ORDER

PER SH. RAKESH KAPOOR, PRESIDENT



     The complainant company is owner of truck no HR -55H-7870. It had
purchased a policy of insurance from the OP in respect of the
aforesaid truck which was valid for the period 24.10.2008 to
23.10.20O9. On 15.10.2009, the truck met with an accident while on its
journey from Manesar to Amrawati. It is alleged that a Maruti Car (in
an accidental condition ) was there on the road  and fuel was coming
out of its fuel tank. Few vehicles were passing from the car side and
the truck also adopted the course and in the process to come to a lane
 , applied brakes as a result of which the truck tyres caught fire and
the truck got burnt. The accident was reported to the concerned
divisional office of the OP and the truck was inspected on tbe spot by
Mr. Kamal Tehrani who was appointed as the spot surveyor, who had
submitted his report dated 13.11.2009. The final
survey was conducted by Mr. Vivek Garg who was deputed by the  Head
Office of the OP company . The surveyor had recommended the claim on
total loss basis. However, later on the complainant company was
informed
that the claim was not payable as the driver was not holding a valid/
effective driving licence at he time of the accident. It would be of
benefit to reproduce para 9 to 11 of the complaint which read as
under:

9. That final survey was conducted by Mr. Vivek Garg, Surveyor deputed
by Head Office. The driving license which was given by the driver Mr.
Akbar who was driving the said truck at the time of accident, was
furnished to M/s Vivek Garg & Associates, the Surveyors. The final
survey report was submitted long back by the said final Surveyor. The
final surveyor recommended the claim to be settled on total loss basis
and recommended that the claim liability be admitted by the company on
total loss basis for Rs.14,36,500/-, assessing the salvage value of
the burnt truck as Rs 3,00,000/-. The  final Surveyor M/s Vivek Garg &
Associates had also taken consent from the complainant company for the
aforesaid settlement long back. On the basis of the recommendation of
final surveyor appointed by the opposite party arid the acceptance by
complainant company for the aforesaid Total Loss Net of Salvage Basis
for Rs.ll,36,500/—, the Head Office of Oriental Insurance Co. Ltd.
also conveyed that the competent authority had also consented to
consider the claim. The said consent was informed vide letter dated
16.4.2010. Accordingly, the salvage was also disposed off by the
Surveyor of the Company for Rs.3,00,000/-, as per the assessment made
by the Surveyor. The complainant company has not got that amount of
Rs.3,00,000/— till date.

10. That after an elapse of sufficient period, the complainant company
was verbally informed that the license of the driver was not valid.
The complainant company was surprised to get that information. The
conDlainant company checked which was submitted by the driver who was
driving the aforesaid vehicle at the time of accident was different
than those which was submitted by the driver to the Surveyor. The
company got the aforesaid driving license of the driver who was
driving the vehicle at the time of accident verified from the
concerned Issuing Authority through its own investigator and the said
driving license which was actually submitted by the driver to the
complainant company at the time of employment, was found to be valid
and genuinely issued by the concerned Issuing Authority. AS SUCH AT
THE TIME OF ACCIDENT, THE DRIVER WHO WAS DRIVING THE VEHICLE WAS
HOLDING VALID DRIVING LICENSE.

11. That thereafter, the opposite party had been repeatedly assuring
the complainant company to release the payment of claim at the
earliest but neither the claim amount was settled nor any amount was
released including that of salvage value of Rs.3,00,000/-.






     Since the complainant company had failed to pay the amount as
recommended by the surveyor and the salvage amount of Rs. 3,00,000/-
has also not been released, the complainant company has approched this
forum with the present complaint.



     The OP has contested the complaint and has filed a written
statement. It has denied any deficiency in service  on its part and
has claimed that the complaint has no merits and is liable to be
dismissed. It has prayed accordingly.

       It has justified its action of repudiation of the claim on the
ground that the insured had contravened the terms and conditions of
the policy of insurance purchased by them as well as section 3 and 6
of the Motor Vehicle Act.
We had already reproduced above Paras 9 to 11 of the complainant and
we intend to produce paras 9 to 11 of the written statement (Para-wise
reply). These paras reads as under:-

9. That the Complaint has been filed with malafide intention and
ulterior motive to get the compensation from the Opposite Party herein
by bringing disrepute and tarnishing the credibility and image in
public at large. The Opposite party is a company of repute engaged in
the business of insurance for several decades and the present
complaint has been filed with a view to extract undue gains from the
answering opposite party under the grab of threat of disrepute and
good will of the answering opposite party.
10. That the entire Complaint is false, frivolous, baseless and devoid
of any merits and not maintainable in law. The complainant has
completely failed to show the breach of any of the terms of the policy
on the part of the answering opposite party. It is submitted that the
complainant having breached the terms of the policy is the wrong doer
and cannot be allowed to take advantage of his own wrong and is not
entitled to any compensation.


11. That without there being prejudice, this Hon’ble Forum has no
jurisdiction to entertain, try and dispose off this Complaint as per
policy. Hence the issue of jurisdiction be tried as a preliminary
issue.




      We have heard arguments advanced at the bar and have perused the
   record.
The learned counsel for the OP has forcefully contended before us that
the license which the driver on the truck was holding at the time of
the accident was found to be fake and thus there was a violation  of
the terms and conditions of the contract of insurance. He has further
contended that holding of a second driving license is also prohibited
under law and is a violation of section 6 of the Motor Vehicles Act
1998. As per the learned counsel, this also amounts to violation of
the terms and conditons of the policy of insurance. The learned
counsel has pressed into service the following judgments :-

1.Jaya Prakash Goyal V/s United India Insurance Company 11 (2010) CPJ (NC)

2. Jallulidin V/s Divisional Manager  Oriental Insurance Company Ltd
Revision Petition 1935 Of 2012 decided by the National Commission on
2.9.2013.

3. Sh. Aman Deep Sharma V/s Smt. Snehlata Revision Petition of 2983 of
2010 decided by the National Commission on 2.9.2013.


We have gone through these judgments. We are, however, inclined to
hold that there is a deficiency in service on the part of the OP
insurance company in a different context.

   A perusal of Paras 9 to 11 of the complant and the para wise reply
to the same of the
written statement as reproduced above  makes it  amply clear that the
surveyor appointed in this case by the
insurance company, namely M/S Vivek Garg and Associates had
recommended the claim be settled on”total loss basis” and had further
recommended that the claim liability be admitted by the company for
Rs. 14,36,5OO/- by assessing the salvage value of the burnt truck as
Rs. 3,00,000/-. It is further clear from the aforesaid pleadings that
vide letter dated 16.4.2010, the Head office of  Insurance Company had
conveyed  to the surveyor that the competent authority had agreed  to
settle the claim on the “total loss basis”. This letter inter-alia
reads as under:-

     16.4.2010

Re: Claim Settlement mode/ Status Report

A/c M/s D.G. F. C. Pvt. Ltd

Please refer your status report dated 14.3.2010 regarding captioned
claim, the competent authority has consented to consider the claim on
Total Loss basis  of Salvage amount for Rs. 11,36,500/- as per status
report submit by you. You are advised to submit your report directly
to the concern RO/ DO accordingly.


            Sd/-

                                   Assistant Manager


    It is also clear that after the receipt of the letter dated
16.4.2010, the salvage was disposed of by the surveyor for a sum of
Rs. 3,00,000/- which amount is also lying with the OP company and has
not been released to the complainant. The question for our
consideration is that having come thus far ; disposing of the salavage
and keeping the salvage amount with it, was the insurance company
within its rights to turn around and repudiate the claim on the plea
of the driver having a fake licence or for that matter on any other
ground. If the insurance company wanted to repudiate the claim , it
had to do so before the salvage of the truck had been disposed of. The
complainant company had consented to the disposal of the salvage only
when it was informed that the insurance company had decided to pay the
claim on “total loss basis”. The disposal of the salvage and keeping
the salvage amount with it by the insurance company amounts to
mis-appropriation on the part of the insurance company. Pray ? How
could the insurance company dispose of the salvage of the truck if  it
had decided   to repudiate the claim. Disposal of the salvage shows
that the insurance company had assumed  that the burnt truck is its
property ( being the insured vehicle) and could be dealt with in the
manner it liked. The insurance company was , therefore, bound to
indemnify the complainant company for the loss. On the facts narrated
above, we cannot help but hold that the insurance company was bound to
reimburse the loss occasioned to  the complainant company on the basis
of the report of the surveyor.  We ,accordingly ,direct the OP
Insurance Company as under:-


1. Pay to the complainant company,  the assessed amount of Rs.
11,36,500/- along with interest @ 10% p.a. w.e.f. the date of filing
of this complaint i.e.30.5.2011 till payment.
2. Pay to the complainant a sum of Rs. 10,000/- as cost of litigation.
3. Release the amount of salvage of Rs. 3,00,000/-( if the same has
not been released, as yet) alongwith interest @ 10 % from the date of
disposal of the salvage till payment.



     The OP shall pay this amount within a period of 30 days from the
date of this order failing which they shall be liable to pay interest
on the entire awarded amount @ 10% per annum.  IF the OP fails to
comply with this order, the complainant may approach this Forum for
execution of the order under Section 25/27 of the Consumer Protection
Act.

    Copy of the order be made available to the parties as per rule.

    File be consigned to record room.

    Announced in open sitting of the Forum on.....................