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Judgment
The present revision petition has been filed against the judgment dated 31.08.2016 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh (''the State Commission'') in First Appeal no. 204 of 2013.
The facts of the case as per the petitioner/ complainant are that petitioner purchased a bus Ashoka Leyland model 2001 to earn his livelihood by way of self-employment. The petitioner engaged one Vidya Rattan for driving the bus who was holding a valid and effective driving licence. The petitioner had taken the road test and further confirmed the genuineness of the driving licence of Vidya Rattan.
The petitioner got the aforesaid bus bearing no. PB 13 X 9577, chasis no. YLA 032896 and Engine no. ZLH 167167 comprehensively insured with Oriental Insurance Company Ltd., i.e., vide policy no. 233500/31/2011/5228 for the period 13.01.2011 to 12.01.2011 for a sum of Rs.3.00 lakh. The said bus met with an accident on 28.06.2011 near village Gajewas on Saman Bhawanigarh road and in the accident the bus was badly damaged. An FIR regarding the accident was lodged by one Hardip Singh who failed to report the actual facts of the accident. The loss of the bus was estimated at Rs.3,49,761/-. The petitioner reported the matter to the respondent/ insurance company, who deputed a surveyor for the spot and final survey. The petitioner completed all the formalities as desired by the respondent/ insurance company. But the surveyor failed to assess the loss fairly and adequately. The petitioner visited the office of the respondent in connection with the settlement of the claim but the respondent lingered the matter under one pretext or the other. The petitioner repaired the said bus by spending money from his pocket so as to earn his livelihood.
The petitioner was shocked to receive a letter dated 27.03.2013 from the respondent with the remarks that the route permit was not valid on the route and the engine number was punched. On receipt of the said letter, the petitioner visited the office of the respondent and explained that the route permit was valid and it was the same bus which was got insured by him and no punching was there on the engine number but the respondent failed to pay any heed to its request. Describing the act of the respondent in not having settled the claim to be a deficiency in service which resulted into harassment and mental agony, the petitioner approached the District Forum through the present complaint under section 12 of the CP Act, 1986, for a direction to the respondent to pay Rs.3.00 lakh along with interest @ 12% per annum from the date of accident; to pay Rs.50,000/- by way of compensation on account of the harassment and mental agony and Rs.25,000/- towards cost of litigation.
On notice, the respondent filed their written version stating that the complaint is not maintainable since the petitioner is running the bus for commercial activity. It was admitted that the petitioner had got the bus insured with the respondent. However, it was alleged that the particulars regarding the date of the purchase and first date of registration made by the first owner of the vehicle have not been disclosed in the registration certificate of the vehicle supplied by the petitioner. The route permit was also not valid as per the route of the journey. The employment of Vidya Rattan as driver was denied by the respondent as the petitioner had never informed the respondent regarding his employment as the driver of the bus. It was denied if the driving licence of Vidya Rattan son of Bhagwan Singh was presented before the respondent at the time of getting the insurance of the bus.
On receipt of the intimation regarding the accident, the respondent appointed Shri Chander Shekhar Chanun, surveyor and loss assessor to investigate and assess the loss of the vehicle. The investigator found that the chassis and the engine number on the plate of the manufacturer had been punched over the original numbers. Chassis No. YLA 032896 was punched over the original chassis no. 849590, which was not clearly visible and engine no. ZLH 167167 was punched over the engine no. NVI 23570 which was not clearly visible. Another engine no. ALW 06D35/CXH-054068 was made on the tappet cover of the engine of bus no. PB 13 X 8577 to show that the bus was got insured by the petitioner had met with an accident and therefore, the respondent was not liable. The petitioner had lodged the claim in respect of another bus which had not been insured with the respondent as per the report given by Shri Chander Shekhar Chanun, Surveyor, loss assessor/ investigator. Accordingly the respondent repudiated claim of the petitioner vide letter dated 17.03.2012. After controverting the other allegations of the complaint going against the respondent, it was prayed to dismiss the complaint.
The District Consumer Disputes Redressal Forum, Patiala (''the District Forum'') vide its order dated 17.01.2013 while dismissing the complaint observed as under: " We have considered the submissions and are of the considered view that from the cogent and convincing evidence lead by the OP consisting of the survey report, submitted by Shri Chander Shekhar Chanun, it has been established that the bus which had met with an accident was not bearing Chassis no. 032896 and engine no. ZIH167167 and rather the aforesaid chassis number and engine number were punched over the original inscribed number 849590 (not clearly legible) and engine no. NV 1234977 (not clearly legible) going to show that the complainant lodged the claim regarding some other bus which had not been insured with OP vide insurance policy cum schedule.
Merely because in the repudiating letter, the OP failed to make a mention of the chassis number having been punched over by son other number would not mean that the OP could not highlight the said fact before the Forum. The fact of the matter is that complainant has not been able to prove the report of the Surveyor and loss assessor Shri Chander Shekhar Chanun in any way, wrong with regard to the original chassis number and engine number having been punched over by chassis number YLA 032896 and engine no. NY 234977 in order to raise the false claim under the guise of the insurance policy cum schedule. Even the complainant has not been able to connect the route permit with the bus in question for the reasons noted above. Consequently, we find that OP was justified in having repudiated the claim of the complainant. In order words, we do not find any substance in the claim and the same is hereby dismissed with costs assessed at Rs.10,000/- under section 26 of the Act, the complaint being based on fake and frivolous facts."
Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State Commission. The State Commission while dismissing the appeal vide order dated 31.08.2016, which reads as under: "This appeal was filed by the appellant and from the record we find that counsel for the appellant has not appeared in the Commission on 24.08.2015, 04.02.2016, 12.04.2016 and 07.06.2016. Today the case was called none has appeared on behalf of the appellant at the time of first call and second call. Therefore, the appeal is dismissed in default for want of prosecution ".
Hence the present revision petition.
I have heard the learned counsel for the petitioner and have gone through the record. Learned counsel for the petitioner has admitted that the counsel for the petitioner did not appear before the State Commission from 24.08.2015 till 31.08.2016, i.e., for five consecutive dates. He contended that if the petitioner''s counsel had not been appearing before the State Commission, the State Commission ought to have sent notice to the petitioner.
In the revision petition, I find that the petitioner has contended that the State Commission was not right and justified in dismissing in default the subject appeal of the petitioner/ complainant herein on the ground that no one has appeared on behalf of the petitioner as it was an unfortunate case where the petitioner-litigant has been severely prejudiced by non-appearance of his counsel before the State Commission. The petitioner was all along under the bona fide , genuine and reasonable belief that their counsel would be appearing in the matter and diligently pursuing their appeal on all dates. In fact the petitioners had earlier engaged a counsel and had changed their counsel. The newly appointed counsel had also appeared in the matter. Thereafter, the newly engaged counsel had told the petitioner to send a new power of attorney so as to authorize his associates in the office to appear on his behalf as the court does not mark the presence of the proxy counsels. But due to some mis-communication regarding the execution of a fresh power of attorney in favour of the newly engaged counsel and his associates in the office they were not able to appear or mark presence.
I am not convinced with the reasons given or argued for non-appearance of either by the counsel or the petitioner before the State Commission on the dates of hearing mentioned above for over an year. There is no explanation why the petitioner was not following up the case with the Counsel or the State Commission for such a long period of time.
In view of the above, I find that there is, no jurisdictional or legal error or misrepresentation of facts have been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is dismissed and the order of the State Commission is upheld. No order as to cost.