NEW INDIA ASSURANCE COMPANY LTD. vs R. SUBRAMANIAN

PETITIONER /Opposite Party being aggrieved by the impugned order dated 13.12.2013, passed by the Tamilnadu State Consumer Disputes Redressal Commission, Madurai Bench (for short, ''State Commission'') has filed the present revision petition under Section 21(b) of Consumer Protection Act, 1986 (for short, ''Act''). Brief facts are that Respondent/Complainant had insured his Omni bus No. TN -72 -AH -7426 with the petitioner. On 10.10.2011, the vehicle met with an accident near Vikrawandi tollgate and was badly damaged. Respondent intimated about the accident to the petitioner in time. However, petitioner did not settle the legitimate claim of the respondent, which amounts to unfair trade practice and deficiency in service. Accordingly, respondent filed a consumer complaint praying for direction to the petitioner to pay a sum of Rs. 33/195 towards the claim amount for repairing the vehicle and to pay a sum of Rs. 3,00,000 as compensation for mental agony and sufferings and also to pay costs.

AS per written statement of the petitioner their defence is, that on receiving the intimation from the respondent, they appointed a surveyor/loss assessor to inspect vehicle, who assessed loss at Rs. 1,14,555. But, respondent was not willing to accept the amount as assessed by the surveyor. The respondent submitted a representation to consider the claim reasonably. At his request, petitioner appointed another surveyor/loss assessor for 2nd opinion. The 2nd surveyor assessed the loss at Rs. 1,30,230. But the respondent was not satisfied with the claim amount sanctioned. Therefore, there is no unfair trade practice or deficiency in service on the part of the petitioner. District Consumer Disputes Redressal Forum, Tirunelveli (for short, ''District Forum'') vide order dated 9.10.2012, after considering the rival contentions allowed the complaint. It directed the petitioner to pay Rs. 3,29,195 towards the claim amount to the respondent and to pay Rs. 25,000 as compensation for the mental agony and sufferings caused to him and to pay Rs. 5,000 towards cost of the proceedings.

BEING aggrieved, petitioner filed (F.A. No. 572 of 2012) before the State Commission which dismissed the same and confirmed the order of the District Forum.

HENCE , the present petition. We have heard the learned Counsel for the petitioner and gone through the record.

IT is contended by the learned Counsel for the petitioner that the petitioner was contractually obligated to factor in depreciation of parts in assessing loss covered by the policy. However, both the Fora below disregarded the actual liability of the petitioner, as being no more than Rs. 1,30,027.53p as assessed in the Surveyor''s report and the Opinion Report in accordance with the Indian Motor Tariff GR. 9. Thus, there is no deficiency in service on the part of the petitioner.

THE District Forum while allowing the complaint in its order has held: "The actual expenses incurred by the complainant comes to Rs. 3,29,195 in getting back the vehicle repaired. Taking into account the actual expenses incurred as found from the vouchers, bills and receipts under Ex.5, we come to the conclusion that the complainant is entitled for the amount claimed in his claim petition which is based upon the bills, vouchers and receipts towards the amount spent by him for repairing the vehicle. The complainant is entitled for the actual amount spent by him for repairing the work when the complainant has produced necessary vouchers, bills and receipts for that."

The State Commission while dismissing the petitioner''s appeal observed: "5. It is pertinent to note that there is dispute between the parties only in respect of the amount of compensation and all other facts are not in dispute. We have to note that the 1st surveyor appointed by the opposite party assessed the loss at Rs. 1,14,555 and subsequently 2nd surveyor appointed by the opposite party assessed the loss at Rs. 1,30,230 and the opposite party offered to settle the claim at Rs. 1,30,030.

It is relevant to note that the surveyor has allowed 5% -50% as depreciation for the parts of the vehicle which is very much on the higher side and we cannot allow this much of depreciation in the interests of justice and equity as stated by the District Forum.

The actual expenses incurred by the complainant is Rs. 3,29,195 as evidenced by Ex A5 series, which are vouchers, bills and receipts. We feel that while the depreciation of parts is taken into account, the loss suffered for five months by the complainant since the vehicle remained idle also should be taken into account.

Considering all these, we feel that a sum of Rs. 3,29,195 awarded by the District Forum towards compensation for the claim amount is justified and it would be the adequate and reasonable compensation. The District Forum has awarded Rs. 25,000 as compensation for mental agony and suffering and this amount is quite reasonable. The District Forum has also awarded costs of Rs. 5,000 which is also reasonable. We find no infirmity in the order of the District Forum and we agree with the finding and the decision of the District Forum and we find no reason to interfere with the order of the District Forum and accordingly, the appeal is liable to be dismissed."

AMONGST others, Petitioner in the revision has taken the following plea also: "It is submitted that in the case of General Assurance Society Ltd. v. Chandumull Jain and Another, : [1966] 3 SCR 500 (FB -5JB) (Para 17), the Constitutional Bench of the Hon''ble Supreme Court of India has held that:

"[i] in interpreting documents relating to a contract of insurance, the duty of the Court is to interpret the words in which the contract is expressed by the parties, because it is not for the Court to make a new contract, however, reasonable, if the parties have not made it themselves" thus paying ''the precedent that Insurance Contracts have to be interpreted strictly.

Similarly, in the instant case, the Revision -Petitioner was contractually obliged to factor in depreciation of parts in assessing loss covered by the said Policy. Thus, the impugned Judgment need to be set aside on this ground alone."

THERE is no dispute about the principle of law laid down by the Apex Court. However, in the present case, petitioner has not placed on record the basic document, that is, the insurance policy along with its conditions, which was issued to the respondent. It is well settled that if a party withholds the basic document on which it relies upon, then the adverse inference has to be drawn against it. Since, petitioner has not placed on record the copy of the insurance policy, along with complete conditions, hence inference has to be drawn against it for withholding the best evidence. Under these circumstances, the depreciation with regard to parts allowed from 5% to 50% is of no consequence. Moreover, there are concurrent findings of fact given by both the Fora below, especially to this effect that the respondent had spent a sum of Rs. 3,29,125. This Commission, at revisional stage cannot go into the finding of facts given by both the Fora below.

IT is well settled that under Section 21(b) of the Act, 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.

HON ''ble Supreme Court in Mrs. Rubi (Chandra) Dutta v. United India Insurance Company, : IV (2011) SLT 303 : II (2011) CPJ 19 (SC) : 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, and 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 that 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 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 finding of two Fora."

Therefore, we hold that the present revision petition is not legally maintainable and the same has been filed just to deprive the complainant the fruits of the award passed by the District Forum about two years ago. Accordingly, present revision petition stand 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 ''Consumer Legal Aid Account'' of this Commission, within six weeks from today.

IN case, petitioner fails to deposit the cost within the prescribed period, then it shall be liable to pay interest @ 9% p.a., till realization. List for compliance on 25.7.2014.