R.N. Mittal, President. - Briefly the facts are that the complainant took a 'Machinery BreakDown Insurance Policy' for their two diesel generator sets of 125KV A, for Rs. 5 lacs each for the period frori14.4; 1990"10 31.3.1991. They suffered mechanical breakdown on 14.11.1990. Theinformalion about the accident was duly supplied to the opposite party immediately. They appointed MIs:

D.K. Taneja surveyor for surveying the machinery and assessment of the loss.

The com plainan t got the diesel generator sets repaired and spent a sum of Rs. 86,656.80 as detailed below :- ,

'he Oriental Insurance Co. Ltd.

491

Ghanizabad Engine and Machines(P) Ltd.

Bill No. Date Amount 2914 17.11.1990 Rs. 4,790.00 7463 19.11.1990 Rs.34,135.00

7464 19.11.1990 Rs. 9,846.00 7468 20.11.1990 Rs. 101.00 7471 21.11.1990 Rs. 453.00

7487 27.11.1990 Rs.I0,418.00

2922 4.12.1990 Rs. 8,000.00

Raina Tempo Transport Corporation(Regd.) 1697 17.11.1990 Rs. 905.00

S. Trading Engineers Service Centre Pvt. Ltd.

585 18.11.1990 Rs. 5,577.48 750 30.11.1990 Rs.12,431.00 Rs. 86,656.48

It is alleged that the complainant made various requests to the opposite party to pay the claim but they did not take any action till April' 92 when they appointed MIs Continental Engineers India Surveyors to survey the loss. Even thereafter no payment was made to them. Consequently they have filed a complaint to recover an amount ofRs.

1,13,789.96 on account of cost of the repairs(Rs.

86,656.48) and interest(Rs. 27,123.48) @ 18% p.a. from 14.11.1990 upto 10.3.1992, the date of filing the complaint.

2. The complaint has been contested by the opposi~ party. They, inter alia pleaded that the complainant had filed forged documents and thus committed fraud with an intention to cause unlawful gain to himself and unlawful loss to the respondent. Thus they are not entitled to pay the amount as claimed by them. They also pleaded that the break-down was master minded by the complainant in order to claim the amount from them.

3. The question that arises for determination is, whether any fraud was played by the complainant on the respondent in submitting the claim. The cash memo which has been disputed, is the cash memo No. 000750 dated 30.11.1990 for an amount of Rs. 14,431/- of S. Trading Engineers Service Centre(Pvt.) Ltd:.hereinafterrefers to the

492

Consumer Protec

...\,

'service centre'). Mr. Rawat, the learned counsel for the respondent has urged that the investigator appointed by the opposite party during their investigation came to the conclusion, that the said bill was a forged one and the complainant had inserted the same to obtain unlawful gain. He referred to a letter dated 28.4.1992 of the service centre to Mis Continental Engineers India, the surveyors wherein they stated that they had checked the records and found that the above cash memo did not exist therein.

4. We have considered the argument. The complainant agent drew our attention to cash book, ledger of the recent dates of the complainant wherein the entires regard payment of the amount to the Service Centre had been Sic* An affidavit of Sh. P.K. Y~dav has been filed wh~rein states that he paid an amount ofRs. 3,OOO/-on 26.11.1990Rs 4,000/- on 28.11.1990 and Rs. 5,4'31/- on 30.11.1990 to the Service Centre and obtained from them cash memo No. Sic* dated 30.11.1990 for Rs. 12,431/-. The Ghaziabad Engineer & Machines Pvt. Ltd.(hereinafter referred to as 'the Machines') which did the work of engine assembly mentioned about the said bill dated 30.11.1990 in the Engine Assembly Report.

However, the letter of the Service Centre shows that the amount was not received by them. It may be, that the receipt was issued by them from some old cash memo book lying on the counter through over-sight and therefore the entry regarding the receipt was not made by them in the books of the company. Mter taking into consideration all the aforesaid circumstances we are of the view that it is not a case of fraud as alleged by the respondent.

However, in our view, the compla