National Consumer Disputes Redressal Commission (NCDRC): While deciding the instant revision petition under Section 21(b) of Consumer Protection Act, 1986, the Bench of Dinesh Singh (Presiding Member) and Karuna Nand Bajpayee, J., (Member) observed that points of law regarding “limitation” and “consumer” have to be applied on the facts of the case, and the facts can only be determined by leading evidence before the forum of first instance (in rare cases by filing additional evidence before the forum of appellate jurisdiction) and should not be raised in revision just for the sake of prolonging the lis.
Facts and Legal Trajectory of the Case: The complainant (respondent in the instant petition) insured his truck with the insurance company for an assured sum of Rs 9,60,000 for the period from 04-10-2006 to 03-10-2007. During the subsistence of the policy, the truck met with an accident on 19-10-2006. The complainant claimed loss of Rs 6,25,020. The surveyor appointed by the insurance company assessed the loss at Rs 2,30,000 which was intimated to the complainant via a letter dated 28-04-2010. The letter stated that the insurance company will settle the claim at Rs 1,04,316 and sent therewith pre-receipted vouchers for discharge in full. Aggrieved with the quantum of the settlement, the complainant filed a complaint before the District Commission on 08-06-2010.
Upon perusal, the District Commission assessed the loss at Rs. 5,27,770 and ordered the insurance company to pay the said sum to the complainant along with compensation of Rs. 20,000. The insurance company appealed to the State Commission which made its own independent appraisal of the case and assessed the loss at Rs. 4,50,000. It ordered the insurance company to pay the said sum to the complainant along with compensation of Rs. 20,000/- as ordered by the District Commission within two months of receipt of its Order, failing which it would carry interest at the rate of 15% per annum till payment.
Aggrieved with the decision, the insurance company then approached the NCDRC.
Contentions: Counsels for the insurance company argued that the surveyor's report should not have been overruled by the State Commission. They also contended that the case was barred by limitation since the accident occurred on 19-10-2006 and the complaint was filed on 08-06-2010 which was beyond the two-year period stipulated under the Consumer Protection Act, 1986.
The counsel further contended that the vehicle was purchased under a hire-purchase agreement which shows that the same was being used for commercial activities and therefore the complainant was not a ‘consumer' under Section 2(1)(d) of the 1986 Act.
Per contra, the counsels for the complainant argued that the question of limitation was not raised by the insurance company either at the forum of original jurisdiction (District Commission) or at the forum of appellate jurisdiction (State Commission).
Observations: Perusing the trajectory of the dispute, the Bench made the following observations-
The District Commission had cogent reasons to overrule the surveyor's report. The Bench noted that the District Commission made its appraisal after examining the entire evidence which also included the vouchers relating to the repairs undertaken on the accident-hit vehicle. The State Commission then took due note of the surveyor's report as well as of the District Commission's appraisal and after considering the entire evidence made its own assessments.
The Bench pointed out that the counsels of the insurance company could not explain the reasons that when the surveyor had assessed the loss at Rs. 2,30,000 what caused the insurance company to settle the claim at only Rs. 1,04,316. The counsels also could not explain the reasons that when the accident occurred in 2006, what caused the inordinate delay of sending intimation of settlement in 2010 i.e., after over 3.5 years; and whether the delay was on the part of the insurance company or on the part of the complainant or both.
Vis-a-vis the contention regarding limitation, the Bench upon examining the material placed before itself, observed that the insurance company intimated the settlement of claim via letter dated 28-04-2010. The complainant filed his complaint on 08.06.2010 which was well within the limitation period of two years provided under Section 24-A (1) of Consumer Protection Act, 1986. “The argument of the counsel that the limitation should be counted from the date of the accident is patently irrational, there is a distinct distinction between the date on which the accident occurred and the date on which the cause of action arose”.
Regarding the contention that the complainant is not a consumer as per the concerned provisions of the 1986 Act, the Bench pointed out that Section 2(1)(d) precludes a person who hires or avails of any service for any “commercial purpose” but the explanation thereto makes it clear that “commercial purpose” does not include services availed exclusively for the purposes of earning livelihood by means of self-employment. The Bench also noted that this objection was neither raised before the District Commission nor in appeal before the State Commission. “In other words, it is patently clear that the opportunity to rebut the same was not duly provided to the complainant before the District Commission or even before the State Commission”.
It was further observed that in matters where it is necessarily to be seen whether the activity undertaken was for commercial purpose or whether it was exclusively for the purpose of earning a livelihood through self-employment; much depends upon the facts. Thus, adequate opportunity to both sides must be made available so that they may furnish out the relevant facts and evidence. “In such cases if the plea is not raised at the appropriate stage when it ought to have been raised and where the opportunity to furnish an adequate rebuttal in that regard could have been availed by the other side, it becomes highly doubtful whether such a plea seeking ouster of the jurisdiction may be raised at a belated stage”.
Conclusion and Decision: With the afore-stated observations, the Bench concluded that there was no misappropriation of evidence on the part of the State Commission requiring a de novo re-appreciation in revision. Given the facts of the instant case, the award appears to be just and equitable. There is no jurisdictional error or legal principle ignored or erroneously ruled or miscarriage of justice in the impugned Order of the State Commission.
The Commission also termed the instant revision petition to be frivolous one, filed simply to prolong the case.
The Commission also directed that the amount (if any) deposited by the insurance company with the District Commission, along with interest (if any) accrued, shall be released by the District Commission to the complainant by way of ‘payee's account only' demand draft as per the procedure. The balance awarded amount shall be made good by the insurance company, failing which the District Commission shall undertake execution, for ‘enforcement' and for ‘penalty' as per the law.
[National Insurance Co. Ltd. v. Prabodh Kumar Swain, REVISION PETITION NO. 1782 OF 2013, decided on 14-07-2022]
Advocates who appeared in this case :
S. K. Ray, Advocate with Nikita Chaturvedi, Advocates, for the Petitioner;
Subesh Kumar Sahu, proxy counsel for Sanjib Kumar Mohanty, Advocates, for the Respondent;
None, for the Respondent No.2.
*Sucheta Sarkar, Editorial Assistant has prepared this brief.