CC/97/2020

A preliminary objection has been taken by the OP regarding maintainability of the complaint on the ground of fraud vide an application filed by it. It is stated that complainant’s case is based on a theft case  where not all keys of the stolen vehicle were provided to the OP and since there is an element of fraud, the case cannot be decided by this Commission.  OP has relied on the judgment of CMD, City Union Bank Vs. R. Chandramohan  CA No.7189/2009 decided on 27.03.2023 wherein it was held :-

The proceeding before the Commission being summary in nature, the complaints involving highly disputed questions of facts or the cases involving tortious or criminality like fraud or cheating, could not be decided by the Forum/Commission under the said Act. The “deficiency in service”, as well settled, has to be distinguished from the criminal acts or tortious acts.  There could not be any presumption with regard to the willful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in service as contemplated in section 2(1)((g).  The burden of proving the deficiency in service would always be upon the person alleging it.

Complainant on the other hand has relied on the judgment passed by the Hon’ble Supreme Court in Ashok Kumar Vs. New India Assurance Co. Ltd. CA No.4758/2023 wherein the Hon’ble SC has held :-

“Even if there is some carelessness it was not a fundamental breach of condition for totally denying the insurance claim altogether.  Therefore, a claim up to 75% must be awarded on a nonstandard basis”.

Complainant has also placed reliance on judgment passed by Hon’ble Delhi SCDRC in Shahnawaz Rana Vs. National Insurance Co. Ltd.  CC No.177/20 decided on 25.04.2022 and the judgment passed by the Hon’ble NCDRC in UCO Bank Vs. Mala Ram II( (2019) CPJ 11 (NC).

The primary question at this preliminary stage is whether there is any element of fraud in the case and if it so then the Commission would not have the jurisdiction to try the present complaint.

It is stated by the OP that the complainant has tried to defraud the OP as the complainant has handed over three keys of the vehicle to the OP and after conducting forensic examination it has been concluded that one of the keys do not match the other keys.  It is stated that detailed examination, cross examination of a large number of witnesses which would include forensic expert, surveyor and officials from the manufacturer would be required to reveal this fraud. It is stated that the present complaint is beyond the scope of ‘summary proceedings’.  In this regard, OP has placed reliance on Synoo Industries Vs. State Bank of Bikaner and Jaipur (2002) CPJ 16 SC and reiterated by Hon’ble NCDRC in UCO Bank Vs. Mala Ram II (2019) CPJ 11 (NC) CMD, and City Union Bank Vs. R. Chandramohan. 

Complainant has relied on the judgment of Ashok Kumar Vs. New India Assurance Co. Ltd. and have stated that the matter be decided by the OP on a non-standard basis as has been provided in the judgment of National Insurance Co. Ltd. Vs. Nitin Khandelwal.  Complainant has also placed reliance on the judgment of the Hon’ble SCDRC passed in Sandeep Taneja Vs. HDFC Ergo General Insurance Co. Ltd. in which the complainant had submitted only one ignition key of the car out of the two and the claim was repudiated.  In that case the Hon’ble SCDRC held that it does not constitute fundamental breach of the terms and conditions of the policy and the OP should have settled the claim on non-standard basis as has been held by the Hon’ble NCDRC in Amalender Sahoo Vs. Oriental Insurance Co. Ltd.

This Commission has heard the oral arguments of both the parties at length and have gone through the judgments filed on record.  Reliance of the complainant on Sandeep Taneja Vs. HDFC Ergo General Insurance Co. Ltd. is ill founded as in Sandeep Taneja’s case complainant had only handed over one of the two keys whereas in this present case the complainant has handed over all three keys to the OP claiming them to be genuine. The present case is also different from Shahnawaz Rana Vs. National Insurance Co. Ltd. as the case of Shahnawaz Rana, the keys submitted by the complainant were found to be duplicate but the complainant had answered the query of the surveyor of the OP by stating that the keys were provided to him by the previous owner and he had not changed the locks of the vehicle.

At any stage, this Commission cannot determine disputed questions of tortuous facts involving acts like fraud or cheating and as held by the Hon’ble Supreme Court CMD, City Union Bank Vs. R. Chandramohan CA No.7189/2009 decided on 27.03.2023 wherein it was held that ‘deficiency in service’ has to be distinguished from criminal acts or tortious acts.

Therefore, this Commission is of the opinion that the present case is different from Sandeep Taneja’s case and the decision on thin line between fraud and inadvertence as claimed by the complainant would be dependent on evidence to be proved by either party which cannot be done in summary proceedings before this Commission.  This Commission is not the correct forum for the present case to be pursued and the complaint is directed to be returned to be filed in appropriate forum.

Application of the OP is allowed and complaint returned to the complainant.

Copy of the order be provided to the parties as per rules. File be consigned to the record room. Order be uploaded on the website. Dasti Requested and is provided.