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Vishwa Nath Puri v/s Iffco Tokio General Insurance

Company & Directors' Information:- GENERAL INSURANCE CORPORATION OF INDIA [Active] CIN = U67200MH1972GOI016133

Company & Directors' Information:- IFFCO-TOKIO GENERAL INSURANCE COMPANY LIMITED [Active] CIN = U74899DL2000PLC107621

Company & Directors' Information:- NATH PRIVATE LIMITED [Active] CIN = U31908PN2013PTC148540

Company & Directors' Information:- S. PURI AND CO PRIVATE LIMITED [Strike Off] CIN = U45201DL1990PTC039049

Company & Directors' Information:- PURI AND CO PVT LTD. [Strike Off] CIN = U51909PB1975PTC003598

Company & Directors' Information:- NATH AND CO LTD [Strike Off] CIN = U15141KL1946PLC000796

Company & Directors' Information:- VISHWA PRIVATE LIMITED [Strike Off] CIN = U32109PN2010PTC138054

    Revision Petition No. 1090 of 2020

    Decided On, 04 March 2021

    At, National Consumer Disputes Redressal Commission NCDRC


    For the Petitioner: Sumi Anand, Advocate. For the Respondent: ----

Judgment Text

1. This Revision Petition No.1090 of 2020 filed on 17.12.2020 challenges the impugned order of the State Commission, Delhi, dated 9.9.2020 in FA No.460 of 2016. Vide this order, the State Commission had dismissed the appeal filed against the order of District Forum-II, Qutub Institutional Area, in CC No. 31 of 2015. In turn, the District Forum had found that the petitioner/complainant had failed to prove any deficiency in service on the part of the respondent/OP- Iffco Tokio General Insurance Company Limited.2. Very briefly, facts are that while the petitioner/complainant (complainant hereafter) was driving from Chandigarh to Delhi, his vehicle (DLC-12-C- 3182) was hit by a dog. Radiator and other parts were damaged. Upon filing an insurance claim under policy No.P4008573966 with the respondent-OP- insurance company (OP hereafter) on 7.6.2015, the same was settled by the OP for only Rs.12,995/-. This was against invoice No.1503631 dated 17.07.2015 for Rs.38,738/- and expenses in towing etc. of Rs. 18,620/-. Aggrieved, Complainant approached the OP, the Insurance Ombudsman vide letter dated 01.09.2015 as also the Chairman IRDA vide letter dated 10.12.2015 but in vain. He then filed a consumer complaint before the District Forum seeking direction to the OP to pay Rs.18,620/- with Rs.10,000/- towards punitive damages, mental agony etc. The complaint was resisted through a written version filed on behalf of the OP; however, the OP thereafter did not remain present when the complaint was finally heard and disposed off by the District Forum.3. As noted earlier, the District Forum did not find any deficiency in service by the OP. It is apt to reproduce below the relevant portion of the order of the District Forum:“We have heard the arguments of the Complainant and have also gone through the file very carefully.Complainant was having an insurance policy No. P4008573966 of OP and when he was going to Chandigarh to Delhi from his vehicle No.DLC12C3128 his car had met with an accident due to hit by a dog and sustained damages to the radiator, and other parts and front grill. He filed a claim on 06.07.15 of Rs.38,738/- but the OP had only paid a sum of Rs. 12,995/- to the Complainant vide letter dated 20.11.15 copy of which is mark as Mark ‘A' for the purpose of identification.In view of the above, it transpires that as per OP's letter dated 20.11.15 the OP reimbursed 35% amount for radiator Assy for an amount of Rs.2535/- and 50% amount Coolant Additive for Rs.741/ after necessary deduction of depreciation amount. The following parts were not considered as there was no accidental external impact on these parts:-i. Silicone Adhesive SEii. Magnetic Professiiii. Spark Plugiv. Ignition Coil WithNo expert evidence to the contrary has been adduced by the complainant.In view of the above, we hold that the Complainant has failed to prove any deficiency in service on the part of OP. Accordingly, we dismiss the complaint with no order as to costs.”4. On appeal, the State Commission dismissed the same. Paras 7 and 8 of the State Commission’s order is relevant to understand the reasoning for dismissal and reads as below:“7. I have gone through the material on record and heard the arguments. The appellant has filed written arguments which have been perused. His counsel stated on 04.09.2020 that matter may be decided on the basis of written arguments. The written arguments recites that after a little distance from hitting by dog the light showed fault in the engine, on checking the coolant was seen leaking. On checking at a garage the leak was because of a broken pipe which carries the coolant to the radiator. To make the car roadworthy and mobile, it was absolutely essential to have this pipe replaced or repaired The original pipe not being available at Shahabad, it was decided to repair the same from Manjeet Motors Works. The repair could not sustain the heat and pressure. Resultantly the repair failed and engine heated up near Panipat. Inquiries revealed that radiator had to be replaced. The same was got done from Khillan Motors.8. The new radiator too failed to perform fully. Before reaching Delhi, about 25 KM, the engine seized and stopped. The vehicle had to be towed to the house as it could not be taken to the garage at 3 00 a.m. in the morning for which bill from Santosh Crane Service was relied. Two days later it was towed to the garage for which bill from Jai Shiv Kartik Crane Service was relied.”The State Commission then proceeded to dismiss the appeal, adding that the complainant having accepted part payment could not be allowed to pursue the matter for remaining amount. Hence, this revision petition before the National commission which is under consideration now.5. Learned counsel for the complainant drew attention to para 9 of the impugned order of the State Commission viz. “I do not find any merit in the appeal. Once the appellant has accepted part payment, he cannot be allowed to pursue the matter for remaining amount. It is not his case that he accepted the amount under protest.” He then referred to letter dated 3.2.2016 (page 55) from the complainant to the OP to argue that this would clearly show that the complainant had indicated his acceptance of part payment without prejudice to his case/claim. He invoked a citation, (2015) 16 SCC 587, K.A. Nagamani Vs. Housing Commissioner, Karnataka Housing Board, para 2 and para 22 thereof, and essentially argued that just because complainant had accepted an amount from the insurance company which had been upheld by the District Forum and the State Commission did not mean that he could not ask for higher compensation.6. I have gone through the record carefully including the citation invoked by the learned counsel for the complainant. In the instant case, insurance claim filed has been considered and allowed by the OP stating reasons for not allowing the amount claimed in full. This can be clearly seen in the relevant portion of the order of the District Forum reproduced in para 3 above. It is this that has been upheld by the State Commission which has, in addition, also opined that since part payment had already been accepted, there was no case for filing any further claim, in the facts of the case. A closer examination of the letter dated 3.2.2016 (supra) reveals that it was in response to Op’s letter dated 20.11.2015 which had explained that the claim had been settled on the basis of the surveyor’s report and that the complainant’s grievance qua non-approval of some parts (radiator assy, silicone adhesive SE, magnetic professi, spark plug,Ignition coil) had also been duly considered and allowed in part ( radiator assy, coolant additive) while the remaining could not be considered as there was no accidental impact on these parts. Read together, it is clear that this was the final amount settled by the OP and was not a partial reimbursement as made out by the complainant. Acceptance of this meant the acceptance of the settled amount.7. It is my considered view that in the facts of this case, the orders of the lower fora appear to be most reasonable. The OP has examined the claim of the complainant and found that the part of the claim not allowed related to damage sustained which was attributable to the complainant’s own negligence. Indeed, in the complaint itself, the complainant has described, in para 3 thereof, how some of the expenses were incurred: “3. However this payment of Rs12,295/- does not include cost of radiator which was damaged and reason for subsequent repairs and towing of vehicle. This is the crux of the claim— expenses borne en route and replacement of radiator.” This is further amplified in para 9 of the complaint which reads as below:“9. The claim being made is based on that because of the accident the radiator was damaged and in order to save cost and continue the journey, repairs were done at site i.e. Shahabad.Initial repairs failed to sustain the running of the vehicle and a new radiator was put in at Panipat.This too collapsed at the outskirts of Delhi and the engine seized and the vehicle had to be towed to the residence (at 0300hrs).”A plain reading of the above would indicate that it was indeed the case that the complainant, having hit a dog, adopted the course of action that it did viz. resort to temporary repairs which ultimately may have been the reason why the radiator etc. ended completely damaged. It is this facet of the case that the OP has taken note of while settling the claim. This cannot be said to have been unreasonable on the part of the OP. Compensation in insurance claims are subject to terms and conditions and the claim allowed was based on the surveyor’s report. OP cannot be faulted for this.8. Finally, the law in respect of revisionary jurisdiction is fairly clear and well laid down by the Hon’ble Apex Court in the case of Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., (2011) 11 SCC 269, relevant portion of which is reproduced below:-“8. 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 s

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ame 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.9. In view of the discussion above, I am of the view that no interference in the impugned order of the State Commission is warranted. Accordingly, this revision petition, after consideration, is dismissed at the stage of admission.