(Passed this on 16th September, 2017)
Shri. S.P. Muley, President –
1. This complaint u/s 12 of the C.P. Act is against Oriental Insurance Company for its failure to settle the claim.
2. The complainant is owner of TATA Truck bearing registration no. AP-07-TT-3706 which was insured with the Opposite Party Insurance company for the period from 11/2/2008 to 12/12/2008 for IDV Rs. 8,00,000/-. The truck was brought to Taj Motors repairing works, Kalmana, Nagpur on 11/8/2008 for repairs. It was parked in a locked condition before a transport office. In the intervening night of 12 & 13/8/2008, it was stolen. On 13/8/2008 the incident was reported to the O.P. and Police Station. But police did not register FIR and asked him to search the truck. Since even after search it could not be found, ultimately, FIR was registered on 16/8/2008. Thereafter claim was lodged with necessary papers. Since there was no settlement of the claim for a long time, he had filed consumer complaint No. 784/2009. That complaint was disposed of with direction to the complainant to submit all documents to the O.P., who shall settle the claim thereafter. Accordingly he submitted documents, but the O.P. again failed to settle the claim. Alleging this to be deficiency in service, it is prayed to direct the O.P. to pay Rs. 8,00,000/- with interest along with compensation and cost.
3. The O.P. filed reply and admitted the insurance of the said truck. However story of theft of the truck is denied as false. Police report was actually lodged on 17/8/2008 and it is denied police did not register FIR and asked him to search for the truck. It is also denied, intimation of the incident was given to the O.P. on 13/8/2008. It is denied that claim was filed with all necessary papers. Filing of the complaint No. 784/2009 is admitted and so is the order of the forum. The claim was repudiated on 3/2/2012 and it was informed to the complainant.
4. It is further stated, the complainant has suppressed material facts. Originally the policy of the truck was in the name of one D. Vasu of Guntur (A.P.) for the period from 13/12/2007 to 12/12/2008. The truck was registered at Guntur and manufactured in 2004. Thereafter it was purchased by the complainant and he got the policy transferred in his name on 11/2/2208. The policy was continued from 11/2/2208 to 12/12/2008. That time the complainant mentioned his address in Guntur. As such, this forum has no jurisdiction. The complainant failed to supply documents even after direction of the forum. It was found the complainant was permitted to ply the truck in Chattisgarh. Therefore permit was necessary to ply it in Maharashtra. When he submitted permit to ply the truck in Maharashtra, it was found the permit was bogus and fake as no such permit was issued by the RTO Raipur. Thus he has committed fraud. Hence it is urged to dismiss the complaint.
5. Heard both the Ld counsels. Perused documents, affidavit and notes of argument. We record our findings with reasons as under.
FINDINGS AND REASONS
6. Since the O.P. has raised point of lack of territorial jurisdiction of the forum, we would first deal with this point. Admittedly the truck was registered in A.P. The insurance policy of the truck was also obtained from Vijaywada, A.P. The name of the insured on the policy is that of the complainant, but his address is of Guntur, A.P. As per section 11 of the C.P. Act, jurisdiction of the forum depends on the residential address or place of business of the O.P., or where cause of action, wholly or partially, arises. Here the O.P. has its place of business at Vijaywada in A.P. Therefore on the residence or business or office address of the O.P., the forum, admittedly has no jurisdiction.
7. It is contended by the counsel for the complainant, the cause to file the complaint arose in Nagpur as the truck was stolen when it was parked near a transport office in Nagpur. This could be confirmed from police papers. In the earlier complaint also the O.P. had raised bar of jurisdiction, but it was not accepted. We have, thus, no doubt that the forum has jurisdiction as cause of action arose in Nagpur.
8. Another objection to entertain the complaint is taken on the ground that the truck was plying outside the State of A.P. in contravention of its permit and this being breach not only of the Motor Vehicle Act, but also of the policy condition, the O.P. is not liable to indemnify the loss. In this respect both the parties have filed documents which depict contrary pictures. The complainant has produced copy of the permit, according to which the truck was given permit to ply in the State of Maharashtra. This permit was valid for one month from 1/8/2008 to 31/8/2008 and it was issued by RTO, Chattisgarh. The counsel for the O.P. alleged this permit as bogus and false because same RTO subsequently informed in writing that no such permit was issued by it. Copy of the letter is placed on record by the O.P. The claim was repudiated on this ground.
9. We have examined the permit. It was a temporary permit. It has seal of RTO, Raipur. On the face of it, it looks genuine document. But on inquiry this permit was found to be fake. The RTO, Raipur by letter dated 13/1/2011 informed the surveyor of the O.P. that no such permit was issued by the authority. However, no affidavit of issuing authority of the letter is filed on record by the O.P. Since the O.P. is alleging fraud in obtaining the permit, heavy burden lies on it to prove this fact. As said before, validity of insurance contract does not depend on the permit and in case of theft of vehicle permit itself is not germane. Therefore, even if it is held that the so called permit produced by the complainant is a doubtful document, repudiation of the claim outrightly is not justified.
10. Counsel for the complainant contended the truck, in fact, was not plying in Nagpur, but it was brought for repairs. This argument does not hold water because first it was tried to show that the permit was granted to ply the truck within the State of Maharashtra. In that case, subsequent plea that the truck had a break down and therefore it was brought to Nagpur appears an after thought theory. Besides, no document is filed to show it was under repairs. According to the complainant, if there was a break down, he has not explained how could it be stolen without starting its engine. This theory of bringing the truck in Nagpur for repairs and getting it stolen appears imaginary. Moreover, in the FIR it is clearly stated he was plying the truck in Nagpur. Thus there was breach of policy condition by plying the truck in Maharashtra without valid permit.
11. Ld. Counsel for the complainant has relied on some judgments to support his contention that merely because the truck was plying outside the limits without permit that itself is no ground to outrightly reject the claim. He, however, maintained his stand that the permit was granted to ply the truck in Maharashtra State, though it was found to be fake by the O.P. Assuming that there was no permit or the permit produced by the complainant is fake, the question is whether that would be a good reason to repudiate the claim in toto. For that purpose some judgments may be seen.
- National Insurance Co v/s shri Mayur Raj Singh, Revision Pet No. 3558/2012, decided on 1/10/2012 (NC)
- Reliance Gen. Insurance Co. v/s Manohar Singh F.A. No. 253/2011, decided on 15/2/2012 (NC)
- The New India Assurance Co. v/s M/s B. Mangatram & Co; Revision Pet No. 471/2013, decided on 30/8/2013 (NC)
- National Insurance Co. v/s Jogesh Roy 2017 (2) CPR 252 (NC)
12. In all the above cases the claim was repudiated on the ground that the insured vehicle was being plied outside the limits without permit. The Hon´ble National Commission allowed the claims on non standard basis, holding that though plying a vehicle in a State without valid permit amounts to breach of policy terms and condition, same is not germane and claim cannot be repudiated on that account. In the case of theft of vehicle, breach of condition has nothing to do with theft and therefore repudiation of claim in its entirety is not justified. We find no reason to entertain contrary view to the one expressed in the above judgments.
13. Ld counsel for the O.P. relied on two judgments, which are on the point of fraud. In Sumanbai Gaikwad v/s Sr. Div Manager, LIC, Revision Pet No. 1976/ 2016, decided on 19/4/2017 (NC) the deceased husband of the complainant had purchased two life insurance policies and thereafter he died. The claim was rejected by the insurer on the ground that the deceased had obtained the insurance policies by concealing the material particulars about his health condition. In other case, United India Insurance Co. v/s Sampat B. Waghmare F.A. No. 287 & 288/2007 decided on 26/2/2014 (Bombay) a fraud was committed on the insurance company in obtaining two policies for the same period and both the cover notes were not valid. Inspite of that the complainant obtained another policy covering the period of accident from other insurance company. It was held if fraud was commited on the insurance company in obtaining policy, the insurer was not bound to indemnify the loss. It is thus contended, when the permit produced by the complainant is found to be fake, he need not be heard and no reliefs can be granted to him.
14. The fact to be appreciated is that the route permit, even though fake, has nothing to do with the insurance policy. Purchase of an insurance policy does not depend on the permit. No fraud was played on the O.P. in getting the policy as route permit is altogether different aspect and policy contract is not dependent on the permit. In the policy it is mentioned that the insured is not indemnified if the vehicle is used or driven otherwise that in accordance with the schedule. The schedule, inter alia, mentions that no claim is admissible if driving license is found fake or is not valid. Thus if the insured vehicle is plied in the State without permit, that itself is not a ground to reject the claim outrightly. Hence, we must say the O.P. cannot get support from these two judgments.
15. The truck was not found. Its IDV was Rs. 8,00,000/-. Admittedly when it was stolen the policy was in force. Hon´ble Supreme Court in Amalendu Sahu v/s Oriental Insurance Co. Civil Appeal No. 2703/2010 decided on 25/3/2010 (SC) granted 75% claim on non standard basis. Relying on that, we allow the complaint partly and pass the following order.
ORDER
- The complaint is partly allowed.
- The O.P., The Oriental Insurance Company shall pay a sum of Rs. 6,00,000/- on non standard basis, i.e. 75% of IDV of the insured truck, to the complainant within 30 days from receipt of order, failing which the amount shall carry simple interest of 6% p.a.
- the O.P. shall also pay compensation of Rs. 10,000/- for harassment and litigation cost Rs. 5000/- to the complainant.
- The order shall be complied within 30 days from receipt of order.
- Copy of judgment be given to both the parties, free of cost.
