New India Assurance Company Ltd vs Manoj Kumar

Subhash Chandra, Member

This revision petition filed under section 21(1)(b) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order of the State Consumer Dispute Redressal Commission, Bihar, Patna (in short, ‘State Commission’) in Appeal No. 214 of 2014 dated 11.05.2016 arising out of order dated 04.03.2014 in complaint no. 30 of 2013 of the District Consumer Disputes Redressal Commission, Begusarai (in short, ‘District Forum’).

The facts of the case in brief as stated by the petitioner are that petitioner had obtained insurance coverage for his car bearing registration number BR-01-BC-4247 vide policy no. 54080531110100000857 for the period 28.10.2011 to 27.10.2012. During this period, on 30.10.2011 the vehicle was stolen when parked at a public place. An FIR was lodged with the police on 03.11.2011 and the insurance company/petitioner was intimated on 12.12.2011. The petitioner deputed an investigator to investigate the loss who submitted a report on 20.09.2012 pointing out breach of terms and conditions of the policy. Accordingly, the claim was repudiated in terms of the breach committed by the respondent.

The respondent filed complaint no 30 of 2013 before the District Forum claiming Rs 5,18,160/- for the theft of the car from Simariya Ghat, Begusarai which was not settled by the petitioner/opposite party on the ground that intimation of theft had  been delayed which was a breach of the terms and conditions of the policy. The complaint was contested on the ground that the FIR was lodged after 4 days and the intimation to the petitioner was sent after 44 days. It was also stated that required documents were not shared. The claim was repudiated on 31.05.2013 on the ground that there was no deficiency in service. Based on evidences led by both parties, the District Forum on 11.05.2016 concluded that the claim was wrongly repudiated and ordered the petitioner to pay Rs 5,18,160/- along with interest at 9% and litigation cost of Rs 5,000/-. The petitioner’s appeal before the State Commission in Appeal no. 214 of 2014 was dismissed on 11.05.2016 and the order of the District Forum affirmed. This order of the State Commission is impugned before us on the ground that the State Commission acted arbitrarily and without application of mind. It is contended that the impugned order overlooked the terms of the policy and the admitted delay of intimation to the police and the insurance company/petitioner which constituted a breach of the policy. It is contended that condition 5 of the policy requiring the insured to take utmost care of the vehicle was also violated resulting in the loss of the vehicle and therefore the claim was not payable. It is contended that both the fora below ignored the contract of indemnity and passed orders mechanically overlooking material facts and therefore it is prayed that the impugned order be set aside.

The respondent filed written submissions and contended that it was not in dispute that the car in question was stolen or that the vehicle was not covered under insurance coverage as on the date of the theft. The orders of the fora below had considered his case and arrived at findings in his favour and in view of these concurrent findings the revisional jurisdiction of the National Commission was limited as per settled law. Reliance has been placed on the judgment of the Hon’ble Supreme Court in National Insurance Co. Ltd. Vs. Nitin Khandelwal (2008) 11 SCC 259 which held that in case of theft of a vehicle covered by insurance, breach of condition etc. are not germane. Therefore, it is argued that the petitioner be directed to pay the sum of Rs 5,18,160/- towards the loss of the car with 9% interest per annum till the date of payment along withcost of Rs 5,000/- and litigation costs.

We have heard the learned counsel for both the parties and carefully considered the material on record.

From the facts of the case, the moot issue is whether the repudiation of the claim of loss by the petitioner on the ground of breach of the terms and conditions of the policy was justified. The petitioner has primarily repudiated the claim on the grounds of delay of 4 days in the filing of the FIR with the police and of 44 days in intimation of the theft to the petitioner insurance company. The petitioner has relied upon the judgment of the Hon’ble Supreme Court in Jaina Construction Co. Vs. Oriental Insurance Co. Ltd. II (2022) SLT 119 and Gurshinder Singh Vs. Shriram General Insurance Co. Ltd. & Anr. I (2021) SLT 657 in so far as they relate to the intimation of theft to be done immediately after the occurrence of any accidental loss or damage.

The issue of whether the breach of condition in the case of theft of an insured vehicle can be a ground for repudiation has been considered in Nitin Khandelwal (supra) by the Hon’ble Supreme Court. Dismissing the appeal of the insurance company, the Hon’ble Supreme Court had laid down that

10, 13: Since the vehicle in question had been stolen, therefore, in the case of theft of vehicle the breach of condition is not germane. The State Commission allowed the claim only on non-standard basis which has been upheld by the National Commission. On consideration of the totality of the facts and the circumstance in the case, the law seems to be well settled that in case of theft of vehicle, nature of use of vehicle cannot be looked into and the insurance company cannot repudiate the claim on that basis

In the facts and circumstances of the case the real question is whether according to the contract between the respondent and the appellant, the respondent is required to be indemnified by the appellant. On the basis of the settled legal position, the view taken by the State Commission, namely, that the appellant pay 75% of the amount a non-standard basis with interest at 6% is upheld.

It is relevant to note that in a case of theft, the intimation to the police and the filing of an FIR is relevant only to the extent of the investigation of the theft. Similarly, intimation to the insurance company is relevant only to the extent that the matter can be investigated for the loss. In the instant case it is pertinent that the petitioner/insurance company has not repudiated the claim on the ground that the claim was not genuine. The repudiation is only on the ground of delay. The learned counsel for the respondent has correctly pointed out that even in Jaina Construction Co. (supra), the Hon’ble Supreme Court, after considering its judgment in Gurshinder Singh (supra) held that “when the claim of the insured was not found to be not genuine, the Insurance Company could not have repudiated the claim merely on the ground that there was delay in intimating the Insurance Company about the occurrence of the theft”.

In the present revision petition both the lower fora have arrived at concurrent findings and have ordered in favour of the respondent. This Commission, in exercise of its revisional jurisdiction, is not required to re-assess and re-appreciate the evidence on record when the findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the fora below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 21 of the Act is therefore, limited to cases where some prima facie error appears in the impugned order. Different interpretation of same sets of facts has been held to be not permissible by the Hon’ble Supreme Court.

The Hon’ble Supreme Court in Rubi (Chandra) Dutta vs United India Insurance Company (2011) 11 SCC 269, in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors (2016) 8 SCC 286 and T Ramalingeswara Rao (Dead) Through LRs and Ors vs N Madhava Rao and Ors, dated 05.04.2019 held as under:

“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

In a recent judgment Rajiv Shukla vs Gold Rush Sales and Services Ltd., and Ors., (2002) 9 SCC 31 the Hon’ble Supreme Court has reiterated this position as under:

“At this stage, it is required to be noted that on appreciation of evidence on record the District Forum as well as the State Commission concurrently found that the car delivered was used car. Such findings of facts recorded by the District Forum and the State Commission were not required to be interfered by the National Commission in exercise of the revisional jurisdiction. It is required to be noted that while passing the impugned judgment and order the National Commission was exercising the revisional jurisdiction vested under Section 21 of the Consumer Protection Act, 1986. 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 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.”

From the records it is apparent that the present revision petition is an attempt by the petitioner to urge this Commission to re-assess and re-appreciate the evidence which cannot be done in revisional jurisdiction. Foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner. It is seen that the orders of these fora are based on evidence on record.  Concurrent findings of both fora based on evidence are accepted. Accordingly, this petition is liable to fail.

We therefore, find no illegality or infirmity or perversity in the impugned order warranting interference of this Commission. The present revision petition is, therefore, found to be without merits and is accordingly dismissed.