ORIENTAL INSURANCE CO LTD vs Hardyal Singh Negi

PRESENT revision petition under Section 21 of the Consumer Protection Act, 1986 (for short ''Act'') has been filed against order dated 10.5.2010, passed by Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla (for short ''State Commission''). Vide impugned order, appeal filed by the petitioners was dismissed.

BRIEF facts are that Shri Hardayal Singh Negi, complainant/respondent herein, got his vehicle bearing Registration No. HP-26-0168 insured with the petitioners for the sum of Rs. 7,50,000. The vehicle met with an accident on 21.12.2001 during the validity of the insurance policy. Shri R.S. Gill was deputed as Surveyor to assess the loss. When the claim was not settled, respondent/complainant filed a complaint before the State Commission against the petitioners/Oriental Insurance Co. Ltd. and its Branch Manager at Parwanoo. In the complaint, it was pleaded by the petitioners that they were ready and willing to settle the claim for the sum of Rs. 2,92,190 as full and final payment on deposit of salvage and requisite documents.

ON 22.11.2002, State Commission passed an order to the following effect: "22.11.2002 Present: Mr. Bipin Negi, Advocate, for the complainant Mr. Sunil Mohan Goel, Advocate Mr. Ashwani Kumar Sharma, Adv., for the opposite party. Today, it has been pointed out by the learned Counsel for the complainant that as per the averments in para-7 of the reply to the complaint, the opposite party-Insurance Company is willing to settle the claim on full and final basis for an amount of Rs. 2,92,190 (as per Surveyor''s report) in case proper repair bills/cash memos are furnished by the complainant and salvage is deposited. The learned Counsel for the complainant says that in view of this averment in the reply, the complaint is not pressed at this stage, while at the same time, reserving the right of the complainant to pursue the remedy regarding his full claim for indemnification against the opposite party-Insurance Company before the appropriate Forum/Court. We accordingly dispose of the complaint with liberty reserved to the complainant to avail of his remedy regarding his full claim for indemnification against the opposite party-Insurance Company before the appropriate Forum/Court. We further direct the opposite party to comply with its own offer as referred to above on complainant depositing the salvage within six weeks, the complainant also is directed to furnish the repair bills/cash memos, as also to take steps regarding salvage within the above period. The complaint is disposed of accordingly."

IT appears that when respondent''s claim was not settled, he filed Execution Petition No. 3 of 2003 for executing the order passed in Original Complaint No. 7 of 2002. Operative portion of order passed in the execution petition read as under: "It is clear from the above statement of pleadings in the present execution petition that both the parties are at issue as regards the compliance of our order dated 22.11.2002 and consequently disputed questions of fact arise herein. In these circumstances, it is not possible to ensure compliance/execution of the said order by way of the present proceedings. In other words, the present execution is incapable of being decided in favour of the complainant. The case is disposed of accordingly with liberty reserved to him to avail of his remedy, if any, before the appropriate Forum/Court, including filing of a fresh complaint, if the circumstances so justify and in case it is maintainable under the law."

THE fact remains that even the sum for the payment whereof the petitioners had agreed before the State Commission in Original Complaint (No. 7/2002) it was scaled down from Rs. 2,92,190 to Rs. 1,44,391 on the basis of subsequent report of Shri R.S. Gill. However, petitioners wanted the respondent to furnish the discharge voucher duly stamped and signed as well as the same being countersigned by the financiers M/s. ILD, Kalka, and no third party loss undertaking. This was not done by the respondent.

TO the contrary, respondent filed complaint (No. 27/2005) before the District Forum and prayed for directions to the petitioners to indemnify the sum of Rs. 4,00,000 besides interest @ 12% per annum on this amount from March 2002, when complaint (No. 7/2002) was filed before the State Commission, till the date of actual payment along with cost of litigation.

PETITIONERS in their reply took the plea that the complaint was not maintainable; there was no deficiency in service on their part; they could not settle the claim due to non co-operation on the part of respondent. Further, case of petitioners was that respondent had not got the vehicle repaired as per the estimate and old parts had been used by him in the vehicle. For justifying reduction in the compensation by the Surveyor, petitioners raised these objections. According to them, respondent was not entitled to anything over and above Rs. 1,44,391 and respondent was also guilty of suppression of material facts. However, petitioners are ready and willing to settle the amount in terms of Annexure R.3, filed while contesting the complaint.

DISTRICT Forum, vide its order dated 13.3.2007, allowed the complaint. Operative part of its order states: "We hereby allow this complaint and direct the OP-company to indemnify the complainant to the extent of Rs. 2,92,190 along with interest at the rate of 9% p.a. with effect from the date of filing of the complaint i.e. 12.1.2005 till actual payment is made. In addition to this, the OP-company shall also pay a sum of Rs. 3,500 as cost of litigation. These payments shall be made to the complainant by the OP-company within a period of forty five days from the date of receipt of copy of this order, failing which the OP-company shall also be liable to pay a sum of Rs. 5,000 as compensation".

AGGRIEVED by order of the District Forum, petitioner filed (appeal No. 225/2007) while respondent filed (appeal No. 254/2007) for enhancement, before the State Commission.

STATE Commission vide impugned order dated 10.5.2010, dismissed the appeal of the petitioners and allowed the appeal of the respondent.

ONLY petitioners have challenged the impugned order of the State Commission.

IT is contended by learned Counsel for the petitioners that claim of the complainant could not be settled since he failed to comply with the order dated 22.11.2010 of the District Forum by not depositing the salvage as well as other requisite documents. Other contention made by learned Counsel for the petitioner is that the findings of the State Commission are based on conjectures and surmises. Both Fora below have completely ignored the terms and conditions, the Rules of dealing with a particular claim and have come up with irrational issues/calculations. The State Commission has also erroneously exceeded its jurisdiction.

LASTLY, the interest in this case has been awarded from the date of the bills, which is apparently wrong. At the most, interest could have been awarded from the date of the filing of the complaint.

ON the other hand, it is contended by learned Counsel for the respondent that there is no illegality or infirmity in the impugned order passed by the State Commission.

IN the present case, surveyor was deputed at the request of the petitioners and not at the request of the respondent. Now petitioners cannot go against their own surveyor report. Moreover, incident took place in the year 2001 and now more than 10 years have passed and respondent is suffering due to the act of the petitioners.

FIRST question which arises for consideration is as to whether the salvage has been given by the respondent as demanded by petitioners or not.

IN this regard, it would be relevant to go through the findings recorded by the State Commission, which reads as under: "7. Great emphasis was laid on the report of Shri R.S. Gill, who gave his revised assessment in the sum of Rs. 1,44,391, as well as on his affidavit. Affidavit of Shri Gill is at page 233 of the complaint file. In the face of the earlier order passed by this Commission on the basis of the clear cut stand of the OP in their reply while contesting the original complaint No. 7/2002, in our considered opinion, OP cannot take advantage from the revised report of Shri Gill. This Surveyor has earlier assessed the loss and on its basis order was passed in this complaint. Reason being that the order passed in complaint No. 7/2002, extracted hereinabove clearly and unequivocally directed the Divisional Manager of the OP to comply with its own offer referred to in the said order on complainant''s depositing salvage, within six weeks. From Annexure P-2 dated 31.3.2003, it is admitted by the OP that bills, cash memos and salvage were submitted by the complainant. That being the situation, OP could not have insisted that the complainant should accept Rs. 1,44,391. If this stand is accepted, it will tantamount to their being permitted to overreach the order of this Commission dated 22.11.2002 in original complaint No. 7/2002. As such, submission of Mr. Rajesh Kumar Sharma, their learned Counsel is being noted to be rejected. 8. In the face of this position, we are of the view that in no circumstances the OP can wriggle out from the earlier order passed by this Commission. 12. Now coming to the question as to what relief can be given to the complainant in the appeal filed for enhancement of compensation. From Annex. P-2, it is clearly made out that the complainant has supplied all the bills, cash memos, besides salvage to the OP. After having received those, the OP made an attempt to overreach the order passed by this Commission in complaint No. 7/2002 when the assessment was revised by Shri Gill, against his earlier assessment of Rs. 2,92,190. We have not been able to appreciate as to under what authority of law, OP reduced the compensation. We leave this matter here without saying anything. 13. From the record, it is evident that bills of the value of more than Rs. 4,00,000 besides salvage had been delivered to the OP. There is no rebuttal to those bills. In his report as well as in his affidavit, legality, correctness or genuineness of these bills is not disputed by Shri Gill. Though, according to Mr. Sharma the spare parts of which bills, cash memos had been provided by the complainant, parts of the value had not been accepted in his subsequent report of Shri Gill. To our specific query what he has to say in this behalf, nothing could be pointed out on behalf of the OP from the complaint file. Once this conclusion is arrived at, then there is no escape but for allowing appeal No. 254/2007 while dismissing appeal No. 225/2007."

WITH regard to the contention raised by learned Counsel for the petitioners that no interest could have been awarded from the date of the bills, the State Commission in its impugned order has observed as under: "14. At this stage, learned Counsel for the complainant submitted that his clients expected, that as a limb of the welfare State, OP will settle his claim, within reasonable time. Further, according to him, atleast after having received the original bills, cash memos and salvage, receipt whereof is admitted in Annexure P-2, letter dated 31.3.2002 by OP No. 2, interest should have been allowed from the date when these bills, etc. were received. In this behalf, Mr. Sharma submitted that the complainant being not entitled to any enhancement, as such claim of interest needs to be rejected. We reject this submission urged on behalf of the OP by holding that they could not have withheld the amount for which the complainant had been held legitimately entitled to, on wholly flimsy and baseless grounds. Therefore, we are of the view that w.e.f. 1.4.2003, complainant is entitled to interest on the sum of Rs. 4,10,327 the bills/cash memos of this value were submitted by him to the OP, receipt whereof is admitted."

WE find no reason to disagree with the above findings of the State Commission.

IT is apparent from the record that petitioners have taken a somersault in this revision petition by alleging that respondent has not deposited the salvage and has not complied with the directions passed by the State Commission. As already noted above, State Commission in impugned order has observed in categorically terms that: "From the record, it is evident that bills of the value of more than Rs. 4,00,000 besides salvage had been delivered to the OP. There is no rebuttal to those bills. In his report as well as in his affidavit, legality, correctness or genuineness of these bills is not disputed by Shri Gill. Though, according to Mr. Sharma the spare parts of which bills, cash memos had been provided by the complainant, parts of the value had not been accepted in his subsequent report of Shri Gill."

UNDER these circumstances, it does not lie in the mouth of the petitioners to make reckless allegations with regard to the salvage that the same has not been deposited by the respondent.

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 v. M/s. United India Insurance Co. Ltd., II (2011) CPJ 19 (SC)=IV (2011) SLT 303=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 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 Fora."

THUS, no jurisdiction or legal error has been shown to us to call for interference in the exercise of power under Section 21(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 well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless petitions in different Foras.

NOW question arises for consideration is as to what should be the quantum of costs which should be imposed upon the petitioners for dragging the respondent upto this Fora when petitioners had no case at all. It is not that every order passed by the judicial Fora is to be challenged by the Public Sector Undertakings even if the same is based on sound reasonings.

RECENTLY, Apex Court in Ramrameshwari Devi and Ors. v. Nirmala Devi and Ors., V (2011) SLT 196=III (2011) CLT 44 (SC)=Civil appeal Nos. 4912-4913 of 2011 decided on 4.7.2011 has laid down the following guidelines while imposing costs: "54. While imposing the costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different Courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, Court fee, etc. 55. The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various Courts. The appellant in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various Courts the appellants have also wasted judicial time of the various Courts for the last 40 years. 56. On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well reasoned impugned order/judgment. These appeals are consequently dismissed with costs, which we quantify as Rs. 2,00,000. We are imposing the costs not out of anguish but by following the fundamental principle that wrong-doers should not get benefit out of frivolous litigation."

IN our opinion, the present petition is nothing but a gross abuse of process of law and the revision petition is totally frivolous in nature which is required to be dismissed with punitive cost of Rs. 50,000. Accordingly, we dismiss the present petition with cost of Rs. 50,000 (Rupees fifty thousand).

OUT of the costs imposed upon the petitioners, Rs. 25,000 be paid to the respondent by cheque in his name. Remaining cost of Rs. 25,000 be deposited by cheque in the name of "Consumer Legal Aid Account" of this Commission, within one month from today.

IN case, petitioners fail to deposit the aforesaid costs within the prescribed period, they shall also be liable to pay interest @ 9% p.a., till realization.

COSTS awarded to the respondent shall be paid to him only after expiry of the period of appeal or revision preferred, if any.

PENDING application also stands disposed of.

LIST for compliance on 2.9.2011. Revision Petition dismissed.