Facts Can Only Be Determined By Evidence Before Forum Of First Instance And Not In Revision Just For The Sake Of Prolonging The Lis; NCDRC

The bench of National Commission comprising Justice Karuna Nand Bajpayee, Member and Dinesh Singh, Presiding Member has observed that, "the facts can only be determined by leading evidence before the forum of first instance or 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". In this case, the complainant (respondent) had insured his vehicle with the insurance company (petitioner) 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 vehicle met with an accident i.e., 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/. The insurance company intimated the complainant (Insured) that it will settle the claim at Rs. 1,04,316/-. Aggrieved with the quantum at which the claim was being offered to be settled, the Insured filed a complaint before the District Commission. The District Commission assessed the loss at Rs. 5,27,770/-. Aggrieved by the decision of District Commission the insurance company filed an appeal before the State Commission. The State Commission assessed the loss at Rs. 4,50,000/- and ordered the insurance company to pay the said sum to the complainant along with compensation of Rs. 20,000/-. Aggrieved by the decision of State Commission Orissa the Insurance Company filed revision petition before the National Commission under section 21(b) of the Consumer Protection Act, 1986. Before the National Commission, the Insurance Company (Petitioner) submitted that, the surveyor's report should not have been over ruled by the State Commission. It was argued 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 much beyond the two-year period stipulated under the Consumer Protection Act, 1986. The Insured (Respondent) submitted that, having not raised the issue of limitation before the District Commission and not even before the State Commission it does not readily lie in the mouth of the insurance company to now raise it in revision at this belated stage. The issue for consideration before the National Commission was whether the order passed by the State Commission was in accordance with the law or not. Commission observed that, survey and investigation are one of the fundamentals in settling a claim, and cannot and should not be disregarded or dismissed without cogent reasons, though it also goes concomitantly that the survey or investigation should be convincing and pass credence in scrutiny. Commission noted that the Insurance Company could not explain the reasons that when their own surveyor had assessed the loss at Rs. 2,30,000/- what caused them to intimate the Insured that they will settle the claim at only Rs. 1,04,316/-. Commission stated that, "In any case, when the complainant's claim was being inordinately delayed and there is nothing on record to show that the delay was on the part of the complainant it was a continuing cause of action. Hence, looking from any angle, the plea that the complaint was barred by limitation fails miserably. The argument of learned counsel that the limitation should be counted from the date of the accident is patently irrational, there is a distinction between the date on which the accident occurred and the date on which the cause of action arose. 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 or 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." Commission opined that, there appears to be no misappreciation of evidence on the part of the State Commission as may cause to require fresh de novo re-appreciation in revision. The award appears to be just and equitable in the facts of the case.The bench further stated that, there appears to be no jurisdictional error or a legal principle ignored or erroneously ruled or miscarriage of justice having been occasioned in the impugned Order. This appears to be a frivolous petition unnecessarily filed to prolong the lis. In view of the above, National Commission dismissed the revision petition. Case Name: National Insurance Co. Ltd. v. Prabodh Kumar Swain & Anr. Case No.: REVISION PETITION NO. 1782 OF 2013 Corum: Justice Karuna Nand Bajpayee, Member and Dinesh Singh, Presiding Member Decided on: 14th July, 2022 Click Here To Read/Download Order

Facts Can Only Be Determined By Evidence Before Forum Of First Instance And Not In Revision Just For The Sake Of Prolonging The Lis; NCDRC

Mehak Dhiman

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