Supreme Court - Daily Orders
Viral C Shah(Director) Shah Diagnostic ... vs United India Insurance Co.Ltd. on 26 April, 2023
Bench: A.S. Bopanna, Dipankar Datta
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No(s). 5580/2009
VIRAL C SHAH(DIRECTOR) SHAH Appellant(s)
DIAGNOSTIC INSTITUTE PVT.LTD.
VERSUS
UNITED INDIA INSURANCE CO.LTD. Respondent(s)
O R D E R
1. Heard the learned senior counsel for the appellant as also the learned counsel for the respondent-Insurance Company and perused the appeal papers.
2. Though, the matter has been elaborately heard, we note that the brief facts on which the present claim had arisen before the National Consumer Disputes Redressal Commission (for short ‘NCDRC’) is that the appellant herein had installed Siemens AG Germany make Magnetom M- 10 (1.0 Tesla) MRI Machine at Breach Candy Hospital and Research Centre, Mumbai under an Agreement dated 02.07.1987.
3. Subsequently, when the said MRI Machine was to be transported to Ahmedabad on 08.07.1996, the appellant approached the respondent for transit insurance. The Signature Not Verified Insurance Company having obtained a report from Mr. S.G. Digitally signed by Nisha Khulbey Date: 2023.04.27 17:07:28 IST Reason: Kumar and Co-Surveyors, who were the Loss Assessors and Valuers as per-acceptance inspection with regard to 2 transportation and the Road Survey Report, had issued the policy on payment of premium of Rs. 2,81,239/-. The machine was insured for the value of Rs.3.16 Crores.
4. During transit, the MRI machine had suffered damage and it is in that light, a claim was made by the appellant herein.
5. The respondent-Insurance Company had appointed a Surveyor, Mr. J.P.Mistry to carry out necessary survey, who had submitted a report dated 16.07.1998. The respondent-Insurance Company having examined the claim and the survey report, has repudiated the claim through its communication dated 17.07.1998. It is in that background, the appellant was before the NCDRC raising the claim.
6. The NCDRC, having adverted to the rival contentions in the background of the claim made, has recorded its findings to arrive at the conclusion that the claim is not justified. Essentially, what was taken note was that the policy issued was on indicating the starting point and the destination and the road survey having been completed. Hence, when the policy had been issued in such a manner and deviation in route without approval will dis-entitle the claim. However, ultimately when the machine is stated to have been unloaded at a place which was not indicated in the route as shown in the policy, it was noted after sometime that the machine was not in a working condition.
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7. In that light, having refereed to the sequence of the events, the NCDRC has ultimately recorded as hereunder, “In the present case, the change of destination was not within the knowledge of the opposite party nor have they accepted the same. There is no deficiency in service on the part of the opposite party in repudiating the claim of the complainant. The complainant at the most may try to find some remedy if sufficient evidence can be brought on record against PMS or OPM in a civil Court for not appropriately packing the equipment or not taking proper precautions during transportation of the same or unloading it with due care and caution considering it as a sensitive and costly equipment that too at a new destination.
In view of the above decisions of the Apex Court, we find that the same logic has to be applied in the present case and as there was no concluded contract for change of destination between the parties, the complainant cannot get benefit of the changes. The complainant tried to create evidence in his favour by producing identical letters dated 29.07.1997 and 02.08.1997, to opposite parties, which are clearly concocted by him. Consumers have to come with clean hands and their complaints should be genunine while seeking relief under the Consumer Protection Act, 1986. Where consumers’ intent is not bona fide and their conduct in pursuit of the complaint is fraudulent in adducing evidence, the commission 4 cannot give any relief.”
8. To arrive at such conclusion, the NCDRC has also referred to the Surveyor Report. Though, the learned senior counsel for the appellant has painstakingly taken us through the documents including the Surveyor Report, having noted the same, we see no error committed by the NCDRC in arriving at its conclusion so as to term the conclusion as perverse and take a different view in this appeal.
9. At the same time, we note that the NCDRC while examining the claim, has examined it in the background as to whether there was deficiency of service on the part of the respondent and has thereafter, arrived at its conclusion. In that regard, from the very conclusion as recorded by the NCDRC which is extracted above, it would indicate that the other remedies available to the appellant has not been taken away and in fact, the observation would indicate that the appellant could still avail their remedies in accordance with law, if it is open to them and permissible in law.
10. Therefore, on the aspects as considered by the NCDRC, on the question with regard to the deficiency of service, since we see no error committed by the NCDRC, we are unable to take a contrary view. 5
11. Accordingly, the appeal being devoid of merits to that extent, stands disposed of along with pending application(s), if any.
...................J. (A.S. BOPANNA) ...................J. (DIPANKAR DATTA) New Delhi 26th April, 2023 6 ITEM NO.101 COURT NO.12 SECTION XVII-A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No(s). 5580/2009 VIRAL C SHAH(DIRECTOR) SHAH Appellant(s) DIAGNOSTIC INSTITUTE PVT.LTD.
VERSUS UNITED INDIA INSURANCE CO.LTD. Respondent(s) Date : 26-04-2023 This appeal was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE A.S. BOPANNA HON'BLE MR. JUSTICE DIPANKAR DATTA For Appellant(s) Mr. Rajive Bhalla, Sr. Adv.
Mr. Sanjay Sarin, Adv.
Mrs. Gagan Deep Kaur, Adv. Mr. Ashok Mathur, AOR For Respondent(s) Mr. A.K.De, Adv.
Mr. Zahid Ali, Adv.
Ms. Ananya De, Adv.
Mr. Pramit Saxena, AOR UPON hearing the counsel the Court made the following O R D E R The appeal stands disposed of along with pending application(s), if any in terms of the signed order.
(NISHA KHULBEY) (DIPTI KHURANA) SENIOR PERSONAL ASSISTANT ASSISTANT REGISTRAR
(signed order is placed on the file)