KISHAN POULTRY FARM vs National Insurance Co. Ltd.

PERTURBED and disturbed by the non-settlement of his claim, the insured M/s Kishan Polutry Farm, VPO Channi, Teshil Indora, District Knagra (HP) has rushed to his Commission and filed the complaint under Sections 17 and 18 of the Consumer Protection Act, 1986.

BEFORE dilating the question involved, it would be appropriate to notice the facts with relative brevity and relevant to the issue in volved. Vid e Annexure, A-1, the complaint got two out of four sheds, stock of chiks feed, machinery andequipment of his poultry Farm situated at Village Channi, District Kangra in sured with the opposite party National Insur ance Company Limited, Divisional Office, Hoshiarpur for the period from 24.3.1994 to 23.3.1995. As ill luck would have been, fire broke out in the Poultry Farm on 13.5.1994 at 2:30 a.m. and the nereby Fire Brigade at Pa thankot was informed. The F.I.R. was lodged with the Police Station, Indora at 9:00 a.m. on 13.5.1994 itself vide Annexure A-3. The claim was lodged with the Insaurnace Comnpany vide Annexure R-4 stated to beon 14.5.1994 and the causeof fire was said to be electric short circuit. The Divisiona,l Manager of the Insaurance Company , Hoshiarpur along with the Surveyor visited the site on 14.5.1994 itself . The Surveyor Mr. Sanjeev Bhalla submitted the report Annex ure R-7 dated 12.7.1994 assessing the loss payable at Rs. 7,.02,928/- mentioned in the survey report A Cheque dated 27.7.1994 for Rs. 2 lacs drawn on the Punjab and Sind Bank, Hoshiarpur was handed over to the complainant and the re maining amount was not paid. A registered notice through Counsel (Annexure A-4) was given to the opposite party for payment of the remaining amount. On notice being served the opposite party No.3 Mr. S.P. Gupta, Divisional Man ager, jalandhar earlier posted at Hoshiarpur, did not choose to appear and hence he was pro ceeded ex-parte and the opposite party Nos 1, 2 and 4 for filed their joint written statement inter-alia stating that in the land in dispute, where the complaint''s farm is situated, there are three pakka sheds and the fourthe shed is under construction and is incomplete. For the hree complete sheds, the complainant has taken the loan from the Punjab National Bank, Dhamtal and onthese three sheds, he has put a board of M/s Minhas Polutry Farm and the loan is also taken for the said three sheds in the name of M/s Minhas Polutry Farm, Therefore out of four sheds, these sheds were mortgaged to the Punjab Natiional Bank and the birds which were kept in these sheds legally belongs to M/s Minhas Poultry Farm and the fourth in complete sheds is not in a proper condition at all to house any birds. It is alleged in the written statement that the birds, which the complaintant had purchased and were housed in the sheds were not insured. From the perusal of the photographs R-3/1to R/3/9 taken by the Suryeyor on the spot would indicate that the shed which caught fire had 12-pillars whereas the shed which caught fire as per plan Annex ure R-2 had 22 pillars. The allged shed which is given in the photograph is incomplete shed and was still under construction. The bricks and heap of sand was still visible and the pillars under construction were standing. Some of the pillars were clearly shown under construction. No beam has been put and they have not been plastered. It is clear case of fraud. It is further stated, if more than 20,000 birds have been burnt at the site as alleged there should have been a big heap of bones at the site but not even a single bone is visible nor was it there. Rather the sand lying on the floor was clearly evident. The alleged size of the shed stated to be 125 couldn''t physically accommodate 20000 birds. The look at the photographs indicates that the shed set on fire has only one portion whereas the complainant has mentioned that two portions of the shed were destroyed, which is wholly a made-up story. According to the complainant, two portions of the shed were burnt and the said portion of the shed has windows, doors and jalli but on the spot doors, windows and jallis have disappeared and it is not possible that the fire would have destroyed the aluminum and iron. Intact, the shed under construction has no roof, no birds, no machinery and no loss. A look at photograph would further indicate that the shed has no electric connection whatsoever. The Electricity Department has not even given electric connection to the shed. The complainant has taken Insurance policy for two Pakka sheds and the fire has not taken place in the insured Pakka sheds.

It is further stated in the written statement that the Regional Office of the Insurance Company/opposite-party No. 2 called for the claim file from the Divisional Manager, Hoshiarpur to scrutinise the claim. The Regional Office was not satisfied with the claim and vide Annexure R-8 dated 19.9.1994, clarification was sought from Mr. Sanjeev Bhalla, Surveyor. No satisfactory reply was got from the Surveyor and hence the Insurance Company decided to appoint M/s. G.S. Narang & Company as Investigator in October, 1994 to investigate the claim and the said investigator had discussions and sitting with the complainant in November, 1994, December, 1994 and January, 1995 and he submitted his report on 24th February, 1995 and the said report was against the complainant and the claim was repudiated vide Annexure R-9 dated 9.5.1995. It is further stated that the complainant in connivance with the Surveyor and officials of the Company played a fraud upon the Company and tried to perpetuate a fraud on the Company by taking a bogus policy of insurance. By setting the alleged fire and bogus papers of birds he has tried to claim a large amount. A criminal conspiracy had been hatched by the complainant. Surveyor and the Divisional Manager. The Divisional Manager, Mr. S.P. Gupta released the amount of Rs. 2 lacs to the complainant illegally without any authority. He had no authority to pass the claim of the complainant or to make any part payment. Mr. S.P. Gupta had no authority to sanction the funds or sanction the claim. The Insurance Policy was issued on 24.3.1994 and premium of Rs. 3,668/- was given to the Company by means of two cheques on 24.3.1994 drawn on State Bank of India and the cheques were immediately deposited in the bank by the respondent-Company. Complainant has no funds in his account in the State Bank of India, Branch Office, Nangal Bhur on which the said cheques were drawn and the complainant has deposited the amount with the bank after the alleged fire had taken place and only thereafter the cheques were encashed and hence the whole conduct of the complainant is fraudulent and he has not come to the Commission with clean hands.

NO replication to the joint written statement was filed by the complainant. The complainant has filed the affidavit of Major Parshottam Singh, Retd., sole proprietor of the complainant, in support of the allegations made in the complaint. The opposite-parties have filed the affidavits of Mr. G.S. Narang, Investigator who investigated the case and submitted the report on 24.2.1995, Dr. Adarsh Gupta, Administrative Officer of the Regional Office and Sh. K.K. Sobti, Manager of the Regional Office, who visited the Poultry Farm and gathered necessary information. We have heard the learned Counsel for the parties and with their kind assistance have scanned evidence and documents placed on the record. At the outset, Mr. L.M. Suri, Sr. Advocate appearing for the opposite-parties had raised primal jurisdictional pleas. Firstly, this Commission has no territorial jurisdiction to try the present complaint as the Poultry Farm which is stated to have got fire is situated within the District Kangra (H.P.). Secondly, in view of the complicated questions of facts, involved in this case, this Commission is not a proper remedy for adjudication of the complaint. On the other hand Mr. S.D. Sharma, learned Counsel for the complainant has vehemently submitted that the Surveyor had submitted the report in favour of the complainant and the Divisional Manager after visiting the spot and agreeing with the survey report had made a part payment of Rs. 2 lacs and it is too late for the Insurance Company to repudiate the claim at this belated stage.

SO far as the objection regarding territorial jurisdiction for the adjudication of the present complaint by this Commission is concerned, sans merit. It is admitted case of the parties that the insurance policy was taken at Hoshiarpur and Hoshiarpur is within the territorial jurisdiction of this Commission. Divisional Office of the Insurance Company is situated at Hoshiarpur. Mr. S.P. Gupta opposite-party No. 3, who was earlier posted as Divisional Manager, Hoshiarpur at the relevant time is now posted at Jalandhar, within the territorial jurisdiction of this Commission. It would be profitable to quote Section 11(2) of the Act and the same reads as under:- "(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction: (a) the opposite-party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or (b) any of the opposite-parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not resides, or carry on business or have a branch office or personally work for gain, as the case may be, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises."

It is not disputed that the provisions of Section 11 mutatis mutandis apply to the State Consumer Disputes Redressal Commission. From the facts stated above, it is crystal clear that the opposite-paties carry on business within the territorial jurisdiction of this Commission and its branch office is at Hoshiarpur and cause of action has also accrued in part at Hoshiarpur and hence the vehement objection of Mr. Suri that this Commission has no territorial jurisdiction to try the present complaint is without any weight and hence is rejected. So far as the second objection of Mr. Suri is concerned, there is a modicum of merit. Sub-sections (2) and (3) of Section 13 of the Act shows beyond doubt that the COPRA does not contemplate determination of complicated issues of fact involving taking of elaborate oral evidence and reducing of voluminous documentary evidence and detailed scrutiny and assessment of such evidence. It is no doubt true that the consumer Foras constituted under the Act are vested with the power to examine witness on oath and to order discovery and production of documents. But such power is to be exercised in case where the issues involved are simple. Where the issues raised cannot be determined without taking the elaborate oral and documentary evidence, it is open to the Consumer Foras to decline to exercise jurisdiction and refer the parties to the ordinary remedy by way of civil suit. It has almost become hackneyed by now by a catena of judgments of the National Commission that factum of fraud, conspiracy and cheating cannot be properly adjudicated in somewhat summary jurisdiction as envisaged under the Act. The Act cannot effectively relied for determining complicated questions of fraud and cheating. It would be suffice to refer to few: M/s. Special Machines, Kamal v. Punjab National Bank and Others, I (1991) CPJ 78 (NC); "N. Shivaji Rao v. M/s. Daman Motors & Ors." I (1993) CPJ 88 (NC); "B.K. Sethi, Managing Director, Indu Video Films (P) Ltd. v. Chairman, Delhi Financial Corporation & Ors., III (1993) CPJ 327 (NC).

IT is an old adage that the complainant has to stand on his own leg. The complainant in the present case has not led any direct and positive evidence to prove even the conspectus of broad facts that the shed which is alleged to have got fire was insured nor it is proved that the shed which is stated to have got fire could house 20000 birds for which the claim is being lodged. All the links in the chain of events to prove his case to-the hilt had not been established by the complainant. On such a sorry state of affairs, it would be proper and just for this Commission to refrain from considering the issues on merit and making in depth analysis.

IN view of the strenuous plea of fraud, cheating and conspiracy of the complainant with the Surveyor and the Divisional Manager corroborated by the further plea that at the relevant time of taking the policy and catching the fire the complainant had no money in his bank account for honoring the cheques in lieu whereof he has taken policy, coupled with the affidavits of Dr. Adarsh Gupta, Administrative Officer and Mr. K.K. Sobti, Branch Manager of the Regional Office that they had submitted report dated 10.4.1995 to the Regional Manager and the said report is as under:- "(a) We visited the site of the insured and found that entrance of the premises is having following names: Minhas Poultry Farm, Minhas Poultry Feeds, Minhas Finance Company. There is no sign board of Kishan Poultry Farm. (b) The structure shown in photographs provided by the Surveyor is the same as seen by us. We would like to bring on record the following shortcomings that have been observed by us from the scrutiny of file and physical inspection of site as well as inquiries made at various places. (i) On account payment has been made before any consent of the Competent Authority i.e. DCC while the claim was in final stage. (ii) The structure seems to be new one and under construction. (iii) There is no electricity supply to the building. Which is subject of loss. This is important as cause of loss is short circuiting. (iv) The actual length of structure appr. is half of that has been mentioned in the claim form and Surveyor report, Valuer report. (v) Condition of the structure is such (only pillars have been raised) that it can''t house any bird. Even if the contention of the party is accepted, the area mentioned cannot house 20000 (twenty thousand) birds as each bird require 75 sq.ft. area. (vi) The party has other 3 Pucca sheds on the same site under name of Minhas Poultry Farm which has been financed by PNB Damtal. (vii) Health Certificate-cum-Proposal Forms issued by Dr. Raj Sharma have been issued on 24, 26, 28 and 29th March, 1994 whereas C/N (No. 0790 943) has been issued on dated 24.3.1994 maintaining health certificates attached therein. It shows that health certificates have been arranged subsequently. (viii) The PNB, Railway Road, Hoshi-3No. 482553 dated 24.3.1994 on 29.3.1994 for clearance to SBI Nangal Bhur but same was cleared after the loss (certificate of Bank is attached)."

and supported by the plea that fire has not taken place on account of the alleged short circuit and the judicial finding pointing out the glaring lack of scany, cogent and unimpeachable evidence on the record irrefutably and manifestly proving the complainant''s case, we decline to adjudicate on merits and thereby reject the present complaint and relegate the complainant to the available remedy in the Civil Court for claiming necessary relief. Sentimental pleas of Sh. S.D. Sharma, learned Counsel for the complainant that the Surveyor and the Divisional Manager after inspecting the spot had submitted the report in favour of the complainant and in pursuance thereof, a part payment has already been made to him, cannot withstand the plea of fraud and conspiracy raised by the learned Counsel for the opposite-parties against the said Surveyor and the Divisional Manager. Moreso, the learned Counsel for the opposite-parties had fairly stated at the bar that the Insurance Company is thoroughly investigating the matter and the concerned Divisional Manager has been suspended. If the remedy available under the Act for sustaining the object of the Act is availed of in a manner destructive of the very fabric of the Act, such an overt act would mutilate and render waste the summary provision serving as a general cover to protect all truants whether they are individual or institutions. For the reasons stated above, we dismiss the present complaint and leave the complainant to approach the Civil Court if so advised. No order as to costs. Copies of this order be sent to the parties as required under the rules. Complaint dismissed.