period of insurance on 12.05.2009 in which the car was completely damaged and the relative of the petitioner Shri Rekh Chand Jain received serious injuries and died on the spot. The matter was reported to the Police Station and a message of accident was sent to the local officers of the company through the dealer/respondent no.3. On dealer's advice, the damaged car was shifted to the workshop of the dealer. As per the allegation, since the car was badly smashed in the accident, the husband of the petitioner contacted the dealer and also the Raipur office of the insurance company to settle the car claim on total loss basis but no action was taken by them. Hence, the petitioner sent legal notice on 28.05.2009 to the respondents but there was no response from them. This led to the filing of the consumer complaint in question by the petitioner before the District Forum alleging deficiency in service by not paying the claim amount.

2. On notice, the respondent insurance company filed a reply in which it was averred that the petitioner/complainant had been informed through a letter on 05.09.2009 that the damaged vehicle could be repaired by replacing body parts available with the dealer and hence the repairing work should be started under intimation to the company so that the company could arrange for survey for final assessment of loss after dismantling the vehicle. However, there was neither a reply nor the petitioner gave her consent to start the repair work of the vehicle. It was submitted by OP insurance company that since the vehicle was not completely damaged, it was not a case of "Total Loss'' and hence the petitioner was not entitled to be compensated on total loss basis. It was further averred that the OP insurance company had extended full cooperation in the matter of settlement of claim and there was no deficiency in service on their part. The insurance company also pleaded that a surveyor had been appointed who, after inspection of the damaged vehicle, had done the assessment for ₹2,92,369.50 and as such, the petitioner's claim for payment of I.D.V. basis was wrong. In view of these submissions, OP insurance company prayed for dismissal of the complaint with cost.

3. On appraisal of the issues raised and the evidence adduced by the parties in support of their claims, the District Forum partly allowed the complaint vide its order dated 29.01.2013 in terms of the following directions:-

"A) Non applicant No.1 and 2 shall pay ₹2,92,370/- (Two Lacs Ninety Two Thousand Three Hundred Seventy) to the applicant with 6% interest on it from 16.05.2011 upto the date of payment.

B) Non applicant No.1 & 2 shall also pay ₹25,000/- (Twenty Five Thousand) for deficiency in service and harassment.

C) Non-applicant shall also pay ₹3,000/- for expenses."

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4. Aggrieved of the aforesaid order of the District Forum, the OP insurance company filed an appeal bearing no. FA/13/163 against this order before Chhattisgarh State Consumer Disputes Redressal Commission, Raipur. The petitioner/complainant also filed an appeal bearing no. FA/13/169 before the State Commission praying for enhancement in the relief over what had been granted by the District Forum. The State Commission vide its common impugned order dated 28.02.2013 dismissed both the appeals and upheld the order of the District Forum and thus returned its concurring finding in the matter based on facts agreeing with the order of the District Forum partly accepting the complaint. It is against this order of the State Commission that the present revision petition has been filed by the petitioner.

5. We have heard learned Shri R.K. Bhawnani, Advocate for the petitioner and have also perused the record.

6. The main grounds on which the petitioner has sought to assail the impugned order of the State Commission are as under:-

(i) The order of the State Commission is based on wrong observations, perverse findings, extraneous considerations and against the material on the record as well as without appreciating that the vehicle has suffered extensive damages.

(ii) It is biased and devoid of merits because the State Commission has not considered the conduct of the insurance company and the surveyor which was against the manadatory Regulations of I.R.D.A. Regulations 2002.

(iii) The State Commission has given the unlawful judgment by observing that the petitioner has not challenged the survey report in spite of finding that the liability of insurance company is a contractual one and once it was proved that the preliminary estimate is of ₹ 6,00,000/- of the damaged vehicle, supplementary estimate must have been much more. Under the circumstances the company was lawfully bound to pay on total loss basis i.e. I.D.V. ₹8,92,000/-.

(iv) Both the foras below have not considered the settled position of law as reflected in the judgments cited by the petitioner.

7. During the course of his arguments, learned counsel indicated that even though it was a case of total loss, the petitioner was willing to accept the repaired vehicle by the garage.

8. We have carefully considered the grounds on which the petitioner has sought to assail the order of the State Commission and the contentions raised by the learned counsel. We may note that both the fora below have returned their concurrent finding of facts by which they have given only partial relief to the petitioner/complainant which could be justified based on facts and circumstances and the evidence on record.

9. While partly accepting the complaint of the petitioner, the District Forum has made following observations in its order:-

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"8) After going through the averments, documents, affidavit and arguments of the parties the Forum has come to the conclusion that the only point of dispute between the parties is that the applicant wants to get the claim payment of the vehicle on total loss basis for ₹8,92,000/- the insued value. The car is badly damaged where as according to opinion of the non applicants the vehicle can be repaired for ₹2,92,369.50 as per report of Surveyor Surendra Umale. The condition of the damaged vehicle is such that the claim is not payable on "Total Loss Basis" according to Affidavit filed by surveyor Shri Surendra Umale. To controvert such allegations the applicant filed additional affidavit and detailed written arguments on 10.04.2012. In support of her averments the applicant also filed written arguments and 5 judgments - 2011(3) CPR 385 (NC) I.C.I.C.I. Prudential Life Insurance Co. Ltd. v/s Gurmeet Singh & others, 2011 (1) CPR 122 (N.C.) Mahesh Chand Ghiya v/s New India Assurance Co., 2011 (3) CPR-197 (N.C.) Amline Textiles (P) Ltd. v/s United India Insurance Co., 2011 (3) CPR-218 (NC) Sindhudurg District Central v/s The National Insurance Co. Ltd. 2011 (3) CPR-442 (NC) Oriental Insurance Co. Ltd. v/s Hardayal Singh Negi and said that the non applicant insurance company and surveyor have filed absolutely wrong unexplained rather hollow written statement and affidavit in order to deprive the applicant from getting the claim of badly damaged car on total loss basis i.e. insured amount ₹8,92,000/-. It is evidently clear from the facts and circumstances that non applicants and the surveyor have been careless therefore both of them have intentionally done undue and long delay for more than 21 months and then also not decided finally about the claim. The surveyor and the non applicants have done thus material breach as per I.R.D.A. Regulations. Surveyor has further committed breach of I.R.D.A. mandatory regulation by not informing the applicant to remain present during survey. In this way it is well established from the circumstances that non applicants with surveyor have taken unilateral action which cannot be as per

"Insurance Contract" is binding on the other party. The Survey Report is prepared on assumptions and presumptions which appears to be incomplete survey report. The non applicant No.3 being an agent of the Insurance Company had influenced the applicant to get the insurance cover from the company, hence non applicant No.1 & 2 are legally responsible for action of N.A. 3. Therefore when non applicants have appointed surveyor after 3 months from the accident date then not taking any final decision for years nor giving the copy of Survey report to the applicant, giving no response to the letters of applicant for 21 months and only by giving reference of its one letter of dated 05.09.2009 in support of its averments made in written reply and the affidavit and above all keeping the matter pending are clear examples of unfair trade practice and deficiency in service as such not binding on the applicant. The non applicants have submitted the written reply and the affidavit with the sole intention to cover-up the serious lapses.

9. Even if the arguments of applicant regarding much delay of months in appointment of Surveyor and then keeping the matter undecided for years, giving no response to the correspondence not settling the claim as per mandatory

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I.R.D.A. Regulations are correct then also the applicant has not challenged the Survey Report nor he has produced any document or report of a mechanic to controvert the Survey report, by which it can be seen that the survey report is incorrect and the condition of the vehicle is such that it is a case of total loss. It is undisputedly true and correct that the non applicants have not followed the mandatory I.R.D.A. Rules and kept the matter undecided till last behaved in careless reckless manner. Thus have committed grave deficiency in service, but in spite of it is difficult to conclude that the vehicle claim could be decided on

"Total Loss Basis". Therefore it is seen that the applicant could not prove that it is a case of total loss claim. The allegations of non applicants about commercial use of vehicle is not proved therefore it is not acceptable and the applicant is definitely a "Consumer". It is established that non applicant no.1 and 2 have committed grave deficiency in service by keeping the claim pending for long period.

Under the circumstances the applicant is entitled to get ₹2,92,369.50 (Say ₹2,92,370/-) with interest from applicant no.1 & 2 for the damages to the car covered under the car package policy. There is no separate insurance contract between applicant and non applicant no.3 hence N.A. No.3 is not liable to pay any compensation."

10. The State Commission while upholding the order of the State Commission has recorded the following reasons in support of the impugned order:-

"In the present case the applicant has not able to prove by any conclusive explanation or material that the condition of the damaged vehicle was such that it was a case of total loss only. It was the responsibility of the applicant to have proved her contention. Only on her say/prayer it cannot be accepted that the vehicle's claim case was a total loss case. Hence the applicant cannot get any benefit from this judgment. Only in case of total loss of the vehicle, the applicant was entitled for the IDV value as per policy provision.

11) In the present case it is undisputedly established that the survey of the vehicle was done after long delay, hence the order of the District Forum for payment of interest on assessed amount is in order. Similarly the non applicants have not averred any valid reason for not deciding the case in time similarly there was no valid reason given for not informing about the inspection and assessment by the Surveyor before conducting survey and after completion of survey and further the non applicant no.1 & 2 have failed in paying the assessed amount after assessment to the applicant. Hence the District Forum has passed the order for payment of assessment amount as per survey report and further the non applicant no.1 & 2 have failed in paying the assessed amount after assessment to the applicant. Hence the District Forum has passed correct order to pay ₹25,000/- (Twenty Five Thousand Rupees) for mental torture.

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12) Learned Advocate for N.A. 1 & 2 submitted that the application filed by the applicant was after the limitation period. The submission of the Advocate is not accepted. The applicant in the matter of claim was constantly doing correspondence from May 2009 to Feb. 2011 but the non applicants have not finalised the claim case. Hence the cause of action was continue hence the application was filed within limitation period and decided accordingly.

13) That on the basis of facts of the case and after having done the analysis of the facts we have come to a conclusion that the learned District Forum has passed lawful correct order hence it is confirmed. Therefore both the appeals being devoid of any merit deserves to be and is hereby dismissed. No order as to the cost of the appeals."

11. We agree with the view taken by the State Commission. It is well settled that Section 21

(b) of the Consumer Protection Act, 1986 under which this petition has been filed by the petitioner confers very limited jurisdiction on this Commission. Hon'ble Supreme Court in

Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;

" Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora."

12. In view of the above discussion, we do not find any illegality or material irregularity in the impugned order, which may call for any interference by this Commission in exercise of revisional jurisdiction. Hence, present revision petition stands dismissed with no order as to cost.

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AJIT BHARIHOKE

PRESIDING MEMBER

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SURESH CHANDRA

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MEMBER

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