S.K. LAKHOTIA vs National Insurance Co. Ltd.

THE case of the complainant is that his vehicle No. MP-23 B-3447 met with an accident on 4-11-91 nearer to Sambalpur which was reported to Sambalpur Police Station. THE complainant also lodged his claim before the National Insurance Co. Ltd. the opposite party No. 2 in pursuance of the Policy No. 101600/ 6312724. THE Opposite Party conducted its enquiry and submitted its reports in favour of the petitioner recommending to settle the claim of the petitioner in view of the loss and damage assessed by the Surveyor and the opposite party No. 1 was bound to settle the claim but no step was taken till 22-10-92 when the lawyer''s letter-cum-notice dated 22.-10-92 was served upon opposite party, that the opposite party No. 2 by its letter dated 5-11-92 informed to the petitioner/complainant that as there were some anomalies in the report of the Surveyor and his subsequent clarification, the report has been referred to an expert-an independent person for his opinion. Further, the opposite party No. 2 by his letter dated 3-12-92 informed the petitioner that as the original loss assessed by the Surveyor was exaggerated, it has prejudiced the petition''s right to claim so the file is closed as no claim. THE petitioner has prayed for one lakh as compensation and damages.

THE objection filed on behalf of the opposite parties inter-alias is that the application is not maintainable under the provisions of Consumer Protection Act in-as-much as there is no deficiency in service as defined under Section 2(1)(g) of the said Act. That due to failure to produce the valid driving license of the Driver by the owner the respondent is in dark if the Driver had any valid license at the material point of time. Further, the case of the opposite parties that they appointed two Surveyors who submitted their reports. But due to some anomalies in the report submitted by the final Surveyor namely Mr. G.P. Jhajharia the opposite parties asked for clarification for some points raised in the report but as he failed to do so in spite of their repeated requests the opposite parties had to depend upon expert opinion and appointed Mr. G.K. Jalan who submitted his report observing the loss-assessment conducted by final Surveyor Mr. G.P. Jhajharia has been established to be an exaggerated one which had prejudiced the petitioner''s right to claim. THE opposite parties submitted all reports of spot Surveyor as well as final Surveyor and the opinion of the expert marked as ''A'' to the opposition. THE opposite parties further alleged that the petitioner''s claim is not specific one and it is barred by pecuniary jurisdiction in view that final Surveyor''s report is much less than one lakh. THE opposite party further contended that the issues involved in the matter cannot be adjudicated other than Civil Court and that Consumer Disputes Redressal Forum cannot give any direction ''to do or to desist''. It was asserted that petition of complainant is liable to be rejected. Further as regards allegations of the complaint petition opposite parties denied all material allegations and in dealing with the allegation about the report of the Surveyors the opposite parties have alleged that reports of the Surveyors are fradulent ones, as such they had to depend on expert''s opinion and on that basis the opposite parties had repudiated the claim of the complainant and the petition is vague and not at all genuine one and prayed for rejection of the petition of complaint with exemplanary cost. JUDGMENT The petition of complaint presented before us is poorly drafted and even not corroborated with any documents in support of his case, although in petition of complaint filed in this regard annexures have been referred therein, are not really annexed with the petition. No claim amount is shown in the petition and the statement of claim portion has been kept blank even the petition has not been checked up before filing. The petitioner has only sought for compensation and damages of Rupees One lakh without justifying and particulars of the said sum-of compensation and damages in the body of petition how he has arrived at the said figure. Further, there is no materials on record to counter the allegations raised by the opposite parties. The petitioner has failed to distinguish the claim for loss suffered by the complainant due to negligence of the opposite parties causing accident and his entitlement to compensation and damages. Not a iota of paper as to documentary evidences has been produced before us in support of the case by the complainant but still relying on statements and documents submitted by the opposite parties we shall proceed in this case for the interest of justice.

It is an admitted position that an accident caused to the captioned vehicles-it is also admitted that there were valid Insurance Road permit, fitness certificate etc. for the captioned vehicle. It further reveals from the reports of the two Surveyors and the expert that the accident to the vehicle caused some damages to it. Upon perusal of the reports of the surveyors and the expert we can safely hold that the complainant is entitled to certain claim and denial of such legitimate claim by the opposite parties, for such a long period the opposite party is also liable to pay compensation to the complainant. However, we shall determine the claim and the compensation based on the reports of the surveyors and expert later on.

NOW, we deal with the allegation challenging the jurisdiction of this Forum by the opposite parties and in support of their contention they referred to certain decisions reported in 1991 (1) CPR 52 (NC), I (1992) CPJ 247 (NC), 1992 (1) CPR 73 (NC), I (1992) CPJ 212 (NC, Raj.), 1992 (1) CPR 330 (SC, Karn.), 1992 (1) CPR 420 (SC, Raj.), 1992 (1) CPR 480 (SC, Karn.). The complainant to encounter the said reported decisions referred by the opposite party, cited several decisions reported in I (1992) CPJ 335 (NC), II (1992) CPJ 189 (NC), II (1992) CPJ 516 (NC), I (1992) CPJ 212 (NC), I (1992) CPJ 192 (SC, Har.), 1992 (1) CPR 334 (NC), & 1992 (1) CPR 508 (NC).

THE reported decisions referred by the opposite parties are distinguishable and are different from the facts and circumstances of this present case. THE ratio in the case of Special Machine reported in 1991 (1) CPR 52 was a complex matter involving a series of issues and spreaded over for 12 years regarding loss suffered for refusal to financing by the Bank to the complainant cannot be involved in this case specially when there several civil suits were pending before lodging complaint before the Consumer Redressal Forum. Secondly, the principle laid down in the case of Kongra Anath Ram reported in I (1992) CPJ 247 is not applicable in this case inasmuch as in the said decision by interpretation of the Section 14(1)(d) the National Commission held that considering the question involved in the case, compensation to be given for loss or injury suffered by a consumer due to negligence of the opposite party. Instead of considering, the question of compensation to be given to the petitioner/ complainant in this case in that light of the clear finding that the telephone was going out of order frequency, the District Forum merely choose to direct the opposite party to take step for trouble free telephone service to all subscribers of the telephones and to improve the image of Telephone Department in the eye of public. This type of relief could not be granted by the District Forum under Section 14(1)(d) of the Consumer Protection Act. But by virtue of other provisions i.e. Clauses (a), (b) & (c) of Section 14 of the Act amply empowers the Consumer Redressal Forum to issue order to the opposite party directing him to take one or more of the things mentioned in said Clauses (a), (b), (c) or (d) of Section 14 of the Consumer Protection Act. In fact the National Commission itself has passed such order in all cases directing the opposite party to do or desist, to render consequential reliefs to the petitioner in addition to awarding compensation. THE interpretation of the said decision reported in Kongra Anathram is totally misunderstood by the opposite party. Had it been such intention of the National Commission in delivering the said judgment as construed by the opposite party then the Redressal Forum would have been "functus Tribunal" for the purpose of giving any relief in any matter. Similarly the ratio in the case of M/s. Rajdeep Leasing & Finance Pvt. Ltd. v. New India Insurance Co. Ltd. and others reported in 1992 (1) CPR 73 has no nexus with the instant case because upon scrutiny and investigation the claim of the Complainant was found to be false but in the present case it is not false or fabricated. THE case of Sushil Kr. v. THE District Engineer, Telecom and Anr. has no nexus at all with the present case. In the case of M/s. Vijoy Industries and Vijaya Agro Agencies v. United India Insurance Co. Ltd. reported in 1992 (1) CPR 330 there were two policies-the claim of first Policy was settled upon due payment of the claim, but as regards claim against second Policy it was found to be false after investigation as the goods damaged were not insured at all. THE case of Rajeev Traders v. United India Insurance Co. Ltd. & Anr. reported in 1992 (1) CPR 420 involves an indicated question of facts which requires elaborate evidence for which it was observed that the complainant can seek his redress in appropriate Civil Court but to us the present case is not complicated at all inasmuch as the Surveyors and the experts all are appointed by the opposite parties and the reports submitted by them exclusively prove the happening of the accident to the vehicle and also have come to finding that damages were caused to the vehicle. But in suggesting the quantum of damages in monetary terms there arose some differences of opinion. THE decision cited by O.P. in the case of Smt. Savitre Bai v. General Manager, Southern Railway reported in 1992 (1) CPR 480 is also completely different from the facts of the present cause. In the said case the complainant lost her two legs in the Railway accident for her own negligence for which she was denied to pay any compensation and there was no insurance for her leg against accident. But the vehicle in question in the present case was duly insured against accident and for other risks. So all decisions cited by the opposite parties do not come to any assistance for their case. On the other hand, the decision referred to by the complainant in 1992 (1) CPR 334 in the case of Rajkamal v. United Insurance Co. Ltd. & Ors., we find that before repudiating the claim of the insured on the basis of Surveyor''s Report it is for the Insurance Co. to examine the documents produced before it and then come to an independent conclusion. As per decision reported in 1992 (1) CPR 508 in the case of Sarada Ben & Ors. v. Gujarat Gas Supply Co. the National Commission over-ruled the decision of Gujarat State Commission which declined to exercise jurisdiction on the ground that disputed questions of facts and laws are involved in the matter and huge evidence are to be recorded and suggested to approach Civil Court. It was further held that the provisions of Consumer Protection Act in that case would be nugatory and poor consumer will not be enabled to take benefit of the benevolent provisions of the Act. The principle of decision in the case of National Insurance Co. Ltd. v. R. S. Oil General Mills (P) Ltd. reported in I (1992) CPJ 212 is that mere unilateral rejection of an insured claim per se cannot operate against insured as a jurisdictional bar to seek redress before the Forum. In the said decision the National Commission while in full agreement with the order of the State Commission observed that whenever there is any delay or dilatoriness in finalising an insurance claim the same would be tantamount to a deficiency in service and thus comes squarely within the ken of the Consumer Redressal Forums. It was correctly held by the State Commission that if an Insurance Company arbitrarily and wrongfully rejects the insured''s bona fide claim it cannot by such fiat carry itself beyond pale of redress before Consumer Forums. A wrongful rejection of an insurance claim would certainly attract the jurisdiction of these Forums. It was further agreed with the observation of the State Commission that a harassed insured party can come to Consumer Forum to seek redress for delay, default or dilatoriness and he cannot be cheated of seeking redress through the Consumer Protection Act by the simple subterfuge of rejecting the claim outright by and thus driving him to the torturous and weary path of civil litigation. It was rightly emphasized that wrongful, arbitrary or mischievous rejection of an insurance claim would patently be a default within its broad meaning. The similar views has been held by State Commission Haryana in a case between National Insurance Co. Ltd. v. P. K. Keswani reported in I (1992) CPJ 192 that in a claim of reimbursement of expenses under Insurance Mediclaim the unilateral rejection of the Policy and the brusquely brushing aside the claim are wrongful and arbitrary action of the Insurance and the Consumer Forum can well entertain it.

THE decisions in the case of L.I.C. of India v. Shri B.S. Reddy reported in II (1992) CPJ 189 it has been held that any unilateral repudiation of the contract by the Insurance Company on the allegation that there had been suppression of relevant material fact by the insured at the time of taking the Policy of Insurance will not dis-entitle the policy holder from approaching the Redressal Forum constituted under the Act seeking an investigation and adjudication of the question whether such repudiation was justified in law and upon investigation if it is established that the purported action repudiating the contract by Insurance Co. was not justified, in that case it would be correct to hold that the contract of insurance was subsisting and thereafter to be proceeded to make an enquiry about deficiency in fervice on the part of the Insurance Co. so as to entitle the complainant to grant relief under the Act. Further, the ratio decided in the case of Divisional Manager, L.I.C. of India v. Uma Devi reported in II (1991) CPJ 516 is that the repudiation of claim arising out of insurance cannot take away jurisdiction of the Redressal Forum. THE contention of the appellant that the remedy available to the aggrieved party is to approach to Civil Court as the remedy available in Redressal Forum is in addition to and not in derogation of any other law was discarded by the National Commission not being tenable.

LASTLY the decision cited by the insured in the case of the New India Assurance Co. Ltd. v. M/s. Vipro Electronics Pvt. Ltd. reported in I (1991) CPJ 335, it has been held that merely because the insurer had totally repudiated his liability in respect of the claim does not mean that no proceeding could be validly initiated under the Consumer Protection Act. The National Commission further observed that it was not possible for it to hold that the settlement of a disputed claim will not be covered by the expression ''service'' occurring in Section 2(d) of the Act. It was laid down whenever there is default or negligence in regard to service that will constitute deficiency in service on the part of the insurer and it is perfectly open to the aggrieved party to seek appropriate relief under the Act. It is fact that two Surveyors and an expert appointed by the opposite party admitted of the accident taking place to the vehicle in question but the final Surveyor assessed net loss at Rs. 13,500/- whereas by scrutiny the so called expert reduced it to Rs. 6670/-. But it is not understood to us how the expert named Mr. Ramesh Kumar Jalan deserved to be thought as an expert of the final Surveyor named G. P. Jhajharia. There is nothing on record to substantiate and to think it by said Ramesh Kumar Jalan while beth being licensed assessor and valuer. Moreover, the Insurance Co. ought to have settled the claim of the complainant considering all the reports including the report of the so called ''Expert'' when there is recommendation of certain loss whatever may be the amount. But it is most illegal to close it as ''no claim''. We are of opinion that here is deficiency in service on the part of the Insurance Company by not considering the claim of the Complainant on the basis of the reports submitted by its own appointed Surveyors and to delay the matter for such a long time. It is also not a case to be referred to the Civil Court''.

On the contention of making a reference to the Civil Court by the opposite party our attention is invited to the case of S. K. Sukur v. State of Orissa & Ors. reported in II (1991) CPJ 202 (NC) the case of Prem Singh & Ors. v. United India Insurance Co. Ltd. reported in I (1992) CPJ 138 (NC) and the case of Shakun Overseas Ltd. v. National Insurance Co. Ltd. reported in I (1992) CPJ 144 (NC) where the National Commission in all those cases over-ruled the decisions of the concerned State Commissions which declined to adjudicate the matters for the reason that the matters require oral and cross-examination and dismissed the complaints, the National Commission held that said action on the part of the State Commissions amount to unjust denial of the benefits of the Consumer Protection Act to the aggrieved consumer and also held it to be erroneous abdication of its jurisdiction by the Forums particularly in view that the Redressal Forums are vested with powers of summoning and enforcing attendance of witnesses and examining them on oath, the discovery and production of documents and other materials and issuing of commissions for the examination of any witness etc. The National Commission distinguished the cases of M/s. Special Machine (Supra) and the subsequent case of M/s. Janata Machine Tools v. Oriental Insurance Co. Ltd. reported in I (1991) CPJ 234 (NC) in the line that the observations to be understood against special facts which were present in those cases and that it was nowhere laid down in those cases that whenever the examination and cross examination is involved the proper Forum for adjudication of the dispute is only Civil Court.

IN the premises we accept the report of the Surveyor named G. P. Jhajharia assessing loss at Rs. 13,500/-. We therefore direct the opposite party to pay the sum of Rs. 13,500/- against claim of the complainant and also award Rs. 2,000/- towards cost of this proceeding, harassment, mental agony and torture suffered by the complainant. The opposite party shall comply this order within 30 days from the date of communication. Complaint allowed with costs.