APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON :  16^th JANUARY 2018

O R D E R

PER DR. B.C. GUPTA, PRESIDING MEMBER

          This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 03.03.2016, passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in First Appeal No. FA/11/486, “Branch Manager, Shriram General Insurance Company Ltd. & Ors. versus Sunil Gulabrao Tanodkar & Anr.”, vide which, while dismissing the said appeal, the order dated 15.09.2011, passed by the District Forum Nagpur in consumer complaint No. 134/2011, filed by the present respondent Sunil Gulabrao Tanodkar, allowing the said complaint, was upheld.

2.       The complainant Sunil Gulabrao Tanodkar who is in the business of transport, purchased a Tata LPT 909 mini truck, bearing registration No. MH31CB 4081 for his self-employment for earning livelihood, as stated in the consumer complaint.  The vehicle was financed by the OP-3/respondent No. 2 Shriram Transport Finance Company.  An insurance policy was obtained from the petitioners/OP-1 & 2 valid for the period from 25.09.2009 to 24.09.2010.  The said vehicle met with an accident on 29.08.2010 and suffered damage.  The petitioners, insurance company as well as the finance company were informed about the incident.  It is stated that on instructions from the OPs, the vehicle was shifted to M/s. New Taz Show Repairing Works Garage, who made an estimate for repairs as ₹2,97,090/-.  The insurance company appointed a surveyor, who instructed the owner of the garage, not to start the repairing work of the vehicle till instructions and assured the complainant that the insurance claim will be allowed at the earliest.  The OP Insurance Company also obtained the signatures of the complainant on the payment voucher etc.  However, they never intimated the complainant regarding the fate of his claim and the vehicle remained parked in the garage of the repairer all this time.  The repairer New Taz Show Repairing Works Garage issued letter dated 30.01.2002 to the complainant, demanding charges for repairing his vehicle and also the parking charges @₹500/- per day.  The complainant sent a legal notice dated 03.02.2011 to the OPs but since they did not give any reply, the complainant was forced to give ₹10,000/- to the garage owner on 20.02.2011.  Alleging that the petitioners/OP-1 & OP-2 had not allowed the insurance claim for the vehicle, which was still lying in the garage, the complainant filed the consumer complaint in question, seeking directions to the OP 1 & 2 to allow the claim for ₹2,97,090/- and to refund a sum of ₹10,000/- paid by the complainant to the garage owner and to pay him ₹75,000/- as compensation for financial loss, and a sum of ₹25,000/- for compensation against mental agony, besides ₹10,000/- as litigation expenses.  A direction was also sought to the OP-3/respondent No. 2 finance company to stop the recovery of instalments from 01.09.2010, till the vehicle was repaired and brought in running condition.

3.       The complaint was resisted by the OP-1 & 2 Insurance Company by filing a reply before the District Forum, in which they stated that a sum of ₹77,000/- vide cheque dated 22.10.2010 drawn on the HDFC Bank, had already been paid to the complainant in accordance with the assessment made by the surveyor and the same had been received by him.  The complaint, therefore, should be ordered to be dismissed.  It was also stated in the reply that the complainant had approached the repairer M/s New Taz Repairing Works of his own and the estimate of ₹2,97,090/- had been given by the said repairer, as per the request of the complainant.  The OPs denied that they had obtained signatures of the complainant on various forms or payment vouchers.  The OP-1 & 2 pleaded that they had not committed any deficiency in service and hence, the complainant should be made to pay a sum of ₹50,000/- for making a false and frivolous complaint.  A reply was also filed by the OP-3 finance company before the District Forum, in which they stated that the complainant should pay the outstanding amount against them in instalments, or as a lump sum amount in accordance with the written contract between the parties.  The OP-3 also stated that a cost of ₹25,000/- should be imposed on the complainant for filing a false complaint. 

4.       The District Forum vide their order dated 15.09.2011 partly allowed the complaint and directed as follows:-

“1.     Complaint is partly allowed.

2.      Non-applicant No. 1 & 2 shall pay Rs.1,78,846/- towards insurance claim with 12% interest p.a. from the date of complaint, i.e., 3/2/2011within 30 days from the receipt of this order.

3.      Non-applicant No. 1 & 2 shall pay Rs.40,000/- towards mental and physical harassment with Rs.2,000/- towards cost of the proceedings, total amounts to Rs.42,000/-.

4.      Other claim of the complainant is dismissed.”

5.       While making the above order, the District Forum observed that the amount of ₹77,000/- as computed by the surveyor was very small as compared to the claimed amount of estimated cost of ₹2,97,090/-, although the same was on a higher side.  The District Forum stated that a compensation of ₹2 lakh shall be justified, from which after making a deduction of depreciation @10% and scrap value of ₹21,154/-, the balance amount of ₹1,78,846/- should be paid.  Being aggrieved against the said order of the District Forum, the OP-1 & 2 Insurance Company challenged the same by way of an appeal before the State Commission, which has been dismissed vide impugned order and the order passed by the District Forum confirmed.  Being aggrieved against the said order, the OP-1 & 2 Insurance Company are before this Commission by way of the present revision petition. 

6.       During arguments before us, the learned counsel for the petitioner Insurance Company stated that the surveyor appointed by them had computed the amount of compensation payable to the complainant, after taking into account all relevant facts and circumstances on record.  The Insurance Company had already made payment of ₹77,000/- to the loan account of the complainant with the OP-3 Finance Company as per the report of the surveyor.  There was, therefore, no deficiency in service on their part.  Moreover, the complainant had never come forward to present any bills etc. justifying the cost of repairs before them.  The present revision petition should, therefore, be accepted and the order passed by the Consumer Fora below set aside.  The learned counsel for the petitioner has drawn attention to an order passed by the Hon’ble Supreme Court in “Sikka Papers Limited vs. National Insurance Co. Ltd. [(2009) (7) SCC 777]” in support of his arguments. 

7.       The complainant/respondent-1 did not put in appearance despite service.  However, he sent his written notes of arguments, a copy of which was provided to the other counsel.  It is stated in the said written notes that the petitioners had stated in their reply to the consumer complaint that they had paid a sum of ₹77,000/- to the complainant vide cheque No. 77380 dated 22.10.2010 drawn on the HDFC Bank.  However, the said version of the petitioners, was false and no amount had ever been paid to the complainant.  The petitioners had taken a contrary stand in their revision petition now that the amount of ₹77,000/- had been deposited in the loan account of the complainant, maintained with the Shriram General Transport Finance Company.  The complainant has argued that the vehicle was not a case of total loss and the same was standing in the garage for repairs.  There was no justification, therefore, to pay the amount of loan to the OP-3 Finance Company.

8.       We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

9.       From the facts and circumstances of the case on record, it is borne out that the damaged vehicle has been lying with the repairer since a long time and the same could not be repaired due to non-settlement of the insurance claim between the parties.  Evidently, the complainant would have been put to a great economic loss, as his vehicle became idle as a result of the accident.  In the concurrent findings given by the consumer fora below, a sum of ₹1,78,846/- alongwith interest has been ordered to be paid to the complainant alongwith other compensation.  It is a settled legal proposition that interference in the exercise of the revisional jurisdiction should be made only, if there is a jurisdictional error or material defect in the orders passed by the consumer fora below.  We are supported in this assertion in the order passed by the Hon’ble Supreme Court in “Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269]”.  Moreover, a reappraisal of the evidence is not called for in proceedings at the stage of the revision petition.

10.     The petitioner Insurance Company stated in the written reply filed by them before the District Forum that a sum of ₹77,000/- as per the report of the surveyor had been paid to the complainant.  However, they changed their version in the grounds of revision petition and stated that the said amount had been credited to the loan account of the complainant with the OP-3 Finance Company.  It is clear from the names of the Petitioners/OP-1&2 and respondent-2/OP-3 Finance Company that they are sister concerns and hence, to safeguard the interest of the Finance Company, the petitioners must have deposited the amount of ₹77,000/- with them.  The petitioners should not, therefore, have misrepresented the position, while filing their reply before the District Forum.  Moreover, there is no evidence on record to show that the vehicle suffered a total loss.  The entire evidence on record points out that the vehicle was in a repairable condition.  Even if the petitioners wanted to make payment in accordance with the report of the surveyor, they should have made such payment to the complainant and not in his loan account with the Finance Company.  The complainant could then have been in a position to get the vehicle repaired, after receiving part amount of repairs from the Insurance Company.  In so far as the report of the surveyor is concerned, it is true that such reports are important documents in deciding the outcome of cases, but it has also been held in a number of judgments that the report made by the surveyor is not the last word.  In “Sikka Papers Limited vs. National Insurance Co. Ltd.” (supra), as well, it has been brought out that a departure could be made from the report of the surveyor, if there were legitimate reasons for doing so. 

11.       In view of the discussion above, it is held that there is no merit in this revision petition and the same is ordered to be dismissed.  The orders passed by the consumer fora below are upheld with no order as to costs.