National Insurance Co. Ltd vs Tinku Ghosh

The present revision petition has been filed against the order dated 16.07.2018 whereby the appeal of the petitioner-insurance company against the order dated 04.10.2016 of the District Forum in C.C. No. 39 of 2016, was dismissed.

The brief facts of the case are that the respondent-complainant (herein after referred as 'the complainant') is the registered owner of the subject vehicle, which was insured with the petitioner-insurance company. During the validity of the insurance policy, the insured vehicle met with an accident on National Highway - 44 at Meghalaya. While the bus was damaged, several commuters also lost their lives. The driver of the said bus had also died in such accident. An FIR was registered on the complaint of one Mr. Dipankar Ghosh, one of the passengers in the police station. The complainant filed its claim with the petitioner-insurance company. When the complainant failed to get any response from the petitioner-insurance company, he submitted a further claim for compensation on 26.03.2013. His claim was, however, repudiated on the ground that it was violative of the policy condition.

Dissatisfied with the rejection of his claim, the complainant filed a complaint before the District Forum claiming an amount of Rs. 19,91,100/- alongwith other reliefs.

The petitioner-insurance company contested the complaint of the complainant. The sole argument was that as per the policy condition, the bus was to carry only 38 passengers but the bus was carrying more than 39 passengers and therefore, the policy condition was violated and, thus, there was no deficiency in service on their part while repudiating the claim.

The parties led their evidences before the District Forum. On the basis of evidences led before it, after hearing the arguments of learned counsels for the parties and perusing the documents, the District Forum directed the petitioner-insurance company to pay a sum of Rs. 7 lakh as compensation after excluding the depreciation value of the vehicle and also Rs.10,000/- as cost of litigation.

Dissatisfied with the finding of the District Forum, the petitioner-insurance company filed an appeal before the State Commission and in its appeal, the contention of the petitioner was the same that since there were more than 38 passengers in the insured vehicle, it amounts to violation of the terms and conditions of the insurance policy and hence, the repudiation was valid. The learned counsel for the petitioner also relied upon the judgment of Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Challa Upendra Rao and Ors. (2004) 8 SCC 517.

After hearing the arguments of learned counsels for both the parties and perusing the material on record and also after conisidering the findings of the Challa Upendra Rao case (supra), the State Commission had dismissed the appeal.

This order is impugned before us on the same ground that there was a violation of the terms and conditions of the policy since the vehicle was carrying more than passengers than it is permissible under the policy, thus, there is violation of the terms and conditions of the policy.

Learned counsel for the petitioner-insurance company has also argued that the documents on record clearly establishes the fact that there were more passengers than the sitting capacity of the said vehicle and despite this fact, the fora below have failed to consider that carrying more passengers than the permissible limit not only amounts to violation of the condition of the permit but also it violates the terms and conditons of the insurance policy under which the bus was only to carry 38 passengers as per its sitting capacity.

Learned counsel for the complainant argued that there are concurrent findings of facts by both the fora below.

It is a settled principle of law that in exercise of revisional jurisdiction under Section 21 (b) of the Consumer Protection Act this Commission has a very limited jurisdiction and this Commission cannot re-appreciate and reassess the evidences led by the parties and then reach to its opinion/conclusion on facts on that basis. The only jurisdiction this Commission is to see whether there is any miscarriage of justice or whether the impugned order is against the settled proposition of law or perverse. It is the duty of the petitoner, who has come before the court, to point out the perversity in the order or any miscarriage of justice done in the present case. Only when the petitioner will be able to show that findings are not based on facts or any important piece of evidence has been neglected, it can be said that the findings are perverse. Miscarriage can be said to be done only when the decision is against the established principles of law.

We have given our thoughtful consideration to the rival contentions and arguments of learned counsel for both the parties. Hon'ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed 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."

The Hon'ble Supreme Court in its subsequent judgment i.e. Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others (2016) 8 Supreme Court Cases 286 also held that concurrent findings of facts cannot be set aside in revisional jurisdiction by National Commission. The Ho'ble Court has held as under:

"23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.

Learned counsel for the petitioner-insurance company has failed to bring to our notice any exclusion clause of the policy which disentitles the insurer from claiming damages or loss of the bus because it is carrying more passengers than its sitting capacity.

The case law relied upon by the learned counsel for the petitoner i.e. Lakhmi Chand vs. Reliance General Insurance (2016) 3 SCC 100 does not help the petitoner. In this case, while the Hon'ble Supreme Court has granted the relief to the insured even though there was violation of the terms and conditions of the permit.

We are satisfied that there is no illegality or infirmity in the impugned order. No ground to interfere with the findings exist. The revision petition has no merit and the same is hereby dismissed with no order as to costs.