SUSHIL KUMAR vs SENIOR DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY LTD.

WHETHER the Consumer must necessarily come with clean hands before the redressal agencies under the Consumer Protection Act - is the significant, threshold question in this complaint Equally at issue is the scope of interference on the ground of deficiency in service allegedly arising from an insurance contract.

FOR the purposes of the twin question aforesaid (and also because of the added factor that herein we are relegating the complainant to his ordinary civil remedies at law) it is now unnecessary to delve too deeply into the facts or meticulously examine the intricacies, if the merits of the tangled controversy between the parties. It suffices to mention that the complainant firm of M/s. Sandley Industries Private Limited (through their partner Sushil Kumar) has raised a claim of Rs. 6,09,088/- only against their insurer the Oriental Insurance Company Limited. The broad outline of the complaint is that M/s. Sandley Industries carry on the business of manufacturing Zinc from Zinc Ash and cyclone in their factory premises located at Hisar. The firm had insured its chemicals slock stored in the shed with the Insurance Company under a fire policy ''C'' up to a sum of Rs. 3,00,000/- vide Annexure C-l. Admittedly the said fire policy excluded from its scope any loss or damage to the property occasioned by its own fermentation, natural heating, or spontaneous combustion or by its undergoing heating or drying process. According to the complainant on the 25th of February, 1990 at about 10 p.m. the factory Chowkidar noticed some smoke coming out from the storage shed thereof in which Zinc cyclone in polythene bags and other materials were lying. He informed Narinder Sharma, a partner of the firm who immediately telephoned the fire brigade and it is their case that they requested them to use the water carefully as its contact with Zinc Cyclone stored in the shed would result in a strong chemical reaction. However, the fire brigade pumped a huge quantity of water in the shed to extinguish the fire. The complainant firm informed the Oriental Insurance Company Limited (hereinafter referred to as the Insuring Company) about the incident on the following day and they immediately appointed a surveyor to assess the loss who forthwith visited the premises on the 26th and 27th of February, 1990 and even on subsequent dates thereafter. The complainant firm also lodged a F.I.R. with the local Police Station on the 26th of February, 1990 a true copy of which is annexed as C-2. The complainants inevitably filed an insurance claim with their insurer expeditiously on the 28th of February, 1990 vide exhibit R-2 admittedly signed by Shri N.K. Sharma, a partner of the complainant firm in which the net amount claimed was Rs. 1,33,122/- plus Rs. 270/-. However, this claim was rejected by the Insurance Company vide Annexure C-3 dated the 5th of September, 1990 on the ground that the alleged cause of the fire was self-combustion which was not covered by the terms of the fire policy issued to the complainants and consequently the claim was repudiated and filed as a no claim. Thereafter the complainant attempted to have the matter reopened by the Senior officials of the Insurance Company, but to no avail and ultimately vide Annexure C-6 dated the 12th of April, 1991 the Insurance Company reiterated its earlier repudiation on the ground that the cause of accident was due to self-combustion. The present complaint was thereafter preferred before this Commission on the 29th of August, 1991.

In the written statement filed by the Insurance Company three preliminary objections were raised. It was averred that the insured were buying Zinc cyclone/Zinc powder/Zinc dust which they stocked in their factory for manufacturing Zinc there from. The aforesaid chemicals are prone to self-combustion and the cause of the alleged fire, according to them was self-combustion alone as reported by the independent surveyor M/s. J.K. Whig and Company in their detailed report (Annexure R-l). It was also the case that there was no question of any short-circuiting as there was only one light point in the storage shed which was off at the time of fire. According to the insuring Company even the fire brigade report mentioned the cause of fire as unknown. Thus, it was clear that the alleged fire was the result of spontaneous combustion which is expressly excluded from the fire policy ''C'' issued in favour of the complainant. It was further pointed out that under the fire insurance policy there was an additional tarrif for covering the risk of self-combustion, but the complainants had not paid the additional premium, therefore and as such the said risk was excluded from the cover provided to them. On merits the allegations of the complainants were controverted para wise and what was highlighted is the fact that an independent surveyor M/s. J.K. Whig and Company in their report Annexure R-l found no sign of smoke at the site. The complainants case of short circuiting was categorically repudiated and it was averred that there was only one light point in the storage shed which was off at the time of fire. It was also the case that the chemicals were not stored properly as a result of which the self-combustion took place.

IN support of their case the complainants rested themselves content with the documents annexed to the complaint and an additional document C-11 being the fire brigade report in the case. A solitary cryptic and somewhat unsatisfactory affidavit was filed by Shri Sushil Kumar, a partner staling merely that the averments made by him in the complaint were based upon Annexures C-1 to C-11 and that the details of these averments are reproduced in the complaint on the basis of the aforesaid annexures and these may be treated as evidence to be adduced on his behalf. Shri Sushil Kumar was also put into the witness box but only two solitary questions were asked in examinational-chief on behalf of the complainant whilst he was incisively cross-examined by the learned Counsel for the opposite party. In contesting the complaint the Insurance Company relied heavily on Annexure R-l the detailed survey report, dated 4th of June, 1990 rendered by M/s. J.K. Whig and Company. A detailed affidavit of Shri J.K. Whig, Engineer and Surveyor was placed on record along with the affidavit of Shri K.L. Soni, Senior Divisional Manager of the Oriental Insurance Company Limited at Hisar. Both the aforesaid persons were also put into the witness-box and were cross-examined at considerable length by the learned Counsel for the complainant.

IT deserves notice that the Insurance Company a little belatedly put on record Exhibit R-2, the original claim filed on behalf of the complainant firm by their partner N.K. Sharma and also the photographs taken at the spot soon after the fire during the preparation of the survey report. In view of the somewhat crucial nature of Annexure R-2, Mr. Narinder Sharma, the partner of the complainant firm had come present before the Commission and very fairly stated that the same bore his signatures and the hand-written part in the said form was in his hand-writing. At the very outset we must necessarily notice the pointed and vehement stand of Mr. Pardeep Bedi, the learned Counsel for the Insurance Company that the complainant firm by its suspicious conduct has rendered itself ineligible for relief within the consumer jurisdiction. It was his case that there was a deliberate attempt on its part to suppress the basic document of the first claim form lodged by N.K. Sharma, a partner of the firm vide Exhibit R-2. In particular it was pointed out that therein the complainant''s own stand was that the value of the goods at the time of fire was Rs. 1,62,392-50P and after deduction for value of salvage to the tune of Rs. 21,000/- the net amount claimed was only Rs. 1.41.392-50P. Mr. Bedi rightly and sharply criticised the fact that in the complaint now the identical stock and material has been valued and claimed to the tune of the highly inflated figure of Rs. 3.00.800.17P only. Consequently, it was the opposite party''s case that there has been a deliberate and dishonest prevarication on the fundamental fact of the value of material involved in the loss. It was in this context that the allegation was raised that Mr. N.K. Sharma, the partner of the firm who admittedly had lodged the first information report and also admittedly executed Exhibit R-2 had choosen to remain totally in the background and the complaint was preferred through another partner Sushil Kumar and was supported by his affidavit alone to the deliberate exclusion of the a foresaid. N.K. Sharma. Equally it was highlighted that in Exhibit R-2 Mr. N.K. Sharma had himself stated the cause of fire and loss as unknown and even in the detailed version given therein there was not a hint or any mention of short circuiting as the starting point thereof. We are inclined to hold that there is a considerable merit in the aforesaid stance of the learned Counsel for the opposite party. A reference to Annexure R-2 which has now been fairly admitted to have been executed and written by Mr. N.K. Sharma would show that in the relevant fire claim form for the details of claim for the property destroyed or damaged the net amount claimed in the hand-writing and under the signatures of the concerned partner of the complainant firm was only Rs. 1,41,392. 50P. Further he described the relevant facts in his own words as follows in the said form:- "Our factory was closed on A/c of Sunday, holiday at about 10 A.M on 25.2.90, our watchman Shri Gingan noticed smoke in the shed where zinc bloring/cyclone was lying. He rang up at our residence and informed about the fire. We went to the factory immediately, gauged the situation and informed the fire brigade on telephone. The fire brigade people reached our factory immediately and extinguish the fire by putting jet water. The jet water agrivated the situation as it gives bust to fire which came on flame. sd/- N.K. Sharma for Sandley Industries."

WHAT calls for pointed notice is the fact that when it came to filing the present complaint the same claim for raw material and finished goods has been raised to more than double the amount at a figure of Rs. 3.00.800.17P already mentioned in Para 22 of the complaint. It is in this curious context that the fact has to be noticed that the complainants themselves did not in the first instance chose to either place the original claim form Exhibit R-2 on the record or even make the remotest mention thereto in their pleadings and evidence. Only when the opposite party placed R-2 on the record and confronted the complainants therewith, Mr. N.K. Sharma was forced to admit its execution. However, no evidence has been led nor any affidavit of Mr. Sharma has been filed to explain this grave discrepancy of nearly double the amount being now claimed in the complaint as against the claim form made on the 28 th of February, 1990. There is thus either a patent suppression or in any case a pre-varication on this point. WHAT is more is the fact that in R-2 in his own handwriting under his signatures Mr. Sharma has mentioned the cause of fire or loss as unknown. This being the situation one has to examine the legal consequences thereof.

THAT brings us to the very nature of the jurisdiction under the Consumer Protection Act (hereinafter called the Act) and its exercise. It would be labouring the obvious to dilate on the well established fact that the present Act is a beneficient statute specially enacted to confer additional CONSUMER rights and to preserve and guard the existing ones under the law. It suffices to mention that this concise statute provides a simple, inexpensive and expeditious remedy for the enforcement of those rights. It creates a hirarchy of redressa! agencies and also provides for sanctions to carry out their orders. Indeed it is somewhat manifest that the Act is a special statute satisfying a long felt need for creating an extra-ordinary jurisdiction for both the conferment of additional consumer rights and the premptory and expeditious enforcement thereof. Now once it is found as above that these beneficient provisions are contained in a special statue creating an extra-ordinary jurisdiction, it is somewhat elementary that this would cast a corresponding duty on consumers approaching the special redressal agencies for relief. This is more so because proceedings herein arc not contemplated for the determination of complicated issues of facts involving elaborate oral evidence and its cross-examination and adducing voluminous documentary evidence. The hallowed rule of our jurisprudence has long been that those seeking relief in equitable of extra-ordinary jurisdictions (other than the ordinary and the formal one at law) must-do so with the utmost candour and without any covert or overt suppression or facts or making of any misleading averments. That principle is epitomised in the dictum that the petitioner therein must come into the portals of such jurisdictions with clean hands. Nearer home the apology of the writ jurisdiction under Article 226 of the Constitution in this context seems to be the closest and the most apt. It has now become settled law therein that a petitioner in this jurisdiction apart from the merits of his case, must first come therein with meticulously clean hands. If he fails to do so then however, meritorious be his claim, he must or in any case may be denied relief on that score alone. Though this aspect is patent on principle yet authority on the point is not lacking either. In ''Asiatic Engineering Co. v. Achhru Ram'' AIR 1951 All. 746 Chief Justice Malik speaking for the Full Bench has observed as follows:- "A person obtaining an ex-parte order or a rule nisi by means of a petition for exercise of the extraordinary powers under Art. 226 of the Constitution must come with clean hands, must not suppress any relevant facts from the Court, must refrain from making misleading statements and from giving incorrect information to the Court. Courts, for their own protection, should insist that persons invoking these extraordinary powers should not attempt, in any manner, to misuse this valuable right by obtaining ex-parte orders by suppression, misrepresentation or misstatement of facts."

To the same import are the observations in ''Bhupinderpal Kaur v. The Financial Commissioner (Revenue) Punjab & Others'', 1978 PLR Page 169 and those in the Full Bench in AIR 1978 Punjab and Haryana 326, Charanji Lal and Others v. Financial Commissioner Haryana, Chandigarh and Others''.

WE are inclined to firmly take the view that for identical and indeed weightier reasons considering the peculiar nature of the extra-ordinary consumer jurisdiction (which has been somewhat concisely delineated above) the legal situation herein should be at par with what has become settled law with regard to the writ jurisdiction under Article 226. In the light of the above both on principle and precedent the answer to the first question posed at the outset has to be rendered in the affirmative and it is held that a consumer knocking at the door of the redressal agencies under the Act for relief in a consumer dispute must do so with clean hands.

ONCE the legal issue is concluded as above, it is somewhat plain that herein the complainant firm and its partner have not come forward with the candour, forth-rightness, and totally above board stance which is a pre-requisite for claiming relief in this jurisdiction. The unexplained variance in the quantum of the claim in the original form R-2 and the inflated one in the complaint stands unexplained. Similar other factors have already been noticed above. For these reasons we must hold that the complainant has thus disentitled itself to relief in this jurisdiction and must be relegated to its ordinary remedies at law in a Civil Court, if so advised. Now apart from the aforesaid finding, an equally weighty reason impels us to arrive at an identical conclusion. As is manifest from the earlier resume of the facts and the diamaterically opposite stand of the parties, the core of the controversy herein is whether the alleged fire in the complainant premises had been occasioned by self-combustion or spontaneous combustion of the zinc cyclone/zinc dust etc. lying in the storage shed or whether this fire had been ignited and started from a spark emanating from the short circuiting of the electric wires on a switch board. It would seem elementary that the determination of the first question requires a deep and intricate knowledge of the chemical processes to which the stored material in the shed was prone. What are the chemical properties in zinc cyclone and zinc dust which render them capable to either smouldering or igniting; what are the catalyst agents which may either hasten or retard such a process within a particular period of time; whether selfcombustion would only lead to smouldering of materials and not an actual flame; and whether the smoundering or a minor flame in such a situation would give rise to smoke or not; are all acutely intricate scientific questions which cannot be resolved except on the basis of sound expert testimony. Somewhat surprisingly neither the complainant nor the opposite party has chosen to put in the testimony of any authoritative expert with regard to these questions. Faced with the somewhat uphill task of establishing the complainant''s case Mr. Rao Ranjit, their learned Counsel had with great ability and vehemance submitted that even the somewhat patchy materials on the record were sufficient to come to a categoric conclusion that the alleged fire in this case could only be the result of short-circuiting and was not occasioned by self-combustion which admittedly was not covered by the insurance policy. Learned Counsel''s primal reliance was on the First Information Report lodged by Mr. Narinder Kumar Sharma which for the first time mentions short circuiting as the cause of the fire. Reliance was also placed on the fire brigade report which had mentioned the category of the fire as medium. Relying on the photographs taken after the occurrence it was sought to be submitted that these indicated some signs of smoke though not a conflagration.

ON the other hand Mr. Pardeep Bedi pointed out that even in the very first document namely the fire brigade report Exhibit C-11 itself, the cause of the fire had been clearly shown as unknown and there was not even a hint of any electric short-circuiting. He butteressed this position with the fact that even Mr, N.K. Sharma, the partner of the complainant Company in Annexure R-2 had in his own hand-writing clearly stated that the cause of the fire and loss was unknown even two days later on 28th of February, 1990. Inevitably on behalf of the insuring Company particular reliance has been placed on the survey report Annexure R-l given by M/s. J.K. Whig and Company which on a detailed examination of the whole matter had arrived at the following conclusion:- "CAUSE OF FIRE : As per statement of the insureds given above and recorded in the columns of occurrence/ Mishap and after examining the evidence available in the processing shed, it is matter of self combustion as there are no sign of smoke. Besides the above, the Zinc cyclone/powder/ dust is prone to self combustion. In the shed there is only one light point which was of fat the time of fire, therefore, the question of short circuiting as mentioned in the F.I.R. does not arise. Moreso in the fire brigade report, the cause of fire is mentioned unknown. As explained above, it is a case of self combustion as such it is not covered under the Fire Policy ''C and the claim of the insureds is not tenable."

MR. Bedi had submitted that MR. J.K. Whig was professionally a mechanical engineer of repute with an experience of nearly 25 years and was an independent surveyor of insurance claims with considerable standing. It was submitted that there was no reason why his non-partisan report and affidavit and his testimony on oath given even in the cross-examination be disregarded on the point. He commended the cumulative reasoning of the report for its conclusion that the alleged fire in the present case was indeed the result of self combustion. Particular reliance was also placed on the photographs taken on the site during the course of the survey for contending that these do not indicate any smoke at all and even the frail wooden door of the shed had not only remained unburnt and intact but was totally unscarred and did not show even a trace of blackening or smoke thereon and even on the walls of the storage shed. As we have already indicated above in the aforesaid situation of a somewhat wholly balanced evidence the scales could be tilted on either side only by the examination of chemical experts, their reports and reasoning, and if necessary a close cross-examination of the same, The issue would also require the production of unimpeachable documentary evidence of extracts from authoritative treatises on the point. However, this is wholly lacking on the present record. The burden to establish the case lay on the complainant antf they have chosen not to produce any expert testimony whatsoever on the point. In rebuttal also the insuring Company has rested itself content with the view of Mr. J.K. Whig who conceded that he was not professionally a chemical engineer. In such a situation in the summary and expeditious CONSUMER jurisdiction it seems not only difficult but indeed impossible to arrive at a judicially satisfactory determination of the core issue involved herein.

Yet again it has to be pointedly kept in mind that within this jurisdiction the complainant could get relief only on establishing a patent deficiency in the services hired by him. Obviously assuming in his favour that insurance is a service, the alleged nature of deficiency therein which would entitle him to relief has to be fully established. Mr. Pardeep Bedi was not far wrong in submitting that the Insurance Company had reasonably done all that was within its power to examine the complainant''s claim and on the basis of credible material have come to a bona fide conclusion that the alleged fire was occasioned by self-combustion which admittedly was not covered by the fire policy ''C'' On these premises it was forcefully submitted that the case cannot possibly come within the ambit of deficiency in insurance services rendered which alone merits interference in this jurisdiction.

IT is now well settled by numerous decisions of the National Commission that the consumer jurisdiction is a summary and expeditious one and consequently matters which require expert scientific testimony and voluminus oral and documentary evidence for the resolution of intricate questions are not fit subjects in this arena. IT suffices to refer to the following observation in I (1991) CPJ 78 (NC) ''M/s. Special Machines, Karnal v. Punjab National Bank & Others'':- "Sub-sections (2) and (3) of Section 13 of the Act show beyond doubt that the statute does not contemplate the determination of complicated issues of fact involving taking of elaborate oral evidence and adducing of voluminus documentary evidence and a detailed scrutiny and assessment of such evidence..Even in such cases, if it appears to the concerned Forum under the Act that the issues raised cannot be determined without taking elaborate oral and documentary evidence it is open to it to decline to exercise jurisdiction and refer the party to his ordinary remedy by way of suit."

We are of the view that the present case appears to be of a category which is fully covered by the aforesaid observation.

FOR the aforesaid reasons, we regret our inability to finally adjudicate upon the merits of this case. We are firmly of the view that the basic issue involved herein cannot be resolved except in the ordinary processes of the civil law. Consequently, we would relegate the complainant to this remedy be way of a civil suit, if so advised. There will however, no order as to costs. Complaint not adjudicated upon.