ORAL Arguments on IA 14152 of 2019 seeking condonation of delay as well as on the Revision Petition are heard. The present Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short “the Act”) is filed against the order dated 07.11.2018 of the State Consumer Disputes Redressal Commission, Kerala (for short “the State Commission”) in Appeal No.515/2014 filed against the order 30.04.2014 of the District Consumer Disputes Redressal Forum, Idukki (for short “the -2- District Forum”) in Complaint No.77/2011 of Respondent (hereinafter called as “the Complainant”). 2. The brief facts of the case are that the Complainant is a self-employed driver who drives lorry bearing registration no.KL 07 J 4464. He had hypothecated the said vehicle with the Petitioners against the loan of ₹1,50,000/-. A repayment chart was issued to him and he had to repay the entire loan amount in 36 monthly instalments commenting from 10.09.2008. He had paid 17 instalments from 20.09.2008 to 14.02.2011 totalling to ₹1,08,979/-. The Complainant informed the Petitioners that the entire unpaid loan amount shall be cleared by him by April 2011. The default had occurred according to him due to the accident occurred when he was unloading and electrocuted and received head injuries and remained hospitalized in Tata General Hospital at Munnar in the month of September. Thereafter, his vehicle also met with an accident near Karadippara on 08.10.2008 for which a general diary entry was registered in the Police Station. He filed the insurance claim. His contention was that his claim was rejected since the insurance certificate or its copy was not issued to him by the Petitioners. He was never informed as to when the insurance amount was debited from the hypothecated loan amount. -3- He got the vehicle released from the authorities on the intervention of the High Court of Kerala and that so after a long legal battle. According to him, there was some default in making the payment of the instalments. He was informed that the insurance premiums for three years were remitted after debiting the same from his loan account. He was not provided copy of any insurance policy. For testing the vehicle, therefore, he had to avail a third party insurance from New India Assurance Company Limited on payment of ₹6,883/-. According to him, his vehicle was illegally and forcibly seized by the Petitioners on 26.02.2011 for the default in repayment of his loan amount. Despite his five visits to the office of the Petitioners, he was not given the details of his loan amount. Finally, he was informed that a sum of ₹2,25,000/- is due. He contends that since the Opposite Party did not issue the insurance certificate due to which his claim for the accident was not settled by them, it amounted to deficiency in service. He filed the Complaint before the District Forum. 3. The defence taken by both the Opposite Parties to the Complaint was that since the Complainant had committed breach of terms and conditions of the loan agreement, as there was default in payment of instalments, he was not entitled to any relief. -4- He paid only ₹25,376/- as on 09.01.2012 and as per the statement of account an amount of ₹1,04,979/- was collected which included service charge of ₹2500/-. That they also took the insurance for the vehicle by paying an amount of ₹30,089/- against which only a sum of ₹29,663/- was remitted by the Complainant and so the balance amount of ₹426/- is also pending against him. A total sum of ₹3,05,245/- was payable by the Complainant as on 09.01.2012. Premiums for the insurance for the years 2008 to 2010 were paid by the Opposite Parties. It is also denied that the vehicle was ever forcibly seized by the Petitioners. The Petitioners also claimed that they had never received any claim of any type from the Complainant. 4. Parties led their evidences before the District Forum. The District Forum has observed in its order that the witness DW-1 of the Opposite Party had deposed that in the hypothecation agreement there was undertaking that the copy of the insurance certificate should be supplied to the Complainant. He had also admitted that the original of the insurance certificate had not been produced. He has also admitted that the insurance company is a subsidiary firm of the Opposite Party and that the copy of policy was downloaded from the internet and that it did not contain -5- original signatures and also that the amount was not paid by the Insurance Company. 5. After hearing both the parties and perusing the evidences on record, the District Forum has ordered as under: “So we are in the view that the opposite party produced the copy of the insurance premium, but that insurance premium was also issued from Shriram General Insurance Company Ltd., which is a subsidiary company of the opposite party. There is nothing to prove that the same is issued to the complainant when and where the complainant needed the same. When the vehicle was met with an accident, the complainant was in very need of insurance amount. The entire cabin of the vehicle was damaged and repaired by the complainant and the insurance amount was not at all received by the complainant, eventhough the document relating to the same were issued to the opposite party. 6. District Forum issued the following directions: “Hence the petition partially allowed. The opposite parties are directed to release the vehicle of the complainant after settling the vehicle loan of the complainant bearing REg.No.KL-07J-4464, by calculating the interst for the due instalment as 12% per annum for the period of due and also as in the condition while the possession was received by the opposite party. The complainant can pay the balance instalments as per the schedule issued by the opposite party. The opposite party also directed to pay a compensation of ₹25,000/- to the complainant for the denial of insurance claim of the vehicle while it was damaged due to accident and ₹2000/- as cost of this petition, within 30 days of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default. The complainant is directed to approach the opposite party for the payment within 30 days of receipt of a copy of this order. 7. This order was impugned by both the parties before the State Commission. The Petitioners filed the Appeal No.515 of -6- 2014 and raised same arguments before the State Commission. The State Commission re-assessed and re-appreciated the entire evidences. The Petitioners raised the same argument that they had never received any insurance claim of the alleged incident and that the Complainant had never made an appropriate application for the claim of the accident. Certain additional arguments were also raised before the State Commission regarding the manner of accident. They also took the plea that the vehicle could not have been plied on the road since the Complainant did not have any insurance policy as alleged by the Complainant that copy of the insurance policy was not supplied to him. The State Commission has dealt with all the arguments of the Petitioners and has held as under: “8. As stated above, there is no evidence to show that the opposite parties had given the insurance policy or the copy of the insurance policy of the vehicle to the complainant. Due to the lack of the insurance policy, complainant could not make any claim before the insurance company for the damages caused to the vehicle in the accident. When the vehicle met with an accident the complainant was in need of the insurance amount. But since the opposite parties have not given the copies of the insurance policy to the complainant he could not receive the claim amount from the insurance company. The district forum found that due to the lack of insurance policy the complainant never received the claim amount and it caused heavy loss to the complainant and that has to be compensated by the opposite parties. The district forum directed the opposite parties to pay compensation of Rs 25,000/- to -7- the complainant for the denial of insurance claim of the vehicle while it was damaged due to the accident. We consider that there is no reason / ground to interfere with the finding of the district forum. Considering the facts and circumstances the district forum directed the opposite parties to release the vehicle to the complainant after settling the vehicle loan of the complainant, lorry having Reg.NO.KL 07 J4464 by calculating the interest for the installments due at the rate of Rs. 12% per annum for the period of due and also in the condition while the possession was received by the opposite parties. The complainant can pay the balance instalments as per the scheduled issued by the opposite parties. We consider that there is no ground / reason to interfere with the said direction passed by the district forum. The cost of Rs. 2000/- ordered by the district forum is just and reasonable and therefore no interference is called for regarding the cost ordered. For the above reasons, we find that there is no ground / reason to interfere with the order passed by the district forum and hence both appeals are to be dismissed. 8. This order is impugned before us raising the plea that the burden to prove that the insurance policy whether had been handed over to the Complainant or not, has been wrongly placed upon the Petitioners. It is argued that the burden should have been upon the Complainant to prove that he had not received the insurance policies from the Petitioners. It is also argued that the vehicle was on the road all the time which also shows that the Complainant had the copy of the insurance policies, otherwise he would not have been able to drive the vehicle and that they had never received any claim from the Complainant. It is also submitted on instructions that the Petitioners also want to inform this Commission that the Petitioners had sold the vehicle in the -8- year 2017 and therefore, the vehicle cannot be returned to the Complainant. 9. We have given thoughtful consideration to the arguments of learned Counsel. The jurisdiction of this Commission under Section 21(b) of the Act is limited. This Commission is not required to re-appreciate and re-assess the evidences and reach to its own conclusion on the facts when there is a concurrent finding of fact by the Forum below. It has been so held by the Hon’ble Supreme Court in “Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. – (2011) 11 SCC 269”, as under: “23. 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”. 10. These findings are reiterated by Hon’ble Supreme Court in “Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court -9- Cases 286,” the Hon’ble Supreme Court has reiterated the same principle and has held as under: “17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.” 11. In the present case, both the Forum below had reached to the concurrent finding that the claim had been duly filed by the Complainant after the accident and no action had been taken by the Petitioners on his claim. As regards the argument of learned Counsel, the Forum below have also found on the basis of evidence before us that the copy of the insurance policy for which the premiums had been deducted from his hypothecation loan account has not been supplied to the Complainant. The argument of learned counsel for the Petitioners that the Forum below had committed jurisdictional error by placing the burden on them to prove the fact that the copy of the insurance policy had been supplied to the Complainant and argues that the burden should have been on the Complainant to prove that he did not receive any copy of the insurance policies. This argument is meritless and -10- against the principles of Indian Evidence Act and canons of justice. It is a settle proposition of law that a positive fact needs to be proved first. The contention of the Petitioners that they had supplied copies of the insurance policy to the Complainant is a positive assertion made by the Petitioners and therefore the legal proposition of the law cast the duty upon the Petitioners to discharge that burden. The argument of learned Counsel for the Petitioners that the Forum below have committed a jurisdictional error has no merit and is hereby rejected. 12. The conduct of the Petitioners is also apparent from the very fact which has been communicated to this Commission. We have been informed that in 2017, the Petitioners had sold the said vehicle. The order of the District Forum is dated 30.04.2014 whereby the District Forum had directed the Petitioners to return the vehicle to the Complainant. Despite this specific direction and without taking any permission from the State Commission where the Appeal of the petitioners was pending, the Petitioners sold the vehicle. It seems to have been done with the sole intention to defy the legal directions of the District Forum which were subsequently confirmed by the State Commission. It is also apparent that the said vehicle was sold during the pendency of Appeal before the -11- State Commission and this fact was, at no stage, brought to the notice of the State Commission. This conduct of the Petitioners is reprehensible. While dismissing the present Revision Petition having no merit and confirming the order of the Foras below, we modify the direction of return of vehicle to the effect that since the vehicle cannot be released to the Complainant, the Petitioners are directed to give new similar vehicle to the Complainant within four weeks from the date of this order. Rest of the directions in the impugned order are confirmed. 13. The Revision Petition stands disposed of in the above terms. | 
