PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        By this complaint the Complainant has prayed that the claim made with the Opposite Party of Rs.4,50,000/- which has been repudiated by the Opposite Party be held as deficiency in service.  He also prayed that the Complainant be awarded compensation towards mental torture and professional hardship suffered by him be compensated with an amount of Rs.15,000/- and cost of this proceedings to the tune of Rs.15,000/-.  The Complainant has thus, totally claimed an amount of Rs.4,80,000/- from the Opposite Party alongwith interest @ 12% p.a. from the date of filing of the application till its realization.

2)        According to the Complainant, he is the owner of Eicher Mini Bus No.MH-01-L-7206.  The Complainant had obtained insurance policy from the Opposite Party under Policy No.30004/54728866/00/000 which was valid between 16/08/2008 to 15/08/2009.  It is alleged that the said vehicle met with an accident on 12/07/2009 at Bhise Khindi, Nagothane Road, Raigad District.  When the bus was returning empty from Roha to Mumbai it is submitted that the driver heard noise on the back side and also saw smoke came out from cabin therefore, he jumped from the bus and bus crashed over road and damaged.  It is submitted that the Complainant submitted the claim of Rs.4,50,000/- with the Opposite Party alongwith necessary documents.  The Opposite Party however, vide letter dtd.22/09/2009 repudiate the claim on the ground that the fire occurred in the vehicle of the Complainant due to short circuit of inverter and the inverter was not standard electrical electronic equipment which comes with vehicle at the time of purchase.  The Opposite Party informed to the Complainant that hence, the loss occurred due non standard equipment is not covered under insurance policy.  The Opposite Party also informed to the Complainant that he can approach to the office of Insurance Ombudsman to resolve grievances relating to claim settlement.  The Complainant therefore, made complaint to office of Insurance Ombudsman, Mumbai.  The said office, however, did not entertain the complaint and informed the Complainant that the Ombudsman is empowered to look into the grievances of insurance policies given in an individual capacity.  The Complainant has alleged that he purchased the policy of the Opposite Party on believing that if any claim would arise in respect of his vehicle would be entertained and settled by the Opposite Party.  It is alleged that as the Opposite Party did not honour the claim of loss and damage of the vehicle of Complainant and settled the claim is nothing but the deficiency in service.  It is alleged that the Complainant therefore, suffered mental agony and filed the present complaint for the reliefs as mentioned in para 1 of this order. 

3)        The Opposite Party contested the claim by filing written statement.  It is not disputed that the Complainant had made claim against the policy which was issued to cover the vehicle owned by the Complainant.  According to the Opposite Party, on receipt of the claim the Opposite Party verified and investigated the claim and also conducted survey on the alleged accident and it was revealed that the cause of occurrence of the alleged accident was not covered under the ambit of the policy.   As per the evidence collected by Surveyor appointed by the Opposite Party the fire was occurred due to short circuit of the inverter in the insured vehicle which was not a standard equipment that comes alongwith the vehicle at the time of purchase.  The Opposite Party has contended that hence, the loss occurred due to non standard equipment in the vehicle was not covered under the subject policy.  The copy of the survey report is filed at Annexure ‘A’ to the written statement.  It is contended that the FIR clearly shows that the fire in the vehicle occurred due to short circuit in the inverter which was not standard equipment in the vehicle.  According to the Opposite Party, the claim was repudiated for just and proper reason as per the letter dtd.22/09/2009.  The copy of which is filed as Annexure ‘B’ to the written statement.  It is contended that the complaint therefore, lacks of merits and same deserves to be dismissed with compensatory cost to the Opposite Party.  It is contended that the Complainant knowingly and deliberately filed this complaint with a dishonest intention to harass the Opposite Party and extract illegal compensation from the Opposite Party. The Opposite Party denied the other allegations made in the complaint and submitted that the complaint is devoid of any merits and the same deserves to be dismissed.       

4)        The Complainant has filed his affidavit of evidence.  The Opposite Party has filed affidavit of Kalpesh Modi, Legal Manager.  Both the parties filed their written arguments.  We heard the Ld.Advocate Shri. Ramesh Takalkar for the Complainant and Shri. Ankush Navghare for the Opposite Party.

5)        While deciding the present claim it is undisputed that that the Opposite Party issued the insurance policy in respect of the vehicle owned by the Complainant which is mentioned in the complaint.  It is also undisputed that the vehicle met with an accident while returning from Roha to Mumbai due to short circuit because of the fault in inverter fitted in the said bus near Bhisekhindi, Nagothane Road and the Complainant sustained loss of more than Rs.4,50,000/- due to the said accident and the Complainant had submitted claim of Rs.4,80,000/- to the Opposite Party.  The Opposite Party has raised defence that the fire occurred in the captioned vehicle due to short circuit of inverter.  The inverter was not standard electrical/electronic equipment which comes with the vehicle at the time of purchase.  The loss therefore, occurred due to non standard equipment is not covered under insurance policy.  The Opposite Party has relied the survey report filed with written statement as Annexure ‘A’.  Upon going through the said survey report it appears that there is no specific evidence brought on record by the Opposite Party that the inverter fitted in the vehicle which met with an accident was of sub standard quality.  Furthermore, as per the report filed by the Surveyor on page 16 of it the Opposite Party has specifically informed the Surveyor that “As per the details given by the driver to the police the cause of fire is due to the inverter used to run TV/DVD caught fire due to short circuit.  The same has been confirmed by the insured also.  As per the IV papers submitted by the insured the IV is a permit only to ply in Mumbai region and at the time of accident the IV was out of Mumbai Jurisdiction. We have applied for the FSL (Forensic Report to be conducted) in the said case in order to confirm the actual cause of accident which can be an added evidence to confirm the cause, will keep you posted regarding the default.  The said case is repudiable.”   From the aforesaid message conveyed by the Opposite Party ICLMT to the Surveyor, it appears that the Opposite Party prior to issuing repudiation letter dtd.22/09/2009 had determined on 10/08/2009 that the claim made by the Complainant would be repudiated.  It is also pertinent to note that the Opposite Party has not placed on record Forensic Report as regards confirmation of the actual cause of accident as informed to the Surveyor vide above message on e-mail of the Surveyor.  Thus, the defence raised by the Opposite Party in our view is without any basis and substance.  It is also pertinent to note that the Complainant while obtaining the policy has paid total premium of Rs.7,545/- on account of own damage to the Opposite Party which is specifically reflected in the insurance policy produced on record issued by the Opposite Party.  On perusal of the said policy it also appears that there is no any clause in the said policy that the Opposite Party would have a right to repudiate the claim of loss due to non standard fitment in the concerned vehicle.  The Opposite Party has not produced any such policy document issued to the Complainant containing such clause and it was informed by it to the Complainant.  The submission made by the Ld.Advocate for the Complainant relying upon the decision of the Hon’ble Supreme Court in the case of M/s. Modern Insulator Ltd. V/s. The Oriental Insurance Co. Ltd., decided on 22/02/2000 in Civil Appeal No.6895 of 1997 that insurance claim if not settled on the basis of exclusion clause which was not communicated to the concerned insured, the Insurance Company in such a case cannot claim benefit of the said exclusion clause can be said just and proper.  The Hon’ble Supreme Court in the aforesaid case has observed as under –

“It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non discloser of the facts which the parties know.  The Insured has a duty to disclose and similarly it is the duty of the Insurance Company and its Agents to disclose all material facts in their knowledge since obligation of good faith applies to both equally.  In view of the above settled position of law we are of the opinion that the view expressed by the National Commission is not correct.  As the above terms and conditions of the Standard Policy wherein the exclusion clause was included, were neither a part of insurance nor disclosed to the appellant, respondent cannot claim the benefit of exclusion clause. Therefore, the finding of National Commission is untenable in law.”

            In view of the aforesaid observations and in the policy issued by the Opposite Party in favour of the Complainant there is no clause on which the Opposite Party has repudiated the claim made by the Complainant.  In our view the case made out by the Complainant is a simple case of own damages to his vehicle and the same is covered under the policy issued by the Opposite Party in favour of the Complainant.  The value of the policy is Rs.4,50,000/- therefore, in our view the Complainant is entitled for the damages compensation to the tune of Rs.4,50,000/-.  The claim made by the Complainant for grant of compensation towards mental agony and professional hardship sustained by him to the tune of Rs.15,000/- in our view is just and proper.  The Complainant is entitled to Rs.8,000/- toward the cost of this proceedings.  The Complainant is entitled for interest @ 9% p.a. from the date of repudiation of the claim i.e. 22/09/2009 on the amount of Rs.4,50,000/- till its actual realization.  We find that the submissions made by the Ld.Advocate for the Opposite Party for dismissal of the complaint are devoid of merits.  In the result the following order is passed –

                                                                                                   O R D E R

i.                    Complaint No.305/2010 is partly allowed against the Opposite Party.

ii.                 It is declared that the Opposite Party is guilty of deficiency in service and unfair trade practice under the provisions of the Consumer Protection Act, 1986 and is liable to pay Rs.4,50,000/- as damages compensation for the vehicle owned by the Complainant with interest @ 9% p.a. from 22/09/2009 till its realization.

iii.               The Opposite Party is directed to pay Rs.15,000/-(Rs.Fifteen Thousand Only) as compensation to the Complainant towards mental agony & professional hardship suffered by him due to deficiency of service and unfair trade practices adopted by the Opposite Party.   

iv.               The Opposite Party is directed to pay Rs.8,000/- (Rs. Eight Thousand Only) towards the legal expense and cost of this proceeding to the Complainant. 

v.                The Opposite Party is directed to comply order part No.ii to iv within one month from the date of receipt of this order.

vi.               Certified copies of this order be furnished to the parties.