AI Structured Summary
Not yet generated for this judgment
Judgment
BEING aggrieved by order dated 14.01.2011, passed by Maharastra State Consumer Disputes Redressal Commission, Maharashtra, Mumbnai in (Appeal No. A/10/828), Petitioner/Complainant has filed this revision petition.
BRIEF facts of this case are, that petitioner ''s vehicle MH -02 -NA -1995 got submerged in water due to extra ordinary floods on 26th and 27 July, 2005. As a result thereof, the vehicle sustained damages including to its engine. It is alleged that vehicle was repaired at Patel Auto incurring total expenditure of Rs.4,50,000/ -.It is further stated that those repairs were carried out on the assurance from the Surveyor -Mr.Piyush Lohar appointed by Respondent/Opposite Party. When petitioner lodged its claim with the respondent, they only offered to pay a sum of Rs.1,72,361/ - towards full and final settlement of her claim. Petitioner did not agree to that amount and filed a consumer complaint before the Additional Consumer Complaint Redressal Forum, Mumbai(for short, ''Consumer Forum ''). The complaint was contested by the respondent stating in its written statement that there was no tie -up arrangement with the repairers chosen by the petitioner herself. Under these circumstances, respondent had no responsibility for the acts and/or omissions of the petitioner ''s repairer. Respondent had offered a sum of Rs.1,72,361/ -and sought surrender of the salvage of repair. The claim filed by the petitioner is highly exaggerated one and as such present complaint is liable to be dismissed.
CONSUMER Forum, vide order dated 15.7.2010, dismissed the complaint with cost. However, it directed that the sum of Rs.1,71,361/ - deposited by the respondent, be paid to the complainant.
AGGRIEVED by the order of the District Forum, petitioner filed an appeal before the State Commission, which dismissed the same, vide impugned order. Hence, this revision petition.
WE have heard the learned counsel for the parties and gone through the record.
IT has been contended by the learned counsel for the petitioner, that petitioner had produced all the relevant documents as provided by M/s Patel Auto, to the respondent to substantiate her claim. The vehicle was also inspected by one of the surveyor of the respondent. After getting their green signal, only the repairs was done. The claim has been repudiated wrongly only on the premise that M/s Auto Patel has provided inflated bills. However, as per law of subrogation, it is specifically provided that respondent can approach the court of law for obtaining the money from the dealer for not providing the necessary services to the insured. On the other hand, it has been contended by learned counsel for the respondent, that petitioner had not proved any of the documents with regard to repairs filed before the District Forum. Hence, there is no infirmity or illegality in the impugned order.
THE State Commission, in its order has observed; ''''Complainant except making statement about expenditure incurred by her for repairs, failed to substantiate her case about actual repairs and, particularly, to rebut the case advanced and established by the Insurance company based upon the investigation of their surveyor cum investigator, supra. Complainant Dr. Anshu Sharma also preferred not to file any affidavit on her own to substantiate her case. She solely relied upon the affidavit of Dr. Bishwandu Bardhan, her constituted attorney, whose affidavit dated 9.12.2006 is filed by way of an evidence. Probative value of the said affidavit can be well questioned since he is not the one, who has personal knowledge of the facts alleged by the complainant. Said affidavit is also not properly verified though such verification issue can be for the time being kept aside looking to the Bombay practice. Respondent/Insurance company relied upon the affidavit of their General Manager Mr.R.Suresh to substantiate their case and which finds corroboration from the documents produced on record. Therefore, considering all these aspects, we find Insurance company was right in settling the claim to the extent which they find it genuine and could be admissible under the insurance policy. They have communicated their assessment and offered an amount of Rs.1,72,361/ - as per their letter dated Nil (Exhibit L) relied upon by the complainant herself. Letter of the Insurance company is dated 23.12. 2005 (Exhibit M) wherein Insurance company has given particulars how they worked out the liability. To this letter complainant herself had replied on 28/12/2005 (Exhibit N) and rejoinder or reply to the said letter dated 03/1/2006 (Exhibit O) was sent by the Insurance company again sticking to their earlier offer. Thus, we find that complainant miserably failed to establish that action of Insurance company to settle the claim at a particular amount which is less than her claim, was arbitrary or erroneous and, therefore, there is a deficiency in service on the part of Insurance company. Hence, we find the appeal devoid of any substance and, holding accordingly, pass the following order: - ORDER Appeal stands dismissed ''''.
IT is apparent from the record that complainant herself had not appeared in the witness box nor had filed her own affidavit to substantiate her claim. Moreover, the documents regarding repairs of the vehicle have not been proved at all. There is also nothing on record to show, that M/s Patel Auto had appeared before the Consumer Forum to prove this fact as to how much actual expenditure had been incurred for repairs of the vehicle. Under section 21 (b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
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. ''''
IN view of the concurrent findings of facts given by both the fora below, no jurisdiction or legal error has been shown to call for interference in the exercise of power under section 21 (b) of the Act. Both the fora have given cogent reasons in their order which do not call for any interference nor do they suffer from any infirmity or revisional exercise of jurisdiction. It is not that every order passed by the fora below is to be challenged by a litigant even when the same is based on sound reasonings.
THE present petition being meritless is required to be dismissed with cost. Accordingly, the same is hereby dismissed with cost of Rs.5,000/ - (Rupees Five Thousand only).
PETITIONER is directed to deposit the cost by way of demand draft, in the name of ''''Consumer Legal Aid Account '''' of this Commission, within four weeks from today. In case, petitioner fails to deposit the cost within the prescribed period, then she shall also be liable to pay interest @ 9% p.a., till realization. List on 02.05.2014 for compliance.