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Judgment
Bharatkumar Pandya, Member
The case of the opposite party (appellant herein) is that complainant (Respondent No. 1 herein) got insured his Truck CG-12S-2054 from them vide policy no. 209038/31/001633 for the period from 04.01.2013 to 03.01.2014 for Rs.22,95,000/-. Complainant was granted loan for the vehicle by respondent no. 2 (financer), through a loan cum hypothecation agreement dated 30.12.2011. On 30.07.2013 the vehicle of the complainant met with an accident and it caught fire after blast due to which the vehicle got completely burnt. Complainant intimated the police at P.S. Darri, Korba on the very same day and the appellant was intimated about the fire incident on 31.07.2013. Appellant insurance company appointed duly licensed and independent surveyor Mr. Nitin Vijay for spot survey, who submitted his report on 04.08.2013 thereby observing that the fire incident was fraudulent and a detailed investigation is required in the case. On the basis of spot survey report of Mr. Nitin Vijay, appellant again appointed him for further investigation and requested the complainant to provide documents necessary for the further processing of the claim. Reminders dated 22.09.2013 and 05.10.2013 were also issued to the complainant to provide the documents and to cooperate with the surveyor to assess the liability but no documents were provided by the complainant. The surveyor further investigated the fire incident in detail and submitted his detailed report dated 15.11.2013 thereby observing that the vehicle was completely damaged and liability was more than the IDV of the vehicle and there was Constructive Total Loss. Another surveyor M/s Techno Track was appointed by the appellant to investigate the incident and to collect various documents such as Form no. 35, NOC from financer, consent letter for discharge of claim and to complete the formalities required for processing the claim but respondent failed to cooperate with the surveyor and finally, surveyor submitted detailed investigation report dated 06.04.2014 whereby it was observed that “According to the permit details of insured vehicle it has permitted to carry common goods whereas at the time of accident insured vehicle was carrying raw coal by it. Hence policy scope in this regard needs to be checked”. Appellant, after going through the survey reports found that documents demanded by the surveyor from the respondent, were very necessary for processing the claim. Hence, appellant issued letter dated 08.08.2014 to the respondent requesting him to provide various documents including the discharge voucher and consent letter within seven days of receipt of the letter, so that his claim can be released. Complainant again failed to provide the documents and consequently the claim was closed. However, complainant instead of provided requisite documents preferred to file a complaint case no. 22/2024 before the State Commission, Chhattisgarh where his complaint was allowed by misreading and misinterpreting the evidence led by him. On the basis of vague averments of respondent/ complainant, without appreciating the facts on record, the State Commission passed the following order:
1) The opponents are jointly and severally liable to pay Rs.22,95,000/- to the complainant within two months from the date of order.
2) The opponents are also liable to pay the interest at the rate of 9% per annum on the above amount of Rs.22,95,000/- from the date of complaint till realization to the complainant.
3) The opponents will also pay Rs.7,000/- to the complainant as litigation expenses.”
The above order of the State Commission has been challenged by the appellant by raising inter alia the following main grounds/contentions:
(i) That the impugned order is unjust, unfair, improper and illegal, without jurisdiction and is against the law
(ii) That the impugned order is totally illegal, biased and on the basis of wrong findings of facts, which respondent failed to prove before the State Commission.
(iii) That the State Commission failed to appreciate that the claim of the complainant was never repudiated and was closed only for want of documents which were necessary for the settlement of the claim.
(iv) That the State Commission failed to appreciate that there is no deficiency in service on the part of the appellant – insurance company and claim was closed due to non-co-operation and non-furnishing of the documents by the respondent.
(v) That the State Commission failed to consider that no efforts were made by the respondent to produce driver of the vehicle before any of the surveyor for recording his statement qua the cause of the accident.
(vi) That the State Commission failed to appreciate that it was not having jurisdiction to entertain the complaint as question of facts needs to be proved by leading oral evidence and cross examination of the witnesses.
(vii) That the State Commission passed the order on the basis of assumptions and presumption ignoring the material facts on record and salvage value of vehicle and compulsory deductions as per the policy documents were not considered while deciding the complaint.
(viii) That the State Commission awarded the entire IDV with interest @ 9% from the date of complaint whereas the award was ought to have been made on sub-standard basis of the IDV.
(ix) That the State Commission granted compensation without considering the fact that vehicle was having hypothecation agreement and loan was not paid by the respondent. The amount of claim is wrongly awarded to the respondent without considering the fact that financer is having lien over the vehicle in question.
We have heard the learned counsel for the parties and perused the records carefully. Parties have also filed their short synopsis of arguments. The critical facts of the case are that on 30.07.2013 the vehicle of the complainant was overtaken by another trailer due to which the driver lost its control and the vehicle slighted with the railing of a pulia and collided with a tree and caught fire. The complainant intimated the insurer regarding the said accident on the very next day telephonically. Surveyor appointed by the appellant submitted his detailed final survey report on 15.11.2013 observing that the vehicle was completely damaged and liability was more than the IDV of the vehicle i.e. net liability of the insurer was Rs.26,60,987/- however the IDV of the vehicle was lesser i.e. Rs.22,95,000/-. Various documents were requisitioned from the complainant but neither any reply nor documents were received from them. Another surveyor M/s Techno tract was appointed by the appellant who concluded that even though the accident to the truck was true, however it was observed that as per permit details of the insured vehicle, it was only permitted to carry ordinary goods, whereas the vehicle was carrying coal on the date of incident. Appellant again requested the complainant to provide the requisite documents for releasing the claim but complainant instead filed complaint before the State Commission. However, respondent /complainant in their written synopsis contended that they had provided all the requisite documents to the appellant from time to time. Respondent no. 2 – financer provided loan of Rs.23 lakhs to the respondent/complainant for purchasing the vehicle, which he was required to repay along with interest by way of 46 monthly instalments from 05.03.2012 to 05.11.2015. As per respondent no. 2, the order of the State Commission be upheld by this Commission and the amount claimed to the tune of Rs.22,95,000/- be released in their favour as payment of loan.
From the various facts available on record and also the statement of the appellant insurer, one thing it very clear that claim of the respondent/complainant was never repudiated but was closed only for want of documents. On going through the order of the State Commission, it becomes very clear that even the counsel for the insurer stated in his arguments that insurance company was making all the efforts to settle the claim but complainant failed to submit the necessary documents due to which the claim could not be decided.
From the perusal of the records as also the copy of the FIR produced by the complainant before the State Commission indicates that the vehicle caught fire due to accident and the vehicle got completely damaged due to that incident.
Complainant purchased the vehicle on 31.12.2011 and it met with an accident on 30.07.2013 i.e. within two years of its purchase. Accident happened as driver of some other trailer tried to overtake the vehicle of the complainant due to which the driver lost control of the vehicle and it collided with the tree and caught fire. So driver of the vehicle was not at all at fault. As can be observed from the order of the State Commission, complainant provided all the information regarding the vehicle from time to time and also completed all the formalities. Appellant vide various letter dated 22.09.2013, 05.10.2013, 13.03.2014 also asked for the discharge voucher and other documents implying that the appellant in fact proceeded to settle the claim. Appellant did not clear the claim of the complainant even though they admit that vehicle was totally damaged in the accident and they closed the case only for want of documents. The insurer withheld the claim amount of the complainant for such a long time. Complainant is eligible for the claim but he has raised exaggerated claim to the tune of Rs.79,73,375/-, which quantum was of course rightly rejected by the State Commission. Order of the State Commission has also recorded the pleadings of counsel for the opposite party/appellant wherein he has admitted to settling the claim of the complainant. In view of these facts of the case, we are of the opinion that State Commission has duly considered the relevant evidence on record. However, the fact remains that the insurer’s communications to the insured dated 13.03.2014 and dated 08.08.2014 have not been shown to have been responded by the complainant. The critical questions regarding the driver’s statement and whether the vehicle was loaded with coal and if yes, whether the same fell under the licence under which the vehicle operated have remained unanswered. At the same time, as noted by the surveyor and the investigator, there is no doubt that the vehicle suffered total loss and was not repairable. In such circumstances, we are of the considered opinion that the reimbursement needed to be ordered by the State Commission on a non-standard basis and only 75% of the IDV could have been so awarded. In view of the facts discussed as above, we are of the considered opinion that the decision of the State Commission requires interference only to that extent. Further, OP-2 has placed on record the loan agreement dated 30.12.2011 and stated an amount of Rs.4336212/- is due and payable by the insured as on 03.05.2016.
We therefore, pass the following order in suppression of the order passed by the State Commission:
ORDER
The appeal is partly allowed. The insurer shall pay an amount Rs.17,21,250/- along with interest at 9% p.a. from 09.10.2014 (the date of complaint) till the date of payment. The outstanding loan amount of OP-2 shall first be satisfied and the balance amount, if any, shall be paid to the complainant. The complainant shall be entitled for cost of Rs.1 lakh. The order shall be complied within two months.