NEW INDIA ASSURANCE COMPANY LIMITED vs Pritam Gumber

BEING aggrieved by order dated 28.4.2011, passed in First Appeal No. 14 of 2006 by Uttarakhand State Consumer Disputes Redressal Commission, Dehradun (short, "State Commission"), Petitioner/opposite party has filed the present revision petition. Brief facts are that Respondent/Complainant is owner of vehicle No. UP10 - 4512 (Mahindra Taxi). The said vehicle was insured with the Petitioner for a sum of Rs. 2,81,400 for the period from 11.1.2003 to 10.1.2004. During the period of insurance policy, the vehicle met with an accident on 15.10.2003 due to some technical fault in the vehicle and fell into a deep gorge and got badly damaged. The intimation of the accident was given to the Petitioner and an FIR was also lodged. On 21.10.2003, the vehicle was inspected by Sh. Balveer Singh Rana, H.C.M.T., Police Line, New Tehri. Petitioner also deputed its Surveyor who inspected the vehicle in the absence of the respondent. The respondent asked the petitioner for indemnification of the loss and completed all the formalities. On the oral directions of the petitioner, the respondent got the vehicle towed from the site of the accident and got the vehicle repaired on his own expenses and spent a sum of Rs. 1,67,282 for repair of the vehicle. The bills/cash memos/vouchers were submitted to the petitioner for settlement of the claim. However, petitioner vide their letter dated 8.9.2004 treated the claim of the respondent as "NO CLAIM" without any sufficient ground or reason. Thereafter, alleging deficiency in service on the part of the petitioner, the respondent filed the consumer complaint before the District Consumer Disputes Redressal Forum, Uttarkashi (for short, ''District Forum'').

PETITIONER in its written statement pleaded that respondent did not complete the required formalities and the claim of respondent has been repudiated on 8.9.2004 on valid ground. It was also pleaded that surveyor has assessed the loss to the tune of Rs. 35,839. The respondent has committed breach of the terms and conditions of the policy of insurance. On the date of the accident, the vehicle was carrying goods in excess of the permitted load. It was also submitted that passengers were being carried in the vehicle and as such, the vehicle was being used in contravention of the terms and conditions of the policy of insurance. No deficiency in service has been made by the petitioner. The District Forum allowed the consumer complaint, vide order dated 19.12.2005.

AGGRIEVED by the order of the District Forum, petitioner filed an appeal before the State Commission which partly allowed the same vide impugned order and modified the order of the District Forum to the extent that respondent has to get a sum of Rs. 1,67,282 from the petitioner with interest @ 6% p.a. from the date of accident till the date of actual payment and litigation expenses of Rs. 1,000 as awarded by the District Forum. The award of compensation/damages of Rs. 3,000 passed by the District Forum was set aside.

NOT satisfied with the order of the State Commission, petitioner has filed the present revision petition. Notice of this petition was issued to the respondent. However, respondent who was duly served by registered post did not appear and as such was proceeded ex parte vide order dated 6.12.2012 passed by this Commission.

WE have heard the learned Counsel for the petitioner and have gone through the record.

IT has been contended by learned Counsel for the petitioner that respondent did not intimate the petitioner -company about the factum of the accident. Moreover, without intimating the petitioner, the respondent proceeded to get the damaged vehicle repaired on its own, which is against the provision of the Insurance Act. As such, the claim of the respondent was rightly rejected. The main grouse of the petitioner is that no intimation about the accident was given to the petitioner as the same was mandatory as per terms and conditions of the insurance policy. Hence, the respondent is not entitled to any compensation.

AS per written statement filed by the petitioner before the District Forum, its defence was that the claim of the respondent was dismissed on 8.9.2004 on appropriate ground. Petitioner has not placed any document to this effect on record to show, as to on what basis on 8.9.2004 the claim of the respondent was dismissed. It would be pertinent to point out that when this matter came up for hearing before this Commission on 9.12.2013, it was specially observed that petitioner has not placed on record the copy of repudiation letter dated 8.9.2004. However, learned Counsel stated that he will argue the matter in the absence of the repudiation letter. Thus, the basic and most relevant document, that is, repudiation letter dated 8.9.2004, has not been placed on record by the petitioner inspite of opportunity granted to it. Under these circumstances, adverse inference has to be drawn against the petitioner for not placing before us the material piece of evidence.

BE that as it may, petitioner in its written statement has categorically admitted the submissions made in para 4 of the complaint. Petitioner in its written statement has in clear terms stated that "the averments made in para 4 of the application about the receipt of information is admitted." Thus, in view of the above admission made by the petitioner with regard to the information of the accident, now petitioner has taken a summersault by stating that the respondent did not inform the petitioner -company about the factum of the accident.

DISTRICT Forum in its order has observed: The appellant has clearly stated in paragraph 17 of his affidavit that 8 -9 quintals of material was loaded in the vehicle whereas his vehicle is authorized to transport 11 quintals of load. Even the Insurance Company has mala fidely dismissed the claim of the claimant. The Insurance Company has also stated that the road where the accident took place is not recognized by the State Transport Authority. This ground for dismissal of claim is also incorrect. But in support of its statement the Insurance Company has not submitted any facts. Therefore, this argument of the Insurance Company can also not be admitted.

It is evident from the perusal of document Nos. 19B/11 and 19B/16 available on record as Survey Report that the vehicle of the appellant has been abundantly damaged. Surveyor, Satish Kumar inspected the spot of accident on 16.10.2003. His preliminary report has not been submitted by the Insurance Company. Only final survey report made by Dinesh Kumar Punj has been submitted. Surveyor report has also made it clear that the documents relating to the vehicle were certified and were found correct. On the basis of this averment in relation to dismissal of claim stating that the registration book is not submitted cannot be admitted to be correct. Survey report has evaluated damages to the tune of Rs. 35,839, whereas the appellant states that an amount of about Rs. 1,67,282 have been spent in the repair of the vehicle damaged in the accident. The appellant has submitted cash memo, bill, voucher, estimates, etc. to this effect which confirm his statement. Cash Memo, Bill, etc. submitted by the appellant in the case are marked as document Nos. 4B/9 and 4B/25. The bill relating to the crane with which the vehicle was towed from the garage and sent to the workshop for repair is issued by Sethi Recovery Service vide Bill No. 4B/10 for an amount of Rs. 4,000. Surveyor happens to be nominated by the Insurance Company and he is supposed to submit the survey report in view of the interest of the Insurance Company. Secondly, Surveyor does not happen to be an expert.

It is evident from all these facts that the vehicle of the appellant accidentally fell in the gorge due to technical fault and as a result was completely damaged. The appellant had to tow out his vehicle and get it repaired which cost him Rs. 1,67,282 which is liable to be paid by the Insurance Company.

Therefore, this Forum comes to the conclusion that the Insurance Company has dismissed the claim of the appellant having no sufficient and appropriate ground and certainly the services of the Insurance Company are deficient in this matter and the Insurance Company has been careless in making payment of the claim which caused mental agony to the appellant which lead to the filing of this case before this Forum. Therefore, this Forum concludes that the services of the Insurance Company in this matter have been deficient. Thus, the Insurance Company is liable to pay an amount of Rs. 1,67,282 spent for repair of the damaged vehicle along with interest @ 6% per annum from the date of accident i.e., 15.10.2003 to the actual realization, Rs. 3,000 as damages and Rs. 1,000 as cost of the claim. Accordingly, the instant claim is found to be allowed.

THE State Commission while partly allowing the appeal in its impugned order observed: 7. The claim of the complainant has been repudiated by the Insurance Company on the ground that at the time of the accident, the vehicle was loaded with goods more than its capacity. It has been stated that the vehicle was carrying 1260 quintals of goods while the total carrying capacity of the vehicle was 1140 quintals. But the Insurance Company could not produce any document in order to show that the vehicle was carrying more goods than its capacity. The complainant in his affidavit has specifically stated that the vehicle was carrying goods well within its capacity and this affidavit has not been controverted specifically by the Insurance Company in any manner. Therefore, the repudiation of the claim on this ground, cannot be said to be justified.

Another ground for repudiation of the claim is that the information of the accident was not sent by the complainant to the Insurance Company. In this connection, the plea taken by the complainant indicates that he, after completing the formalities, submitted all the papers to the Insurance Company and thereafter the Surveyor has made an inspection and also submitted his report. The First Information Report with regard to the accident was lodged at P.S. Tehri. Therefore, it appears to be quite unimaginable that the complainant had not submitted the information with regard to the accident as well as the papers pertaining to the damage caused to the vehicle to the Insurance Company well within time.

The survey report is available on record, which indicates that the Surveyor made the spot inspection on 16.10.2003. The Surveyor has assessed the loss to the tune of Rs. 35,839. This assessment made by the Surveyor has been controverted by the complainant, as the complainant has filed the cash memos and the bills showing the repair work carried out in the vehicle in question and all the documents filed by the complainant show that he spent sum of Rs. 1,67,282 in the repair of the vehicle and also spent sum of Rs. 4,000 in recovering the vehicle from the ditch. The Insurance Company could not adduce any evidence in order to rebut the documents filed by the complainant with regard to the payment made by him to the repairer. We think that the amount of compensation awarded by the District Forum is absolutely justified and the same does not require any interference. However, we feel that the amount of Rs. 3,000, which has been awarded by the District Forum as compensation/damages to the complainant, does not appear to be justified, for the reason that the amount of compensation of Rs. 1,67,282 awarded to the complainant, has already been directed to be paid by the Insurance Company along with interest @ 6% p.a. from the date of accident till the date of actual payment. The District Forum has awarded sum of Rs. 1,000 as costs of the case, which appears to be quite justified and requires no interference.

For the reasons stated above, the appeal is partly allowed. The impugned judgment and order dated 19.12.2005 passed by the District Forum is modified to the extent that the complainant is entitled to get sum of Rs. 1,67,282 from the Insurance Company together with interest @ 6% p.a. from the date of accident till the date of actual payment and litigation expenses of Rs. 1,000, as awarded by the District Forum. The award of compensation/damages of Rs. 3,000 passed by the District Forum is hereby set aside.

It is well settled that under Section 21(b) of the Consumer Protection Act, 1986 (for short ''Act''), the scope of revisional jurisdiction is very limited. Under Section 21 of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

THUS , no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21(b) of Act. Since, two Fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present petition having no legal basis is hereby, dismissed with cost of Rs. 5,000 (Rupees five thousand only).

PETITIONER is directed to deposit the cost by way of demand draft in the name of ''Consumer Legal Aid Account'' of this Commission, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization. List on 14.2.2014 for compliance.