State Consumer Disputes Redressal Commission
M/S Laxmi Cloth House vs National Insurance Co. Ltd. & Anr. on 30 April, 2007
H H.P . STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. Appeal No. 160/2004. Date of Decision 30.04.2007. ________________________________________________________________________ M/s Laxmi Cloth House, through Sh. Ram Lal Sood S/o Sh. Bhagat Ram Sood, Prop. M/s Laxmi Cloth House, Main Bazar Chirgaon, PO Chirgaon, Distt. Shimla, H.P. . Appellant /Complainant. Versus 1. National Insurance Co. Ltd., through its Divisional Manager, Himland Hotel, Shimla, H.P, 2. Branch Manager, National Insurance Co. Ltd., near Himland Hotel, Card Road, Shimla, H.P. ..Respondents/OPs. __________________________________________________________________ Honble Mr. Justice Arun Kumar Goel, President. Honble Mr. Narinder Singh Thakur, Member. Whether Approved for reporting? Yes. For the Appellant. Mr. Imran Khan, Advocate vice Mr. S.D. Gill, Advocate. For the Respondents. Mr. Ashwani K. Sharma, Advocate. .... O R D E R:
Justice Arun Kumar Goel (Retd.) President (Oral) Complaint No. 1375/2001 was filed by the appellant against the respondents before the District Forum Shimla. Vide impugned order on 7.5.2004 it was dismissed, hence this appeal.
2. Appellant had got his shop situated at Chirgaon insured with the respondents in the sum of Rs. 3,60,000/- between 19.12.1997 to 18.12.1998. Premium was duly received by the respondents.
3. Case of the appellant as set out in the complaint was, that a theft took place in his shop on 22.12.1997 and he got FIR registered at Police Station __________________________________________________________________ Whether Reporters of Local Papers may be allowed to see the Order? Yes.
: 2 :Chirgaon on 23.12.1997. He further claimed that loss suffered due to theft by him was to the tune of Rs. 64,074/-. Intimation of theft was also given to the respondents.
4. Record of the complaint file shows that the FIR was submitted to the court for its being cancelled and at the same time permission was sought from the higher Authorities to initiate action under Section 182 of the IPC against the appellant. Claim was repudiated by the respondents vide Annexure A-16. In this background complaint was filed claiming sum of Rs. 64,074/- alongwith interest and damages etc.
5. We may notice here that earlier complaint No. 150/1999 was filed by the appellant, it was disposed of vide Annexure A-15 by the District Forum below with directions. And it is thereafter that the fresh complaint out of which this appeal has arisen was filed by the appellant.
6. When put to notice respondents pleaded by way of preliminary objections that claim was not payable as after investigation of the claim by the police, it was not established and cancellation of FIR was recommended. At the same time there was no deficiency in service on their part. Its officer Mr. B.V. Bhagat deputed to investigate the claim, had in his report after detailed investigation concluded that the appellant was habitual in lodging false/fictitious complaint and earlier he has got Rs. 80,000- from the respondent Company on account of burglary. One Surinder Kumar Soni deputed to assess the loss asked for certain documents but those were not supplied by the appellant. Thus vide its letter dated 28.7.1998 the file was closed as no claim. Allegations regarding appellant had visited the office of respondents were denied. Entire thrust of the reply filed to the complaint by the respondents is based on the recommendation of the police for cancellation of the FIR because of failure of appellant to establish his claim. Thus on all these grounds it was urged that the complaint was liable to be dismissed.
7. We have heard learned counsel for the parties and with their assistance have also examined the case file. Insurance on the date of theft is not in dispute. What is being challenged by the respondents is that the claim made is false because no theft had in fact taken place and the appellant is habitual of lodging false and frivolous insurance claims and the police has not only : 3 : recommended the cancellation of FIR for want of evidence, but had also sought permission to initiate action under Section 182 of IPC against him i.e. the appellant. And this was also made the basis while dismissing the complaint by the District Forum below.
8. FIR was promptly lodged after theft was detected, the very next day. Theft having taken place is further certified by the local public authorities namely the official of Gram Panchayat, Chirgaon vide Annexures A-4 and A-14A. Mere recommending cancellation of FIR in our opinion cannot be made the basis for rejecting the claim of the insured. Because there are two situations, one is that a complainant like the appellant is unable to produce evidence, so as to enable the police to file the challan and the other is that the claim made is false and for lodging the frivolous FIR action is initiated under section 182 of IPC. In the former case it pre-supposes that there was lack of evidence, whereas, in the latter case, it is not always necessary that when action under Section 182 of IPC is recommended it has resulted in lawlessness prosecution. There is nothing on record to suggest, as to whether the FIR was cancelled by the court or not. Similarly there is also no evidence to suggest that any action under Section 182 of IPC was in fact actually lodged by the police against the appellant. It is so then why evidence was not produced, Mr. Sharma had nothing to say in this behalf.
9. Who were the neighbourers from whom enquiries were made by the investigators, as well as by the lawyer and a charted accountant deputed to enquire/investigate the matter, statements made are general in nature in the respect of all of them. Therefore, in our opinion District Forum below fell into error in rejecting the complaint.
10. Mr. Sharma learned counsel for the respondents urged that the impugned order is well reasoned based on proper and correct appreciation of facts and law therefore, it calls for no interference in this appeal. He laid great emphasis on the FIR, its cancellation report submitted to the court and at the same time recommending initiation of action under Section 182 of the IPC against the appellant. So far so good.
11. Whether the FIR was actually cancelled, neither Mr. Sharma could bring anything in our notice nor on the file of the complaint anything is there.
: 4 :Similar was the position regarding initiation of action under Section 182 of the IPC. Thus according to him, the case on its merits was not established by the appellant, so far theft in question was concerned. By referring to Annexures R-1 to R-6 he also submitted that no theft had taken place stood duly proved by these documents, as such on this ground also the appeal is liable to be dismissed. For what has been discussed in the preceding paras these pleas have been noted, simply to be rejected.
12. By referring to the file of the District Forum below, Mr. Sharma urged that his client have been condemned unheard as adequate opportunity was not allowed to them to lead evidence. Record of the complaint file shows that appellant closed his evidence and case was fixed for evidence of the respondents on 8.7.2002. On this date last opportunity was allowed for filing of evidence by the respondents on 20.8.2002.
13. On this date admittedly no evidence was filed by the respondents. Rather it was stated on behalf of the appellant that an application for additional evidence is to be filed, prayer was allowed and thereafter neither application was filed nor any evidence was filed by the respondents. Counsel was present on behalf of the respondents throughout, but without any prayer and or demur from the learned counsel for the respondents case was adjourned from 20.8.2002 till 26.4.2004 and thereafter on 7.5.2004 impugned order has been passed.
14. We specifically confronted Mr. Sharma as what was being done by his client during this period and why no prayer was made to allow opportunity for filing evidence, only answer given by him was that, it was duty of the Forum to have allowed time. Again we are not satisfied with this reply, because if everything is to be done by the court then there was no need of the learned counsel for the parties to be present and in such a situation court would have itself dealt with the matter. Counsel for the parties are meant to properly and effectively assist the court and not to justify their acts of ommission and commission as in the present case. Thus no fault can be found with the working of the court below in this case. As such there is no question of condemning the respondents unheard as was submitted by Mr. Sharma on behalf of the respondents.
15. We are further of the view that in case respondents were to treat the appellant as a habitual lodger of false insurance claims, he ought to have been put to caveat by the respondents, otherwise it would be just blackening his face by treating him as lodger of false claims which would be against the principles of fair play and natural justice, besides condemning him to his disadvantage without affording him a reasonable opportunity of being heard.
16. To be fair to Mr. Sharma, we may notice that he raised another plea that this case involved disputed questions of fact which only could be adjudicated upon by a Civil Court. To support this submission he relied on a decision of Delhi State Commission, in the case of International Labour Organization Vs. National Insurance Company Ltd. II (1993) CPJ 1022, and urged that the appellant should have had recourse to Civil Suit, as the dispute cannot be adjudicated upon in summary proceedings under Consumer Protection Act, 1986. We are of the view that this decision is on its own fact and secondly in the face of the decision of the Honble Supreme Court in the case of Dr. J.J. Merchant & others Vs. Shrinath Chaturvedi, III (2002) CPJ 8 (SC), decided by three judge bench of the Apex Court, it is not always necessary that in every case the parties need to be referred to a Civil Court. Moreover, in the face of the decision of the Honble Supreme Court, the decision of Delhi State Commission in our opinion does not hold good. And above all as already observed, there is hardly any disputed questions of fact involved in this case which could be decided by foras under
the Consumer Protection Act, 1986. As such this plea is rejected.
17. No other point is urged.
In view of the circumstances of this case based on material on record, we find that the impugned order is liable to be set aside and it is ordered accordingly. As a consequence of it, the appeal deserves to be allowed. Thus it is held that the appellant is entitled to sum of Rs. 64,074/- with 6% interest on it from the date of filing of the complaint, i.e., 3.10.2001 till the date of payment/deposit whichever is earlier, leaving the parties to bear their own costs.
Office will make available a copy of this order to the parties free of costs as per rules.
Shimla.
30th April, 2007. (Justice Arun Kumar Goel) Retd.
President.
(Narinder Singh Thakur), Member.
Karan*