IFFCO-Tokio General Insurance Co. Ltd vs Pareshbhai Nathabhai Mangukiya

Cost of Rs.5000/- paid. It is brought to our notice that petitioner has not complied with the directions of this Commission dated 31.10.2017 and has not remitted a sum of Rs.10,000/- which was given towards expenses to the respondent / complainant. Counsel appearing on behalf of the petitioner undertakes to pay the said amount within two weeks by way of demand draft in the name of the respondent / complainant and submit the document within two weeks thereafter.

Revision Petition

Arguments heard on the revision petition.

The present revision petition has been filed against the order dated 05.05.2017 of State Consumer Disputes Redressal Commission Gujarat, Ahmedabad ( in short, the State Commission) in Appeal No. 1768 of 2013 of the petitioner against the order of the District Forum dated 31.05.2013 in CC No.121 of 2012.

Brief facts of the case are that respondent / complainant who was the registered owner of vehicle no. GJ5Z-813 had purchased insurance policy from the petitioner which was valid till 28.01.2012. His vehicle was stolen on 16.04.2011. FIR was registered by one Sh. Prithviraj Singh Chauhan, his friend in the police station. He also informed the petitioner about the theft. He also filed the claim. His claim was repudiated vide letter dated 21.05.2012. He, thereafter, filed the complaint. The petitioner/ opposite party took the plea that complainant had sold the vehicle to Prithviraj Singh Chauhan and, therefore, he was not the owner of the vehicle at the time of accident and thus not entitled for the claim.

The parties led their evidences. The District Forum after considering the evidences on record concluded that vehicle was owned by the complainant at the time of its theft and hence the repudiation was wrong and passed the following order:

"a. The complaint by the complainant / applicant is partly allowed, and the opponent in this matter is ordered to pay Rs.2,50,000/- ( Rupees two lakh fifty thousand only) towards the claim by the compliance with 6% interest from the date of the orders.

b. The opponent in this matter is ordered to pay Rs.1000/- towards harassment to the applicant and,

c. The opponent to pay Rs.500/- towards costs to the applicant, and

d. The opponent to pay the amount within 30 days from the date of receipt of the copy of this order to the applicant at his given address and to inform this Fourm.

e. Copy of this order to be supplied to the parties free of costs.

f. After the appeal period is over and if the opponent fails to pay the amount as per the award then the applicant to follow legal procedure and to recover the said amount from the opponent."

This order was impugned by the petitioner before the State Commission wherein it had raised the same objection that the complainant / respondent was not the owner of the vehicle at the time of theft since he had already sold the said vehicle and thus was not entitled for the claim. The petitioner before the State Commission also tried to produce the additional evidences without seeking its permission and it was not relied by the State Commission. The State Commission has held as under:

"5. On behalf of the complainant the learned advocate Mr. Trivedi has argued that the sale agreement is produced in the appeal for the first time. There was no such agreement produced before the Forum. He has also stated that the person in whose name the agreement is made the said Prithvirajsingh Chauhan has filed his affidavit before the Forum and stated that the ownership of the said vehicle is of the complainant. Copy of certificate of registration particular, policy copy is produced before this Commission. All these documents are in the name of complainant. That is the day on which the vehicle was stolen on the said day and the said vehicle was registered in the name of the complainant in R.T.O. Policy was also issued in the name of the complainant. There is no evidence produced by the insurance company that there is any change in the policy or in R.T.O.

The learned Forum has taken into consideration the submissions made by both the parties in its judgment and has legally appreciated and has arrived on conclusion that on the date of incident the complainant was the owner of the vehicle and on the date of incident the insurance was also in force and the claim form is filed for the damage caused to the vehicle, and the intimation regarding the damage is also given and thus the complainant was entitled to all kinds of damages inspite of which the insurance company has stated 'no claim' and has shown defect in services. "

The petitioner has also raised the same contention before us that since the respondent was not the owner of the vehicle at the time of theft and had already sold it to Prithviraj Singh Chauhan, the repudiation was justified.

We have heard the arguments of counsel for the parties and perused the record.

Following is the letter of repudiation:

"21st May 2012

Mr. Pareshbhai Nathabhai Mangukya

Lakhanka

Ghogha

Bhavnagar

Mob No. 9727670712

Sub : Pol. No. 75393134

Veh.Reg No. GJ 05Z 0813

Date of Loss 15/12/2011

File No.55/H4/311/78866

Claim due to Personal Accident

Dear Sir,

This is with reference to subject cited in the caption.

On the basis of scrutiny of the submitted documents and the survey report, following discrepancy has been observed.

Ownership as per RC- Prithvisinh Chauhan

Name of Policy - Pareshbhai Nathabhai Mangukya

At the time of accident, you do not have ownership of the vehicle.

Due to the aforesaid reason, there is no liability under the policy & your claim stands closed.

You are requested to get the anomaly corrected for the future.

WE shall at all times, remain at Your service

Thanking you,

Yours faithfully

Authorised Signatory"

This repudiation letter itself on the face of it is liable to be rejected because claim of the respondent was not for the accident but was for the theft of the vehicle. Also as per the registration certificate, ownership was not in the name of Prithviraj Singh Chauhan but the registered owner of the vehicle was Pareshbhai Nathabhai Mangukiya. It is apparent that petitioner has not acted bonafidely and justifiably and rejected the claim the claim of the respondent on wrong grounds. This letter of the petitioner shows that repudiation had been done under the impression that it was an accident claim although the claim was for theft of the vehicle. Also, though the respondent was the registered owner, some other person is shown as registered owner of vehicle. The repudiation is liable to be set aside on this ground alone as this itself amounts to deficiency in service.

There are concurrent findings of both the Fora below on the fact relating to the owner of the vehicle and both the Fora below have held that complainant / respondent was the owner of the vehicle at the time of theft. The jurisdiction of this Commission under section 21 (b) of the Consumer Protection Act, 1986 ( in short, the Act) is very limited. This Commission is not permitted to re-appreciate or re-assess the evidence on record and then form its own opinion and substitute the concurrent findings of fact of Fora below. The Hon'ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has held 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."

In view of the above discussion, we find no ground to intervene with the concurrent findings of the Fora below on the fact that at the time of incident of theft, complaint was the owner of the vehicle.

The complainant has also brought to our notice that petitioner has not come up with clean hands. The petitioner in the index of the revision petition has stated that no affidavit of evidence has been filed by the parties before the District Forum, while besides the affidavit of the parties to the complaint, affidavit had also been filed of Prithviraj Singh Chauhan, who in his affidavit has clearly stated that he had never purchased the said vehicle. It is submitted that petitioner had done so to mislead the Commission with intention to obtain favourable orders in its favour. It is submitted that it was the duty of the petitioner to place on record the entire record of the Fora below alongwith the revision petition.

We have given our thoughtful consideration to this part of the arguments of the respondent / complainant. Following is the averment made by the petitioner at the end of the index in the present revision petition:

"The counsel for the undersigned has been informed by its local counsel in Bhavnagar that no evidence affidavit have been filed by the parties before the learned District Forum, Bhavnagar in CC No.121 of 2012 and hence the same have not been filed with the instant Revision Petition."

The complainant has placed on record along with an application the record of the evidences led by the parties before the District Forum, which clearly shows that affidavit evidences of both the parties along with affidavit of Prithviraj Singh Chauhan had been filed before the District Forum. This type of conduct of the petitioner is reprehensible and is condemned.

Therefore, while dismissing the revision petition, we impose the cost of Rs.25,000/- upon the petitioner.