ACHHELAL JAISWAL vs NEW INDIA ASSURANCE CO. LTD.

THIS appeal under Section 15 of the Consumer Protection Act, 1986 arises out of the order dated 29.1.2004, passed in Complaint No. 357/2003 by the District Consumer Forum, Raipur (hereinafter referred to as the ''District Forum'' for short) whereby the complaint was dismissed.

BRIEF facts as averred in the complaint are: that the complainant/appellant had purchased a mobile crane (Escort) CG-04-9573 for Rs. 5,25,000/- and got the same insured with the opposite party/respondent under Policy No. 43031/3103/01441 for the period from 30.5.2003 to 29.5.2004. During subsistence of the said policy the aforesaid crane was stolen on 9.6.2003. It is further averred that the representative of the complainant had informed the Amanaka police station vide written application for lodging the FIR but no FIR was lodged. Thereafter on 25.6.2003 an application was made to the DG, Police to the effect that the police is not lodging FIR regarding theft of mobile crane. Consequently, the Amanaka Police lodged the FIR on 27.6.2003. Thereafter the opposite party insurer was informed and claim form, photo copy of FIR together with other relevant papers were handed over to the insurer. Despite reminders, the insurer did not respond and as such was negligent and deficient in service thereby causing loss to the complainant. Consequently, complaint was filed before the District Forum claiming compensation and damages. The opposite party resisted the claim on the ground that the averments regarding theft of crane is totally false and baseless. Lodging of FIR was a mere formality. The police had advised the complainant to present the driver before the police but the driver was never presented. It is further averred by the insurer that information of the alleged theft given to the Insurance Company was highly belated i.e. incident of theft is alleged to have taken place on 9.6.2003 but information was given to Insurance Company on 27.6.2003. RTO also was not informed. The insurer had further averred that police investigation has not yet completed. It is further stated in the reply that mala fide intention of the complaint is evident from the very fact that he has filed the complaint before the insurer could investigate the claim minutely and come to a conclusion whether the insured is entitled to get the claim or not. It is further stated in the written version that the complainant did not co-operate with the investigator appointed by the insurer and also failed to furnish keys of the crane. The complaint is premature. The insurer had prayed for dismissal of complaint and relegating the complainant to Civil Court as the very nature of complaint is such that it deserves detailed trial and cannot be decided in summary jurisdiction.

The learned District Forum felt convinced by the averments of the insurer and disposed of the complaint with liberty to avail of such other remedy as may be available to the complainant.

AGGRIEVED by the aforesaid order the complainant has preferred this appeal. The learned Counsel for the appellant assailed the impugned order and urged that the learned District Forum erred in not appreciating the fact that the matter is not a complex one that requires detailed procedure. The learned Counsel for the appellant further submitted that on the contrary the matter is a very simple one and the only fact to be considered is that the crane of the appellant was insured with the opposite party/respondent and during subsistence of insurance the crane was stolen and the insurer has not made payment though the complainant/appellant had laid his claim before the insurer and had also completed all the formalities. He further submitted that there is sufficient material on record to prove that the insurer is guilty of deficiency in service. He prayed that the appeal be allowed and the District Forum be directed to decide the complaint on merits. The learned Counsel for the appellant placed reliance on CCI Chambers Co-op. Hsg. Society Ltd. v. Development Credit Bank Ltd., III (2003) CPJ 9 (SC)=V (2003) SLT 185=AIR 2004 Supreme Court 184. Learned Counsel for the respondent on the other hand supported the order of the District Forum and submitted that the facts of belated information to the RTO, belated FIR, belated information to the insurer themselves go to demonstrate that there was no theft and the complainant has lodged a false claim. The learned Counsel for the insurer submitted that had the crane worth Rs. 5,25,000/- was really stolen the complainant would have taken immediate steps for lodging FIR and giving intimation of theft to the RTO and the insurer. He further submitted that the matter is a complex one and requires great deal of inquiry to decide the question whether there was really a theft or not and such factual questions cannot be decided in summary jurisdiction, hence the order of the District Forum does not need any interference. The learned Counsel for the respondent relied on The New Insurance Co. Ltd. v. B.K. Vashist, III (1997) CPJ 101 (NC)=1986-99 Consumer 4439 (NS) and Bhai Bhagtu Cotton Factory and Another v. National Insurance Co. Ltd. and Others, III (1998) CPJ 30 (NC)=1986-99 CONSUMER 3556 (NS).

HEARD learned Counsel for both the parties and perused the record. It appears from written intimation regarding theft i.e., Exhibit-4 that the crane was allegedly stolen from the front side of the factory on 9.6.2003 where the driver had parked the same at about 9 p.m. and had gone to take food. When he returned the crane was not there. It further appears that it was the supervisor who had given the said written intimation to the police on 11.6.2003. The investigator had recorded statement of various persons and on perusal of the same it appears that the driver Santram had informed the owner of the factory about the alleged incident of theft at night on 9.6.2003 itself however to intimation was given to the police even on telephone. Next day Ram Prasad Jayaswal visited the factory and asked the supervisor to lodge the FIR, he made efforts but the FIR could not be lodged as the police was on VIP duty. It appears that the owners themselves made no efforts for lodging FIR on the date of incident or the succeeding day. It appears from the statement of Gyanendra Pratap Singh that as required by the police he went to the police station together with the driver on 26.9.2003. It is noticed that there is no mention in his statement about lodging the report on 11.6.2003. On the contrary he remained silent on the question why the name of the driver was not mentioned in the written report and further on the questions about absence of name of the police officer, designation and absence of seal on the written report alleged to have been received by the police on 11.6.2003. All this definitely raises suspicion about the correctness of the averment made by the complainant and disputed by the insurer that though the police had received the written intimation on 11.6.2003 yet no FIR was recorded. On perusal of investigation report it appears that Gyanendra Prasad Singh had stated in his statement recorded by the investigator that a guard is posted near the gate. We are of the opinion that in the view of the fact that there is a guard posted at the main gate of the factory it is improbable that the huge crane was stolen from the front of the gate and the said guard had no knowledge of the incident.

THE conduct of the complainant in not intimating the police immediately after the incident and non-intimation to RTO make the story suspicious. Had immediate complaint been lodged the police might have been able to trace the vehicle more particularly because the crane is very huge and its running speed is also very slow. Further belated information to the insurer, besides being violation of the terms of policy, also contributes to the suspicion regarding credibility of the incident.

WE are of the opinion that there are several complex questions to be decided in connection with the claim of the appellant and the same require detailed inquiry and it is not possible to adjudicate on such matters in summary jurisdiction before the Consumer Fora. The learned Counsel relied on CCI Chambers Co-op. Hsg. Society Ltd. v. Development Credit Bank Ltd. (supra). WE would like to quote para 10 of the aforesaid judgment: In our opinion the decision arrived at by the NCDRC is premature. The Commission ought to have issued notice to the respondent and taken its pleadings on record. Only when the pleadings for both parties were available should the Commission have formed an opinion as to the nature and scope of enquiry i.e., whether the questions arising for decision in the light of the pleadings of the parties required a detailed and complicated investigation into the facts which was incapable of being undertaken in a summary and speedy manner. Then the Commission could have justifiably formed an opinion on the need of driving away the complainant to the Civil Court. Mere complicated nature of the facts and law arising for decision would not be decisive. It is obvious from the aforesaid that after the pleadings on record the Consumer Fora can justifiably form ''an opinion on need of driving away the complainant to the Civil Court.'' It is apparent from record that the decision for ''driving away the complainant to the Civil Court'' has been taken after due appreciation of material on record. Hence, CCI Chambers Co-op. Hsg. Society Ltd. v. Development Credit Bank Ltd. (supra) cannot afford any relief to the appellant.

We have further noticed that M/s. Jayaswal Ferrous Industries Ltd. is a limited company and the complainant Achchhelal Jayaswal is one of the directors of the said company. As such it is a commercial organization availing services of the insurer for commercial purposes. We take judicial notice of the fact that amendments made in the Consumer Protection Act in the year 2002 have been implemented from 15.3.2003 i.e., prior to the alleged incident of theft of the mobile crane of the complainant. The aforesaid amendment has taken out the services availed for commercial purposes from the purview of the Consumer Fora. In the aforesaid context, we are of the opinion that the complainant does not fall in the category of consumer after the amendment made in the year 2002. Consequently the Consumer Fora has no jurisdiction in the matter. The complainant may avail any other remedy that may be available to him under the law.

WITH the aforesaid observations this appeal is disposed of. Appeal disposed of.