1. Under challenge in this Revision Petition No.546 of 2015 is the impugned order of the State Consumer Disputes Redressal Commission, Bench No.2, Jaipur (State Commission, hereafter) dated 01.12.2014. Vide this order, the State Commission had dismissed Appeal No.1150 of 2012 and upheld the decision of the District Consumer Disputes Redressal Forum, Bharatpur, Rajasthan (District Forum, hereafter) dated 31.07.2012 in CC 252/2003. The District Forum’s order, by a majority of two out of three members, had allowed the complaint and directed the petitioner/OP insurance company to pay Rs. 3,92,150/- with 9% interest from 18.6.2003, the date of filing of the consumer complaint, with a further Rs.20,000/- for cost of litigation, within one month of the date of the award.

2. Very briefly, per the complaint on 09.12.2000, the respondent/complainant (complainant hereafter) had dispatched 756 tins of mustard oil from Bharatpur, Rajasthan to M/s. Tirupati Enterprises, Gauhati, Assam, through carrier G.R. Roadlines, Bharatpur. Under the marine cargo policy with the petitioner/OP-United India Insurance Co. Ltd. (OP, hereafter) under declaration No. 31 dated 09.12.2000, the consignment was insured for Rs.3,92,150/- against a premium of Rs.21,001/-. Per the plaint, some offenders forcefully unloaded the truck at Barauni, Bihar. The driver of the truck intimated the complainant who lodged a complaint at P.S. Udyognagar, Bharatpur vide FIR No.78/01 dated 2.6.2001. OP was also intimated on 3.6.2001 and 10.8.2001. OP appointed Mr. M.L. Bhatia as surveyor. Some information sought by the surveyor was provided on 27.09.2002. As no information on the claim was received, registered notice dated 22.05.2003 was served on the OP. Since the claim was still not paid, the complainant filed consumer complaint, CC 252/2003, claiming Rs.3,92,150/- (value of insured goods) plus amounts for expenses, compensation etc. with 24% interest from 3.6.2001, the date of first intimation to the OP.

3. The complaint was contested by the OP through a written reply. Preliminary objections were taken: (i) the complainant, being a business firm, was not a consumer; (ii) the plaint mentions that the matter titled State vs. Ramanuj is pending before Judicial Magistrate No.1 Bharatpur; as such, District Forum had no jurisdiction to hear the complaint. Para-wise reply was also given by the OP. Importantly, exception was taken to intimation to the OP by the complainant on 3.6.2001 after a delay of six months; it was maintained that the surveyor was appointed not only for assessment of loss but for also ascertaining the actual facts; case was not of non-delivery; rather, the case was limited to payments dispute amongst the complainant, broker and consignee. It was further stated in the reply that it was clear that the complainant was selling a product through a broker as has been mentioned in the FIR lodged with P.S., Bharatpur: The deal was being done through Mr. Randhir Kumar, representative of the broker, Mr. Ashrafilal of Patna City, through Mr. Ramanuj of Barauni, for the consignee’s address at Guwahati and payment was being received through Mr. Ramanuj Singh or Mr. Randhir Kumar. The complainant had advised the driver of the truck to contact Mr. Randhir Kumar and it was under his direction that the driver delivered the consignment to Mr. Ramanuj Singh at Barauni, collecting the balance freight from him. OP submitted in it’s reply that if criminals would have got the consignment unloaded, immediate intimation would have been made to the nearby P.S.; instead, it was after six months of the incident that FIR was lodged at P.S. Bharatpur. It was also stated that though G.R. No.4027 dated 09.12.2000 was issued in favour of M/s. Tirupati Enterprises, Guwahati, it was strange that the consignee did not give any intimation to the complainant firm of non-receipt of the consignment, nor did the carrier engaged issue any certificate of non-delivery or short delivery of the insured goods, nor indeed did the complainant serve any notice to the carrier as per the Carrier’s Act. It was further stated in the reply that the complaint did not mention any dates viz. date Mr. Ramanuj Singh took delivery of the consignment at Barauni, date of intimation by the truck driver to the complainant. FIR, with Bharatpur P.S., was lodged after six months. OP had therefore appointed an IRDA empanelled independent surveyor, Mr. M.L. Bhatia, who issued registered A.D. letters to complainant and M/s. Tirupati Enterprises Guwahati; no reply was received from M/s. Tirupati Enterprises, Guwahati. The fact was that there was a dispute between the complainant, Mr. Ramanuj Singh and Mr. Randhir Kumar; this dispute was regarding payment, not delivery of goods. As such, the insurance company was not liable at all. Since goods were delivered to Ramanuj Singh, there was no occasion to report to the local P.S.. The OP, on the basis of investigation report of Shri M.L. Bhatia, had accordingly found the claim to be not payable.

4. The District Forum, as already noted, was approached through consumer complaint No.252 of 2003 dated 18.6.2003. This was disposed off under two separate orders of the District Forum dated 29.3.2007, one by the President of the Forum and the other by it’s two Members; while the President dismissed the complaint, the two Members held that as the goods had not reached the final destination, the complainant was liable to get compensation. Against this order dated 29.3.2007, the appeal filed was disposed off by the State Commission by remanding the matter back to District Forum. Thereafter, the District Forum by its order dated 31.07.2012, again by a 2:1( 2 members: President), allowed the complaint. This order of 31.7.2012 on appeal was upheld by the State Commission vide the impugned order dated 01.12.2014. Hence, this revision petition.

5. Heard arguments on 19.11.2019.

6. Learned counsel for the petitioner, admitting the basic facts viz. Marine Cargo policy, declaration of the consignment, consignment unloaded allegedly by miscreants on 09.12.2000, FIR dated 2.6.2001 filed at Bharatpur P.S. and the insurance claim lodged finally on 6.6.2001, submitted that, in fact, the claim had not as yet been formally repudiated. He highlighted the fact that on both the occasions viz. first filing of the complaint and after remand by the State Commission, the District Forum had decided the plaint by a majority decision, with the President of the forum dismissing the complaint through his own independent order and the two members allowing the same. Drawing attention to the impugned order of the State Commission, learned counsel argued that it had erred in not appreciating that the complainant’s stand to the effect that since details of policy had not been provided to it, it did not appreciate the need for immediate intimation to the P.S. and the OP, was false. Further, he submitted that exclusions clause in the policy would clearly show that the incident described in the complaint was not covered under the policy. The State Commission however took the view that this would be so only if the terms and conditions of the policy had been before the District Forum and the State Commission and that in absence of this, this point could not be maintained by the OP. Learned counsel referred to the order of the District Forum dated 31.07.2012, drawing attention to the order of the President, arguing that he had correctly dismissed the complaint on the grounds that (i) the fact that the consignment did not reach Guwahati did not mean that it was looted or stolen during transit; (ii) the deal was done by the complainant with Sh. Ramanuj Singh and payment was to be through Sh. Ramanuj and so he got the consignment unloaded at Barauni before it reached Guwahati; (iii) FIR against Ramanuj Singh was lodged six months after the date of incident suggesting that the dispute of getting consignment unloaded in Barauni was not covered under the policy; (iv) delay of six months in intimating the OP/Insurance company was a clear cut violation of conditions of the policy; (v) no deficiency in service was therefore established. He then drew attention to the impugned order of the State Commission where the ground taken for allowing the complaint was that the OP had not made available the terms and conditions of the policy to the complainant and had it done so, the complainant would surely have complied. A few citations were also invoked in this regard. Learned counsel maintained that though the policy conditions were filed with the Revision Petition, what was filed before the District Forum was the declaratory order dated 28.3.2001: however, this too clearly mentioned in the column, survey and claim settlement, that “in the event of loss or damage which may involve a claim under this insurance, immediate notice thereof and application for survey should be given to any office of U.I.I. Co. Ltd.”. Thus, the counsel argued that even if it is the case that the complainant was not intimated the detailed terms and conditions of the policy, the declaratory note by itself was sufficient to establish beyond any doubt that six months in intimating the OP meant a violation of the policy. As such, the complaint was not permissible.

7. Learned counsel for the complainant made the point that the details attached with the policy of insurance have been filed before the National Commission for the first time. He emphasized that it would be seen that in para 1.12.82, it had been clearly recorded in this policy that in consideration of an additional premium, it is hereby agreed that this insurance covers loss or damage to the subject matter insured caused by theft or pilferage, or by non-delivery of an entire package, subject always to the exclusions contained in this insurance. As such, he argued that the incident was covered under insurance policy for which an extra premium had also been paid. Drawing attention to the declaratory notice dated 28.3.2001, he submitted that the event of non-delivery of the consignment was covered in the policy Secondly, he pointed out that the revisionary jurisdiction as per well laid down law was limited. In the instant matter, the State Commission had upheld the decision of the District Forum and as such, there was no real ground to interfere with the same. In this regard, he invoked a citation, (2016) 8 SCC 286, Lourdes Society Snehanjali Girls Hostel and Anr. vs. H&R Johnson (India) Limited and Others in Civil Appeal No.7223 of 2016 decided on August, 2, 2016 relevant extract of which reads as:

“The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”

He invoked another citation, (2011) 11 SCC 269, Rubi (Chandra) Dutta vs. United India Ins. Co. Ltd., which reads as under:

“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.”

Lastly, counsel drew attention to the impugned order of the State Commission to make the point that till the date this matter was decided by the State Commission, repudiation had not been issued by the OP. He argued that this certainly amounted to a deficiency in service.

8. Having heard the learned counsels and having carefully perused the record, I am of the considered view that this revision petition, despite it challenging the concurrent orders of the lower fora, cannot succeed.

9. Indeed, the citation invoked by the learned counsel for the complainant during arguments is the established law. The revisionary powers are limited against concurrent findings of the lower fora. However, in the instant case, the orders of the lower fora contain errors apparent of fact and law, as discussed below.

One, the complaint petition, para 3 thereof, states that some offenders got the said consignment forcefully unloaded at Barauni, Bihar. It then goes to the state that after the driver gave intimation to the complainant, the complainant lodged a complaint in P.S. vide FIR No.78/01 at P.S. Udyognagar, Bharatpur. In this case, the court, at first sight, found the matter to be under section 420 and 406 IPC. Further, in the FIR lodged at Bharatpur, it has been stated that the consignment was dispatched to Guwahati under arrangement involving a sale agreement with Mr. Ashrafilal Broker, Sh. Ramanuj Singh who had assured payment and Sh. Randhir Kumar, the person who would give instructions to the driver. It has been stated further that Sh. Ramanuj Singh got a challan for Guwahati prepared and when the driver asked him, he got the consignment unloaded at Barauni, without making any payment and also without making any receipt of delivery of goods while taking the original papers sent with the consignment. Notably, the difference between the statement made in the complaint and in the FIR six months later are quite at variance. It is also to be noted that para 3 of the complaint does not mention of any dates at all; this itself makes the para extremely vague and unreliable. Whereas vagueness can be understood in a first immediate report, it cannot be understood in the consumer complaint which was filed after lapse of considerable time. One inference possible is that the complainant was not very clear about making the consumer complaint in the first place and the same was an afterthought after he had failed to receive payment. Even if this be only a presumption, it would certainly seem to be the case that under the arrangement described in the complaint and in the FIR, the entire affair was a matter of internal dispute; it was certainly not a case of the consignment looted, as it were, mid- way at Barauni. Nothing on record by way of evidence has been offered to prove that it was a forced unloading of goods.

Two, there is the factum of very significant delay in intimation of the incident to both the police as well as the OP: not only have they not been explained, the lack of any attempt to do so is conspicuous. Even so, the OP appointed a surveyor, Mr M. L. Bhatia. His observation in report dated 22.1.2001, reproduced in short synopsis dated 4.9.2017 of the counsel for the OP, reads as below:

“From the records, it is obviously clear that goods has been delivered to M/s. Mehi Ananpurna Bhandar, Bironi as per the advices of M/s Asharfi Lal Dalal, Radika Oil Industries and G.R. Road lines also confirm that goods has been rightly delivered as advised to the driver. When the receiver of goods M/s Annapurna Bhandar did not make payment to the consigner. The consignor thought for recovery of amount from insurance company through lodging claim under the impression that credit guarantee is also covered in Marine Policy.

The Insured kept mum for a period of about more than 5 months after delivery of goods. On 02.06.2001, the insured lodged FIR against Ramanuj Singh Proprietor Mehi Annapurna Bhandar. On 06.06.2001 for the first time insured lodged claim with the insurance company and prior to this he never sent any information with regard to delivery of goods.

The above claim relates to credit guarantee insurance and not Marine Cargo Insurance, hence insurer has no liability under the terms and conditions of the policy.”

Three, the plea that the complainant was not aware of the importance of intimating on time cannot be accepted. Any insurance policy requires intimation on time and terms and conditions of the policy always make it incumbent on the insured to inform immediately. It is hard to comprehend that a firm such as the complainant, in the business of selling mustard oil through a broker in Patna City to a party in Guwahati, Assam, could be unaware of this provision of insurance policy. It is impossible to comprehend that the complainant, after it’s consignment had been forcefully unloaded by miscreants, would take almost six months to lodge a police case and a claim with the insurance company. Four, learned counsel for the complainant invoked an order of the Hon’ble Apex Court, (2017) 9 SCC 724, Om Prakash Vs. Reliance General Ins. And Anr., in Civil Appeal No.15611 of 2017 decided on October 4, 2017, para 10 thereof, which reads as under:

“It is common knowledge that a person who lost his vehicle may not straightaway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act.”

It is quite clear that the essence of this citation has been entirely lost on the complainant. A case of a lost private under certain circumstances can indeed perhaps not be repudiated taking shelter under the conditions of delay in intimation. Even here, the key is that the delay must be satisfactorily expl

ained, and if so explained, then and only then, a genuine claim may not be repudiated. In sharp contrast, in the instant case, the facts are completely different and adverse to the complainant’s case viz. (i) it is not an individual who has lost his personal vehicle; rather, it is company which claims it’s goods were unloaded en route; (ii) it is a company engaged in the business of selling oil for profits, which had, through a declaration under a marine policy, insured a particular journey carrying mustard oil from Bharatpur to Guwahati; (iii) after the consignment was way laid mid-way, the company took six months to report to the police and the OP insurance company; and (iv) no attempt to explain why such a delay took place was made. It stands to reason that any loss of this kind would hurt the company and would certainly have been reported to the nearest police station/outpost and the OP as quickly as possible. This was not done. Not only was it not done, no explanation was forthcoming. Such an inordinate delay without even an attempted explanation is a very material lapse and cannot help the complainant’s case. Five, it is also clear that when the vehicle was so unloaded at Barauni, and thereafter, when no payment nor a non-delivery certificate was received from the consignee at Guwahati, no action whatsoever was taken by the complainant. This lends further credence to the view that the complainant had, to begin with, no case at all. 10. Clearly, the District Forum and the State Commission, in the second round of litigation before them, erred in not taking note of these obvious adverse material facts and irregularities. An insurance contract is a contract of utmost good faith. Complainant’s conduct has not been true to this principle. All facts have to be credible and have to be established through evidence. In the instant case, this was far from the case. 11. In view of discussion above, this revision petition succeeds. The impugned order of the State Commission is set aside as also that of the District Forum. The consumer complaint, in the result, stands dismissed. No order as to costs.