Mukesh Kumar vs NEW INDIA ASSURANCE CO. LTD.

THE complainant has filed this complaint under Section 12 read with Section 17(a)(i) of the Consumer Protection Act, 1986 (for short ''the Act'') against the opposite party claiming the insured amount of Rs.82,000/- and Rs.50,000/- as compensation alongwith interest @ 24% p.a. from the date of the incident till its realisation.

FOR the limited purpose of this order, relegating the complainant to the Civil Court (if so advised), it is not only unnecessary but would be wasteful to delve too deeply into the facts and merits. It suffices to notice them in the barest out-line. The complainant, Mukesh-Kumar, Proprietor of M/s. Maha Laxmi Industries, Khanna is the owner of Maruti Car bearing Registration No. PAN-3233 and he got the same insured with the respondent New India Insurance Company Limited, Chandigarh under Policy No. 4561126152 for the period 17.2.86 to 16.2.87 for a sum of Rs.82,000/- . It is alleged that on 15.9.1986, his relatives namely Vipin Kumar and Shiv Chand borrowed his car for taking them to Ludhiana. The complainant''s case is that the aforesaid relatives took away his car driven by their driver Karnail Singh and when the car did not return from Ludhiana in the evening he started making enquiries from his relatives and friends regarding the where about of his car. ft is alleged that a relative told the complainant that while the car was returning from Ludhiana, some culprits were given lift in the car by Karnail Singh and on the way at Rajpura Motel, those culprits gave something to the driver in the omelet and bread and he became unconscious and that later on the car was driven towards Ambala and the driver was dropped somewhere in Ambala. It is further alleged that the complainant and his relatives made efforts to search the car but they were unsuccessful. On 22.9.1986, the FIR was lodged at Ludhiana by the relatives of the complainant. The police reported that the car was not traceable. The complainant lodged a claim with the Insurance Company on 13.7.1987 and the Insurance Company deputed Shri Inderjit Singh to investigate the matter. It has been averred that the Insurance Company had mala fide repudiated its liability on the ground that the events did not establish theft of the car vide their letter dated 29.7.91, the relevant part whereof is in the following terms:- "(a) The car insured under the policy was misused as Taxi. (b) The place and circumstances under which the theft had taken should have been reported immediately to the concerned Police Station under whom the jurisdiction comes where the car was stolen under various I.P.C. such as Sections 392 & 342 (wrongful confinement), 364 (Abduction), 328 (causing hurt by intoxicating substance) whereas the case was reported to Kotwali Police Station, Ludhiana after a gap of seven days with a statement that Police Station, Khanna, Gobindgarh, Ambala, Rajpura, Yamuna nagar and Inspector General of Police, Punjab were informed (copies of letter) informing the above Police Stations / police authority have not been submitted. (c) Police has not registered the case so there was no investigation and given untraceable report to the effect is not in order. (d) Failed to give reply to investigator''s letter dated 1.8.1990 by the insured and refused to accept the letter by Mr. Shiv Chand under whose custody the vehicle was at the time of theft."

It is alleged that despite subsequent protestations by the complainant, the Insurance Company stuck to their guns in denying its liability. The complainant has raised a claim of Rs. 1,67,000/- alongwith penal interest thereon.

THIS complaint was stoutly defended on behalf of the opposite party. In the written statement, apart from preliminary objections, the broad firm stand taken on behalf of the Insurance Company was that in fact the car was never stolen and the version of the complainant with regard to the theft and loss occasioned thereby was merely a ruse to raise a fabricated claim against the opposite party. In support of this case, the complainant rested himself content with putting in his affidavit and that of his relative Shiv Chand and the correspondence that he had with the Insurance Company. No other evidence was adduced and no reason as to why the complainant himself or other material witnesses had chosen to refrain from appearing in the case was indicated. In rebuttal, the opposite party relied upon the affidavit of Shri D.K. Dogra, Legal Advisor (Claims) and duly constituted Attorney of New India Insurance Company Limited, Chandigarh and the detailed reports of the Investigating Officers.

PERHAPS at the very outset, it may be highlighted that the scope of a consumer dispute in the present context is somewhat limited. The complainant in order to succeed has to establish a patent deficiency in the service of the Insurance Company, which the opposite party had undertaken to render. It is not for this Commission to go into the highly contested questions of fact or the complexity of legal rights of the parties under the Act. Viewed in the aforesaid context, the onus however light on the complainant is to show an apparent deficiency in the service on the part of its insurer however it would appear that the complainant has been somewhat cavalier in discharging the onus. What first meets the eye is the fact that neither the complainant nor his relative Shiv Chand or their driver Karnail Singh have chosen to support the complainant''s case in the witness box. Obviously, they were the best witnesses to depose directly with regard to the allegations made on behalf of the complainant. Therefore, in view of what has been indicated above, it is not possible to arrive at any categoric findings of fact. It is an old addage that the complainant''s case has to stand on its own legs. It would be somewhat obvious in the present case that on his behalf the complainant has been unable to lay a sure foundation of establishing as a fact that the Maruti Car in question was stolen on the alleged day of occurrence. Apart from the inherent weakness in the complainants case, the opposite party virtually established its stand that they had made all bona fide attempts to process the complainant''s claim and on a wide variety of material, were convinced that the same did not appear to be true. It is then not in dispute that immediately being informed by the complainant on 13.7.1987, the Insurance Company with expedition appointed Shri D.C. Sharma as Investigator in the case, which is a usual standard practice in the claim of loss through theft. The Insurance Company appointed another Investigator Shri Sudarshan Singh Sachar to investigate the matter. No serious challenge could be laid to the detailed reports of the aforesaid investigators (Annexure R-l and Annexure R-3). Both the investigators have arrived to the same conclusion. It merits notice in extenso: "From the facts of the case brought to focus during the investigation of the case it has been found that Maruti Car No. PAN 3233 in question was not in possession of the insured Shri Mukesh Kumar Aggarwal but in the possession of Shri Shiv Chand resident of H. No. 495, Ghumar Mandi, Ludhiana who is a well known Taxi Operator of Ludhiana City and who was using the car as a Taxi without permit on hire/reward when it was taken away by two unknown youths on the G.T. Road between Ambala and Rajpura on 16.9.1981 after they had administered some intoxicating substance to its driver Shri Karnail Singh s/o Shri Virsa Singh resident of Shekupura, District Kapurthala. (2) The circumstances under which the car was taken away disclosed the commission of offence under Section 398 IPC (causing hurt by intoxicating substance) and it was the duty of the driver of the insured or any body on their behalf under the policy condition to inform the police immediately which was not done. (3) On the other hand, Shri Shiv Chand after seven days of the alleged occurrence on 22.9.86 to cover up the lapse on the part of the insured lodged a report at Police Station Kotwali, Ludhiana, about the incident and also stated in the report that he had also informed the police authorities of Khanna, Gobindgarh, Ambala and Rajpura and Yamuna nagar and Inspector General of Police, Punjab about the theft of the car in writing. (4) From copies of the said daily diary report lodged with the police at Ludhiana which is purported to have been attested by one Bhupinder Singh of the Police Station and produced by the insured from time to time to support his insurance claim it was found that these photo copies were not true and complete record of the report lodged at the Police Station and the insured had manipulated the report by inserting Engine No. and Chasis No. in the copy of the report. The insured was also believed to have produced false endorsement by ASI of Police, Shri Som Nath of the Police Station on 20.12.86 and 14.1.87 on the copy of the report that no clue was found about the car and an untraced report was filed in this case. It was evident that no investigation was undertaken by the police. It was, therefore, evident that the insured also used deceptive means to obtain the claim. (6) A written notice was issued to the insured on 1.8.90 to explain the circumstances under which he did not inform the concerned police authorities about the robbery of the car and to produce a true and attested copy of the report lodged at Police Station City Ludhiana, but no reply was received. A copy of the letter sent to Shri Shiv Chand by registered post has been returned by the postal authorities as he refused to accept the same." The Investigators'' reports are unchallenged documents in favour of the opposite party''s stand. What perhaps is of great significance is the fact that the FIR was lodged at Police Station Ludhiana on 22.9.66 i.e. after about a week of the incident and the complainant lodged the claim with Insurance Company on 13.7.1987 i.e. after about ten months of the incident. This circumstance also creats doubt in the complainant''s case.

IN view of what has been stated above, it seems unnecessary to labour the point. IN fact, in this context, it would be unfair to the complainant to record any concluded findings of fact, which may prejudice his case in a Court of Law. On the basis of what has been noticed above, it is inevitable to conclude the insurer herein took all the necessary steps to process the claim alleged by the complainant. On adequate material established on the record, a serious doubt about the same was raised. On a consideration thereof, the INsurance Company has on its own showing come to a bona fide conclusion that the claim of the complainant was not tenable and was consequently repudiated. Once that is so, it is difficult and indeed impossible in the consumer jurisdiction to hold that there was patent deficiency in the service, which the insurer had undertaken to render. INevitably, the complainant must fail in his attempt to seek redressal within the summary jurisdiction under the Act.

FOR the aforesaid reasons, we regret our inability to finally adjudicate the matter of this case. The present case is directly governed by the dictum laid down by the National Commission in M/s. Janta Machine Tools v. Oriental Insurance Company Limited, 1991 (2) CPR 18. 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.