MS. NIPUR CHANDNA, MEMBER

ORDER

08.06.2023

          A complaint under Section 35 of Consumer Protection Act filed. In brief the facts are that the deceased husband of the complainant was the owner of vehicle bearing Registration No. DL1Z 6921, duly insured with the OP-1 vide policy bearing no. 10003/31/22/231135 valid for the period from 21.12.2021 to 20.12.2022 with an IDV of Rs. 3,21,750/-.

On 05.10.2022,  the complainant received a call from P.S. Pilakhuwa-Hapur, U.P thereby informing her that the two passenger sitting in the car attacked on the head of the driver (husband of the complainant) pack the mouth/strangled the neck of her husband and throw him in crop fields Hindalpur, Hapur and snatched away the car in question. After detailed investigation police succeeded in searching the culprits and the car in question and the car is with Police Department.

It is alleged by the complainant that as per the PA cover for owner driver section III, she is entitled for Rs. 15,00,000/- against the accidental death which is covered under the policy in question, as such, after completing funeral formalities complainant lodged PA claim with OP-1 with entire documents. The OP-1 ins. Co. vide letter dated 20.03.2023 close the genuine claim by assigning frivolous grounds.  On various occasions complainant approached OP-1 and requested its official to consider her claim but all in vain. Being aggrieved by the conduct of the OPs complainant knocked the door of this commission for redressal of her grievance.

The present complaint case is on admission stage. We have heard the arguments advanced at the bar by the Ld. Counsel for complainant and have perused the record.

As per the repudiation letter dated 20.03.2023, the OP-1 insurance company had repudiated the claim of the complainant on the following ground.

“As per criminal paper it is clear that this is a murder case where co-passengers killed the driver/insured while travelling in insured vehicle. Hence, only accidental death/injury is covered under PA policy”.

          Perusal of the aforesaid letter clearly shows that in the present complaint case  two passengers attacked the driver on his head, packed his mouth/strangled the neck of the driver  and throw the driver in crop fields after snatching his belonging and the said car due to which the driver of the vehicle died. The present case involved the complicated question of fact as to whether the death of the driver is accidental one or a murder which  required elaborate procedure including recording of evidence which is not possible in the summary proceeding before this commission.

Admittedly, the Consumer Forum deals with the complaint in a summary proceeding, where cases involve a great deal of evidence and cross examination of the parties and moreover veracity of documents is to be checked, the same cannot be adjudicated upon by the Forum & for which the party concerned has to approach the civil court where elaborate procedure including recording of evidence is followed.

On this issue we are guided by Hon’ble Supreme Court in case titled Punjab Lloyd Ltd. Vs Corporate Risks India Pvt. Ltd. (2009) 2 SCC 301, it was held that the complicated question of law should be decided by the regular court. It further held that the decisive test in not the complicated nature of question of fact and law arising for decision. In another case titled LIC & Ors. Vs Surinder Kaur & Ors. Civil Appeal No.5334 or 2006 (Arising or of SLP (c) No.17866 of 2005) decided by Hon’ble Supreme Court of India on 01.12.2006, it has been held that complex question of facts cannot be decided by the consumer forum under the Consumer Protection Act and such arises can be subject matter of regular Civil Court.

          In the present complaint case the major ground of repudiation of claim seems to be replica of criminal complaint and allegations of murder are dominant in the repudiation letter. In these circumstances Hon’ble Supreme Court settled the law and in the latest judgment The Chairman & Managing Director, City Union Bank Ltd. & Anr. VS R.Chandramohan, Civil Appeal No. 7289 of 2009 decided on 27.03.2023 held as under:

The counsel for theappellants has rightly relied upon the decision of this Court in case of Ravneet Singh Bagga (supra) as under:

“5. Section 2(i)(o) defines “service” to mean service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board orlodging or both, entertainment, amusement or the purveying of newsor other information, but does not include the rendering of any service free of charge or under a contract of personal service. Section 2(i)(g) defines “deficiency” to mean any fault, imperfection, shortcoming orinadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”.

6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is  upon the person who alleges it. The complainant has, on facts, been found to have not established any  willful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortious acts of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service. In case of bona fide disputes no willful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed (sic). If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances during the transaction and that their action  or the final decision was in good faith,  it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bona fides, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service”.

In view of the above discussion, we are of the considered opinion that the present complaint involves complicated issues. This issues required elaborate oral and documentary evidence and the examination of the witnesses for the proper disposal of the matter. The proper forum for adjudication of the present complaint is Civil Court. Consumer Protection Act being the special Act where only summary proceedings are taken up and as such the adjudication of the present complaint is beyond the scope and jurisdiction of this Hon’ble Forum. We are, therefore, inclined to hold that the present complainant cannot be adjudicated by way of Summary Proceeding; hence the present complaint is returned to the complainant being not maintainable before this Commission.

A copy of this order each be sent to both parties free of cost by post. Orders be also sent to www.confonet.nic.in. File be consigned to record room.

Sanjay Kumar                       Nipur Chandna                                Rajesh       

President                                     Member                                       Member