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Khodal Cotton Processing Pvt. Ltd., Rajkot v/s New India Assurance Company Limited & Another

    Consumer Case No. 6 of 2021

    Decided On, 10 February 2021

    At, National Consumer Disputes Redressal Commission NCDRC


    For the Complainant: Rakesh Malhotra, Advocate. For the Opposite Parties: --------

Judgment Text

Taken up in physical hearing.1. Heard learned Counsel for the Complainant.Perused the entire material on record.2. The Complaint relates to repudiation of insurance claim(s).3. It is seen that this matter requires adjudication of issues that involve disputed factual questions, inter alia regarding ‘adoption’ of ‘fraudulent means’ for ‘undue benefit’.For ready appreciation of the facts and specificities of the matter, the following is reproduced here (without in any manner making any observation of any nature thereon):The Surveyor, in para 5.2.7 of its Report dated 23.09.2018, has concluded that:Hence from all above evidences, we are of an opinion that the cause of Fire was not found of an unforeseen nature and an accidental one but the said Fire seems to be mysterious one having fraudulent means or devices used by the insured or any one acting on his behalf to obtain undue benefits under the caption policies.(emphasis supplied)In para 10.0 of its Report, the Surveyor has observed that:From the details/documents submitted by the insured &/or received/available with us &/or our notifications & notifications/conclusion of Truth Labs & PGVCL reports, we are of an opinion that this claim is not admissible under the terms & conditions of the involved Std. Fire & Special Perils policy possessed by the insured as under:(emphasis supplied)The insurance company (Opposite Party No. 1), in its repudiation letter dated 06.05.2019, has inter alia stated that:- - -The surveyor congregated the material information from the insured as well as from the documents submitted by the insured and completed the survey and issued a survey report with the significant observations. Upon perusal of the said report it can be inferred that the insured has failed to prove that the fire took place due to perils insured under the policy. It was observed that the insured could not submit any justifiable explanation/details proving the cause & origin of the claimed fire as an unforeseen nature and accidental one inside the closed godown.The surveyor has additionally indicated that the insured has not provided all the relevant and material information as sought for by the surveyor during his survey.It is observed by the surveyor, considering the documents provided by the insured as well as the information gathered by him, that the cause of fire was not due to the broken electric line which passes from the back side of the affected premises as the said wire was manually cut and there was no electric current at the time of alleged incident.- - -Condition No. 8If the claim be in any respect fraudulent, or if any false declaration be made or used in support thereof or if any fraudulent means or devices are used by the Insured or any one acting on his behalf to obtain any benefit under the policy or if the loss or damage be occasioned by the willful act, or with the connivance of the Insured, all benefits under this policy shall be forfeited.”In light of the above, based on the survey report as well as the terms and conditions of the insurance policy issued to you, the subject claim lodged by you is not admissible and hence the competent authority has repudiated the same and hereby absolve our liability, under the subject policy, arising out of this claim, which you may please note.- - -(emphasis supplied)4. Learned Counsel for the Complainant, relying on Canara Bank vs. United India Insurance Company Limited and Ors. (2020) 3 SCC 455; Sikka Papers Limited vs. National Insurance Company Limited & Ors. (2009) 7 SCC 777; and New India Assurance Company Limited vs. Pradeep Kumar (2009) 7 SCC 787, argued that the Complaint is maintainable before this Commission.5. Prima facie, the Complainant being a ‘consumer’ under The Consumer Protection Act, 2019, the sum claimed from the Opposite Party being over Rs. 10 crore, the Complaint is maintainable before this Commission.6. However, noting the entire material on record, and the specificities of the evidence involved, this matter, for apt adjudication on merit, to do justice to it, requires recording of extensive oral evidence and proving extensive documentary evidence as per the provisions of The Indian Evidence Act, 1872 and adherence to the substantive and procedural provisions of The Code of Civil Procedure, 1908, that is best undertaken in a civil court.7. In other words, the matter, as discernible from the entire material on record, and from the specificities of the evidence involved, is not found to be such as can be aptly adjudicated on merit in summary proceedings by this quasi-judicial tribunal established under the Act 2019 to provide additional remedy to ‘consumer’(s).8. In the light of the afore:[a] the Complaint is returned, un-adjudicated; and[b] the Complainant is at liberty to seek remedy in a competent civil court as per the law.9. It goes without saying that the right of the Complainant to agitate its case before any competent authority remains unaffected.It also goes without saying that the Complainant, if it chooses to bring action in a civil court, is free to file application under Sections 5 and 14 of The Limitation Act, 1963, and, in such contingency, the chronological proceedings in this Commission would be material and relevant towards making such application.10. It is made explicit that this Commission has consciously refrained from entering into the merits of the matter, or to make a critique, since the right of the Complai

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nant to seek remedy in a competent civil court or to agitate its case before any competent authority survives, and this Commission does not in any manner want to colour the vision of any court / authority.11. It is also made explicit that this Order has been passed on considering the particular facts and specificities of the instant matter, as evinced from its record.12. The Registrar is requested to send a copy each of this Order to the Complainant and to its learned counsel within three days from today. The stenographer is requested to upload this Order on the website of this Commission today itself.