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Judgment
Dr. Inder Jit Singh, Presiding Member
The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 21 of Consumer Protection Act 1986, against the order dated 13.02.2017 of the State Consumer Disputes Redressal Commission, Jharkhand (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 03/2017 in which order dated 04.10.2016 of District Consumer Disputes Redressal Commission, Rahchi (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 186/09 was challenged, inter alia praying for setting aside the order dated 13.02.2017 passed by the State Commission in FA No. 03/2017.
While the Revision Petitioner (hereinafter also referred to as Insurance Company) was Appellant and the Respondent (hereinafter also referred to as Complainant) was Respondent in the said FA/03/2017 before the State Commission, the Revision Petitioner was OP and Respondent was Complainant before the District Forum in the CC No. 186/09. Notice was issued to the Respondent on 05.06.2017. Parties filed Written Arguments/Synopsis on 13.04.2018 and 13.12.2022 (Petitioner) and 04.01.2023 (Respondent) respectively.
Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that: -
The Respondent/complainant is running a Medical Shop in the name of Rajdhani Medico situated at Birsa Chowk, Ranchi. The complainant opened the shop by taking a Cash Credit Loan from State Bank of India, which was insured by the Petitioner/insurance company vide Policy No. 540302/48/07/34/00000504. During the validity period of the insurance policy, a theft took place in the medical shop of the respondent/complainant in the intervening night of 23/24.11.2008. The complainant came to know about the theft on 24.11.2008 at 6.00 A.M. and lodged an FIR in Doranda Police Station. On 25.11.2008, the complainant vide an application informed the insurance company regarding the theft in the medical shop. The insurance company appointed a Surveyor on 25.11.2008. Vide letters dated 05.02.2009 and 14.07.2009, the Surveyor required certain documents from the respondent/complainant. Some documents were supplied to the surveyor, however, documents indicating insured’s insurable interest in the premises and stocks were not provided despite several reminders. A final reminder was sent vide Regd. Letter dated 19.07.2009. On 17.09.2009, the surveyor concluded his assessment of losses based on list of particles & their values submitted by the complainant. The surveyor assessed the loss at Rs.20,112/-. The complainant did not accept the amount. The complainant filed complaint before the District Forum.
Vide Order dated 04.10.2016, in CC No.186/09 the District Forum has partly allowed the complaint and passed the following order:-
“…. Accordingly, the O.P. is hereby directed to make payment of a sum of Rs.2,50,000/- (Two lakh fifty thousand only) alongwith interest @ 9% p.a. from the date of filing of this case to the Complainant within a period of 60 days of this order failing which the Complainant shall become entitled to recover the amount of Rs.2,50,000/ (Two lakhs fifty thousand only) with penal interest @ 12% p.a. from the date of filing of this case till recovery/payment. A sum of Rs. 5,000/ (Five thousand only) by way of litigation cost also allowed. The Complaint case accordingly stands allowed part.”
Aggrieved by the said Order dated 04.10.2016 of District Forum, Petitioner/Insurance Company appealed in State Commission and the State Commission vide order dated 13.02.2017 in FA No. 03/2017 has dismissed the Appeal.
Petitioner/Insurance Company has challenged the said Order dated 13.02.2017 of the State Commission mainly on following grounds:
i. The Fora below have erred in failing to appreciate that it is a settled law that the Surveyor’s report is an important piece of document and it cannot be brushed aside and the non-consideration of the report of the surveyor results in serious mis-carriage of justice. The petitioner has relied upon the judgment passed by the Hon’ble Supreme Court in the case of United India Insurance Co. Vs. Roshan Lal Oil Mills Ltd. , (2000) 10 SCC 19. The Fora below, while directing the petitioner company to pay the entire amount insured along with interest, have completely ignored the ratio laid down in III (2010) CPJ 339 Pentagon Steel Pvt. Ltd. Vs. The New India Assurance Co. Ltd. The Fora below have committed a palpable error in discarding the report of the Surveyor on the ground that the Surveyor’s report was a manufactured report and only in order to skip from the liability of payment of claim to the Respondent/ complainant the same has been prepared. The Fora below had failed to appreciate that when the theft had taken place on 23.11.2008, how the Fora below could have believed the plea taken by the Respondent/complainant that the seal of the Petitioner company upon the report of the surveyor was dated 29.09.2007 i.e. almost 14 months earlier to the occurrence of theft and allowed the case of Respondent/complaint on this ground alone. The surveyor had made his report on 17.09.2009, the date of receipt by the petitioner company has to be after its making i.e. after 17.09.2009 and cannot be a date which is earlier to its making i.e. 29.09.2007. In this regard the Fora below have erroneously chosen not to take into consideration the additional evidence on Affidavit on behalf of the petitioner company, in which the petitioner company has stated on oath that the report of the surveyor was true and genuine and the receiving date mentioned as 29.09.2007 was a genuine mistake, as the report was made in the year 2009.
ii. The Fora below have erred in ignoring the fact that the petitioner company could not settle the claim of the respondent/complainant as he never furnished the required documents. The Fora below have failed to appreciate that the complaint was premature as the Respondent/ Complainant had failed to submit/provide the required documents, in spite of the surveyor and the petitioner company requesting for the same, time and again, vide letters dated 05.02.2009, 14.07.2009 and 29.07.2009. The Fora below have failed to appreciate that the petitioner was not deficient in its service rather the claim could not be settled due to non submission of the required documents and hence the surveyor prepared and submitted his report on 17.09.2009 based on the documents available with him. The District Forum has erroneously burdened the petitioner company with the payment of interest @9% per annum from the date of filing complaint, payable within 60 days, failing which penal interest @12% p.a. from the date of filing with cost Rs.5,000/-, when there is no deficiency of service and the petitioner company had dealt with the claim in accordance with the terms and conditions of the insurance policy. The case was pending for 8 years due to negligence and latches on the part of the Respondent/complainant. The complainant has defeated the whole object of the C.P. Act 1986.
Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
7.1 Petitioner in addition to repeating what has been stated in para 6 under the grounds, has contended in its written arguments that the Fora below have completely discarded the report of the Surveyor, while directing the insurance company to pay the entire amount insured along with interest, thus having completely ignored the ratio laid down in III (2010) CPJ 339Pentagon Steel Pvt. Ltd. versus The New Assurance Co. Ltd., in which this Hon’ble Commission has categorically held that the Surveyor appointed by the Insurance Company is the only authorized person, to assess the damage incurred by a person in any mishap. The basis for the discarding of the surveyor’s report by the Fora below was an objection taken by the Respondent/complainant to the effect that the report of the Surveyor though had been prepared on 17.09.2009 but the same was received in the office of the petitioner company on 29.09.2007 (as the seal of the petitioner company shows the date of the receipt of the report of the Surveyor as 29.09.2007, which was a date much earlier to the date of theft, which took place on 23.11.2008 and the date on which the report was prepared. The Fora below had failed to appreciate that when the theft had taken place on 23.11.2008, how the Fora below could have believed the plea taken by the Respondent/complainant that the seal of the petitioner company upon report of the surveyor was dated 29.09.2007 i.e. almost 14 months earlier to the occurrence of the theft and allow the case of the Respondent/complainant on this ground alone. The State Commission also erred in observing that “the Surveyor’s report is dated 17.09.2009 but surprisingly the seal of the receipt, put on the same, by the insurance company is dated 29.09.2007. If, it was a mistake, the insurance company should have proved it by evidence. But no such evidence was adduced by the insurance company to prove that an anti-dated seal was put by mistake, when it is on record that the theft had occurred on 23.11.2008, hence it could not be possible that the surveyor had made the Report even earlier to the mishap or that the Petitioner Company had received the Report in 2007, when the mishap had occurred in 2009. Hence brushing aside the Surveyor Report on this basis is perverse, warranting interference from this Court.
7.2 On the other hand, respondent/complainant contends that there is no error in the finding of facts by the Fora below, hence, the present Revision Petition is liable to be dismissed with cost. The shop of the respondent was insured and the insurance was valid on the date of incident of theft on the night of 23.11.2008 is not disputed. Theft was one of the risk covered under the said insurance. The theft came to light on 24.11.2008 which was immediately reported to police and an FIR was registered, this fact is also not disputed. All these facts were reported to the insurance company on 25.11.2008 while claiming the compensation of loss under the insurance, is also not disputed. The Police upon investigation confirmed the theft as reported by respondent herein and police assessed the theft (loss) to the tune of about Rs.3,00,000/-. It was also brought to the notice of State Bank of India in which the respondent has a Cash Credit Account. As per terms and conditions of the Bank, whole stock of the Respondent was hypothecated to Bank and he had to regularly submit monthly stock statement to the Bank. It is also contended that vide letter dated 20.06.2009 the Bank informed the respondent that it has advised the petitioner to expedite the claim of the respondent at the earliest and asked the respondent to pay the interest amount to the Bank. The stock statement of Respondent in October 2008 (month of theft) clearly reflects total stock worth Rs.2,50,651/-. It is further contended that the respondent had time and again furnished all documents to the petitioner and its surveyor with reference to his claim against theft. Petitioner has however falsely pleaded (as correctly held by the Fora below) that relevant documents were not furnished by the Respondent. However, it is a matter of fact that the petitioner has filed false and concocted document to misguide the Fora below. It is also contended that the respondent’s repeated pleas of settling its claim had gone unheeded by he petitioner, compelling the respondent to approach the consumer forum. Due to delay caused by the petitioner in settling the insurance claim of the respondent, the respondent was forced to pay more interest to the Bank. The Survey Report subsequently filed by the petitioner is a false and concocted document as has been correctly held by the Fora below.
In this case, the theft took place on the intervening night of 23/24.11.2008. Consumer Complaint before the District Forum was filed on 25.08.2009. By this time i.e. a gap of nine months, the OP/Insurance Company has not taken any decision on the claim filed by the complainant. Even till date, no formal repudiation letter was issued stating any specific reason for repudiation as in the meanwhile the case was filed before the Consumer Fora by the complainant. The Surveyor’s report is dated 17.09.2009, i.e. after the date of filing the Consumer Complaint before the District Forum. Although the receiving date of said report by OP/insurance company is marked as 29.09.2007, we accept the plea of OP/insurance company that it was a mistake as report of incident happening on 24.11.2008 could not have been received by OP/insurance company on 29.09.2007. Perhaps the year 2009 was wrongly recorded as 2007 and report might have been received on 29.09.2009.
The OP/insurance company has argued that delay in finalization of report by the Surveyor was due to Complainant not submitting all the required documents. In this regard, relevant para of order of District Forum is reproduced below:
“We have carefully heard the submissions made on behalf of both the sides and have gone through all the materials available on record. It appears to be an admitted position that the claim of the Complainant has not been settled as yet by the O.P. Annexure 11 to the Complaint petition is a document which shows that the documents mentioned therein were received by the O.P. or 04/02/2009. The existence and genuineness of this document has not been disputed by the O.P. Even the report of Surveyor dated 17/09/2009 produced before this Forum on behalf of the O.P. on 11/04/2014 indicates that the Surveyor had looked into as many as 13 documents. Under above said circumstances of the case it can be inferred that O.P. did not settle the claim of the Complainant even after receiving relevant documents and this can be said to be a case of deficiency in service on the part of O.P. This issue accordingly stands decided in favour of the Complainant and against the O.P.”
As regards the quantum of loss, the OP/insurance company had contended that Surveyor has assessed the loss at Rs.20,112/-. But District Forum, after taking note of loss assessment done by police and statements of stock, which were hypothecated to SBI, has taken the value of stock to be Rs.2.50 lakh and concluded that value of stolen property was more than Rs.2.50 lakh. In this regard relevant portions of District Forum’s order are reproduced below:-
“11…….. by filing Surveyor's report alongwith additional evidence on oath, the O.P. has come out with a case that the admissible amount of loss was assessed at Rs.20,112/- (Twenty Thousand One Hundred Twelve only) by the Surveyor. ………….The complainant has produced copy of final form submitted by the police in which the value of the stolen away property has been said to be about Rs. 3,00,000/- (Three Lakhs only)/ Pleading also to this effect can found in Para 7 to the synopsis to the Complaint petition. In para 3 of his evidence on oath also the Complainant has stated that the police had assessed the entire theft to the tune of about Rs.3,00,000/- (Three Lakhs only) Alongwith Complaint petition the Complainant has filed copies of statements of stock hypothecated to State Bank of India for the months from August 2008 to October 2008. The statement with respect to October 2008 shows the total value of the stock to be Rs.2,50,651/- (Two Lakhs Fifty Thousand Six Hundred Fifty One only). Under the circumstances as mentioned above, we have come to a conclusion that the value of the stolen away property was definitely more than Rs.2,50,000/- (Two Lakhs fifty Thousand only) and as such the Complainant is entitled to get the sum of Rs.2,50,000/- (Two Lakhs fifty thousand only) which is the sum insured in the Insurance policy.”
The State Commission has also not relied upon the report of the Surveyor stating that “It was filed during the pendency of the complaint case. It was causally said by the surveyor that the stock statement submitted to the Bank by the Complainant was not in proper manner, whereas the Complainant proved from the Bank Statement (Annexure-10 series) that he had stock of more than the insured value of Rs.2.5 lakhs.” With respect to observations of District Forum and State Commission regarding date of receipt of Surveyor’s report by OP/insurance Company, as stated earlier, we do not agree with the observations and give a benefit of doubt to Insurance Company that such ante-dated stamp was put by mistake. State Commission has further observed:
“7. The Complainant also proved the receipt dated 04.02.2009, and therefore, it cannot be accepted that the relevant documents were not furnished by the complainant.”
In this case there are concurrent findings of both the Fora below in favour of the Complainant (Respondent herein) and against OP/Insurance Company (Petitioner herein). As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] held that “the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity.”
The Hon’ble Supreme Court in Rajiv Shukla vs Gold Rush Sales And Services Ltd. Civil Appeal No. 5928 of 2022, decided on 8 September, 2022, held that:-
“13. As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction.
In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record. Therefore, while passing the impugned judgment and order the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21(b) of the Consumer Protection Act.”
In view of the foregoing, we do not find any irregularity or material irregularity or jurisdictional error in the orders of the State Commission, hence, the same is upheld. Accordingly, the Revision Petition is dismissed.
The pending IAs in the case, if any, also stand disposed off.