Avm Jonnalagadda Rajendra Avsm, Vsm (Retd.), Presiding Member

This Revision Petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 ("the Act") against the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow ("State Commission") Order dated 13.07.2016 in FA No. 2135/2004 partly allowing the Appeal filed by the OP, modifying the District Consumer Disputes Redressal Forum-II, Moradabad ("District Forum") the Order dated 15.09.2004 in CC No. 12/2002 to the extent of reducing the rate of interest from 12% to 9% p.a, while affirming the rest of the Order.

2. For convenience, the parties are referred to as placed in the original Complaint filed before the District Forum.

3. Brief facts of the case, as per the Complainant, are that he is the owner of a Maruti Van Registration No. DL-2CG-0641. He used to park the van outside his residence at Adarsh Nagar. On 20.03.1998, he went out of the city to attend the last rites of his grandmother. On his return on 26.03.1998, he found the vehicle missing from its place. Despite his efforts, the vehicle could not be traced. He lodged a theft report at Kotwali Katghar, and an investigation was initiated. The said vehicle was earlier owned by M/s Kodriant Exports, who had insured it vide Policy No.31/98/839 from 27.10.1997 to 26.10.1998, covering fire and theft risks. After purchasing the vehicle, the Complainant got the registration and insurance policy transferred in his name, and transfer certificate was issued on 24.03.1998 upon payment of requisite fees. As the vehicle could not be recovered, he submitted a claim before OP-2 on 02.04.1998 along with necessary documents. However, OPs rejected the claim on 10.06.1999 without proper evaluation. The Complainant thereafter requested on 10.02.2000 for reconsideration of the rejection. But, even after two years, no decision was notified. Left with no alternative, he issued a legal notice to OPs and subsequently filed the Consumer Complaint before the District Forum seeking a direction for payment of Rs. 1,20,000/- towards the insured amount along with costs and damages.

4. On being issued notice, in the written statement, OPs contended that the Complainant has not approached the District Forum with clean hands and has filed the complaint with false facts to secure an undue benefit. OPs contended that the alleged theft occurred on 20.03.1998, whereas the First Information Report was lodged belatedly on 27.03.1998, in violation of the policy condition requiring intimation of theft to the insurance company within 24 hours. It is further contended that the insurance policy, after transfer in the Complainant's name, became effective only from 24.03.1998 to 26.10.1998, whereas the alleged theft had taken place prior to the transfer date. Hence, the Complainant had no insurable interest at the time of theft, and the claim was rightly repudiated. The OPs also denied receipt of any valid notice from the Complainant and have prayed for dismissal of the complaint as being devoid of merit and not maintainable in law.

5. The learned District Forum vide Order dated 15.09.2004, allowed the complaint with the following order:

"ORDER

The complaint suit of the tenant is allowed in the manner that the complainant is entitled to get the amount of Rs.1,20,000/-and the complainant is also entitled to get the amount of interest at the rate of 12% per annum from 05.03.2002, the date of filing the suit, till the date of actual recovery of the above amount and the complainant is also entitled to receive the amount of Rs. 2000/- towards the suit expenses. The defendants are directed to make the payment of the entire amount mentioned above within a period of two months." (Extract from translated Copy)

6. Being aggrieved by the District Forum Order, the OP filed Appeal No.2135/2004 and the State Commission vide Order dated 13.07.2016 partly allowed the Appeal and modified the Order passed by the District Forum, with the following observations:

                   "The bench heard the arguments of the learned counsel for both the parties and carefully per used and examined the documents and evidence available on record.

                   The order of the district forum is of 15.09.04 and the copy of the order has been obtained on 22.09.04 whereas the appeal has been filed on 08.11.04. In this manner, the appeal has been filed after a delay of about 18 days. The appellant has filed the application for condonation of the delay. Sufficient reasons have been indicated in the application and therefore the delay is hereby condoned.

                   The appellant has stated that the complainant/ respondent has no insurable interest. The vehicle which has been stolen was insured in the name of M/S Kodriant Exports for the period from 27.10.97 to 26.10.98 which was transferred in the name of the complainant on 24.03.98. The insurance period was between 24.03.98 to 10.08.98. The transfer of the insurance was after the date of the theft of the vehicle and therefore no claim is payable. The first information report was lodged on 27.03.98. According to the first information report, the theft took place between 20.03.98 to 26.03.98 which is wrong. The date of the theft is 20.03.98 and the wrong facts have been shown in the first information report. The insurance for the period from 27.10.97 to 26.10.98 was wrongly taken in the name of M/S Kodriant Exports, whereas the vehicle had been transferred in the name of the complainant Harvinder Singh on 20.08.97. Therefore, the date of the theft has been fabricated

                   This fact is undisputed that the ex-owner of the Maruti car was M/S Kodriant Exports and the vehicle was transferred in the name of the complainant on 20.08.97. But the insurance of this vehicle was in the name of its ex-owner M/S Kodriant Exports, and its validity period was from 27.10.97 to 26.10.98. The main point of dispute in the case is whether the date of the incident of theft was 20.08.97 or 24.03.98 because the vehicle insurance has been said to have been transferred in favour of the complainant only on 24.03.98. It has been clearly stated by the complainant/respondent that the vehicle of the complainant was stolen during the period of 20.03.98 to 26.03.98 because during the period from 20.03.98 to 26.03.98 he had gone out of the city because the complainant had gone to participate in the function of last rites of the death of his grandmother and he returned only on 26.03.98 when he did not find the car parked at its own place and during the search the car could not be traced and therefore the information about the theft of the car was given to the police station kotwali Katghar on 27.03.98. This fact is proved by the first information report also. It has been stated by the appellant that the incident of theft occurred on 20.03.98. But no evidence in this regard was submitted before the district forum. It is true that the incident of theft occurred between 20.03.98 to 26.03.98 and the insurance was transferred on 24.03.98. The application etc is obtained before the transfer of the insurance and the fees etc are deposited. In this manner, the transfer process continues for many days. The statement of the appellant is not admissible that the insurance which was taken earlier in the name of M/S Kodriant Exports was illegal because any insurance policy is issued by the insurance company based on the inspection and the registration certificate. If any carelessness is caused by the insurance company, no benefit of the same can be taken by the insurance company. The appellant has also not been able to prove the fact that the theft definitely took place on 20.03.98. The insurance transfer case of the complainant was under progress even before 24.03.98. The insurance company transferred the insurance of the vehicle on 24.03.98. In the survey report also the theft has been indicated to have occurred between 20.03.98 to 26.03.98 as has been mentioned in the first information report.

                   The district forum has given its judgement after detailed analysis of the evidence on record which is legally admissible. However, the rate of interest of 12% per annum on the payable amount from the date of filing of the suit to the final recovery of the payable amount, appears to be on the higher side keeping in view the facts and circumstances of the case. It would, therefore, would be justified to allow the simple interest at the rate of 9% per annum on the payable amount of Rs. 1,20,000/- till the final recovery of the payable amount. The appeal is, therefore, this fact to be partially allowed to that extent

                   Order

                   The appeal is allowed partially. The order of the district forum is modified in the form that the simple interest at the rate of 9% per annum shall be payable on the payable amount of Rs. 1,20.000/-.

                   The remaining order is hereby confirmed.

                   Both the parties will be their own suit expenses." (Extract from translated Copy)

7. Dissatisfied by the Order of the State Commission, OP filed the present Revision Petition before this Commission praying:

                   "(a) to set aside the order dtd. 13.07.2016 of the Uttar Pradesh State Consumer Disputes Redressal Commission, at Lucknow passed in Appeal No.2135/2004;

                   (b) and may pass such other or further order as this Hon'ble Commission may deem think fit in the facts and circumstances of the case."

8. The learned Counsel for OP reiterated the issues raised in the written version and the grounds advanced in this Revision Petition, and contended that the impugned order is fundamentally flawed as it is based on incorrect observations, perverse findings and in violation of settled legal principles. The Complainant had no insurable interest in the van at the time of theft, as the policy stood in the name of the previous owner and was fraudulently transferred to his name after the incident. The theft occurred on 20.03.1998, yet the FIR was lodged on 27.03.1998, and the insurance company was informed even later, amounting to a clear violation of the terms and conditions of the policy. His own statement that he was out of town from 20.03.1998 to 26.03.1998 contradicts the transfer of insurance on 24.03.1998, establishing his fraudulent intent. The State Commission erred in accepting his oral statement without due examination of documents and ignored authoritative precedents such as Complete Insulations (P.) Ltd. vs. New India Assurance Co. Ltd. (1996 ACC 536) and Cholamandalam MS General Insurance Co Ltd vs Naresh Laxmi Narain(2015 CPJ 167), affirming that failure to transfer insurance within 14 days of vehicle transfer invalidates the coverage. Suraj Mal Ram Niwas Oil Mills (P) Ltd. v. United India Insurance Co. Ltd. [(2010) 10 SCC 567] and Vikram Greentech (I) Ltd. v. New India Assurance Co. Ltd. [(2009) 5 SCC 599], holding that the insurance contract terms must be construed strictly, and courts cannot create obligations beyond the contract. The principles of utmost good faith were reaffirmed in Tata AIG General Insurance Co. Ltd. vs. Gulzari Singh [(2010) II CPJ 272 (NC)] and Inder Pal Rana vs. NIC [2015 (2) CLT 107]. He asserted that the claim is devoid of merit, vitiated by lack of insurable interest, fraudulent conduct, delay in FIR and intimation, and clear breach of policy conditions.

9. On the other hand, the learned counsel for the Complainant argued that the Revision Petition is devoid of merit, as both the fora below have returned concurrent findings based on proper appreciation of evidence. He contended that the fora below rightly allowed the complaint, having correctly held that there was no breach of the policy terms and conditions by the Complainant and that he had insurable interest in the vehicle at the material time. It was asserted that the Complainant, being the registered owner of the insured vehicle, had parked it outside his residence before leaving town on 20.03.1998 to attend the last rites of his grandmother. Upon returning on 26.03.1998, found it missing. An FIR was promptly lodged on 27.03.1998 at P.S. Katghar, and a claim was filed with the Insurer on 02.04.1998, which was repudiated on 10.06.1999. The vehicle had earlier been insured by M/s Kodriant Exports for the period 27.10.1997 to 26.10.1998, and the insurance policy was duly transferred to his name with effect from 24.03.1998 after payment of the requisite fee. Both the FIR and the surveyor's report confirm that the van was stolen between 20.03.1998 and 26.03.1998, and both the fora rightly concluded that the OP failed to prove that the theft occurred prior to the transfer of the policy. It was further argued that in cases of theft, breach of policy terms, if any, is immaterial, as held by Hon'ble Supreme Court in National Insurance Co. Ltd. v. Nitin Khandelwal, Civil Appeal No. 3409 of 2008, decided on 08.05.2008 holding that the nature of vehicle use cannot be a ground for repudiation in theft cases. Hence, even assuming a breach of conditions, the claim ought to be settled since the loss occurred due to theft. He sought the Revision Petition to be dismissed.

10. We have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by learned counsels for both the parties.

11. The principal issue for determination is whether the Complainant/Respondent had an insurable interest at the time of theft and whether repudiation of the claim was justified on grounds of delayed intimation or post-event transfer.

12. Both the learned District Forum and the learned State Commission have concurrently held, based on evidence, that the theft occurred between 20.03.1998 and 26.03.1998, while the insurance transfer was under process prior to 24.03.1998. The Petitioner has not produced any credible material to establish that the theft occurred before 24.03.1998.

13. It is a settled legal position that in cases of vehicle theft, technical breaches of policy conditions do not absolve the insurer from liability. In National Insurance Co. Ltd. v. Nitin Khandelwal (supra), the Hon'ble Supreme Court held that even if there is a breach regarding use of vehicle, the insurer cannot deny a claim for theft, which is an insured peril.

14. The concurrent findings of the lower fora are based on proper appreciation of evidence and do not suffer from illegality or material irregularity warranting interference under Section 21(b) of the Act.

15. The scope of revisional jurisdiction is well defined. We also place reliance upon the ratio in 'Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., (2011) 11 SCC 269. Hon'ble Supreme Court in 'Sunil Kumar Maity vs SBI & Anr Civil Appeal No. 432 OF 2022 Order dated 21.01.2022 observed:-

                   "9. It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the respondent-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required...."

16. Similarly, Hon'ble Supreme Court in Rajiv Shukla Vs. Gold Rush Sales and Services Ltd. (2022) 9 SCC 31 has held that:-

As per Section 21(b) of the Act 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 the 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.

17. After due consideration of the entire facts and circumstances of the case, including the arguments advanced by the learned counsels for both the parties, we find no material irregularity or jurisdictional error in the detailed and well reasoned orders of the learned District Forum in CC No. 12 of 2002 dated 15.09.2004 and FA No. 2135 of 2004 dated 13.07.2016, warranting interference. The present Revision Petition 2967 of 2016 is, therefore dismissed.

18. In the facts and circumstances of the case, there shall be no order as to costs.

19. All pending applications, if any, stand disposed of accordingly.