Central Information Commission
Mrn K Aggarwal vs New India Assurance Co. Ltd. on 30 June, 2016
Central Information Commission
Room No.307, II Floor, B Wing, August Kranti Bhawan, Bhikaji Cama Place,
New Delhi-110066
website-cic.gov.in
Appeal No. CIC/MP/A/2016/000056
Appeal No. CIC/MP/A/2016/000532
Appellant : Shri N K Aggarwal, Delhi
Public Authority : The New India Assurance Company
Limited, Mumbai
Date of Hearing : 10th June, 2016
Date of Decision : 30th June, 2016
Present
Appellant : Represented by Ms. Rachna Aggarwal,
Advocate.
Respondents : Ms. Ranjana, Deputy Manager- through VC
RTI application : 25.03.2015
CPIO's reply : 28.04.2015
First appeal : 18.05.2015
FAA's order : 08.07.2015
Second appeal : 05.10.2015
Information Commissioner : Smt. Manjula Prasher
ORDER
1. The appellant, Shri N K Aggarwal, through his RTI application dated 25.03.2015 sought following information in respect of his fire insurance claim: 1) interim and final survey reports of M/s J Basheer & Associates Surveyors (P) Ltd. along with copies of entire correspondences exchanged between the public authority and the said surveyor; 2) copy of legal opinions received by the various offices in the matter; and 3) claim notes and intra company correspondence in the matter.
2. The CPIO vide letter dated 15.04.2015 informed the appellant that they had already provided the information sought in point no. 1 of the RTI application to him in response to his earlier RTI application dated 28.07.2014 and that with 1 regard to point nos. 2 & 3, they had forwarded the RTI application to the CPIO, head office under section 6(3) of the RTI Act. The CPIO, head office responded to the appellant on 28.04.2015 and forwarded the reply dated 27.04.2015 of the Chief Manager, Fire & Engineering Department to him whereby the Chief Manager had denied the information sought in point no. 2 & 3 stating that since the claim had been repudiated due to violation of condition no. 1, 3(a) and 6 of the policy, litigation would be impending and that the information sought being critical to defence of the company's decision and finally public money, any disclosure at this stage would seriously harm the competitive position of the company in the said dispute/litigation. The Chief Manager cited section 11(1) read with section 2(n) of the RTI Act.
3. The appellant thereafter preferred an appeal dated 18.05.2015 before the First Appellate Authority (FAA) challenging the denial of information. The FAA vide order dated 08.07.2015 upheld the decision of the CPIO on the ground of the insurance company being a defending litigant and therefore a third party under section 2(n) of the RTI Act and exempt under section 8(1)(d) of the RTI Act and as the matter was subjudice, information sought was not disclosable under section 8(1)(h) of the RTI Act as its disclosure would impede the process of prosecution of offenders, while recording that the appellant had engaged the public authority in a consumer dispute litigation before the State Consumer Disputes Redressal Commission, Delhi,
4. The appellant then filed the instant appeals, pertaining to identical RTI applications, before the Commission challenging the decision of the FAA.
5. The matter was heard by the Commission. The counsel for the appellant stated that the exemption claimed by the respondents under section 8(1)(d) & (h) of the RTI Act did not apply to the information sought by the appellant as the same pertained to his own claim and not of any third party and therefore the question of harming the competitive position of any third party did not arise in terms of section 8(1)(d) of the RTI Act. The respondents' plea that disclosure of 2 information would impede the process of prosecution as the matter was sub judice too would not come in the way of disclosure of information since the mere pendency of matter before a court would not become the ground of denial of information under the RTI Act and exemption granted under section 8(1)(h) would not be applicable in such case. The counsel, in support, relied on the Commission's decisions in Appeal No. CIC/AT/A/2008/00705 (Bharat Thacker v. M/o Shipping, Road Transport & Highways) dated 27.11.2008 and in Appeal No. CIC/MP/A/2014/000657 (S K Choubey v. Oriental Insurance Co. Ltd.) dated 31.03.2015. The respondents reiterated that the information sought by the appellant on point nos. 2 & 3 could not be provided to him in view of the exemption provided under section 8(1)(d) & (h) of the RTI Act. As the impugned order of the respondents did not contain reasons as to how the said exemption clauses would apply to the present information, the Commission directed the respondents to submit written submissions giving justification for denial of information. The appellant was also advised to file written submissions giving details of the case. The parties accordingly submitted their written submissions to the Commission.
6. The appellant in his written submissions, while giving the gist of the matter pertaining to his RTI request, has stated that he is the Chairman and Director of M/s Crystal Crop Protection Pvt. Ltd. which deals in manufacturing, marketing and distribution of insecticides and pesticides and it has manufacturing facilities in Sonipat (Haryayna) and Bahri Brahman (Jammu & Kashmir) and warehouses at thirty locations spread all over the country. They have been insuring all their assets with the respondent company for several years. In June, 2012 a major fire accident occurred in the Kundli godwon of their company in which stocks of raw materials, finished goods worth Rs. 22.21 crore were gutted and damaged completely and the appellant had suffered a huge loss of Rs. 22.21 crores. The respondents had appointed M/s Mack Surveyors Pvt. Ltd. for the assessment of loss suffered by the appellant which after thorough investigation submitted its survey report dated 07.01.2013 to the respondents recommending the settlement of claim of Rs. 16,22,59,661/- (Rupees Sixteen Crores Twenty Two Lacs Fifty 3 Nine Thousand Six Hundred and Sixty One Rupees) only. Though the appellant had claimed a higher amount, he agreed to have the claim settled for Rs. 16,22,59,661/- as assessed by the surveyor appointed by the respondents. However, instead of settling the claim as assessed by M/s Mack Surveyors Pvt. Ltd., the respondents proceeded to appoint another surveyor, namely, M/s J. Basheer & Associates Surveyors Pvt. Ltd., without any valid reasons and on recommendation of M/s J. Basheer & Associates Surveyors Pvt. Ltd, the respondents repudiated the appellants' claim vide letters dated 12.03.2014 and 20.03.2014. The appellant then filed the instant RTI application and also made a complaint to the National Consumer Disputes Redressal Commission.
7. The appellant has stated that the copy of final survey report of M/s J. Basheer & Associates Surveyors Pvt. Ltd provided by the respondents in response to point no. 1 of the RTI application does not contain page nos. 90 to 116 and therefore the information given on this point is incomplete. As regards point nos. 2 & 3, the appellant has, inter alia, stated that since the information sought pertains to his own claim, he has every right and interest to seek the desired information and the respondents cannot deny the information on the ground that litigation is impending or matter is subjudice. He has relied on the Commission's decisions in Appeal No. CIC/AT/A/2008/00705 (Bharat Thacker v. M/o Shipping, Road Transport & Highways) dated 27.11.2008 and in Appeal No. CIC/MP/A/2014/000657 (S K Choubey v. Oriental Insurance Co. Ltd.) dated 31.03.2015.
8. The respondents in their written submissions have stated that in view of the ongoing litigation case the desired information is critical to defence of the public authority's decision and finally public interest to defend the public money involved and any disclosure at this stage would seriously harm the competitive position of the public authority in the said dispute/litigation. They have relied on the Commission's decision in Appeal No. CIC/AT/A/2007/000004 dated 10.07.2007 wherein the term 'investigation' occurring in section 8(1)(h) was explained by the Commission. They have also relied on the Commission's 4 decision in CIC/AT/A/2007/007, 010 & 011 and CIC/AT/A/2010/000969 & CIC/AT/C/2008/00025. They have contended that the appellant has failed to cite any public interest and that they are not obligated to part with the information which they hold and which they have internally processed through consultations with others, such as legal advisors, officers of the department etc. or explain its conduct by revealing the entire decision making process to the very litigant with whom it may be engaged in a dispute legal or otherwise. They have also claimed that the insurance company, who holds the money of the insurance pool of insuring public in trust, is duty bound to ensure that not even a solitary rupee is appropriated by any member of the pool more than what ought to be. Thus, as a public authority it stands in a larger fiduciary role for the common interest of public than an individual interest of one claimant. They have reiterated that since the matter is sub judice and pending for adjudication before NCDRC, parting of information at this stage would jeopardize the safeguard aspects of protection and use of evidence/argument to maintain competitive position of the public authority.
9. Upon considering the submissions of both the parties, the Commission is of the view that the information sought by the appellant in his instant RTI application pertains to his own claim and not of any third party. The contract of insurance is based on the principle of 'utmost good faith' in which both the parties, the insurer and the insured, are expected to disclose all material information to each other with regard to the contract of insurance and the information relating to processing of claim of an insured is undoubtedly a material information for such insured, especially when his claim is repudiated by the insurance company. He has right to know the reasons, as available in the records of the insurance company, for repudiation of his claim as he is the one who has been 'adversely affected' by the decision of the insurance company. Therefore, the plea taken by the public authority that disclosure of information sought by the appellant would harm the competitive position of the public authority as third party does not hold good and cannot be sustained. Similarly, the claim of fiduciary relationship, which has been made by the respondents at 5 this stage only, is not persuasive in view of the reasons stated above. The decisions of the Commissions relied upon by the respondents are also not applicable here having regard to the facts and circumstances of the present case.
10. Another plea of the respondents that since the matter is subjudice before NCDRC, the disclosure of information would weaken their case too has no merit in view of the Commission's decision in Appeal No. CIC/AT/A/2008/00705 (Bharat Thacker v. M/o Shipping, Road Transport & Highways) dated 27.11.2008 and in Appeal No. CIC/MP/A/2014/000657 (S K Choubey v. Oriental Insurance Co. Ltd.) dated 31.03.2015 wherein the Commission had held as under:
"...In no case, it can be held that Section 8(1)(h) could be said to apply to sub-judice matters. Section 8(1)(h) of the Act is specific about matters under investigation and prosecution and holds that should it be construed that the requested information, if disclosed, would impede the investigative or the prosecution process, its disclosure could be barred under that Section. None of those elements of the Section can be said to apply to a sub-judice matter. Apart from the above, Appellate Authority should have also taken into account the fact that simply because a matter has been taken before a law court does not alter the character of the information in terms of the provisions of the RTI Act. If the requested information is known to be disclosable, there is no reason why it should not be disclosed even if it may be the subject matter of a court proceeding. The argument that the public authority would weaken its case before the court if it discloses the information to the very party who it is contesting in the court proceeding, does not hold water in the context of the RTI Act. The question to be asked under this Act is whether a requested information is to be disclosed under the provisions of the Act, or it is to be withheld from disclosure under exemption Sections of the Act. There cannot be a situation where the public authority holds that an information otherwise disclosable shall be withheld from disclosure simply because the matter is now before a court for decision. These arguments and reasonings are unacceptable in the context of the RTI Act."
11. In view of the above, the Commission directs the CPIO to provide the information to the appellant as sought in his RTI application on payment of the requisite fee within three weeks of receipt of this order. The CPIO shall, however, excise that part of information from the given document(s) which may reveal the identity of the officers of the public authority involved in the processing of the 6 appellant's above fire claim, under section 10(1) of the RTI Act. The legal opinion received from any private advocate(s) [i.e. other than the legal officers of the public authority] shall also be withheld. The appeals are disposed of.
(Manjula Prasher) Information Commissioner Authenticated true copy:
Deputy Registrar Address of the parties:
Shri N K Aggarwal Director, M/s Crystal Crop Protection Pvt. Ltd. GI/17, G T Karnal Road Industrial Area, Azadpur Delhi The Central Public Information Officer The New India Assurance Company Limited Regd. & Head Office New India Assurance Bldg. 87, M G Road, Fort Mumbai- 400001 The First Appellate Authority The New India Assurance Company Limited Regd. & Head Office New India Assurance Bldg. 87, M G Road, Fort Mumbai- 400001 7