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Judgment
BRIEFLY, the facts of the case are that the complainant is dealing in the hire purchase of motor vehicles in Delhi. It hired out a truck bearing registration No. DEL-2193 to Satyapal Wadhawan, respondent No. 3 under a hire/purchase agreement dated 10.7.1986. At the time of entering into the hire purchase agreement the complainant company at the instance of respondent No. 3 got the truck insured with the New India Assurance Company Ltd., respondent No. 2 and got the same renewed each year. It was renewed by respondent No. 2 under Policy No. 4502010251 for the period 28.4.87 to 27.4.88 A/c. Shri Satyapal Brothers & Co. with endorsement No. 10 attached to the said Policy and under hire/ purchase agreement with the complainant for a sum of Rs. 2,40,000/-. The premiums for getting the vehicle insured were paid on behalf of respondent No. 3, by the complainant for each year and the Insurance Policy had been assigned in favour of the complainant.
THE said vehicle was being plied by the respondent No. 3, in terms of the agreement dated 10th July, 1986. On 29th September, 1987, it is alleged by the complainant, the vehicle was stolen near Uttam Nagar Bazar, where it was parked by the driver employed by respondent No. 3. THE driver of respondent No. 3 lodged a FIR No. 281/87 under Section 379 IPC with P. S. Vikaspuri, and simultaneously the intimation regarding theft was given to respondent No. 2. THE police could not trace the vehicle. It gave progress report dated 15.12.87 and final report dated 26.5.88 to the effect that the vehicle was not traceable. Respondent No. 3 in terms of the Insurance Policy pledged a claim with respondent No. 2. However, as the complainant was entitled to the insurance amount of Rs. 2,40,000/ followed the claim. It is alleged that respondent No. 2 mala fide repudiated its liability on the ground that the events did not establish theft of the vehicle, vide letter dated 12.6.89 written to the complainant. The complainant then sent a legal notice dated 28.11.89. In reply to that notice, the respondent No. 2 again repudiated its liability. Consequently, this complaint has been filed by the complainant with a prayer that respondent No. 1 & 2 be directed to pay the amount of Rs. 2,40,000/ with interest @ 18% per annum from the date of lodging the claim, till the date of payment.
The claim has been contested on behalf of all the respondents. Respondent No. 1 & 2 in their written statement pleaded that they had carefully scrutinised and investigated the claim of the complainant and found it to be false and fabricated. Consequently, they repudiated the same. The repudiation of a false claim did not suffer from any fault, imperfection, shortcoming etc. in the quality, nature and performance which is required to be maintained by or under any law or contract and therefore, the complaint was liable to be dismissed. After the theft of the vehicle respondent No. 2 appointed M/s. Investigative and Proceratorial Agencies to survey and investigate the alleged claim of the insured and they conducted a detailed investigation. It is further alleged that from the report they came to know that the complainant in order to recover the amount had taken steps to seize the vehicle in question but by mistake seized another truck bearing No. DEL-2680 belonging to the insured which was financed by M/s. Finance Pvt. Ltd., After the mistake came to the knowledge of the complainant they were planning to seize the truck in question. The insured was, therefore, under real and immediate threat of seizure of the vehicle. There were found many contradictions in the version of theft.
IT is further alleged that the police investigated the matter and came to the conclusion that the alleged report of theft of the truck by respondent No. 3 was false, and therefore, on 22.3.88, the FIR was recommended to be cancelled. IT is averred that taking into consideration all the circumstances, the claim of the claimant was repudated and therefore, they were not entitled to claim the insured amount. Respondent No. 3 denied the claim of the complainant. It is pleaded by him that he was in need of money for purchasing the truck and he signed all the papers whatever he was required to do by the complainant. Condition No. 9 on which reliance is placed by the complainant is opposed to the public policy. The complainant, it is further alleged, is in league with respondent No. l & 2 and they consequently, got assigned the policy in their favour. He never agreed to that condition. He denied the right of the complainant to claim the amount from the Insurance Co. He further stated that he filed a claim with respondent No. 1 & 2 for the amount of Rs. 2,40,000/ and he is entitled to get that amount.
DURING the pendency of the petition an application was moved by respondent No. 1 & 2 that the matter should not be decided by the Commission as the Insurance Co. after proper investigation of the claim had repudated its liability. It is stated in the application that the services of respondent No. 2 did not suffer from any deficiency as envisages in Section 2(i)(g) of the Consumer Protection Act, as respondent No. 2 after careful scrutiny and investigation of the claim of the complainant came to the conclusion that it was false and fabricated and had therefore, repudiated the same. The repudiation of false and fabricated claim did not suffer from any fault, imperfection, short-coming or inadequacy in the quality, nature and the manner of performance which was required to be maintained by or under any law or contract between the parties and therefore, did not constitute deficiency in service as defined in the Act. It is further alleged that the complaint involved intricate and disputed questions of fact disposal of which would require a lengthy full scale trial, and recording of evidence of numerous witnesses and scrutiny of voluminous documentary evidence and therefore, the issues involved, cannot properly be decided on the basis of affidavits by State Commission. Consequently, it would be proper that the matter should be decided by the Civil Court. The application has been contested on behalf of the complainant. It has been pleaded by them that respondent No. 2 had mala fide, rejected the claim of the complainant without any scrutiny and investigation. If the claim is repudiated mala fide and contrary to the finding of the Investigation Agency then that would amount to imperfection and short-coming in performance of service. They also pleaded that earlier an application of similar nature had been filed by the respondents and it was ordered that the question of jurisdiction regarding entertainment of the complaint would be decided at the time of final hearing. The only question that aries for determination is whether the Commission should decide the complaint itself or relegate the parties to Civil Court. We have given our thoughtful consideration to the matter. It is evident from the narration of the facts that the case contains intricate and disputed questions of fact. It may again be highlighted that the Insurance Company referred the matter in the first instance to Investigative & Proceratorial Agencies. Sh. Damodar Das, its Director, reported that the claim in question was false and was planned by the insured to entract false claim from the Insurance Co. His final report is dated 5th July, 1988. After receipt of his report another investigator Sh. J. C. Bhagat was appointed to investigate into the matter. He differed from the report of Mr. Damodar Das and said that the claim of claimant in view of the final report of the police deserved consideration. His report is dated 9th July, 1988. He submitted another report dated 29th September, 1988 in which he reiterated his earlier conclusion. In view of the two contradictory reports of the surveyors, the matter was referred by the Insurance Company to Sh. Shashi Mohan Suri, Advocate for his opinion. He gave the opinion in favour of the insured and stated that the factum of theft had been substantially established and the Insurance Company could not dis own its liability.
AFTER receipt of the opinion of the lawyer, the Divisional Manager of the Insurance Company sent the case to its Regional Office for consideration and advice. The Divisional Office sent the case to Sh. S. K. Paul, Advocate of the Supreme Court to have second opinion. He, in his opinion dated 5th May, 1989, differed with that of Mr. Suri and observed that unless and until a case of theft of the insured vehicle was proved clearly, the Insurance Company could not be made liable to pay the claim. He advised the company to repudiate the claim of the complainant. Again, the matter was referred to Sh. Rajinder Sachar, Senior Advocate, Supreme Court of India by the Insurance Company for his opinion. It was opined by Sh. Sachar that the story of the theft sounded peculiar and there were serious circumstances which cast doubt on the story of theft. The final report by the police did not lead to either of the two firm results, namely, that the story of theft was a fake one or that the story of theft was established. He was of the opinion that the case was not water tight either way. In the end the learned Council observed as follows :"This is therefore more a matter where the querist company should apply its own knowledge of the back ground of the claim and other circumstances to decide whether to make the claim or not. "
THE Company after applying its mind and in view of the above circumstances repudiated the claim of the complainant. From the narration of the facts given above, it is clear that the Company appointed two surveyors and sought legal opinion of three lawyers. The surveyors differed from each other. Unfortunately, there was difference of opinion amongst the lawyers also. In the circumstances it can not be said that the Insurance Company did not apply its mind fully, while repudiating the claim of the complainant. It is also evident that the case contains complicated facts. In M/s Janta Machine Tools v. Oriental Insurance Co. Ltd. I (1991) CPJ 234 (NC)=(Original Petition No. 12 of 1990) decided on 21.8.90 the National Commission observed as follows: From the facts disclosed by the record and particularly the averments contained in the counter affidavit filed by the first respondent it is seen that the Insurance Company had fully investigated into the claim put forward by the complainant, got surveys conducted and had finally come to the conclusion that the claim put forward by the complainant was false and accordingly informed the complainant that his claim was rejected. Thus this is not a case where the Insurance Company did not take prompt and necessary steps for deciding the claim under the policies of insurance. It may be that the complainant is not satisfied with the said rejection of his claim by the Insurance Company. Having regard to the facts and circumstances of this case and the nature of the controversy between the parties we consider that this is a matter that should be adjudicated before a Civil Court where the complainant as well as the respondent will have ample opportunities to examine witnesses at length, take our Commission for local inspections etc. and have an elaborate trial of the case. "
The above observations are fully applicable to the present case.
BEFORE parting with the order it may be mentioned that Sh. J. R. Midha, Advocate did move an application dated 31.7.90 requesting that his preliminary objections be decided in the first instance. It appears from the orders that the application was not pressed and consequently it was not ordered in that application that the objection would be decided with the main case. For the aforesaid reasons, we dismiss the complaint on the preliminary objection. However, the complainant may have recourse to a civil suit, if it so desires. No order as to costs. Complaint dismissed.