SHAKILA BANO vs HEMANT KOUSHIK & 3 ORS.

The present revision petition has been filed against the judgment dated 30.01.2015 of the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur (''the State Commission'') in First Appeal no. 482 of 2013.

The facts of the case in brief are that the petitioner on getting financed from the HDFC Bank purchased one Mahindra and Mahindra Bolero Pick-up vehicle no. UP 64 3H 7686 on 20.12.2011 and got insured the said vehicle with respondent nos. 3 and 4 and in exchange, the petitioner deposited premium of Rs.16,405/- and the subject vehicle was insured for a period from 20.12.2011 to 19.12.2012, and cover note no. 2315200173510200000 was issued. On 28.05.2012 when Siraj Khan, the driver was bringing the subject vehicle from Renukot to Ambikapur, the said vehicle met with an accident. A report was made to police chowki Wadraf Nagar on 28.05.2012 and information regarding the accident was also given to respondent nos. 3 and 4.

Assurance was given by the insurance company that surveyor would be sent, but the surveyor was not sent by the respondent nos. 3 & 4 till 01.06.2012. On 1 and 2 June 2012 written st nd information was given to the office of the respondents that in case inspection of the vehicle was not done, the petitioner would be at liberty to get repaired the said vehicle and whatever expenses would be incurred on the subject vehicle, would have to be paid by the respondent nos.3 and 4. Appointment of the surveyor was not done by the respondent nos. 3 & 4. The petitioner got done the repairs of the vehicle. An amount of Rs.1,68,741/- was incurred as expenses and claim was submitted by the petitioner before respondent no. 3, but the payment was not made, the respondent nos. 3 and 4 committed professional misconduct and deficiency in service. Therefore, petitioner was compelled to file the consumer complaint.

The respondent no. 3 in his written statement before the District Forum, stated that the policy was issued on 20.12.2011 for the vehicle in question and the expiry of the policy was 19.12.2012. Premium of the above-mentioned policy was sent on 16.12.2012 through cheque no. 061273. The cheque amount of the premium was written in figures as Rs.16,406/-, but in words it was written as Rs.60,406/-. Due to the aforesaid reason the amount of premium was not paid by the bank in favour of respondent no. 3. Consequently insurance policy was rejected by the respondent no. 3 on 27.12.2011 and immediate information was also sent to the petitioner that the policy issued on 27.12.2011 was not in existence and the policy was zero. Respondent was not responsible to the petitioner for compensation. Petitioner has no right to obtain compensation of any kind, therefore, complaint of the petitioner be dismissed.

The District Consumer Disputes Redressal Forum, Sarguja Ambikapur, Chhattisgarh after perusal of the documentary evidence/ description submitted by both the parties, in connection with question no.2 of the petitioner/ complainant reached the conclusion that payment of the insurance premium had not been provided. Hence, the non-applicants cannot be said to be deficient in service as the complaint had not been proved and hence, the complainant had no right for obtaining relief and had dismissed the complainant.

Aggrieved by the order of the District Forum, the petitioner/ complainant filed an appeal before the State Commission. The State Commission while dismissing the appeal observed as under:

"As far as premium is concerned, issuing policy by the non-applicant/ insurance company on receipt of premium and afterwards on having dishonoured cheque, cancelling cheque cannot be said that non-applicant/ insurance company has no right for cancelling the policy. Although policy has been issued by the non-applicant/ insurance company but as soon cheque submitted by the complainant was dis-honoured so soon non- applicant/ insurance company has the right to issue policy and in this matter non-applicant insurance company had given information of the cancellation of the policy through letter D 1 dated 27.12.2011 has been mentioned. D 2 is its postal receipt and dated D 2 is mentioned 29.11.2011 and its time is mentioned 14.06 hours. A perusal of the above-mentioned documents, it is clear that on 27.12.2011 as soon as non-applicant/ insurance company received knowledge in respect of having dishonoured the cheque, information was given to the complainant and the document A 1 issued by the non-applicant insurance company in favour of the complainant in lawful manner was cancelled.

Accident relates to dated 28.05.2012 and policy has been cancelled on 27.12.2011 and its information has been given to the complainant in legal manner. In this situation, it will be deemed that complainant/ non-applicant insurance company has cancelled the policy in legal manner and there was no existence of the policy in favour of the said complainant and consequently complainant/ non insurance company is not under responsibility for the damage caused in the accident in the vehicle of the complainant. Consequently which conclusion has been taken by the District Forum, the same is just.

Therefore, the appeal of the appellant is dismissed being without merits, parties will respectively bear this appeal themselves".

Hence, the present revision petition.

We have heard the learned counsel for the petitioner. Learned counsel for the petitioner has contended that the State Commission in its impugned order had erred in not accept the account statement by holding that:

"In the appellant condition, additional evidence only is accepted in application under order 47 Rule 27 CPC when the same is necessary for the real justice. The presenter of the same have remained deprived due to some unavoidable reason for presenting the same till then, in respect of no submitting additional evidence before District Forum, sufficient bonafide reason is not exhibited. Evidence is not liable to be accepted in appellant conditions.

Submission of account statement in appellant conditions is wanted, which related to dated 21.09.2011 till 09.01.2012. Order of District Forum pertains to dated 09.07.2012, from it becomes clear that the said account statement is prior to the order of the District Forum

and the same was in the knowledge of the complainant that there is difference in words and figures in the cheque. There was sufficient amount in her account. In this situation, complainant had sufficient opportunity for submitting account statement before District Forum. Why could document not be submitted by the complainant no sufficient ground has been stated in this regard. Non-applicant no. 4 has submitted only this note that it could not be submitted earlier but why could it not be submitted. No ground has been submitted in this regard. In this situation, application under order 41, rule 27 CPC cannot be said bonafide.

Therefore, application submitted by the appellant/ complainant under order 41, Rule 27 CPC is dismissed."

We have gone through the record. Admittedly, the petitioner/ complainant had issued a cheque on 16.12.2011 in favour of the respondent insurance company and in the above-mentioned cheque, in figures, the amount mentioned in the figures was Rs.16,406/- whereas in words it was mentioned as Rs.60,406/-, and hence, the bank returned the cheque on 23.12.2011 giving the reasons for return as "the amount in words and figures differ". The earlier policy was only up to 19.12.2012. As the premium was not paid, the respondent/ insurance company was justified in cancelling the policy and hence, there was no privity of contract between the petitioner and the respondent. The respondent was not bound to pay the claim for the vehicle that suffered an accident. Both the Fora below had given a detailed reason.

The Hon''ble Supreme Court in Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., 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."

The Fora below have given well-reasoned and detailed orders for dismissing the complaint and appeal. The petitioner has failed to prove his case against the respondent and to establish that there was any deficiency of service on their part. 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. The

order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is dismissed.