New India Assurance Co. Ltd. vs Sandeep

Deepa Sharma, Presiding Member

The present revision petition has been field against the order dated 30 th July, 2018 in appeal of the petitioner No.757/2018 challenging the order of the District Forum dated 12.4.2018 in CC/286/2017 of the respondent (hereinafter called "the complainant.")

The admitted facts of the case are that the complainant is the registered owner of the subject vehicle HR-26 BH -2144 and owner of the valid insurance policy for the period 9 th December, 2015 to 1 st June, 2016.

His case is that he had handed over his car to a person, namely, Mr. Naveen who was dealing in the sale-purchaser of the old cars for the purpose of selling it. Naveen gave that vehicle to an unknown person for test drive who was interested in buying the subject car but that person ran away with the car and did not return it. An FIR No.22 dated 8.1.2016 was registered in police station Kharkhoda by Naveen. Car could not be traced and so the police closed the investigation. The complainant also filed a claim with the petitioner but his claim was repudiated on the ground that he had no insuranble interest in the subject vehicle since he had allegedly sold the said vehicle to Mr. Naveen who negligently had given the car to an unknown person.

Parties led their evidences before the District Forum. The complainant also furnished the affidavit in evidence of Mr. Naveen wherein he had stated that he had taken the car from the complainant for its sale and he had given it for test drive to an unknown person.

After relying on the testimonies of the parties and perusing it and also hearing the arguments of learned counsels, the District Forum reached to the conclusion that there was deficiency in service on the part of the petitioner and accordingly directed the petitioner to pay a sum of Rs.3,80,000/- to the complainant within a period of 60 days and failing which pay an interest @ 9% p.a. from the date of passing of the order till its realization.

In the appeal, the petitioner raised the same contentions that the complainant had no insurable interest since he had sold the vehicle to Mr. Naveen who did not apply for transfer of the insurance policy in his name and that the incident did not come within the definition of "theft." The State Commission dealt with all these arguments & contentions of the learned counsel and held as under: -

"4. Learned counsel for the Insurance Company has candidly stated that there is no evidence on record to prove that the complainant had sold the car to Naveen except that oral observation made by the official of the Insurance Company on the presumption that the car was handed over to Naveen, car dealer, to sell it. In view of this, the ground that the car was sold to Naveen, is repelled.

Now, the second ground of repudiation that the incident did not come under the definition of theft. In The Oriental Insurance Company Limited and another versus Rohit Kumar Gupta and others, 1994 (1) CPJ, 196 , Hon'ble National Consumer Commission held as under:

We see no force at all in this contention. What would constitute the offence of theft is to be seen from the language used in the provisions of Section 379 of IPC. Illustration-D to that Section clearly and directly covers the contingency which has occurred in the present case, namely, the person who had been entrusted with an article or an item of goods dishonestly running away with the said article. Such being the legal position, we are of opinion that the Insurance Company should not have adopted such an attitude at all, but should have paid up the money covered by the insurance policy to the respondent. Inasmuch as that was not done, the State Commission rightly directed the Insurance Company to pay to the complainant the amount for which the car had been insured, namely, Rs.1 lakh.

In view of law enunciated above, the second ground of the repudiation is also rejected.

For the reasons recorded supra, the impugned order passed by the District Forum does not required any interference. Hence, the appeal is dismissed."

This order is impugned before us. Same contentions have been raised that the complainant had no insurable interest and that the incident cannot be considered as an act of theft. The argument is that since the car had been sold to Mr. Naveen, the complainant ceased to have any insurable interest in the subject vehicle and therefore on theft of the vehicle, complainant is not entitled to any claim of interest. The complainant can be said to have lost the insurable interest in the subject vehicle only when the petitioner succeeds in proving that the car has been sold by him to Mr. Naveen.

Hon'ble Supreme Court in the case of Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd . (2011) 11 SCC 269 has held that this Commission has no jurisdiction under Section 21 (b) of the Consumer Protection Act, 1986 to re-assess and appreciate the evidences and reach to its own conclusion on the facts of a case specially when there is a concurrent finding of fact by the Fora below. The Hon'ble Supreme Court has held as under: -

"13. 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."

Same principle has been reiterated by Hon'ble Supreme Court in the case of Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H & R Johnson (India) Ltd. and Ors. (2016 8 SCC 286 wherein Hon'ble Supreme 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 failed to exercise their jurisdiction or exercised when the same was not vested in their 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."

In this case, the Foras below have concurrently, on the basis of evidences on record, reached to the conclusion that there was no evidence on record to prove that the vehicle had been sold by the complainant to any other person including Mr. Naveen. In fact, the complainant had examined Mr. Naveen in his evidence in support of his case, who on oath by way of affidavit had clearly supported the case of the complainant. The insurance company had the opportunity to cross-examine the said witness and confront him with his previous statement given by him before the police while getting the FIR recorded and also before the Chief Judicial Magistrate at the time of closure of the investigation, yet it chose not do so. Besides that learned counsel has failed bring to our notice any document of sale-purchase showing that the subject car had been sold by the complainant in favour of Naveen or any other person. In view of this, it cannot be said that the Fora below have wrongly exercised its jurisdiction. Its findings are based on the facts proved before it.

Another argument is that the incident cannot be termed as theft. This argument has no merit in it. Any person, who without the consent, removes any article from the possession of any other person or after taking it with the consent of the person thereafter did not return it and keep it with him or runs away with it, is an act of theft as per Indian Penal Code.

Learned counsel has failed to point out any wrong exercise of jurisdiction by the Fora below or that any miscarriage of justice has been done in the present case.

The revision petition has no merit and the same is dismissed in limine.