Meghalaya

StateCommission

CC/1/2007

Shri Ram Bhagat Chokani - Complainant(s)

Versus

Oriental Insurance Co. & Four Others - Opp.Party(s)

Mr.R.Deb Nath

01 Sep 2014

ORDER

 

 

MEGHALAYA STATE CONSUMER DISPUTE REDRESSAL COMMISSION

 

Shri Ram Bhagat Chokhani

 

-vs-

 

Oriental Insurance Co. Ltd.

 

Complaint Case No. 1 of 2007

 

ORDER

 

17.10.2014

 

1.         Before entering into the merits or demerits of the claims of the Complainant we are faced with a major hurdle in rendering a just and fair decision in the matter. The result of this Complaint hinges on the examination of the issues raised in the Surveyor’s Reports which the Insurance Company has followed in settling the claim and this examination requires consideration of the terms and conditions of the Insurance Policy which we are unable to do in the absence of the original Policy document. In this regard, the Opposite parties have categorically made the following averment in Para 5 of their Show Cause:

 

“The original policy in the prescribed format containing terms and conditions was issued to the Complainant but he has not opted to enclose the same along with the Complainant Petition. The Complainant may be directed to produce the original copy of the aforesaid policy.”

 

2.         To this, the reply of the Complainant made in Para 5 of his Rejoinder to the Show Cause filed by the Opposite parties reads as follows (quoted verbatim):

 

“That as regard statement mad in paragraph 5 it is states that the copy of the insurance policy had already being submitted to the surveyor for their ends. The claim was considered and surveyor had already quantified the amount of total loss, it was not disputed that there was no policy with the opposite party, hence it was not submitted. The claimant is submitting before the commission the policy had with the opposite party.”

 

3.         In our view, the statement made by the Complainant that the copy of the Insurance Policy had already been submitted to the Surveyor is not borne out by the records as there is nothing on record to support this assertion.

 

4.         Records will show that, at  a later stage, the complaint did file a purported copy of the Policy document along with his Rejoinder but the Verification under which the Rejoinder has been filed has been done most sloppily and incompletely without fulfilling even the bare legal requirements and, as such, we are unable to take cognizance of the same, especially in the face of the specific objection raised by the Opposite Parties in their Show Cause.

 

5.         Another important reason for our inability to accept the said copy of the Policy filed by the Complainant is that whereas in his complaint (para 4), he has stated that the Policy was in force upto 17^th July, 2005, copy  of the Policy filed before us is one which shows expiry on 17^th June, 2005. As such, it raises doubts about its authenticity insofar as the present claim is concerned. Furthermore, inasmuch as various deductions have been made by the Surveyor in their assessment, it is of prime importance to have the authentic Policy before us to examine whether or not the deductions and assessment made are in conformity with the terms and conditions of the Policy.

 

6.         Moreover, it is common knowledge that the original Policy document is supposed to be with the Insured and not the Insurer. The Complainant is obviously in possession of the original policy and, if he so desired, he could have placed the policy on record. But for reasons best known to him he did not consider it proper to file a copy of the policy along with his complaint petition or submit the original copy even when called upon by this Commission. The memo of appeal clearly indicates that the question of not filing the policy has been agitated by the insurer. It is also not the Complainant's case that the policy was never issued to him or that it has been lost. Inspite of all this, the complainant has not thought it proper to file the policy, whether on his own motion or owing to the learned counsel’s advice or inaction, we cannot say.

 

7.         It is also settled law that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and it should file the insurance policy in Court. It is also for the Complainant to establish his case that the decision of the Opposite Party was erroneous with reference to the evidence on record and adverse inference can even be drawn against it for non-production of the complete insurance policy.

 

8.         It is for these reasons that, especially upon noticing the discrepancies mentioned above, we asked the Complainant’s counsel to file the original Insurance Policy for perusal of the Commission. A last chance was given to produce the policy on 01.09.2014 but the same was not filed. Notwithstanding this, another opportunity  was given to file it on 08.09.2014 but even on that date the learned counsel for the Complainant without filing any affidavit made an oral statement that the Policy had been handed over to the Surveyor and that the same was not available with them and we therefore felt that no purpose would be served by keeping the matter pending any further and that the Complaint had to be decided on the basis of the papers on record, as admissible.

 

9.         Notwithstanding the above, in the interests of justice, keeping in mind the settled position that a litigant ought not to suffer for the lapses of his Counsel, if any, and so as also not to deprive the Complainant of his legitimate rights, if ultimately it does transpire that there is any merit in his claim despite his counsel’s failure and ambivalent stand regarding filing of the original Policy document, we take a very liberal view of the matter and, since it is his stand that the Original Policy is not available with him, we deem it fit and proper to give a last and final opportunity to the Complainant and to once again direct the Complainant to either file a copy of  the Policy duly attested by the Insurance Company within two weeks hereof or to have the copy already filed by him duly admitted by the authorized counsel of the Insurance Company, failing which we may have no option but to leave the Complaint to bear the consequences, as examination of the terms contained in the authentic Policy is vital for arriving at a just and fair decision in the Complaint, and the matter shall directly proceed for judgment accordingly. Registry shall also serve a copy of this order upon the Complainant at his recorded address forthwith.

 

 

 

 

  Senior Member                                                       President