w w w . L a w y e r S e r v i c e s . i n

United India Insurance Company Ltd., Through The Regional Manager, New Delhi v/s Dinesh Vijay

Company & Directors' Information:- UNITED INDIA INSURANCE COMPANY LIMITED [Active] CIN = U93090TN1938GOI000108

Company & Directors' Information:- THE NEW INSURANCE LIMITED [Strike Off] CIN = U66010UP1933PLC000509

Company & Directors' Information:- VIJAY INDIA PRIVATE LIMITED [Active] CIN = U25199DL1998PTC096860

Company & Directors' Information:- DINESH CO PVT LTD [Active] CIN = U17111WB1951PTC019839

Company & Directors' Information:- VIJAY J AND K PRIVATE LIMITED [Strike Off] CIN = U52100GJ1974PTC002504

Company & Directors' Information:- D VIJAY AND COMPANY LIMITED [Dissolved] CIN = U99999MH1933PTC002056

    Revision Petition No. 698 of 2015

    Decided On, 15 September 2020

    At, National Consumer Disputes Redressal Commission NCDRC


    For the Petitioner: Harsh Kumar, Advocate. For the Respondent: Ankita Chaudhary, Advocate.

Judgment Text

1. This Revision Petition No. 698 of 2015 filed by Opposite Party challenges the impugned order dated 19.12.2014 of the State Consumer Disputes Redressal Commission, Jaipur, Rajasthan (‘State Commission’, for short) in appeal No. 958/2012. Vide this order, the appeal against the order dated 18.06.2012 in CC 967/2008 of the District Consumer Disputes Redressal Forum, Jaipur (District Forum) was dismissed.2. Brief facts are that the complainant, Shri Dinesh Vijay, had insured his vehicle, a Lancer (RJ-14-6C-5377), with the petitioner/Opposite Party- UII co. Ltd. ( OP hereafter) for the period, 15.05.2006 to 14.05.2007, for a sum insured of Rs.5,00,000/- (policy no. 140300/31/06/01/0000/1086; premium- Rs.16,680/-). On 08.11.2006 at 2.30 p.m.., the vehicle, while avoiding a collision with an oncoming vehicle, rolled down the road, overturned, suffered damage, particularly to the body shell. OP was intimated and a surveyor was appointed. The plaint is that the surveyor assessed the loss at Rs.2,31,918/ on the basis that repair of the body shell was also possible. However, the body shell was not repairable and would itself cost Rs.5,35,000/- to replace, as per M/s. Autolife, the authorized repairer (per the complainant). The insurance claim was declined vise OP’s letter dated 20.06.2007 as “NO CLAIM” as despite repeated reminders, complainant had not submitted the required documents. So, a consumer complaint, CC 967/2008, was filed with the District Forum, seeking payment of (i) sum insured of Rs. 5 lakh, with 12% from date of filing of claim; (ii) Rs. 50,000/- for mental agony, and (iii) Rs. 21,000/- as cost of litigation.3. No written reply to the complaint was filed by the OP. However, the OP was represented by a counsel before the District Forum and arguments were heard. After considering pleadings and evidence, the District Forum, concluding that the OP, in not settling the claim, had been deficient in service, partly allowed the complaint, vide it’s order dated 18.6.2012, relevant portion of which is as under :-“Hence on the ground of all discussions, partly accepting the complaint of complainant, it is ordered that opposite party will settle the claim of complainant considering value of body shell as Rs. 5.35 lac within one month. Beside(s) this, complainant is awarded Rs. 5,000/- for his mental agony and financial loss and Rs. 1500/- as cost of litigation. The order is to be complied within one month from today otherwise the complainant will be entitled to get interest @ 12 % on said amount from date of award. Other relief to complainant is dismissed. If the complainant is not satisfied with the settlement done by opposite party, he is free to file a complaint before this forum within two months from date of settlement.”( Ad verbatim per record)4. OP filed an appeal. The same was however dismissed by the State Commission vide it’s order dated 19.12.2014. Hence this revision petition before this Commission, seeking the following relief:-(i). “Allow the revision petition and set aside the impugned order dated 19.12.2014 passed by Hon’ble State Commission, Jaipur in First appeal no. 958/ 2012 and order dated 18.06.2012 in Complaint case no. 958/2012 and order dated 18.06.2012 in Complaint case no. 967/2008 passed by Ld. District Consumer Forum, Jaipur.(ii) Pass an ex-parte order staying the operation of order dated 19.12.2014 passed by Hon’ble State Commission, Jaipur in First Appeal no. 958/2012 and order dated 18.06.2012 in Complaint case no. 967/2008 passed by Ld. District Consumer Forum, Jaipur till the disposal of present Revision Petition.(iii) Pass any other order(s) as this Hon’ble Commission may deem fit and proper.5. Heard learned counsels for the parties on 31.10.2019.6. Counsel for the petitioner submitted that the insured vehicle was insured for a value of Rs.5 Lakh. Accident took place on 8.11.2006; however, there was no FIR, no report of injury to the driver and no information to the police. Upon intimation, the OP deputed surveyor, who assessed the cost of repair at Rs.2,31,918/-. Learned counsel further pointed out that the surveyor had written various letters to the complainant seeking documents but none were provided. He, in particular, drew attention to letter dated 08.06.2007, from the OP to the complainant, bringing to his notice that the surveyor had assessed, on repair basis, an amount of Rs. Rs.2,31,918/-, net of excess and salvage, and that thereafter, he was advised to get the vehicle repaired and submit the bills of repair and replacement for reimbursement of the expenses so incurred within the assessed amount. However, no intimation in this respect was received from the complainant’s side. It was also clearly stated in this letter that if reply and the documents asked for were not received within 10 days, the claim would be treated as ‘no claim’. As no reply was received, the OP closed the claim file as no claim, vide letter dated 20.06.2007 citing the following reason:“DESPITE OF OUR REPEATED NUMBERS OF LETTERS DT. 25.01.07, 22.02.07, 21.03.07, & 08.06.07, YOU HAVE NOT SUBMIT US THE REQUIRED DOCUMENTS. IT IS PRESUMED THAT YOU ARE NOT INTERESTED IN SETTLEMENT OF CLAIM.”Learned counsel then referred to the complaint before the District Forum and admitting that neither written reply nor evidence had filed before the District Forum, he submitted that the surveyor’s report, however, was before the District Forum. His argument was that this surveyor report was discarded by the District Forum which erroneously passed an order for Rs.5,35,000/-, greater than the sum assured, on the basis of a letter dated 14.11.2006, from M/s Autolife, repair company, to the complainant in which it was indicated that the earlier cost of Rs.3,50,000/- for the Body Shell was a mistake and that the actual cost was Rs.5,35,000/- plus handing charges and VAT. He then drew attention to the surveyor’s report, para no.9 thereof: the surveyor had reported that while the repairer, M/s Autolife, had been asked to dismantle the car and inform him or the insurer so that necessary inspection during repair may be carried out; however, after various telephonic reminders and visits, they did not do so; instead, they issued a letter dated 14.11.2006 to revise the Body Shell rate, from Rs.3,50,000/- to Rs.5,35,000/- + H.C. + VAT. Thereafter, the surveyor discussed this matter with the Mitsubishi Service Engineer and their dealer who confirmed the cost of Bare Body Shell as Rs.1,70,000/- + VAT. Thereafter, he gave a detail estimate of repair and assessed the total payable amount at Rs.2,31,918.54. Counsel also drew attention to letter dated 12.07.2012 vide which the surveyor had written to the Senior Divisional Manager of OP and apprised him that after the District Forum’s order, he made further inquiries and had obtained a quote from the only authorized dealer, M/s. Akar Cars, VKIA, Jaipur and found that the cost of the Body Shell was, as on 12.07.2012, Rs.3,56,840, inclusive of all taxes. Learned counsel concluded his case by submitting that the surveyor’s report was an important document and could not be brushed aside without proper reason. The surveyor had estimated the cost of repair at Rs.2,31,918/- while the District Forum had awarded Rs.5,35,000/-, for the body shell, to be taken into account for estimation of the claim amount, instead of Rs. 1,70,000/- in the survey report: the District Forum had allowed this amount on the basis of a quotation of a workshop, M/s Autolife, which was not even an authorized entity.7. Counsel for the complainant began his arguments by pointing out that the revision petition itself, in Para (XV), had admitted that the State Commission had heard both the parties and then passed its order. Thus, the submission that the State Commission’s order was unreasoned was not correct. Rather, it was an order passed after hearing both the parties. Second, the learned counsel pointed out that the conduct of the OP in these proceedings was very casual as could be seen by the fact that no written statement nor any evidence was filed before the District Forum. Now, at the stage of revision, learned counsel for the OP is taking new grounds such as FIR etc. not filed. Counsel submitted that new grounds cannot be taken at the stage of revision. Third, he drew attention to the order of the District Forum and read a portion of the order to argue that the District Forum had correctly noted that the OP had not shown any basis for the value of Body Shell being Rs.1.70 lakh. On the other hand, the complainant had produced a letter of an authorized workshop, M/s Autolife, in which the cost of Body Shell was mentioned as Rs.5.35 lakh. Beside, no certificate from the authorized dealer or from the Mitsubishi company was submitted by the surveyor and the OP to show that the Body Shell was repairable. Counsel argued that it was therefore clear that in the absence of proper evidence, the surveyor’s assessment of loss had not been allowed by the District Forum. He then drew attention to the impugned order to argue that the State Commission had taken note of the surveyor report as also of the fact that the District Forum had noted that no evidence in respect of any quotation from Mitsubishi company was produced whereas the complainant had produced a letter from an authorized workshop to show that the cost of their Body Shell was Rs.5,35,000/-. Again, in the same order, the State Commission had noted that Manager of the OP had asked the surveyor to provide evidence but no evidence was produced by the surveyor and as such, the surveyor’s report would have to be considered as incomplete as it was not based upon evidence. The State Commission further noted that the OP themselves, in their letter dated 12.07.2012, had admitted that the cost of Body Shell was Rs.2.75 lakh as on 11.07.2007 which also proved that the surveyor’s report was wrong in this regard. In this situation, the State Commission had found no error in the order of the District Forum allowing Rs.5,35,000/- for the body shell’s replacement cost. Counsel drew attention to the surveyor’s letter dated 12.7.2012 (supra) where he has informed that the cost of their Body Shell as on 12.07.2012 was Rs. 3,56,840/-. He argued that the same surveyor in his survey report has taken the cost as Rs.1,70,000/- which is clearly wrong and that therefore it had to be disregarded. On the basis of this cost, viz. Rs. 1,70,000/-, the surveyor had assessed the total loss at Rs.2,31,918/-. As such, there was nothing wrong in the order of the District Forum which has been correctly confirmed by the State Commission.8. In a short rebuttal, learned counsel for the petitioner submitted that the allegation that some new grounds are being taken at the stage of revision was wrong, claiming that these grounds had been taken in the appeal before the State Commission. As for FIR with the police, he drew attention to the surveyor’s report which had clearly mentioned that FIR was not lodged. Further, he argued that the learned counsel for the complainant had relied on the letter issued by M/s Autolife, for holding that the cost of the body shell was Rs. 5.35 lakh, claiming that it was an authorized workshop; however, there was no evidence for the claim that it was an authorized workshop. The surveyor in his letter dated 12.07.2012 to the OP (supra) in para 3 has clearly stated that he had contacted the only authorized dealer, M/s. Akar Cars, VKIA, Jaipur, regarding obtaining the cost of body shell. Learned counsel for the complainant finally rebutted these arguments of the counsel for the OP by submitting that it was clear that the claim of the complainant had been handled very casually by both the OP and the surveyor as three estimates had been given by the surveyor for the cost of body shell: this itself indicates that the impugned order and the District Forum’s order were just and proper.9. Having heard the learned counsels and having perused the record carefully, and keeping in view the limits of revisionary jurisdiction, I am inclined to dismiss this revision petition.First, non-filing of written reply to the complaint, was indeed an indication of the matter not having received serious and proper attention of the OP in the first court of trial. It is this court which, in the first instance, has to consider all the evidence and/or the averments and then pass a reasoned order. Missing this opportunity has not helped the OP’s case at all.Second, the only area of dispute is in respect of the cost of the body shell. The surveyor in his report, based on discussion with Mitsubishi engineer and their dealer had intimated the cost as Rs.1,70,000/- + VAT. However, this figure has not been supported by any evidence as noted by the District Forum in its order and as confirmed by the State Commission in its impugned order. It has to be noted that this estimate of Rs.1.70 lakh was after the repair shop, M/s Autolife, had already intimated in writing that their earlier quote of Rs.3.5 Lakh was a mistake and that the new quote was Rs.5.35 lakh. This ought to have been taken note of by the surveyor properly and dealt with. As seen, the surveyor did not quite to do so. After the District Forum’s order, the surveyor’s further enquiries in the matter and his letter dated 12.07.2012 (supra) to the OP submitting the rates for the body shell clearly had no place in the summary proceedings. This ought to have been done at the time the matter was before the District Forum, not later.Third, the apparent error of the District Forum having awarded Rs 5,35,000/- being more than the sum insured, is, on a closer look, only apparent: this is so because the order requires the OP to consider Rs. 5,35,000/- while settling the claim; this does not mean that more than Rs 5 lakh has been awarded; it only means that instead of Rs. 1,70,000/-, OP should calculate on the basis of Rs. 5,35,000/-. If the amount so calculated exceeds the sum insured of Rs. 5 lakh, it is obv

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ious that payment would be restricted to Rs, 5 lakh.Fourth, in the face of concurrent orders of the lower fora, and no apparent error of fact or law in their orders, the revisionary jurisdiction is limited. This is the established law laid down by the Hon’ble Supreme Court in the case of Rubi (Chandra) Dutta vs. United India Ins. Co. Ltd., (2011) 11 SCC 269, 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.”10. In view of the discussion above, this revision petition is dismissed. No order as to costs.