State Consumer Disputes Redressal Commission
The Oriental Insurance Co. Ltd., vs Shri Joy B. Stephen, on 13 July, 2009
THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI-GOA Present: Smt. Sandra Vaz e CorreiaPresiding Member Smt. Caroline Collasso, Member Appeal no. 118/2007 The Oriental Insurance Co. Ltd., Gouvenia Chambers, 3rd Floor, Panaji-Goa. Appellant (Original Opposite Party) v/s Shri Joy B. Stephen, H.No.393, Dabal, P.O. Kirlapal, Goa. Respondent (Original Complainant) For the Appellant Shri E. Afonso, Advocate And none present at the time of order. For the Respondent Shri P.P. Singh, Advocate. Dated: 13-07-2009 ORDER
[Per Smt. Sandra Vaz e Correia Presiding Member ]
1. This is a fifteen-year old consumer dispute. The complainant (the respondent herein) is the owner of a Tata Mini-Bus insured with the opposite party (the appellant). The vehicle met with an accident on 24-12-1992 near Dabal Kulsai road when it crashed against a big tree. The vehicle was taken for repairing to Shripad Garage at Sanvordem Goa, and a claim was filed with the opposite party. A surveyor deputed by the opposite party inspected the vehicle. An estimate was prepared by M/s Shripad Garage upon inspection and a list of parts was furnished to the complainant vetted by the surveyor. Accordingly, the complainant procured the parts and submitted original bills to the opposite party to enable settlement of his claim, in addition to complying with other requirements. The salvage was also handed over to the opposite party. However, the claim was not settled inspite of follow up and fulfilling of all legal formalities by the complainant. Instead, the opposite party issued a letter dated 04-05-1994 repudiating the claim on the ground that the claim was false and based on serious misrepresentation of facts. The so called misrepresentation of facts was not made known. A legal notice was issued by the complainant on 11-06-1994, but it evoked no action or response from the opposite party. This, in a nutshell, is the case of the complainant in his complaint filed before the Consumer Disputes Redressal Forum (District Forum) South Goa, registered as Complaint no. 214/1994.
Case of the opposite party/appellant
2. The complaint was contested by the insurance company. Succinctly, it is their defense that the complainants claim for alleged loss/damage to the vehicle was approved for repairs and replacement of certain parts. However, the complainant submitted false and fraudulent bills towards the purported replacement of certain parts aggregating to Rs.71,220/-. Two separate bills of M/s Dhanlaxmi Associates and M/s Shriman Spares Company that were submitted were found to be fake and fraudulent having been issued by shops which did not exist. Hence the repudiation. The legal notice was replied by the advocate of the opposite party.
Order of the District Forum.
3. The District Forum, upon considering the case of the parties and the material on record accepted the case of the complainant in its order dated 01-10-2007 and found that the repudiation of the claim conclusively construed deficiency-in-service on the part of the opposite party and directed them to pay the complainant an amount of Rs. 88,000/- with interest @12% p.a. from 01-10-1993 and further to pay cost of Rs. 10,000/-. The opposite party, being aggrieved by the said order, has preferred appeal before this Commission.
Submissions.
4. We heard Ld Adv Shri E Afonso on behalf of the appellant and Ld Adv Shri P. P. Singh on behalf of the respondent. Counsel also filed written arguments. Shri Afonso submitted that the impugned order was passed three years after the final hearing and judgment was signed by members who did not hear the matter. The impugned order ought to be set-aside on this ground alone. On merits, he submitted that the District Forum failed to appreciate that two bills submitted by the complainant were fake issued by shops that did not exist. The Forum ought to have held that the complainant had played fraud on the appellant to make illegal gains. The same parts were available with authorized dealer in Goa for much lesser price. The complainant had refurbished the same old parts and submitted fake bills. Whenever fraudulent means and devices are used, the claim is liable to be rejected. He placed reliance on R S Metals vs. New India Assurance Co Ltd 1986-94 page 1537 (NS) and Ghai Agro Mills Ltd vs. New India Assurance Co 1996 (2) CPR 105.
5. On the other hand, Shri P. P. Singh submitted that the question of setting-aside the impugned order for reason of delay in pronouncement of order did not arise since written arguments were on record. He further submitted that the insurance company had set out a false case of fake bills to deny the complainant the claim benefits. He took us through the evidence on record and in particular the deposition of AW1 Shri R C Shukla who admitted in cross-examination that all the parts purchased from the two dealers were replaced as passed by the surveyor and that the parts had to be procured from Bombay as they were not available in Goa. His other witness Vishnu Chari had deposed that the parts were purchased in Mumbai. Another witness Vasudev Haldankar had deposed that the parts were not available with M/s N D Naik at Margao. The National Commission judgments cited by the appellant did not apply to the facts of the case. On the contrary, Ld Counsel relied on National Insurance Co Ltd vs. Safari Industries India Ltd 1996 (1) CPR 15 and Vijay Kumar vs. G K Rangroo 1 (1996) CPJ 399 in support of his case.
Points for determination.
6. We called for and perused the records and proceedings of the trial forum and gave due consideration to the submissions of learned counsel. In view of the rival contentions, the following points crystallize for our consideration for determination of this appeal, namely:
(I) Whether the impugned order ought to be set-aside and matter remanded for re-hearing for reason that order was pronounced after six years, and (II) Whether the appellant proves that the two bills aggregating Rs. 71,220/- were fake and whether repudiation of the claim was justified for this reason.
Findings Point I
7. The appellants main contention is that the appeal was heard in October 2001 and the judgment passed on 01-10-2007 i.e. after six years. The members who heard the matter did not pass the impugned order. The proceeding sheet of the trial forum indicates that filing of written arguments by the parties was completed on 14-07-2004 and oral submissions of the complainant were heard on 10-08-2004 and the matter thereafter reserved for orders. After twenty-eight adjournments by the District Forum for orders, it was finally pronounced on 01-10-2007. Ld Adv Shri Afonso strenuously argued that the impugned order was vitiated on this ground alone and ought to be set aside. We carefully considered this aspect of the matter. No doubt there was a time-lag of about thirty-seven months between the final hearing and the date of the order; likewise, the member who wrote the judgment was not present at the final hearing. Nonetheless, this is a fourteen-year old consumer dispute having been filed on 28-09-1994. Such long-pending matter in consumer fora is unheard of and remanding the matter to the District Forum would only further prolong its disposal thereby defeating the very purpose of the Consumer Protection Act. Written arguments of the parties were on record. In the face of such extraordinary circumstances, we are inclined to disagree with the submission of learned Counsel of the appellant that the matter ought to be remanded to the trial forum for re-hearing.
Point II
8. The genuineness of the two bills submitted by the complainant in support of his claim, viz. the bill of Rs. 65,060/- issued by M/s Dhanlaxmi Associates and bill of Rs. 6,160/- issued by M/s Shriman Spare Parts is the bone of contention between the parties. It is the complainants case that following the clearance given by the surveyor appointed by the opposite party, he replaced the parts after purchasing them from the said two shops in Mumbai. On the other hand, the opposite party led evidence indicating that the two dealers did not exist and hence the bills issued were fake; the spares were available with the local dealer M/s N D Naik at a cheaper price.
9. Let us peruse the evidence adduced by the parties. The complainant produced copies of the said two bills alongwith the complaint. In counter to the allegations of fake bills etc, the complainant dealt with the issue at paragraphs 12, 13, 16, 17 & 18 of the affidavit-in-evidence filed by his brother and duly constituted attorney Shri Stylix Stephen, wherein inter-alia the allegations were denied and it was alleged that the claim was not settled because the complainant had refused to meet the illegal demands of some officials of the opposite party. In cross-examination, Stylix Stephen reiterated that the spare-parts were purchased in Bombay from M/s Dhanlaxmi and M/s Shriman and that they were transported to Goa by vehicle of 608 make bearing registration number GA01 38001 belonging to Mahesh Haldankar. However, he stated that he did not inquire with N D Naik about the price of the parts and did not go to N D Naik for purchase of the parts.
10. The complainant examined Shri Vishnu Chari in whose garage the repairs of the vehicle were done. The witness deposed in his affidavit that he is the proprietor of Vishanchi Workshop where the accident-vehicle was brought by the complainant for repair in January 1993 and inspected by the insurance surveyor. The parts which could not be repaired were replaced with genuine and new parts brought by the complainant from Bombay under his supervision. He charged Rs. 15000/- for labor services. However, in cross-examination, the witness stated that he did not know from where the complainant brought the parts or whether the parts were new or second-hand.
11. The complainants next witness Shri Vasudev Haldankar deposed on affidavit that he alongwith the complainants brother tried to find out the genuine parts to be replaced but could not find them immediately and as such he accompanied the complainants brother Stylix Stephen to Bombay to purchase the parts on 24-01-1993 and purchased the parts from M/s Dhanlaxmi and M/s Shriman after payment on 25-01-1993. The new parts were handed over to Vishnu Chari. He physically accompanied Stephen to Bombay and when the parts were delivered to Chari. In cross, he maintained his stand that when they went to N D Naik, they were informed that the required parts were not available and had to be got from Jamshedpur. The parts were purchased from Dhanlaxmi Associates. The parts were transported by 608 Tempo belonging to his brother. Temporary permit was taken at Banda check-post gate.
12. On the other hand, the opposite party insurance company repudiated the complainants claim by its letter dated 04-05-1994 seen at page C/15 of the trial court file; the complainant was informed that his claim was fully investigated by competent agencies and it was revealed that his claim was false and based on serious mis-representation of facts and hence his claim stood repudiated. In their reply to the complainants legal notice, the opposite party informed that the two bills of M/s Dhanlaxmi Associates and M/s Shriman Spares Company were fake and that their investigation revealed that so such spare parts exist at the given address and that there was no reason to buy the parts in Bombay at higher price when they were available with authorized dealers in Goa.
13. The opposite party entered the affidavit of its Divisional Manager Shri Sudhir Goel, who reiterated the stand taken in the written version. Copy of survey report of Shri R C Shukla dated 12-02-1993, letter dated 27-01-1994 issued by M/s N D Naik, inspection report of Shri Y S Kamat, investigation report of Shri T Ramalingam and reply to legal notice issued by Shri E Afonso, Advocate, were produced. The said witness filed an additional affidavit producing copy of report dated 07-09-1998 prepared by Shri L T Daftary alongwith some letters issued by him to the two dealers in controversy.
14. The opposite party next examined its surveyor Shri Y S Kamat who entered his affidavit. He deposed that at the request of the opposite party he released joint re-inspection report alongwith Shri Tejpal Diwani dated 25-01-1994, copy whereof was annexed. He further deposed that he had addressed a letter dated 15-01-1996 and reminder on 27-01-1996 to M/s Dhanlaxmi Associates but both letters were returned by postal authorities with remark addressee not found. In the re-inspection report, the witness opined that the replaced cowl was having cracks at some places and was not new. Only core of the radiator was replaced. Salvage of front axle was not produced to them. They were of strong opinion that the axle is the original one and not replaced.
15. The opposite party next examined Shri T Ramalingam who was in-charge of the Investigation Department of the opposite party in Mumbai. In his affidavit, he deposed that at the request of the Panaji office of the opposite party, he conducted investigation to verify the genuineness of bill no. 22440 dated 25-01-1993 of Dhanlaxmi Associates and bill no. 18788 dated 25-01-1993 of Shriman Spares Company. He visited the places at the address but did not find the shops at the given location and his inquiries with local people around revealed that no such shops existed in the locality. Registered letters sent by him to the said two shops were returned undelivered with postal remarks addressee not known. He annexed copy of his report dated 21-03-1994.
16. The opposite partys last witness was its Divisional Manager Shri Arun Kumar Jaiswal who produced a letter issued by Deputy Commissioner of Sales Tax (Enforcement) Mumbai dated 17-06-2000 stating that sales-tax registration number mentioned by M/s Dhanlaxmi Associates belongs to different dealer M/s Zalani Paper Co. and that the registration number mentioned by M/s Shriman Spares Company was not allotted to any dealer. Visits were also paid to the address mentioned in the invoices and noticed that the address of the firms are not in existence. The letter issued by Deputy Commissioner of Sales Tax was in response to letter dated 03-05-2000 from Divisional Manager of the opposite party which was also produced.
17. The letter dated 03-05-2000 issued by Deputy Commissioner of Sales Tax, Enforcement (B), Vikrikar Bhuwan, Mazagaon Mumbai dated 17-06-2000 is the clinching piece of evidence that tilts the scales in favour of the opposite party. Copy of the letter is seen at page C/117 - 118 of the trial court file; its contents speak for itself. The document has been issued by the Deputy Commissioner of Sales Tax, Enforcement (B) Mumbai 10 who is apparently an officer of the Government of Maharashtra. The officer has stated that office records were verified and visits were paid to the declared address on the bills. The office record showed that the sales tax registration number mentioned by M/s Dhanlaxmi Associates i.e. NID-31507 was allotted to a different dealer viz. M/s Zalani Paper Company and that the registration number mentioned by M/s Shriman Spares Company i.e. NID-21446 was not allotted to any dealer. The letter further states that visits were also paid to the addresses mentioned on the invoices and noticed that the addresses of the firms are not in existence. The letter concludes by stating that office record as well as field visit confirms the fact that the invoices produced before the opposite party are bogus in nature.
18. The deposition of the investigators and surveyors of the opposite party assigned to investigate the genuineness of the two bills and to verify the replaced parts corroborates their case. Shri Y S Kamat is on record stating that he re-inspected the vehicle alongwith Shri T P Diwani and found that since the fitted (new) cowl was having two cracks on cowl metal sheet above the engine head, there was no serial number and was rusted near flooring, they were of the opinion that the cowl was not new. As regards the axle, the two surveyors strongly opined that the axle had not been replaced. The two letters sent to the dealer by him by registered a/d were returned with remarks addressee not found. Copies of undelivered letters and postal covers are placed on record. Shri L T Daftary is the surveyor of the opposite party. He conducted an investigation into the matter on instructions of the opposite party and his letters to the two dealers sent by registered post were returned with remarks addressee not known. His also stated that he visited the sales tax office at Mazagaon to verify the registration numbers from the office records; he found that the registration number of M/s Shriman Spares could not be traced and the address of M/s Dhanlaxmi Associates was wrong. Shri T Ramalingam deposed that he personally visited the places mentioned at the addresses on the two invoices but could not locate them, and his inquiries with local people did not throw any light on the existence of the two shops. Registered letters sent by him were also returned undelivered with postal remarks addressee not known. It is pertinent to note that the remarks addressee not known was endorsed by the postal authorities in course of their official business on all five postal covers sent to the same addresses by the aforesaid three witnesses of the opposite party. The consistent postal remarks coupled with the personal visits of the investigators to the site are yet another conclusive piece of evidence in support of the case of non-existent shops.
19. Admittedly, the vehicle was taken to Vishanchi Workshop whose proprietor Shri Vishnu Chari was examined by the complainant. But Vishnu Charis deposition does more harm than good to the complainants case. In paragraph 3 of his affidavit, he stated and reiterated that the replaced parts were genuine and new and replaced under his supervision. At paragraph 6, he states the damaged parts were replaced by him with the new parts purchased by Mr Stephen from Bombay under his supervision. However, in cross, the witness first states that the parts were brought in a Tempo, but later states that he was not present when the complainant brought the parts; he did not know from where the complainant brought the parts. He finally states that he did not know whether the complainant brought new parts or second hand.
20. It is indeed strange why the complainant did not check with the local TELCO authorized dealer M/s N D Naik whether the spare parts were available, and procured them all the way from Bombay.
There is a contradiction in the evidence of the complainant here as well. While the complainants constituted attorney Shri Stylix Stephen stated in cross that he did not go to N D Naik for replacement/purchase of parts nor inquired about their cost, his witness Vasudev Haldankar deposed in cross that he alongwith the Shri Stylix went to the authorized dealer N D Naik immediately after the accident and did not get the parts. Be that as it may, the opposite party has placed on record a letter from N D Naik stating that the cost of cowl assembly is Rs. 37000/-.
21. The evidence led by the appellant/opposite party in support of their case of fake bills is convincing and credible. We have no hesitation to hold that the two bills of M/s Dhanlaxmi Associates and M/s Shriman Spares Company aggregating Rs. 71,220/- submitted by the complainant are fake and that the two dealers/shops do not exist. There was no question of reimbursing the labour charges of Rs.15000/- either. In these circumstances, repudiation of a claim that was based on fraudulent documents cannot be faulted. There is no case at all of any deficiency-in-service.
19. In the result, the appeal is allowed. The impugned order dated 01-10-2007 is hereby set-aside. Complaint no. 214/1994 stands dismissed. In the circumstances, parties shall bear their own costs.
Pronounced in the Open Court.
[Sandra Vaz e Correia] Member [Caroline Collasso] Member