H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA.



Appeal No. 363/2006.

Date of Decision 24.07.2009.

In the matter of:



Sh. Babu Ram S/o Sh. Narayan Dass

R/o Vill. Banjani, PO Chali, Tehsil Kandaghat, Distt. Solan, HP.

… … Appellant.

Versus



National Insurance Company Limited,

The Mall, Solan, through its ranch Manager.

… … Respondent.





Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether approved for reporting? Yes.



For the Appellant: Mr. Peeyush Verma, Advocate



For the Respondent: Mr. Jagdish Thakur, Advocate.





O R D E R



Per Mr. Chander Shekher Sharma, Member.





This appeal is directed against the order of District Forum, Shimla, Camp at Solan, in Consumer Complaint No. 17/2002, dated 11.8.2006 wherein it was observed that since complicated question of fact has arisen in this case, as such it would be in the interest of justice that parties are relegated to the civil court for trial and adjudication of the claim as set up by them before the District Forum below.

2. The facts of the case that emerges from the complaint file are, that appellant had taken insurance policy against theft of 58 logs of deodar trees and 35 logs of chil trees for a sum of Rs. 3 lacs. This policy was valid from 9.2.1998 to 8.2.1999. The insured timber was stolen on 8.7.1998 from the godown/store where the timber was kept. Thereafter the claim was lodged with the respondent by the appellant, but the respondent has failed to settle the claim of the appellant, hence the appellant had initially filed a complaint No. 115/2000 before the District Forum below which was disposed of by the District Forum below vide order dated 7.9.2001 with the directions, that insurance company is to settle the claim within 90 days.

3. Thereafter the respondent vide order dated 18.10.2001 repudiated the claim of the appellant, hence present complaint was filed against the respondent to indemnify the appellant to the tune of Rs. 2,70,000/- since deficiency of service has been alleged against the respondent.

4. The respondent-insurance company in the present case has contested the claim submitted by the appellant and its plea in the reply was that the appellant has obtained the policy by misrepresenting the facts and has practiced fraud upon the respondent and the appellant has not filed the present claim with clean hands. Further plea of the respondent in the reply was, that FIR was also got registered by the appellant and the police after investigation of the case has submitted the cancellation report by concluding that no theft had taken place in the present case. In the final police report submitted by the police, the Judicial Magistrate has also agreed with the cancellation report and finally ordered for the cancellation of the case.

5. Appellant has also filed rejoinder to the reply wherein averments made in the reply were denied and reasserted as per stand taken in the complaint.

6. Brief resume of evidence led by the appellant/respondent in nutshell is being discussed hereinafter. The appellant in support of its claim has filed his own affidavit as well as affidavits of S/Sh. Hari Singh & Uma Dutt, Annexures 1 and 2. In support of the claim, the appellant has also filed various documents Annexure C-1 to C-17. Respondent in the present case has filed various documents Annexures A to H and Annexure V-4 is the cancellation report submitted by the police and V-5 is the order of Judicial Magistrate and Annexure E is the report of Investigator Sh. Ashwani Vinayak, Advocate.

7. We have heard learned counsel for the parties and have gone through the record of the case file.

8. Mr. Verma learned counsel for the appellant has mainly based his argument on the point that the order of cancellation which has been passed by the Judicial Magistrate in the present case opportunity of being heard was not given to the appellant which is against the verdict of Apex Court, as such the cancellation report submitted by the police in the present case cannot be taken into consideration and he has also placed reliance upon the affidavit of S/Sh. Hari Singh & Uma Dutt, Annexures 1 and 2 and prayed for acceptance of appeal.

9. Learned counsel for the respondent Mr. Thakur has based his argument on the point that the appellant in the present case is not coming with clean hands and had practiced fraud/misrepresentation upon the respondent and he also placed reliance on the cancellation report submitted by the police wherein it had been concluded that no theft had taken place in the present case and the final report in this case has also been approved by the concerned Judicial Magistrate. Further plea was that since complicated question of fact/law has arisen in the present case, as such the District Forum below has rightly concluded that the present case it would be in the interest of justice if the parties are relegated to the civil court for adjudication of their claim.

10. After hearing the arguments of both the parties as well as going through the record of the case, we are convinced that the order of the District Forum below does not suffer from any infirmity which may call for interference. The contract of insurance is based upon the principle of uberrima fides, i.e. good faith and the insurance company acting in good faith generally issues the policies upon the facts stated by the insurer at the time of insurance as is the situation in the present case. In the present case this fact is clear from the evidence on record viz. cancellation report submitted by the police Annexure V-4 that in the present case false FIR was lodged by the appellant and detailed reasons for coming to the said conclusion have been given in the said report by the officer in-charge of police station Kandaghat. This final report is also approved by the concerned Judicial Magistrate vide order dated 3.4.2000 Annexure V-5. Even report of investigator Sh. Ashwani Vinayak Annexure E also reveals that the appellant has made a false report of theft in the present case. Since investigator has also referred to the cancellation report submitted by the police and the fact of confiscation of the sleepers by the Forest Department on 6.4.1997.

11. Hence in view of the aforesaid facts/evidence which has come on record the complicated question of fact and law have arisen since it is the contention of the insurance company that no theft in question had taken place and even the final report submitted by the police for cancellation of the case has also been approved by the concerned Judicial Magistrate, but the fact that there is nothing on record to suggest that the appellant in the present case was given an opportunity of being heard at the time of cancellation of the case by the Judicial Magistrate and the fact that the two affidavits of S/Sh. Hari Singh & Uma Dutt, Annexures 1 and 2 have come on record. Sh. Hari Singh had deposed that he was engaged by Babu Ram for cutting of deodar and chil trees in the month of December, 1996 and thereafter they were converted into sleepers alongwith co-labourers and Uma Dutt deposed that the sleepers were carried by him to the godown/store of the complainant at a place Tharol-ka-nala, as such the District Forum has rightly come to the conclusion that the proceedings before the Forum are summary in nature and as such there are not in a position to determine the truthfulness or otherwise of the claim of the parties and as such the District Forum below has rightly concluded that interest of justice would be best served if the parties are relegated to the civil court for trial and adjudication of their claim which is the legal position in the matter since nature of proceedings before Consumer Disputes Redressal Agencies are summary in nature and as such it should not adjudicate issue involving disputing factual questions. We are supported by judgment of Apex Court in the case of Oriental Insurance Company Ltd. Vs. Munimahesh Patel, IV (2006) CPJ 1 (SC) and New India Insurance Company Vs. Hira Lal Ramesh, AIR (2008) SCC 2620.

12. No other point was urged.

Keeping in view al the facts and circumstances of the present case and the detailed discussion made above, we are of the considered view that there is no reason to interfere with the well reasoned impugned order passed by the District Forum, Shimla, Camp at Solan in Consumer Complaint No. 17/2002, dated 11.8.2006 and the same is upheld and the appeal stands dismissed, leaving the parties to bear their own costs.

Authenticated copy of this order be supplied to the parties free of cost as per rules.



Shimla,

July 24, 2009. ( Justice Arun Kumar Goel ) (Retd.)

President



(Saroj Sharma)

Member.



( Chander Shekher Sharma )

/Karan/ Member.