RAMESH KUMAR vs Oriental Insurance Co.

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.

MR. Ramesh Kumar, complainant who has chosen to prefer this complaint through his attorney (and thereafter curiously avoided to appeal as his own witness or to participate in the proceedings in any way) is the owner of Swaraj Mazda (1987 model) vehicle No. HYS-7496. It was insured with the Oriental Insurance Company Limited on the 14th of January, 1989 for a sum of Rs. one lac only. The complainant''s case was that the said vehicle was parked near his house at Gohana on the night of the 6th February, 1989 and it was found to have been stolen therefrom in the morning. A first information report was lodged by the brother of the complainant Anil Kumar on the 7th of February, 1989 vide Annexure 5. On the following day of 8th of February, 1989 the vehicle was recovered vide memo exhibit R- 1 and the engine, gear box, wheels and other material parts of the machinery were found missing therefrom. The complainant lodged a claim with the Insurance. Company and meanwhile got an estimate for the repairs thereof from M/s. Globe Tractors, G.T. Road, Karnal to the tune of Rs. 1.37,991/- . However on the 20th of December, 1989, the Insurance Company repudiated the claim vide Annexure P-8, the relevant part whereof is in the following terms :- "Claim of your Swaraj Mazda Truck No. HYS-7496. With reference to the above, we may inform you that your claim was got investigated by the independent investigator, as initially the case was reported as theft claim and as per procedure, theft claim is required to be investigated. The investigator in his report opined that vehicle was not stolen at all. Then in the fitness of things, we entrusted the case to another senior independent investigator for making discreet enquiries and to submit his independent report. The second investigator also opined that vehicle was not stolen at all and recommended that claim is not payable. So, in this connection, we regret to point out that claim on the above vehicle is not payable as both the investigators have recommended that vehicle was not stolen at all".

Despite subsequent protestations by the complainant, the Insurance Company stuck to their guns in denying all liabilities. The complainant has preferred the complaint raised a tall claim of Rs. 2,98,591-19P alongwith additional interest thereon.

Documentary reliance basically was placed on Annexure P-1 to P-8 annexed to the complaint. The complaint has been 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 truck was never stolen and the version of the complainant with regard to the theft and the loss occasioned thereby was merely a ruse to raise a fabricated claim against the answering opposite party. Reliance was placed on the recovery memo R-1; statement of Anil Kumar R-2; interim report dated 14th of October, 1989 of Shri Sada Ram Chawla, Investigator R-3; the report of Shri Kirpal Singh Hans, Surveyor and loss assessor, dated 27th of July, 1989 R-4; the photographs of the vehicle R-5 to R-11; the statement of Shri Brij Lal, alias Birju, chowkidar, R-l2; the final report dated the 24th of September, 1989 of Shri Sada Ram Chawla R-13; the final report of Shri K.S. Hans, surveyor and loss assessor dated the 10th of November, 1989 R-l4; and the investigation report dated the 16th of November, 1989 of Shri V.S. Lamba, Investigator and Insurance consultant R-15; and also on communications R-16 and R-17.

IN support of his case, the complainant rested himself content with putting in the affidavit of his attorney Shri Moti Ram s/o Jit Ram who also happens to be his father. He was cross-examined at great length, by the learned Counsel for the opposite party, which made serious inroads in his otherwise somewhat interested testimony. 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 put in its evidence by way of affidavit of Shri S.K. Chandna, Senior Divisional Manager of the Company at Panipat and also put into the witness box Shri S.K. Gulati, the. Branch Manager of the Oriental Bank of Commerce, Gohana, Shri V.S. Lamba, retired Deputy Superintendent of Police and INvestigator, General INsurance Company (who proved his report Ext. R.15), Shri Kirpal Singh Hans, Surveyor and Loss Assessor who deposed with regard to his reports Annexures R-4 and R-l4 and Shri Sada Rang Chawla, retired Police INspector and INvestigator of General INsurance Company who proved his reports Annexure R-3 and R-13 and also Exhibits R-2 and P-12. Some what surprisingly though opportunity of cross-examining Shri V.S. Lamba was afforded, not a single question was asked to him by way of cross-examination and his testimony, therefore. remains unchallenged. The somewhat limited cross-examination of Shri S.K. Gulati, Kirpal Singh Hans, and Sada Ram Chawla, has equally failed to elicit anything meaningful in favour of the complainant. Perhaps at the very out-set it may be highlighted that the scope of a consumer dispute in the present context is some what limited. The complainant in order to succeed has to establish a patent deficiency in the services of Insurance which the opposite party had under taken to render It is not for this Commission to go into the highly" contested questions of fact or the complexities of legal rights of the parties under the contract.

VIEWED in the aforesaid context, the onus however lights on the complainant to show an apparent deficiency in the services 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 the complainant Ramesh Kumar though admittedly resident within the jurisdiction and certainly available has chosen to present this complaint not in person but through is attorney only. What is however, surprising is that he himself has not chosen to support his case in the witness box. Obviously, he was the best witness to depose directly with regard to the allegations made on his behalf in the complaint. Equally his brother Anil kumar who on the complainant''s own showing had lodged the First Information Report and was the best man with regard to the alleged theft, has not been called as a witness. Though the provisions of the Evidence Act are not applicable, it is somewhat plain that the affidavit testimony of Shri Moti Ram, the father and attorney of the complainant is primarily of a hear-say nature. He is not a witness directly either to the alleged theft of the closely circumstantial factors surrounding the same. Being the attorney of the complainant and also closely related as he is the fact of his interestedness and the consequent partisan nature of this testimony is a writ large on the record. In view of what has been indicated at the outset, it is unnecessary to arrive at any categoric findings of fact. It suffices to say that the otherwise somewhat tenuous testimony of Shri Moti Ram stands considerably eroded when challenged at length in his cross-examination on behalf of the opposite party. 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 truck in question was stolen on the alleged night of occurrence and that consequent thereto the material parts of its machinery were abstracted therefrom. Apart from the inherent weakness in the complainants case the opposite party has virtually established its stand that they had made all bonafide 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. Proceeding chronologically reliance has been first placed on Annexure R1, the recovery memo of the allegedly stolen truck dated 8th of February, 1989 hardly a day of two after the occurrence. This memo interalia recorded that the condition of the truck appear to be one caused by an accident because its front bumper was bent. Even as regards the movement of the truck immediately prior to its theft the statement of Anil Kumar recorded by Shri Sada Ram Chawla, investigator vide Annexure R.2 conceded that the complainant had no independent documentary proof of the vehicle having gone to Panipat on the 5th of February, 1989 as suggested on behalf of the complainant. It is then not in dispute that immediately on being informed the insurance company with expedition appointed Shri Sada Rang Chawla as an investigator in the case which is the usual and standard practice in claims of loss through theft. No serious challenge could be laid to the detailed interim report of Shri Sada Rang Chawla (who is a retired Inspector of Police) and an investigator and consultant of the General Insurance Corporation, Annexure R-2 duly proved by him. This is a detailed document and the conclusion arrived at merits notice in externa :- "On the basis of my investigation I would submit that the vehicle has not been stolen at all. However, further evidence is needed to be doubly sure. Police is also about to re-investigate the case".

Shri Sada Rang Chawla followed up the aforesaid interim report by a more detailed one which is proved on the record as Ann R. 13. Therein he reiterated his earlier view and also pointed out that the engine of the truck could not be lifted without the use of a chain pulley or a crane. He also found that sewn before the theft allegedly on the 6th of February, 1989, the said vehicle was under repairs with M/s. Globe Tractors vide job car dated January 31, 1989 which would indicate that the vehicle was before hand taken to the workshop and opened up. In sum, he opined that the whole story of theft and its alleged recovery from the Panipat Barsat Road was an engineered one in order to bolster up the claim.

THE insurer then took further precaution by appointing Shri Kirpal Singh Hans, Mechanical Engineer and apparently a surveyor and loss assessor of repute to investigate the matter. His report - Annexure R-4, dated October 27,1989 is a detailed document wherein he cast serious doubts on the version of theft in the following terms :- "It is not possible to remove the Engine gear-box easily without the help of skilled automobile labour, so it seems to be a case of foul play. Thorough investigation may kindly be done before finalising the claim and final police investigation may kindly be obtained".

THEn the photographs of the vehicle Annexure R-5 to R-11 which are also somewhat tell-tale point to its accidented condition.

TO complete the plethora of reports, reference may be made to Annexure R-15 by Shri V.S. Lamba, (a retired Deputy Superindentent of Police) dated November 16, 1989. Mr. Lamba admittedly was entrusted to go into the matter. It is unnecessary to analyse the report and it suffices reproduce the conclusions in the following terms:- "From my enquiry it is found that the vehicle had not been stolen and report was made after the accident with a view to make up the loss caused to the engine being involved in the accident. It was shown as if the engine had been stolen and the remaining truck as having been recovered because a heavy claim can be obtained only from a theft of the engine. Removing of an engine from a truck parked on a road takes a lot of time which is not possible for the thieves on a road where general public is going to and fro. This claim is proved to be false".

What perhaps is of great significance is the fact that Shri V.S. Lamba stood in the witness box and proved his report aforesaid. However, on behalf of the complainant his statement and the report were not at all challenged. Not a single question by way of cross-examination was put to the witness. Consequently, this report is an unchallenged document in favour of the opposite party''s stand.

In view of what has been stated at the very outset 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 that the insurers 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 showing came 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 a patent deficiency in the service which the insurers had undertaken to render. Inevitably, the complainant must foil in its attempt to seek redressal within the summary jurisdiction under the Act.

IN view of the aforesaid discussion, we find no option but to hold that the complainant must be left to his ordinary remedy of civil law in a Court of competent jurisdiction. If so advised, he can establish his case to the hilt in a Civil Court which is the proper one for deeply contested and. complicated issues of fact and law. This complaint is consequently disposed of in the terms aforesaid. We would leave the parties to bear their own costs. Complaint dismissed.