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Judgment
Delay condoned.
Appellant/Complainant has preferred this appeal against impugned order dated 31.07.2015, passed by Consumer Redressal Commission, Rajasthan, Jaipur (for short, State Commission) in Consumer Case No.14/2011.
Appellant filed a consumer complaint on the averments that it is a proprietorship firm and is engaged in manufacturing corrugated boxes, paper rolls and paper sheets in its premises. The appellant''s unit is adjacent to the depot of Indian Ltd. (IOCL). A huge fire took place on 29.10.2009 in the depot of IOCL, which caused huge damage and loss to the An FIR was lodged in the matter. The appellant submitted it claim to the IOCL on 4.11.2009 with a copy of the to the extent of Rs.10,92,400/- + Rs.1,65,000/- done by the appellant''s surveyor. The respondent no.2 (RIICO), issued on 11.12.2009 for providing ad-hoc relief to the units, which suffered loss due to the incident. The appellant in response aforesaid notice got the loss assessed by an IRDA Surveyor, who assessed the loss to the extent of Rs.10,60,326/-. obtained a third party indemnification policy from the New India Assurance Company Ltd. / Opposite Party No.3, completing the formalities and sending various reminders, respondents did not settle the claim.
Hence, complaint was filed against the respondents, praying that appellant be awarded an amount of Rs.10,13,826/- loss, alongwith interest at the rate of 18% per annum from 29.10.2009 till its actual payment and Rs.10,00,000/- as harassment and deficiency in service plus Rs.20,00,000/- against compensation for economic loss and Rs.25,000/- proceedings i.e. in all Rs.40,38,826/-.
The IOCL, Respondent No.1 in its reply submitted, that appellant has neither bought any goods nor hired any consideration from it and there is no privity of contract between the appellant and respondent no.1. It had obtained Public Liability Policy form the insurance company to cover third party claims arising out of accidents. The IOCL as a gesture of goodwill to proportionally make good any losses suffered by the units as a result of fire that took place The claim submitted by the appellant was forwarded to the insurance company, but it could not be settled for want from the appellant. The IOCL is not liable to indemnify the appellant for any loss and hence, the complaint be dismissed.
The RIICO, Respondent No.2 herein, in its reply has stated that appellant is a commercial unit and hence, it file the complaint. Though, a fire took place on 29.10.2009 in the IOCL depot and it releases Rs.50 crores as ad hoc units, which suffered loss in the fire. The State Government authorized respondent no.2 for disbursement of ad hoc directions of the High Court in various writs pending before it. Rs.25,000/- were instantly given to the appellant. As assessment of loss made by the surveyor of the appellant, who assessed the loss to the extent of Rs.9.31,000/- an amount Rs.3,80,391/- i.e. 40.85% determined by the committee, was paid to the appellant on 23.04.2010. The appellant does the definition of consumer and hence, the complaint be dismissed.
The Insurance Company, Respondent No.3 in its reply has submitted that IOCL and other petroleum companies an Umbrella Public Liability Insurance Policy and appellant has not been insured under the policy. There is no privity between the appellant and the insurance company and hence, it is not a consumer vis-?-vis IOCL. The policy taken to indemnify against any liability fastened upon it in pursuance of any legal suit or action brought against it and there yet of any liability against the IOCL. Moreover, General Condition No.9.9A of the policy provides that the insurance liable to indemnify the claimant, if it is insured by any other policy. In the present matter, the appellant has obtained policy from the Universal Sompo General Insurance Company Ltd. and hence, insurance company is not liable to appellant. The insurance company has paid an amount of Rs.36,000/- against the loss.
The authorized surveyor assessed the loss to appellant to the extent of Rs.69,000/- on reinstatement value and Rs.60,000/- on the market value, whereas the appellant has already received a sum of Rs.25,000/- + Rs.3,80,391/- caused on account of the incident, in addition to Rs.36,000/- paid by insurance company. Thus, appellant had already compensation in excess to the damage as assessed by the surveyor. The appellant is seeking unjust enrichment at though it has already been compensated. Further, the insurance company is not liable under the Exclusion Clause arising out of deliberate, willful or intentional non-compliance of any statutory provisions and intentional disregard technical or administrative management to take all reasonable steps to prevent the loss. In the present matter, the charge sheet No.123/2010 against the officers of the IOCL, which shows gross disregard of the statutory provisions the depot and hence, the complaint be dismissed.
The State Commission, vide impugned order dismissed the complaint.
We have heard learned counsel for the appellant and gone through the record.
State Commission in its impugned order observed; " 12 . Thus, it is amply clear that the complainant has not only been compensated by its own Insurance making a payment of Rs.36,000/-, but the RIICO (OP No.2) has also made a payment of Rs.3,80,391/- i.e. Rs.4,05,391/- against the loss to its premises due to fire that took place at the Depot of IOCL. earlier, Mr. Manoj Bhargava, complainant''s surveyor assessed the loss to the extent of Rs.10,13,826/- Bharat Nirman Company, another surveyor of the complainant assessed the loss to the extent of Rs.against the repairs and reconstruction. On the other hand the Protocol Surveyor, the IRDA licenced assessed the loss to the extent of Rs.69,000/- on the reinstatement value basis and Rs.60,720/- on the basis. As discussed earlier, the Survey Report submitted by the Insurance Company is more reliable not been controverted by the complainant and therefore, there is nothing on record to disbelieve the of Protocol Surveyor, who assessed the loss only to the extent of Rs.69,000/- . It is noteworthy to the complainant''s Insurance Company itself indemnified the complainant only to the extent of Rs.36,000/- claim of Rs.1,50,000/- by the complainant and he has further been compensated to the extent of Rs.RIICO as ad hoc relief and thus , the complainant has already received compensation in excess to by it . Therefore, we are in agreement with the contention of the learned counsel for the OPs that the cannot be allowed to unjustly enrich itself at the cost of public exchequer.
13 . It is true that as per the public notice dated 11.12.2009 of RIICO (OP No.2), the ad hoc relief individual insurance/ third party claims of the units. But we are of the view that this term and condition notification can only bind the State Government or the RIICO, but not the Insurance Company as privy to the notification. We are in agreement with the contention of the learned counsel for the Insurance that when the complainant has already been compensated out of money (Rs.50 crore) provided by the former cannot be re-compensated for the same loss under the Public Liability (Industrial Risks) Policy held by the IOCL , particularly when it has received a compensation in excess to the loss sustained incident. For the aforesaid reasons, the complainant is not entitled to get any damages/compensation Opposite Parties and the present complaint of the complainant is liable to be dismissed."
Appellant in the present case has admittedly, received certain amounts as compensation provided by I.O.C.L, State Government. Learned counsel for appellant during the course of arguments has fairly conceded that appellant received certain compensation from above authorities. However, appellant for reasons best known to her has not these relevant and important facts in her complaint. Thus, it is manifestly clear, that appellant has concealed the material has approached the State Commission with unclean hands. The insurance company, under these circumstances, rightly the claim of the appellant.
It is well settled, that when a litigant approaches any judicial fora with unclean hands and conceal the material he/she is not entitled to the relief sought for. Reference in this regard can usefully be made to the observations made Suprme Court in Dalip Singh Vs. State of U.P (2010) 2 SCC 114, wherein it observed ; "1. For many centuries Indian Society cherished two basic values of life i.e. "satya" (truth) and (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these daily life. Truth constituted an integral part of the justice-delivery system which was in vague in the era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has overshadowed ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate shelter of falsehood, misrepresentation and suppression of falsehood, misrepresentation and suppression court proceedings.
In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new well established that a litigant, who attempts to pollute the stream of justice or who touches the pure with tainted hands, is not entitled to any relief, interim or final."
In view of the suppression of the material facts, the present appeal is liable to be thrown at the threshold. Accordingly, dismiss the present appeal on the ground, that appellant has not approached the fora below with clean hands and suppressed the material facts, with cost of Rs.10,000/- (Rupees Ten Thousand only).
Appellant is directed to deposit the cost by way of demand draft in the name of ''Consumer Legal Aid Account'' Commission within four weeks from today.
In case, appellant fails to deposit the cost within the prescribed period, then it shall also be liable to pay interest realization.
List on 11.12.2015 at 2.00 p.m. for compliance .