STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH. Appeal Case No. 229 of 2010 Date of institution: 28.6.2010 Date of decision : 3.10.2011 1. Bharti Axa General Insurance Company Limited, through its Branch Manager, SCO No.350-352, 1st Floor, Sector 34-A, Chandigarh 160 036 2. Sh.Lawakush, Sales Officer, DSF, Bharti Axa General Insurance Company Limited, SCO No.350-352, 1st Floor, Sector 34-A, Chandigarh U.T. 160 036 …. Appellants Versus Vishnu Bhagwan Mittal, son of Sh.Sohan Lal, R/o H.No.3438, Ward No.8, Kharar, District Mohali – 140 301, Punjab. ….. Respondent. Appeal U/S 15 of the Consumer Protection Act,1986 Present Sh.Paras Money Goyal, Advocate for the appellants. Sh.Neeraj Pal Sharma, Advocate for the respondent Appeal case No.243 of 2010 (Date of institution:7.7.2010) Vishnu Bhagwan Mittal, son of Sh.Sohan Lal, R/o H.No.3438, Ward No.8, Kharar, District Mohali – 140 301, Punjab. --Appellant Versus 1. Bharti Axa General Insurance Company Limited, through its Branch Manager, SCO No.350-352, 1st Floor, Sector 34-A, Chandigarh 160 036 2. Sh.Lawakush, Sales Officer,DSF, Bharti Axa General Insurance Company Limited, SCO No.350-352, 1st Floor, Sector 34-A, Chandigarh U.T. 160 036 --Respondents Present: Sh.Neeraj Pal Sharma,Advocate for the appellant. Sh.Paras Money Goyal, Advocate, for the respondents . QUORUM : Justice Sham Sunder, President Mrs. Neena Sandhu, Member Per Justice Sham Sunder , President This order shall dispose of the aforesaid two first appeals, bearing No.229 of 2010 titled as Bharti Axa General Insurance Company Ltd. & another Vs Vishnu Bhagwan Mittal and No.243 of 2010 titled as Vishnu Bhagwan Mittal vs Bharti Axa General Insurance Company Ltd. & another arising out of the order dated 24.5.2010, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it accepted the complaint and directed the OPs as under ; “i. The OPs shall pay to the complainant the sum of Rs.4,06,215/- which is 75% of the IDV of Rs.5,41,620/- being the full and final settlement of the theft claim on non standard basis. ii. The OPs shall further pay a sum of Rs.25,000/- as compensation for causing physical harassment, mental agony and pain to the complainant on account of wrongful repudiation of genuine insurance claim of the complainant. iii. The OPs shall also pay a sum of Rs.5,000/- as costs of litigation to the complainant. The aforesaid order be complied with by the OPs, jointly and severally, within a period of 30 days from the receipt of its certified copy, failing which they shall pay the aforesaid amount of Rs.4,06,215/-+Rs.25,000 = Rs.4,31,215/- along with interest @18% per annum w.e.f date of repudiation of the claim i.e. 3.9.2009 till the date of realization of the awarded amount, besides paying the litigation costs of Rs.5,000/ to the complainant.” 2. The facts, in brief, are that the complainant got his car bearing Registration No.PB-27-C-2559 insured with Bharti Axa General Insurance Company Ltd. for the period from 22.2.2009 to 21.2.2010, vide insurance policy annexure C-6 for the Insured Declared Value of Rs.5,50,620/-. The said car was found missing/stolen on 12.4.2009 at about 3.15 P.M. while it was parked outside Flat No.3114, Alok Vihar-I, Sector 50, Noida. The matter was reported to the local police, whereupon FIR No.87 dated 12.4.2009 Annexure C-9 was registered at P.S. Sector 49, Noida (U.P.) The theft was also reported to OP No.1. Motor Insurance Claim Form annexure C10, as provided by OP No.1 Insurance Company, was also filled- in, and returned to it, for processing the loss claim. Thereafter, the complainant submitted the final report dated 13.8.2009 annexure C-11, to OP No.1 Insurance Company, whereby, the aforesaid FIR/theft case was closed as untraced by the Court of 2nd Additional Chief Judicial Magistrate, Gautam Budh Nagar (U.P.). The complainant requested OP No.1 Insurance Company, to settle his claim. However, the Insurance Company illegally and arbitrarily repudiated the same, on the ground, that the earlier Insurer of the complainant had informed it, that the complainant had taken the No Claim Bonus, in the previous year, from the said insurer in respect of the vehicle, in question, whereas, in the statement made by him, and incorporated in the proposal form, for obtaining the insurance cover, in question, he stated that he had not made any claim from the earlier Insurer. It was further stated that according to OP NO.1, such statement, was found to be false. It was further stated that the complainant informed OP No.1 Insurance Company that the proposal form for obtaining the insurance cover annexure C-6 was neither filled-in, by him, nor he was present at that time, nor it was signed by him, but, on the other hand, it was signed by OP No.2 i.e. an agent of OP No.1 Insurance Company, but to no avail. It was further stated that, thus, no false statement was made by the complainant, in the proposal form, nor he concealed the material facts. It was further stated that, as such, repudiation of the claim of the complainant by OP No.1, Insurance Company, was illegal and arbitrary. It was further stated that these acts of the OPs, amounted to deficiency, in rendering service and caused physical harassment and mental agony to the complainant. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act,1986(hereinafter to be called as the Act only) was filed by him. 3. The OPs, in their joint written reply, admitted the factual matrix of the case. It was stated that the insurance policy, in question, was fraudulently obtained by the complainant, by giving false declaration, in the proposal form, that he was entitled to ‘No Claim Bonus’ as he had not taken any such claim, in the previous year, against the earlier insurance policy obtained from M/s Reliance General Insurance Company Ltd. It was further stated that the policy, in question, which constituted the legal contract, between the parties, became void- ab- initio, after the declaration given by the complainant in the proposal form, that he was entitled to ‘No Claim Bonus’, was found to be false. It was further stated that OP No.2, an agent of the Insurance Company had not forged the signatures of the complainant, nor proposal form was signed by him as “Vishnu Bhagwan”, as alleged. It was stated that the proposal form was signed by the complainant, in the presence of OP NO.2, an agent of the Insurance Company, after fully understanding the contents thereof. It was further stated that the declaration was also made by the complainant, of his own accord. It was further stated that since the complainant made allegations of cheating and forgery against OP NO.2, an agent of OP NO.1, Insurance Company, which constituted complicated and disputed facts, the same could not be completely and effectively adjudicated upon, by the District Forum, as the proceedings before it, are only summary in nature. It was further stated that, thus, the appropriate remedy with the complainant was to approach the Civil Court for the adjudication of dispute. It was denied that there was any deficiency in service, on the part of the OPs. The remaining allegations, were vehemently denied, being wrong. 4. The parties led evidence, in support of their case. 5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, accepted the complaint, while holding in para No.7 that the signatures of the complainant on the proposal form (C-3) and Motor Vehicle Insurance Cover Note (C-4) were quite different from his admitted signatures, which were available on the cheque, through which, he paid the insurance premium to the OPs and also on the affidavit signed by him, which was attached with the complaint. 6. Feeling aggrieved, Appeal bearing No. 229 of 2010 titled as Bharti Axa General Insurance Company Ltd. & another Vs Vishnu Bhagwan Mittal was filed by the appellants/OPs, for setting aside the impugned order of the District Forum, being illegal and without jurisdiction, whereas, Appeal No.243 of 2010 titled as Vishnu Bhagwan Mittal Vs Bharti Axa Genral Insurance Company Ltd. & another was filed by the appellant/complainant for modification of the impugned order dated 24.5.2010, by way of enhancement of the amount of compensation, costs and grant of interest 7. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 8. The Counsel for the appellants/OPs in Appeal No.229 of 2010, submitted that since a clear-cut allegation, was made, by the complainant, in the complaint, that on the proposal form under the declaration, he never signed, but his signatures were appended by OP NO.2, an agent of the Insurance Company, which, in other words, amounted to alleged forgery of his signatures by OP No.2, the District Forum, before which, the proceedings are summary in nature, could not completely and effectively adjudicate upon, such complicated and disputed facts, which necessitated the recording of detailed evidence by the Civil Court. He further submitted that it is settled principle of law, that when the allegations of fraud, forgery and cheating, are levelled by the complainant, the Consumer Fora has no jurisdiction to adjudicate upon the same and the only remedy with him (complainant) is to file a Civil Suit. He further submitted that, since the Consumer Fora had no jurisdiction to decide the matter, it could not go into the merits of the same. It was further submitted by him, that, in the proposal form, a specific answer was given by the complainant, that he was entitled to ‘No Claim Bonus’. He further submitted that even declaration was made in the proposal form by the complainant, to the effect that the particulars contained therein, were correct. He further submitted that when the Insurance Company got information, from the earlier insurer of the vehicle, in question, of the complainant that he had already received ‘No Claim Bonus’ in the previous year, such a declaration made by the complainant, in C-3, was found to be false and, as such, there was a breach of the conditions of the Insurance Policy, as a result whereof, the claim of the complainant was legally repudiated. He further submitted that, even the claim was lodged by the complainant after 10 days of the theft of the vehicle, as a result whereof, the appellants/OPs, were not provided an opportunity to properly investigate the matter. He further submitted that, on this ground too, the complaint was liable to be dismissed. He further submitted that the District Forum committed an illegality in accepting the complaint. 9. On the other hand, the Counsel for respondent/complainant, in Appeal bearing No.229/2010, and appellant/complainant in Appeal No.243/2010, submitted that, since on C-3, the proposal form, under the declaration the signatures of “Vishnu Bhagwan” complainant were forged by OP No.2, an agent of the Insurance Company, any information recorded therein, could not be said to have been given by him(complainant). He further submitted that no reliance, therefore, could be placed, on this proposal form, to come to the conclusion, that the complainant gave the information, that he was entitled to ‘No Claim Bonus’, though he had already allegedly received the same in respect of his earlier policy, in the previous year. He further submitted that the District Forum had the jurisdiction to adjudicate upon the matter. He further submitted that it was also the duty of the Insurance Company, to make enquiry from the previous insurer of the complainant immediately, as to whether he (complainant) had received ‘No Claim Bonus’ on the earlier policy, in the previous year, but it failed to do so. He further submitted that according to Regulation 4 (1) of the Insurance Development Regulatory Authority( Protection of Policy holder’s Interests)Regulations,2002, it was the duty of the insurer to furnish to the insured, free of charge, within 30 days from the date of acceptance of the proposal, a copy of the same, but it did not do so and, as such, it was negligent. He further submitted that admittedly theft of the car, in question, was committed during the currency of the Insurance Policy, and even untraced report was, submitted by the police. He further submitted that the District Forum was, thus, right in coming to the conclusion that the claim was illegally repudiated. It was further submitted that the order of the District Forum, though legal and valid, yet was liable to be modified by way of enhancement of compensation and costs and grant of interest. 10. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties , in our considered opinion, First Appeal No.229 of 2010 titled as Bharti Axa General Insurance Company Ltd. & another Vs Vishnu Bhagwan Mittal is liable to be accepted, whereas, First Appeal No.243 of 2010 titled as Vishnu Bhagwan Mittal Vs Bharti Axa General Insurance Company Ltd. & another is liable to be dismissed, for the reasons, to be recorded hereinafter. In the complaint, in para No.7, it was in clear-cut terms, stated by the complainant that he was not present, at the time, when the information was incorporated, in the proposal form. He further, in clear-cut terms, stated, in this para, that, in his absence, just to augment his monthly target, Sh.Lawakush, Sales Officer OP No.2, of the Insurance Company, even signed the said proposal form annexure C3, as “Vishnu Bhagwan” under the head reserved for the proposer on 3.2.2009. It means that, in para No.7 of the complaint, in clear-cut terms, the complainant alleged that his signatures on the proposal form C3, under declaration, were forged by Sh.Lawakush OP NO.2, an agent of the Insurance Company OP NO.1. In the affidavit, which was enclosed by him, alongwith the complaint, by way of evidence, he also made a statement, in support of this allegation. In C14, addressed by the complainant to the Manager Grievance Cell of OP No.1, he also stated that he was surprised and shocked to see his forged and fabricated signatures, on the proposal form and verification be made, as to who had done it. Even, Paramjit Singh, Accountant of the complainant, in his affidavit, submitted by way of evidence, in para No.3 stated that the proposal form was signed as “Vishnu Bhagwan” under the head reserved for the proposer on 3.2.2009,by Lawakush OP NO.2, when the complainant was nowhere in the vicinity of Kharar. On the other hand, Pankaj Verma, Zonal Head of Bharti Axa General Insurance Co. Ltd., in his affidavit, by way of evidence, stated that the allegations, made by the complainant, to the effect that his signatures were forged by OP NO. 2, were false. Mr.Lawakush, Sales Officer Bharti Axa General Insurance Co. Ltd. in his affidavit, by way of evidence in clear-cut terms, testified that the proposal form was provided to him, alongwith the premium cheque, by Sh.Vishnu Bhagwan Mittal, complainant himself. He further stated that he filled-in the proposal form C-3, in the presence of Vishnu Bhagwan Mittal, as alleged by him. He further stated that he had not forged the signatures of Vishnu Bhagwan Mittal, as alleged by him. 11. When there are allegations with regard to forgery and fabrication of signatures of the complainant, under the declaration, on the proposal form C3, the question arises, as to whether, in the summary proceedings, before the District Forum, such complicated and disputed facts could be adjudicated upon or not. The Counsel for the appellants in appeal No.229 of 2010 placed reliance on Oriental Insurance Company Ltd. Vs Munimahesh Patel 2006(2)CPC668(SC), Reliance Industries Ltd. Vs United India Insurance Co. Ltd.I(1998)CPJ13, a case decided by four members’ Bench of the National Consumer Commission and M/s Singhal Swaroop Ispat Ltd. Vs United Commercial Bank 111(1992)CPJ 50, a case decided by three member Bench of the National Commission, in support his contention, that when there are allegations of forgery, fraud and cheating, adjudication whereof, requires elaborate evidence, the same cannot be decided by a Consumer Fora, proceedings before which, are summary in nature. In Oriental Insurance Company Ltd.’s case(supra),there was a dispute, about the disclosure of information incorporated in the proposal form. Two copies of the proposal form were produced. In one copy of the proposal form, the insured stated that she was working as a teacher, whereas, in the other copy of the proposal form, it was stated that she was a housewife. The insured, thus, on the basis of such information, obtained the policy. The insured died. When the claim was filed by her legal representatives, the same was repudiated, on the ground, of a false disclosure of information, by the insured, in the proposal form. The District Forum, accepted the complaint, which was filed by the legal representatives of the deceased insured. The State Commission set aside the order of the District Forum, on the ground, that there was dispute of disclosure made, in the proposal form and the information given and, as such, the facts being disputed and of complicated nature, the complainant should take appropriate proceedings for establishing his claim, and for seeking the reliefs in the Court of competent jurisdiction. Feeling aggrieved, a revision petition, was filed before the National Consumer Disputes Redressal Commission, which accepted the same, holding that the information disclosed by the insured had no nexus with her death and, as such, restored the order of the District Forum. Feeling aggrieved, the Oriental Insurance Company Ltd. filed the Civil Appeal bearing No.4091 of 2006. The Hon’ble Supreme Court held that the proceedings before the Commission are essentially summary in nature. It was further held that the factual position was required to be established by documents. It was further held that in view of the complex factual position, the matter could not be examined by the Consumer Foras and the appropriate forum was the Civil Court. In Reliance Industries Ltd.’s case (surpra), it was held that when the questions of fraud and cheating are involved in regard to the claim of the complainant, which require thorough scrutiny including the examination of various documents and supporting oral evidence, the Consumer Fora cannot adjudicate upon the matter. It was further held that the questions of fraud, cheating and conspiracy could be satisfactorily resolved, by the Civil Court. Similar principle of law, was laid down in M/s Singhal Swaroop Ispat Ltd.’s case (supra) decided the National Commission. No case law, contrary to one, referred to above, was either cited or produced by the Counsel for the respondent, in appeal No.229 of 2010. The principle of law, laid down in the aforesaid cases, is fully applicable to the facts of the instant case. 12. Since the complex and disputes facts, are involved in the complaint, as to whether, Vishnu Bhagwan complainant signed the proposal form annexure C3 or Lawakush, OP NO.2, an agent of the Insurance Company forged the same, and whether the information that the complainant was entitled to “No Claim Bonus”, was incporated in the aforesaid proposal form, by Lawakush, OP No.2 of his own, or at the asking of the complainant, in our considered opinion, for proving the same, thorough analysis of the documents, and elaborate examination of the witnesses and their cross-examinations was required. Such issues, therefore, could not be adjudicated upon by the Consumer Fora, in the proceedings, which are summary in nature, before it. It was not that a mere allegation was made, by the complainant, that his signatures were forged by Lawakush OP No.2, on the declaration, in the proposal form C-3, but he also attempted to prove the same. The OPs vehemently denied the same and also attempted to disprove the same, by way of affidavits, in the shape of evidence. Thus, only the Civil Court could decide such complicated, complex, and disputed questions. The District Forum, did not take into consideration, this aspect of the matter, in its proper perspective, nor did refer to the principle of law, laid down, in the aforesaid cases, which were cited before it, as is evident from the copies of the orders /judgments, placed in the District Forum file. The District Forum, thus, acted illegally. The order of the District Forum is liable to be set aside on this ground alone. 13. For the reasons, recorded above, Appeal No.229/2010 titled as Bharti Axa General Insurance Company Ltd. & another Vs Vishnu Bhagwan Mittal is accepted, with no order as to costs. The impugned order is set aside. The complainant may approach the Civil Court of competent jurisdiction, for the adjudication of complex, disputed and complicated issues/facts, referred to above. 14. Appeal NO.243 of 2010 titled as Vishnu Bhagwan Mittal Vs Bharti Axa General Insurance Company Ltd. & another is dismissed, with no order as to costs, in view of the order passed in Appeal No.229/2010. 15.. Certified Copies of this order be sent to the parties, free of charge. 16. The file be consigned to Record Room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
