

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 24.02.2012, passed by the West Bengal State Consumer Disputes Redressal Commission (hereinafter referred to as ''the State Commission'') in First Appeal No. 66/2010, "New India Assurance Co. Ltd. versus Debi Prasad Doa & Ors.", vide which, while dismissing the appeal, the order dated 23.04.2009, passed by the District Forum Paschim Mednipur in consumer complaint No. 132/2008, filed by the present respondent no. 1, Debi Prasad Doa, allowing the said complaint, was upheld.

Briefly stated, the facts of the case are that the complainant purchased a vehicle bearing registration No. WB-33A-1376 after raising financial assistance from the opposite party-3 (OP-3) IndusInd Bank Limited to the extent of 9,26,000/- and obtained an insurance policy for the same from the petitioner New India Assurance Co. Ltd., valid for the period 20.06.2006 to 19.06.2007. The said vehicle is stated to have been stolen on 11.01.2007 and an FIR to that effect was registered at Police Station Kharagpur on 14.01.2007. At that time, the complainant had employed one Nobin Pandit for driving the said vehicle. Both the driver and the vehicle were found missing on the date of the incident. The complainant lodged a claim with the Insurance Company which settled the claim for 7,20,000/- on non-standard basis. However, feeling dissatisfied with the decision of the insurance company, the complainant filed the consumer complaint in question, saying that he had incurred a financial loss of 15,10,948/- due to the theft of the vehicle and he should be properly compensated alongwith interest on the amount involved. The District Forum vide their impugned order dated 23.04.2009, allowed the complaint and directed the insurance company to remit a sum of 9,60,000/- to the complainant, being the IDV of the vehicle together with interest @9% p.a. with effect from 01.10.2008. The District Forum also directed the Bank to recast the loan account of the complainant and not to charge penal interest / additional interest from the complainant from the date of the theft. Being aggrieved against the said order of the District Forum, the petitioner insurance company challenged the same by way of appeal before the State Commission, which was decided vide order dated 27.05.2010. The State Commission observed that the consumer complaint could not be entertained by the District Forum as arbitration proceedings were pending between the parties. Being aggrieved against the said order of the State Commission, the complainant filed revision petition, RP No. 3737/2010 before this Commission, which was decided on 26.04.2011 and as per that order, the matter was remanded to the State Commission for disposal of the appeal on merits in accordance with law. Vide impugned order dated 24.02.2012, the State Commission dismissed the appeal against the order of the District Forum. Both the consumer fora below, while deciding the matter placed reliance on order made by the Hon''ble Supreme Court in " National Insurance Company vs. Nitin Khandelwal" [2008 (3) Apex Court Judgments 175(SC)] . The main contention of the insurance company before the Consumer Fora was that the driver employed by the complainant was not in possession of a proper driving licence as brought out from the report of the investigator. However, the consumer fora below stated that the non-possession of a proper driving licence was not relevant, given the facts and circumstances of the present case. Being aggrieved against the impugned order, the insurance company is before this Commission by way of the present revision petition.

Notice of the petition was issued to the complainant/respondent No. 1 and the financing bank/respondent No. 2. The Bank put in appearance through their counsel. However, the complainant/respondent No. 1 sent a letter, saying that because of his financial condition, he was unable to appear before this Commission. He requested for the grant of legal assistance to him. Accordingly, an amicus curiae was appointed to contest the case on behalf of the complainant/respondent No. 1.

During arguments before us, the learned counsel for the petitioner insurance company argued that the incident of theft had taken place on 11.01.2007, whereas the FIR had been lodged with the local police on 14.01.2007, i.e., after a delay of 3 days. The claim in question was, therefore, not payable due to the delay in filing the FIR. The learned counsel further stated that as per the report dated 27.02.2008 of the investigator Pranab Kumar Nath, the driving licence of the driver Nobin Pandit was found to be a fake document and hence, the claim was not payable.

Learned amicus curiae appearing for the complainant/respondent No. 1, during her arguments placed reliance on the order passed by the Hon''ble Supreme Court in " Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], " saying that the powers of this Commission in the exercise of the revisional jurisdiction were limited. Keeping in view the concurrent findings of the consumer fora below, the revisional jurisdiction could be invoked only, if there was a patent error of jurisdiction or material defect in the orders passed by the Consumer Fora below. The learned amicus curiae further stated that in the present case of theft of the vehicle, the validity of the licence possessed by the driver was of no consequence. The orders passed by the consumer fora below were, therefore, in accordance with law.

The learned counsel appearing for the IndusInd Bank stated that the complainant had been a persistent defaulter in the repayment of the loan taken by him from the Bank. The entire amount in question awarded by the Consumer Fora below should have been directly paid to the Bank. The learned counsel stated that the arbitration award, a copy of which had been placed on record, was in their favour and the Arbitrator had awarded a sum of 10,35,628/- to them alongwith interest @11% p.a. from the date, when the borrower failed to pay the monthly instalments. The learned counsel further stated that this Commission vide their order recorded on 03.08.2012 had allowed the respondents to withdraw the amount deposited by the insurance company with this Commission. However, the amount could not be withdrawn as the name of the respondent was not mentioned in the said order.

The learned amicus curiae stated that the complainant had no objection if the amount awarded by the consumer fora below was directly paid to the bank in satisfaction of the loan raised by the complainant.

We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

From the facts on record, it is clearly brought out that the insurance company had already decided to settle the claim for a sum of 7,20,000/- in favour of the complainant. It has been mentioned in the revision petition itself that the insurance company settled the claim for that amount and issued letter dated 01.10.2008 addressed to the complainant, a copy of which had also been placed on record alongwith the revision petition.

In view of these facts, the arguments raised by the learned counsel for the petitioner that the claim was not payable at all in view of the fact that the driver of the vehicle did not have proper driving licence, has no relevance. By their own action and assertion, the Insurance Company is estopped from taking the plea that the claim was not payable.

The main point for consideration in the matter is whether the consumer fora below could have allowed the claim in toto, depending upon the judgment of the Hon''ble Apex court in " National Insurance Company vs. Nitin Khandelwal" (supra). A perusal of the said judgment reveals that the Hon''ble Apex Court observed that in case of theft of vehicle, nature of use of the vehicle cannot be looked into and the insurance company cannot repudiate the claim on that basis. However, in that case, the claim had been allowed by the State Commission only on non-standard basis and the said order was upheld by the National Commission. The Hon''ble Apex Court nowhere observed that the claim should have been allowed in full. In the instant case, it is not denied anywhere that the driver employed by the complainant did not have a valid driving licence. The petitioner insurance company have also taken the plea that had the complainant checked about the status of driving licence with the driver, they would not have employed him as such and hence, the theft could be avoided. Considering the overall facts and circumstances of the case, when the person employed by the complainant did not have proper driving licence, it seems appropriate that the insurance company has decided the claim on non-standard basis. Their does not seem to be any justification for allowing the claim in full. The orders passed by the Consumer Fora below are, therefore, perverse in the eyes of law because non-possession of a valid driving licence amounts to violation of the statutory provisions of law.

Based on the discussion above, this revision petition is allowed, the orders passed by the consumer fora below are set aside and the decision taken by the insurance company in settling the claim to the extent of 7,20,000/- is upheld. The consumer complaint in question, therefore, stands dismissed. It is further observed that the amount settled by the insurance company shall be paid alongwith interest accrued forthwith to the financer Bank, i.e., IndusInd Bank Limited in the loan account of the complainant. The Bank shall be free to recover the balance amount left, if any, from the complainant in accordance with law.