AMRIK SINGH vs United India Insurance Co. Ltd.

THE Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (for short the ''Act'') against the opposite party on February 21, 1992 before the State Commission.

THE issue herein lies in a narrow compass and the relevant facts are not in serious dispute. THE complainant admittedly had insured his Mini Truck bearing registration No. PAT-9839, with the United India Insurance Company Ltd., Mohali (Punjab), under the comprehensive policy No. 11202/31/3908/90 (Annexure ''B'') for the period commencing from 15.6.990 and valid upto 14.6.1991. On 2.11.1990 that is to say during the substance of the policy, the truck met with an accident and as a result thereof, the same became totally useless. It transpires that the Insurance Company was informed of the accident by the complainant and the Surveyor appointed by the Insurance Company assessed the loss to the tune of Rs. 74,752.52 paise. THE case of the Complainant was that on the asking of the Insurance Company, he got his truck repaired and spent about Rs. 1,35,103/- to make it roadworthy. THE Insurance Company rejected his claim on 24.11.1991 informing him that his claim stood repudiated as the limitation as to use the vehicle had been breached by him. Having failed to receive any relief on making representations the present complaint was preferred before this Commission on 21.2-1992, claiming Rs. 1,20,000/- as compensation in addition to the amount of Rs. 1,35,103/- spent by him for the repair of his truck and other expenses alongwith interest @ 18% p.a. from the date of accident till payment. On notice being issued, the opposite party raised a preliminary objection that the complaint was not maintainable under the Act as the complainant had contravened the terms and conditions of the policy. On merits, the allegations of the complainant were controverted and what was highlighted was the fact that at the time of the alleged accident, 30/35 passengers were travelling in the ill-fated truck and due to the accident, 8 persons had died. It was averred that the truck was a goods carrying vehicle and goods carrying vehicle policy was is sued. The limitations as to use the vehicle clearly stated that the use for carrying passengers in the vehicle except employees (other than the driver) not exceeding six in number coming under the purview of W.C. Act, 1923. Finally, it was pleaded that as the vehicle was used against the terms of the policy, therefore, the claim was repudiated.

In support of his case, the complainant rested himself content with the documents Annexure A to H annexed to the complaint. The learned Counsel for the complainant had stated at the Bar that these documents may be treated as evidence to be adduced on behalf of the complainant. The Insurance Company put on record the documents Annexures R-1 & R-2 in support of its case. On the request of the learned Counsel for the parties, their evidence was closed by this Commission.

THE question that arises for determination is as to whether the State Commission constituted under the Act, has got the jurisdiction to decide the present complaint? At the very outset, we must necessarily notice the pointed and vehement stand of Mr. Pardeep Bedi, learned Counsel for the Insurance Company that the complainant by his suspicious conduct, has rendered himself ineligible for relief within the consumer jurisdiction. It was his case that there was a deliberate attempt on the part of the complainant to suppress the material fact in the claim filed by him before the Insurance Company and also before this Commission. In particular, it was pointed out that during the investigation, it was found out by the Insurance Company through their Investigator that on the fateful day 30/35 persons were travelling in the Mini Truck of the complainant and out of those, 8 persons had died at the alleged time of occurrence. The learned Counsel has referred us to the clause in policy pertaining to limitations as to use, which reads thus : "Limitation as to use for carrying passengers in the vehicle except employees (other than driver) not exceeding six in number, coming under the purview of W.C. Act, 1923." This would show that carrying of employees (other than driver) not exceeding six in number, is permitted as per conditions contained therein. At the alleged time of occurrence, the complainant''s Mini Truck was carrying about 30/35 persons. According to Mr. Pardeep Bedi, the complainant had acted in violation of the conditions of the policy by carrying so many persons in his vehicle.

WE are inclined to hold that there is a considerable merit in the aforesaid stance of the learned Counsel for the opposite party. The rule of our jurisprudence has long been that those seeking relief in equitable or extra-ordinary jurisdiction (other than ordinary and the formal one at law) must do so with the utmost can dour and without any covert or overt suppression of facts or making of any misleading averments. That principle is epitomised in the dictim that the petitioner even on writ side must come into portals of such jurisdictions with clean hands. Though this aspect is patent on principle yet the authority on the point is not lacking either; In Asiatic Engineering Co. v. Achhru Ram, 1951 All 746 Chief Justice Malik speaking for the Full Bench has observed as follows : "A person obtaining an ex-parte order or a rule nisi by means of a petition for exercise of the extraordinary powers under Art. 226 of the Constitution must come with clean hands, must not suppress any relevant facts from the Court, must refrain from making misleading statements and from giving incorrect information to the Court. Courts, for their own protection should insist that persons invoking these extraordinary powers should not attempt, in any manner, to misuse this valuable right by obtaining ex-parte order by suppression, misrepresentation or misstatement of facts."

In the light of the above both on principle and precedent, it has necessarily to be held that a consumer knocking at the door of the redressal agencies under the Act for relief in a consumer dispute must do so with clean hands. The complainant had deliberately suppressed tire material fact of carrying about 30/35 passengers in the Mini Truck and out of them 8 persons having died at the alleged time of occurrence. WE have, therefore, to consider, whether this suppression of the material fact by the complainant disentitles him to relief in this jurisdiction and whether there was a breach of conditions of the policy, which is so fundamental in its nature, which gives complete discharge to the liability of the Insurance Company. Mr. Malkiat Singh, learned Counsel for the complainant has contended that even if the Mini Truck of the complainant was carrying about 30/35 passengers that does not amount to breach of contract discharging the total liability of the Insurance Company. In support of this contention, he has relied upon the decisions in Dr. Parul Uresh Dalal v. Indian Dental Traders II (1992) CPJ 972, Badri Narain & Others v. Chhotu Ram & Others, 1986 (II) Accidents Claims Journal 1062, New India Insurance Company Limited and Others v. Kothapalli Venkatesware Rao 1986 (I) Accidents Claims Journal, 294, Oriental Fire and Genl. Ins. Co. Ltd. v. Yusuf Musa Chandki and Others 1986 (I) Accidents Claims Journal. We are unable to find any modicum of merit in this contention. We have gone through the decisions afore-mentioned and we find that these are distinguishable because of the ratio thereof is not at all applicable to the facts and Circumstances of this case. In the aforesaid cases, about 4/5 passengers were carried in the truck and it was held that it was merely an irregularity, which was not fundamental in nature so as to put an end to a contract between the insured and insurer. But in the present case, the complainant''s driver used the Mini Truck as a Mini Bus as he was carrying about 30/35 passengers and therefore, there was clear breach of limitation to use the vehicle, which will discharge the total liability of the Insurance Company as those passengers had contributed increase of risk and they were connected with the cause of accident. The complainant has also withheld the material information from the Insurance Company and also from this Commission and he has thus, disentitled himself to relief in this jurisdiction and he must be relegated to the ordinary remedy at law, if so adviced.

THE case of the opposite party is that the Insurance Company had applied its mind fully while fepudiating the claim of the complainant. THEre is substance in this submission. In the present case, the rejection by the Insurance Company of the claim put forward by the complainant after obtaining and considering the Surveyor''s report cannot be said to constitute a deficiency in service so as to give rise to a cause of action for a complaint under the Consumer Protection Act. THE present case is directly governed by the dictim laid-down by the National Commission in M/s. Janta Machine Tools v. Oriental Insurance Company Limited 1991 (2) CPR 18.

FOR the aforesaid reasons, we regret our inability to finally adjudicate the merit of this case. We are firmly of the view that the issues involved herein cannot be resolved except in ordinary process of the Civil Law. Consequently the complaint is dismissed with no order as to costs. Complaint dismissed.