BHUSHAN THAPAR vs BRANCH MANAGER

This first appeal has been filed under Section 19 of the Consumer Protection Act, 1986 against the order dated 23.05.2012 passed in complaint case No. 25 of 1999 by Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow ( in short, ''the State Commission'') whereby the State Commission dismissed the complaint filed by the complainant.

The complainant, Mr. Bhushan Thapar, purchased an Opel Astra Car after getting a finance of Rs. 3 lakh from Kotak Mahindra Primes Ltd./OP 3. The said vehicle was registered with RTO, Lucknow in the name of Megabyte Leasing and Finance Company u/c Mr. Bhushan Thapar. Thereafter, the vehicle was transferred in the name of the complainant. National Insurance Company Ltd./OP 2 insured the vehicle for the value of Rs.7,17,000/- for the period from 5.2.1998 to 4.2.1999. OP 3 informed OP 2 about the transfer of vehicle in the name of the complainant and also completed all necessary formalities. OP 2 then transferred the ownership of vehicle in the name of complainant on 31.7.1998. The vehicle in question was stolen on 17.8.1998 from outside the house of the complainant. The claim was filed before the insurance company, which the OP failed to settle the claim.

Aggrieved by the repudiation of the claim, the complainant filed a complaint before Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow.

The OPs resisted the complaint. The OP/insurance company in its written statement stated that the complainant was a Managing Director of M/s Megabyte Leasing and Finance Company and they have engaged in the financial transactions. The complainant filed an FIR through Shri Shyam Gupta on 17.8.1998 about alleged theft took place at 7.00 O''clock in the morning. The Police investigated the matter and in haste, filed report on 18.8.1998 whereas another FIR No. 755 of 1998 was filed by one Mr. Punit Duggal under Section 406/420/467/468/471 I.P.C. against the complainant, Mr. Bhushan Thapar and other eight directors in the Hazratganj Police Station for misappropriating about 5 to 7 crores and transferring the car in question in the name of another Director, Mr. Hardev Sharma and possession of car was given by the complainant on 14.8.1998. The OP also submitted that the complainant gave the intimation of theft very late vide letter dated 30.11.1998 whereas alleged that the theft took place on 17.8.1991. It was against the terms and conditions of the policy. Therefore, the incident of theft was false and the claim of the complainant was repudiated on 20.9.2001. Moreover, the complainant did not have any insurable interest for the car because he had transferred and handed over the possession of the car. Hence, he was not a consumer and the consumer complaint should be dismissed.

On the basis of evidence and record, the State Commission dismissed the complainant. Hence, being aggrieved, the complainant filed this first appeal.

Heard the learned counsel for both the parties. Learned counsel for the complainant made submissions as discussed in the complaint. He further submitted that the car in question was in the name of M/s Mega White Leasing Finance Company. The ownership was transferred in the name of the complainant on 31.7.1998. On 17.8.1998, he lodged FIR about theft of vehicle before Hazratganj Thana and it was accepted by the Chief Judicial Magistrate vide order dated 24.1.2000. Therefore, the complainant is entitled to receive the insurance claim of the theft.

The arguments on behalf of respondents/OPs are that the insurance company got the matter investigated by an independent investigating agency, which reported that neither the complainant has himself met them nor he has contacted them over phone and that the other Directors are also absconding. The neighbors were also not aware of the theft, hence, the incident of theft was false. On the date of theft of car, the complainant had no insurable interest as transfer and giving possession of car was done prior to them. Hence, he was not consumer of OP under Section 157 (i) of Motor Vehicles Act, 1988. It is also noted that the OP filed written version in February, 2002 but the complainant took three years to file his evidence. There was neither deficiency in service nor any delay in settling the insurance claim.

I have perused the insurance policy. The policy is in the name of M/s Mega White Leasing and Finance Company and it is mentioned as U/C Mr. Bhushan Thapar, Thapar House, 5 Park Road, Lucknow. There is no resolution in connection with change of ownership, making endorsement of the name of Bhushan Thapar and giving possession of the vehicle to another Hardev Sharma nor has the complainant filed any evidence/affidavit in this connection.

In support of this case, learned counsel relied upon the judgment of this Commission in the case of M/s BTM Industries Ltd. vs. New India Assurance Co. Ltd., C.C. No. 86 of 2010 decided on 15.1.2016. In para 13 of this judgment, it has been held as under: "It is settled proposition of law that a person approaching the Court for redressal of his grievance must place all the relevant facts before the Court clearly, candidly and frankly without any reservation even if those facts are against him. If the person approaching the Court does not disclose all the material facts fairly and truly or states them in a distorted manner or otherwise tries to mislead the court, the Court has inherent power to proceed further with the examination of the case on merits. The Court/Tribunal certainly has to take into consideration the conduct of the party which invokes its jurisdiction and if it finds that the litigant has tried to mislead or hoodwink, it must necessarily prevent him from abusing its process by refusing to hear him on merits of the case. Such a person, by his very conduct, disentitles himself from getting any relief from the Court even if it is otherwise made out on merits."

In another judgment of this Commission in the case of N. Shivaji Rao vs. M/s Daman Motor Company & Ors. I (1993) CPJ 88 (NC), it has been observed as under: "6. It is evident from above that it is not a case of supply of defective goods or of deficiency in rendering service. Prima facie it is a case of fraud and cheating as alleged by the appellant-complainant himself. Consequently, the factum of fraud and cheating would have to be established first before a consumer forum can arrive at a finding of deficiency in service. We agree with the view expressed by the State Commission that the Consumer Protection Act and the machinery thereunder cannot be effectively utilized for determining complicated questions of fraud and cheating...."

He also relied upon the case of National Insurance Company Ltd. vs. Nitin Khandelwal IV (2008) CPJ 1 (SC) and Dr. J. J. Merchant and Ors. Vs. Shrinath Chaturvedi 2002 (4) AWC 2865 (SC) .

On the basis of entirety of the facts, I am of the opinion that repudiation by the OP is justified. Therefore, there is no need to interfere in the well-reasoned order of the State Commission. I do not find any merit in the instant appeal. Accordingly, it is dismissed.