Shri. S.P. Muley, President –
This is a complaint u/s 12 of the C.P. Act against an insurance company for not settling the insurance claim.
1. The complainant is proprietor of Taj Tours & Travels and is owner of Mahindra Bolero vehicle bearing No. MH-40-Y-6004, which was being used as a taxi. It was insured with the Opposite Party No. 1, Shriram General Insurance Company for the period from 17/11/2013 to 16/11/2014 for IDV Rs. 5.60 lakh. The complainant had given the said vehicle to M/s Vikky Travels on rent of Rs.50,000/- p.m. An agreement to that effect was executed between them. M/s Vikky travels made agreement with WCL, Nagpur and gave the said vehicle to WCL security dept for a period of one year on 26/11/2012 on rent. Since 7/12/2102 the said vehicle was on duty with WCL and it was further renewed for one year. On 3/10/2014 while the said vehicle was on duty in the mine No.3, in the night some anti social elements quarreled with security guards of WCL and the driver of the said vehicle. The driver then left the vehicle and fled to save himself. The vehicle was set afire by anti social elements. A report was given to P.S. Kanhan where FIR was registered. Intimation was also given to the O.P.1 and OP2, which is local financial office of Mahindra & Mahindra Co. The vehicle was inspected and repairs estimate of Rs. 10,17,103.86/- was given. The vehicle was completely burnt therefore the complainant filed application to the O.P.1 for getting compensation. The claim was registered and some papers were asked for, which were given. Statements of the driver and guards of WCL were recorded by the representative of O.P.1. Despite complying all requirements the claim was not settled. The O.P.1 kept asking him to furnish such papers which were not in his custody nor could he have furnished. Even notice sent to the O.P.1 for settling the claim could not bear fruits. This amounts to deficiency in service. Hence, he has claimed IDV Rs. 5.60 lakh, financial loss of Rs. 3 Lakh, compensation Rs.50,000/- and cost Rs.10,000/- from the O.P.1. Though the O.P. 2 is subsequently joined, nothing is claimed against it, nor is there any allegation against it.
2. O.P.1 filed its reply at Ex.9 and sought dismissal of the complaint on the ground of suppression of facts. It is not disputed that the complainant is the owner of the said vehicle and it was insured with it for period and IDV mentioned by him. However it is denied for want of knowledge that the vehicle was hired by M/s Vikky Travels and from it by WCL. The incident regarding damage to the vehicle by anti social element is denied. It is admitted that the claim was lodged, but the complainant did not supply all documents as demanded. Therefore the claim was pending. There is no deficiency in its service. It is further stated the vehicle was financed by the financier, who has first charge on the vehicle and in case of loss to the vehicle the amount has to be paid to the financier. As the claim is yet not decided the complaint is premature. On these grounds it is submitted to dismiss the complaint.
3. O.P.2 by its reply stated that vehicle was financed by it for Rs.4,44,000/- vide agreement dated 16/11/2012. The vehicle was hypothecated to it. After paying initial 23 installments out of 48, the complainant failed to pay further installments and made default. A sum of Rs. 4,31,717/- is outstanding against him. Since it has first charge on the vehicle, it is submitted to direct the O.P.1 to release the claim in its favour.
4. Heard both the Ld counsels. Perused documents. On due consideration of the same we record our findings and reasons as under.
FINDINGS AND REASONS
5. Most of the facts regarding ownership, insurance, and IDV of the vehicle are not in dispute. Even loss of the vehicle in fire is also not disputed. The claim is still pending undecided. It is submitted by the counsel for the O.P.1 that the complainant failed to supply certain documents despite repeated demands and therefore the claim is pending.
6. It is specific case of the complainant that the vehicle was given on rent to M/s Vikky Travels, who in turn gave it on rent to WCL, where the incident took place. The copy of work order supplied by the complainant to O.P.1, however, reveal different vehicle no. The vehicle which was insured with O.P.1 and later got damaged in the fire as per version of the complainant is having No. MH-40-Y-6004. But in the work order the vehicle no is mentioned as MH-31-CA-3343. Thus it is contended by counsel for the O.P.1 that the vehicle given on rent to WCL was not that vehicle which was insured with it, but was some other vehicle. In this respect the counsel for the complainant drew our attention to one letter dated 1/12/2012 (document 5) by which Vicky Travels had informed WCL that due to some problem in the vehicle no. MH-31-CA-3343, another vehicle ( MH-40-Y-6004) was provided wef 7/12/2012. Thus it is submitted on the date of incident it was vehicle No. MH-40-Y-6004, which was burnt. This letter is denied by the OP1 as fabricated to create evidence, because when the work order was extended in the year 2013 this vehicle was not given to WCL, but vehicle No. MH-31-CA-3343 was given, which is not the subject matter of the dispute. Therefore this is alleged to suppression of facts.
7. We shall consider at later stage whether such suppression of fact would disentitle the complainant from making claim. Presently it may be said that there is no denial or dispute that the vehicle No. MH-40-Y-6004 was insured with the O.P.1 and it was damaged in fire at WCL mine on the date of incident. This could be ascertained from police papers like FIR and spot panchnama. These police documents are not disputed by the O.P.1. That means the O.P.1 is not denying the fact that on the day of incident the said vehicle, which was insured with it, was damaged by some persons at WCL mines. It is also not denied that the complainant had lodged insurance claim thereafter. So on this count the complainant is entitled to get insurance claim, provided he supplies necessary papers required for verification of the claim. Now let see what documents were demanded by the O.P.1.
8. By letter dated 27/1/2015 two documents were demanded, viz. Statement of driver regarding cause of loss and statements of all 4 guards who were present at the time of accident. Then subsequently some other documents were demanded such as salary slips and ID of guards working with WCL, agreement copy between WCL and security agency about providing guards, gun allotment letter, Arms license, receipts of bullets, etc. We fail to understand how such documents could be supplied by the complainant, which could not have been in his possession. It appears to be seemingly inexplicable demands. We do not find any relevance of such documents in settling the claim. Learned counsel for the O.P.1 submitted that the although it is not disputed that the vehicle was damaged in fire at WCL mines, statements of the driver and guards, who were present at the site when the incident occurred, is necessary for verification of the claim. But this submission is incorrect when the incident itself is not in dispute. The O.P.1 could have obtained such statements from police also.
9. We shall now consider the contention about suppression of facts. As stated before, there is admittedly controversy regarding the vehicle which was given on rent to WCL by Vicky Travels. As per the complainant it was the same vehicle bearing No. MH-40-Y-6004, which was hired by WCL through Vicky Travels. But the work order issued by WCL reveals different number of the vehicle. Learned counsel for the complainant submitted that the vehicle bearing No. MH-40-Y-6004 developed some problems while it was on duty with WCL and therefore another vehicle bearing No. MH-31-CA-3343 was deployed at WCL. In this respect our attention is drawn to a letter (document No.5) by which change of vehicle was intimated to WCL. But as correctly pointed out by Ld counsel for the O.P.1 this documentary evidence appears to be doubtful. Because this letter bears date 1/12/2012, whereas the extension of work order was given on 25/9/2013 and in that extended work order the same vehicle No. MH-31-CA-3343 is mentioned. If the vehicle No. MH-40-Y-6004 was deployed in December 2012, it should have been reflected in the work order of September 2013 also, but it shows different vehicle. It was not insured with the O.P.1. Therefore it is contended the complainant has not only suppressed facts but has also not come with clean hands, and therefore is not entitled to seek reliefs.
10. The contention on behalf of the OP1 is no doubt correct, but here we pose a question to ourselves, whether the alleged suppression of said fact is fundamental in nature as to reject his claim? When it is not in dispute that the said vehicle was insured with the O.P.1 and it was damaged in fire, it hardly matters whether it was given on rent to WCL. Using of vehicle by WCL on hire has no correlation with the damage. Therefore non mention of the vehicle in work order of WCL is not germane to the damage caused to the vehicle in so far as claim is concerned. We do not completely disagree with the O.P.1, but at the same time it must be considered that the vehicle damaged in the fire was the one which was insured with the O.P.1 and it was not a deliberate act by the complainant to extract insurance money. It is nobody case that the vehicle was burnt by the complainant or by someone on his instruction. Whether the vehicle was at the relevant time hired by the WCL is a different matter. Assuming that the said vehicle was not hired by WCL as asserted by the complainant, that itself is no reason for rejection of the claim since it was insured and got damaged in accidental fire. The complainant is its owner and he had submitted necessary papers of the vehicle. It is contended on behalf of the O.P.1 that the contract of insurance is based on utmost good faith and parties to the contract are bound to disclose correct facts. The complainant has not disclosed correct facts and therefore it is submitted the complaint should be dismissed. The claim is yet not decided. If the O.P.1 found discrepancy in vehicles hired by the WCL, it should have repudiated the claim. But it did not do so nor did intimate any decision. Therefore now it cannot raise this ground to defeat the genuine claim.
11. After due consideration of facts and submissions, we are of considered opinion that the claim should have been settled by the O.P.1 instead of asking for such documents which were not in possession of the complainant. The vehicle was financed by the O.P.2, who has first charge over the vehicle or its insurance money. Therefore while allowing the complaint it would be expedient to pay the insurance money directly to the O.P.2 in satisfaction of loan amount and balance, if any be paid to the complainant. The complainant has claimed Rs.3 lakh for financial loss. But the liability of the O.P.1 is restricted to IDV of the vehicle. So there is no question of additional compensation for financial loss. Hence the following order.
ORDER
- The complaint is partly allowed.
- The O.P.1 Shriram General Insurance Company is directed to pay IDV of the vehicle Rs. 5.60 lakh, first to the O.P.2 in satisfaction of outstanding loan and balance, if any, be paid to the complainant.
- The O.P. 1 shall also pay compensation of Rs.20,000/- for physical and mental agony and litigation cost Rs.3000/- to the complainant.
- The order shall be complied within 30 days from receipt of true copy of the judgment and order.
- The copy of the judgment shall be given to both the parties, free of cost.
