STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 16.05.2019
Date of final hearing: 13.09.2023
Date of pronouncement: 22.11.2023
First Appeal No.515 of 2019
IN THE MATTER OF:-
Suresh Kumar S/o Shri Ram Chander, R/o House No.185, Kishanpur, Tehsil Khizrabad (Chhachhrauli) District Yamuna Nagar.
....Appellant
Versus
- The Oriental Insurance Company Ltd. Branch office: Opp Hindu Girls College, Court Road, Jagadhri, Distt. Yamuna Nagar through its Branch Manager.
- The Oriental Insurance Co. Ltd. Regd. Office: Oriental House PH No.7037, A-25/27, Asaf Ali Road, New Delhi through its Manager. …..Respondents
CORAM: Mr. Naresh Katyal, Judicial Member
Argued by:- Sh. Ravinder Arora, proxy counsel for Sh. Neeraj Khanna, counsel for appellant.
Sh. Alankrit Bhardwaj, counsel for respondents.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Challenge in this appeal No.515 of 2019 has been invited by unsuccessful complainant-Suresh Kumar, to the legality of order dated 05.04.2019 passed by District Consumer Disputes Redressal Forum-Yamuna Nagar at Jagadhri (In short “District Consumer Commission”) in complaint case No.478 of 2017, vide which his complaint has been dismissed.
2. Complainant alleges that: he is owner of vehicle/Dumper make TATA LPT registration No.HR38-M/7387 (Truck), Engine No.60C62467723, Chassis No.396522DTZ-207895. It was comprehensively insured with OPs vide insurance policy No.261701/31/2017/1320 valid from 07.05.2016 to 06.05.2017. He paid premium. In intervening night of 22/23.08.2016, Dumper/Truck was stolen in area of Police Station: Khizrabad, District: Yamuna Nagar. FIR No.110, dated 25.08.2016 u/s 379 IPC was registered. Complainant informed OPs in respect of theft and lodged claim No. 31/2017/332 with it. OPs, in their investigation sought some documents which were provided by him (complainant). He was intimated that: earlier insurance policy issued by National Insurance Company is forged and thus OPs repudiated his claim, on false and factious grounds. He served legal notice dated 03.10.2017 to OPs requiring them to make payment of insurance claim on account of theft of Dumper/Truck. On these facts; complainant has alleged deficiency in service of OPs; unfair trade practice on their part. He filed complaint seeking directions against OPs; to release payment of insurance amount on account of theft of dumper/truck; to pay him compensation of Rs.50,000/- for causing him mental agony and harassment due to unfair trade practice/deficiency-negligence in their service and to pay him Rs.11,000/- as litigation expenses.
3. Upon notice, OPs raised contest. In their defence; in preliminary objections; it is pleaded that: complaint is not maintainable; there is no negligence/deficiency on their part. Complainant has not come with clean hands and tried to mislead the Forum. It is pleaded that: claim intimation was received on 23.08.2016 from complainant that: his truck/dumper registration No. HR-38M-7837 Model-2006 insured with it from 07.05.2016 to 06.05.2016 had been stolen in intervening night of 22/23.08.2016. On receipt of intimation; OPs deputed Royal Associate-Investigator to investigate and insured was desired to submit necessary documents relating to vehicle. He submitted belated FIR dated 25.08.2016 with other documents of truck/dumper. OP vide letters dated 01.11.2016, 07.12.2016, 06.01.2017 desired complainant to submit untraced report issued by First Class Magistrate, besides original keys of vehicle. Untraced report was issued by court on 24.05.2017 which was given to OPs. During possessing of claim; it had been revealed that: at the time of getting truck No. HR-38M-7837, insured with OPs; complainant provided copy of previous insurance policy of truck/dumper, allegedly issued by National Insurance Company Ltd. (Policy No.: 420400/31/14/63000587691 dated 03.05.2015), valid from 07.05.2015 to 06.05.2016, containing endorsement and signature on its foot that: he is entitled to 25% NCB. On that basis and declaration, given by complainant, he was able to obtain insurance policy from OPs for period 07.05.2016 to 06.05.2017 for IDV of Rs.6.00 lacs and on basis of declaration that: he is entitled to 25% NCB; he succeeded in getting NCB in policy in question issued by OPs. OP sent e-mail dated 21.06.2017 to National Insurance Company Ltd. with request to confirm policy issued by it and any NCB/claim under that policy from 07.05.2015 to 06.05.2016. Letter dated 04.07.2017 was again written by OPs to National Insurance Company Ltd.. On letter itself; National Insurance Company Ltd. informed OPs that: THIS POLICY DOES NOT PERTAIN TO THEIR OFFICE. It is pleaded that policy issued by National Insurance Company Ltd., on the basis of which, OPs issued its policy in question, was fake document. It is pleaded that complainant committed breach of trust. Had, he not submitted forged insurance policy allegedly issued by National Insurance Company Ltd. and had he not given false declaration on its foot with regard to NCB; OPs would not have issued policy in question in his favour. Complainant committed ‘fraud’ by submitting fake insurance policy which amounts to breach of violation of terms and conditions of insurance policy and no claim is payable. Accordingly, claim of complainant was justifiably repudiated by OPs on 09.10.2017. On these pleas; dismissal of complaint has been prayed.
4. Parties to this lis led evidence, oral as well as documentary.
5. On subjectively analyzing the same; learned District Consumer Commission-Yamuna Nagar at Jagadhri, vide order dated 05.04.2019 has dismissed the complaint, thereby giving rise to filing of this appeal by complainant.
6. In proceedings of this appeal, both parties have submitted their respective written submissions. Both parties have also been heard orally. With their able assistance; record too has been perused.
7. Learned counsel for complainant/appellant has urged that: once during currency of insurance policy in question (07.05.2016 to 06.05.2017) issued by OPs; theft of truck/dumper No HR38M-7387 had taken place in the intervening night of 22/23.08.2016, then OPs cannot legally repudiate his insurance/theft claim to claim IDV value of truck (Rs.6.00 lacs) as mentioned in policy. May be, previous insurance policy of truck/dumper bearing No. HR38M-7387 was found fake on its verification by OPs, yet, that fact, ipso-facto will not sub-serve any cause of OPs, for the reason that no incident of theft had resulted during currency of previous insurance policy which was from 07.05.2015 to 06.05.2016. Thus, it is urged that there is no proved breach of trust on the part of appellant/complainant. It is urged that: ‘untraced report’ regarding theft of vehicle was submitted to OPs, which was the prime document and would justly clear insurance claim submitted by appellant. It was the duty of concerned officer of OPs to obtain necessary document regarding previous insurance of vehicle, from complainant before issuing fresh insurance policy, which was not done. It is urged that: there is illegal observation of learned District Consumer Commission that: complaint filed by appellant is not maintainable. In this regard it is urged that: complainant is master of his complaint; it is for him alone to implead, or not to implead any particular party as respondent/OP. In this case, just because, he has not impleaded National Insurance Company Ltd. in this complaint as respondent/OP; same will not become a ground to throw his complaint, overboard. On these submissions; learned counsel for appellant has urged that insurer/OPs cannot escape from its liability under policy as there was no fault on the part of complainant/appellant.
8. Per contra, learned counsel appearing for OPs/respondents has urged that: claim of complainant/appellant has been rightly repudiated, because previous insurance policy submitted by him having currency of 07.05.2015 to 06.05.2016 was found fake, on it verification by OPs/insurer. It was not issued by National Insurance Company Ltd. Complainant had possessed knowledge of fakeness of previous insurance policy at all times; still, he produced this policy to OPs and thus succeeded in obtaining fresh insurance policy from OPs, having currency of 07.05.2016 to 06.05.2017. Not only that; he even succeeded in falsely obtaining ‘No Claim Bonus’ on this policy, on the basis of fake previous policy, which contained his declaration regarding entitlement of 25% NCB. It is urged that: in wake of above facts; National Insurance Company Ltd. was necessary party. Having not impleaded a necessary party in the complaint; Learned District Forum did not commit any error to dismiss complainant’s complaint. On these submissions, learned counsel for respondent/OP has urged that: impugned order dated 05.04.2019 passed by Learned District Consumer Commission does not warrant any interference.
9. Admittedly, vehicle/dumpher make TATA LPT 2515 bearing No. HR 38 M-7387 is owned by complainant/appellant. Admittedly, qua this vehicle; OP’s/respondents issued Insurance Policy Annexure C-1/Ex.R-13, bearing No. 261701/31/2017/1320 which has currency period from 07.05.2016 to 06.05.2017, wherein IDV (Insured’s Declared Value) of insured vehicle is Rs. 6,00,000/-. As alleged by complainant, above insured vehicle was stolen in the night of 22/23/08.2017 and he lodged FIR No. 110 dated 25.08.2016 under Section 379 IPC-Ex. R-3, at Police Station:Khizrabad-Yamuna Nagar. Annexure C-3/Ex.R-8 is order dated 24.05.2017 passed by Sub Divisional Judicial Magistrate-Bilaspur regarding acceptance of untraced report. Complainant/appellant has lodged his claim with insurer/OPs, on foundation of Insurance Policy Annexure C-1/R13. Claim intimation format dated 23.08.2016 filled by complainant is Ex. R-2. Vide communication dated 29.08.2016 (Ex. R-4); insurer’s investigator has commanded upon complainant to keep certain documents ready. One among those documents; is the previous Insurance Policy of vehicle No. HR- 38 M -7387.
10. Proposal form concerning OPs is Ex.R-12, it bears signature of complainant. Proposal form Ex.R-12, as well as, insurance policy Annexure C-1/Ex.R-13 contains recital that: complainant has been extended benefit of Rs. 1798/- towards “No Claim Bonus” which was 25%. Proposal form Ex. R-12 recites that old policy of this vehicle was issued by National Insurance Company Ltd. Ex. C-9 is the document concerning this insurance which was valid from 07.05.2015 to 06.05.2016. OPs/respondents sent communication Ex.R-10, through E-mail to concerned official of National Insurance Company Ltd., regarding confirmation of NCB (No Claim Bonus) under previous policy No. 420400/31/14/63000587691A/C Sh. Suresh Kumar. OPs/respondents sent another communication dated 04.07.2017, Ex.R-11 in this regard. On letter Ex. R-11 itself; National Insurance Company Ltd. has given a specific Note that: Policy under reference (420400/31/14/63000587691A/C Sh. Suresh Kumar) does not pertain to their office. Principally, on pedestal of above facts/evidence, which have unearthed; the insurer has repudiated the claimant’s claim vide letter dated 09.10.2017-Ex.R-14, on the ground that he (complainant) has misrepresented the facts, made false undertaking regarding NCB (No Claim Bonus) and also the company (insurer) by submitting fake insurance policy which is breach of fundamental terms and conditions.
11. On critical and subjective analysis of above facts and evidence which are ex-facie proved on record, it is deciphered that complainant had successfully obtained insurance cover Annexure-C-1/Ex.R-13 from OPs/respondents, in order to give shield of insurance to his vehicle No. HR 38 M-7387 from 07.05.2016 to 06.05.2017, on the basis of previous insurance policy (with currency of 07.05.2015 to 06.05.2016) having being issued by National Insurance Company Ltd. Not only this, he has expressly mentioned underneath previous insurance policy Ex. R-9 that: he is entitled to claim 25% NCB (No Claim Bonus). This recital also contains his signature and date: 06.05.2016. Obviously, OPs/respondents has acted on the basis of above recital of complainant/appellant, by believing the same to be true and eventually issued insurance policy Ex. R-13/Annexure C-1 with currency period of 07.05.2016 to 06.05.2017.
12. It was subsequently apprised by National Insurance Company Ltd. to OPs/respondents on OPs letter Ex.R-11 dated 04.07.2017 itself that previous policy (420400/31/14/63000587691A/C Sh. Suresh Kumar which expired on 06.05.2016) does not pertain to their office. However, by that time (04.07.2017) water had already flown overhead of OPs/respondents and complainant/appellant was already provided fresh insurance cover to his vehicle No. HR 38 M-7387 in form of policy Annexure C-1/ Ex.R-13 and further granted benefit of “No Claim Bonus” (of amount of Rs. 1798/-) in the amount meant for payment of insurance premium.
13. Complainant/appellant must be carrying knowledge of fact, at all times, that previous insurance policy (the period of insurance from 07.05.2015 to 06.05.2016) submitted by him to OPs/respondents is a fake document as it had not been issued by National Insurance Company Ltd. and further: his recital therein dated 06.05.2016 that he (complainant) is entitled to 25% of NCB is also wrong. Still, in his wisdom, he produced the same to OPs/respondents. Very conveniently, in his complaint he has not impleaded National Insurance Company Ltd. being necessary party as respondent. Obviously, he must be carrying an apprehensive belief that: in case, National Insurance Company Ltd. is made a party in his complaint as respondent, then his mischief would be unveiled. Complainant/appellant cannot be viewed to be novice and neophyte of ground realities. Contention on behalf that: he (complainant) is master of his complaint and has prerogative, to implead or not to implead, any person as party, is bereft of credence in the back drop of above evidence. Liberty of dominus litis available to complainant cannot be overstretched in the matter of impleading parties, as far, that: any necessary party in any lis, be ignored. National Insurance Company Ltd. was, indeed, a necessary party in scenario of this situation. Since, it was not impleaded as respondent, therefore rightly, complainant’s complaint has been dismissed. Observation of District Consumer Commission, Yamuna Nagar in this regard in impugned order dated 05.04.2019, is not found faulty. Even if, fortunately no mishap took place during the currency of previous insurance policy (07.05.2015 to 06.05.2016), yet it will not stimulate any majestic cause of complainant/appellant for the reason that previous insurance policy did not legally exist. Hence, this argument of learned counsel for appellant also does not carry any weight.
14. Meaning thereby, complainant/appellant has wrongfully secured a gain for himself from OPs/respondent by obtaining Insurance Policy Annexure C-1/Ex-R13 and by obtaining 25% “No Claim Bonus” under this policy towards payment of insurance premium. His mens-rea is grossly accentuated by his own malafide. Allied contention on his behalf that: it was bounded duty of OPs/insurer to obtain verification regarding credibility of previous insurance policy, before issuing fresh policy (Annexure C-1/Ex.R-13) does not sound any merit, even remotely. Reason in this regard is obvious. Firstly, previous insurance policy of vehicle HR 38 M-7387, submitted by complainant with OPs/respondents contains his (complainant’s) unequivocal and unambiguous declaration dated 06.05.2016 that he is entitled to 25% NCB. This previous policy (found fake on verification of OPs/respondents) expired on 06.05.2016 and insurance policy (Annexure C-1/Ex.R-13) issued by OPs/respondents began its light of day from very next day i.e. from 07.05.2016. Hence, there was no occasion for OPs/respondent to conduct any prior verification of previous insurance policy and it chose to act only on the belief of complainant/appellant. More so, indefeasible right of OPs/respondents to conduct verification of previous insurance policy regarding its genuineness cannot be curtailed. Such right is inherent in OPs/respondents and would not foreclose. Secondly, having obtained benefit on the basis of wrong recitals/declaration; complainant/appellant cannot be permitted to urge that OPs/respondents were faulty. Thus, this contention on behalf of complainant/appellant stood repelled. The claim of complainant was rightly repudiated by OPs/respondents through its letter dated 09.10.2017- Ex.R-14.
15. As sequel thereto; this Commission does not find any manifest error, legal or factual, in the final conclusion drawn by learned District Consumer Commission-Yamuna Nagar at Jagadhri. Impugned Order dated 05.04.2019 is the outcome of meticulous appreciation of facts and evidence by District Consumer Commission-Yamuna Nagar at Jagadhri. Complainant/appellant has rightly been non-suited. His complaint has been rightly dismissed. Impugned order dated 05.04.2019 is affirmed and maintained. Present appeal, being devoid of merits, is hereby dismissed.
Keeping in view the dubious, mischievous and ill motivated conduct of complainant; this Commission before parting, while non-suiting him, also impose exemplary cost on him. Misuse of Consumer Protection Act cannot be allowed as misuse would hinder the very purpose of Act. Consumer Protection Act is a beneficial legislation. Justice Administration system is founded on principles of purity which pre-supposes presentation of true facts. Whosoever, try to transgress the fountain of purity with ill motive to secure gain, must face flowing consequences. There can be no exception to complainant/appellant, who has resorted to Consumer Protection Act, on falsehood platform. He has to be dealt with sternly. Accordingly, this Commission imposes exemplary cost of Rs.25,000/- upon complainant/appellant Suresh Kumar S/o Sh. Ram Chander to be deposited by him, within 60 days from date of receipt of this order. District Consumer Commission-Yamuna Nagar at Jagadhri would take appropriate steps to facilitate recovery of cost amount (Rs.25,000/-) from complainant/appellant, which shall, on being deposited with it by complainant, be kept in Legal Aid Account, maintained by this Commission.
16. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
17. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
18. File be consigned to record room.
Date of pronouncement: 22nd November, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
