SALEHMAHMAD ABDULRAHIM CHUDGAR vs UNITED INDIA INSURANCE CO.LTD

THE complainant was owner of truck bearing registration No. CJ-9-T-4431 and he had insured this truck with opponent Insurance Company for Rs. 3,70,000/- for a period from May 8, 1990 to May 7, 1991. According to the complainant his truck usually plied between Bombay and Delhi. THE truck loaded with goods left Bombay for Delhi on December 26, 1990 and reached Modasa on December 28, 1990. At Modasa, the truck was handed over to driver Ramansinh Fatehsinh Solanki and cleaner Ramlal Gumalal Ninama. THE said driver and cleaner left Modasa with the truck for Delhi at about 1 p.m. on December 28, 1990. As the truck did not reach Delhi by January 5, 1991, the complainant went to Delhi to make enquiry. THE complainant also made enquiry in the cities and check posts which were between Modasa and Delhi. THE truck however, could not be traced. THE complainant, therefore, lodged complaint with Modasa Police Station on January 9, 1991. Few days thereafter, the complainant was informed that dead bodies of the driver and cleaner were found near Biyawar in Rajasthan. THE truck was, however, not found. THE complainant, therefore, informed the Insurance Company about the theft of the truck on January 16, 1991 and filled in the necessary claim form alongwith relevant documents on February 11, 1991. THE opponent called upon the complainant to produce certain evidence by its letter dated February .18, 1991. THE complainant was also required to produce final report of the investigation made by the police which was produced alongwith letter dated May 15, 1992. THE opponent, by its letter dated May 24, 1993 informed the complainant that the truck was found and that enquiry be made at the Divisional Office, Biyawar. THE complainant thereupon made enquiry and found that the truck which the police had seized was not his truck. THEreafter, the complainant wrote letters dated July 15 and August 23, 1993 to the opponent to pay the claim. THE opponent, however, did not give any reply to these letters nor did it pay the claim. It is in the background of the above facts that the complainant has filed this complaint for recovery of insurance amount of Rs. 3,70,000/- together with 18% interest, compensation of Rs. 10,000/- for mental torture, pain/suffering and cost of Rs. 3,000/- from the opponent.

THE opponent has resisted the complaint by its written statement Exh. 8. It is denied that there was any deficiency of service on its part in not entertaining the complainant''s claim and, therefore, the complaint was not maintainable. It is not disputed that the complainant had taken insurance for the truck in question and the insurance policy was valid for the period from May 8/1990 to May 7, 1991. It was a comprehensive policy. THE opponent has submitted that the truck was found and the Investigator and Forensic Laboratory have ascertained that though the number of the said truck which was found was DEC 1119, it was the same vehicle which was stolen viz. Truck No. GJ-9-T-4431 and it was lying at Jawaja Police Station in Rajasthan. According to the opponent, the persons from whom the truck was recovered had confessed before the police that they had hijacked the truck number GJ-9-T-4431, that they had murdered the driver and the cleaner and that they had sold the goods in the truck. THEse persons also stated that through one Gurmal Singh, they had changed the engine and chassis number and prepared false documents of Jaipur RTO. A criminal complaint has been registered against Gurmal Singh at Moti Dungri Police Station. Gurmal Singh is also alleged to have confessed that he had changed the original engine and chassis of Truck No. GJ-9-T-4431. THE opponent in support of the above contentions is relying on the report dated October 20, 1993 of Rajdeep Consultants, Investigator and report of State Forensic Laboratory of Rajasthan. It is submitted that since the truck is found, the complainant cannot claim the insurance money. THE opponent had also appointed a Spot Surveyor to assess the loss of the vehicle. THE complainant, however, did not agree to such survey and gave notice through his Advocate on July 15, 1993 raising false and frivolous contentions. It is contended that the complainant has deliberately not taken of the possession of the vehicle as he wants to claim compensation for the alleged loss suffered by him. THE opponent has also denied other allegations made by the complainant in his complaint. It is not disputed that the truck in question was insured with the opponent and it was during the period the insurance policy was in operation that the truck was stolen. The main contention of the opponent, however, that the truck was later on found and it was lying at the Jawaja Police Station in Rajasthan. The complainant was not taking possession of the truck because he wanted to claim full compensation for the alleged loss. In support of its contention that the truck was traced, the opponent is relying on report dated October 20, 1993 of Insurance Investigator Rajdeep Consultants (Investigator for short) appointed by it to investigate the complainant''s claim. The Investigator has not annexed any document to its report and its report is solely based on the information gathered by it from the records of Jawaja Police Station. According to the Investigator, the complainant had identified the truck which was lying in Jawaja Police Station as his truck bearing number GJ-9-T-4431. There is no evidence to prove that the complainant had made such identification. The Investigator has further stated that many changes were made on the body and engine and chassis numbers were changed. The police also recovered stolen goods which were lying in the Jawaja Police Station. The culprits were arrested and they confessed before the police that they had hijacked the complainant''s truck and murdered the driver and the cleaner. These persons also confessed having stolen the articles which were lying in the truck. These culprits further stated before the police that with the help of Gurmal Singh they had changed the engine and chassis number and prepared false documents. The Investigator has stated that criminal case is also registered against Gurmal Singh for fraud and fabrication of documents. Gurmal . Singh has confessed that he has changed original engine and chassis numbers of truck number GJ-9-T-4431 As already observed above, there is no documentary evidence produced by the Investigator in support of his report. The report is based solely on the police records of Jawaja Police Station. What records the Investigator examined is also not made clear. The so-called confessions made by the culprits who stole the truck and murdered the driver and the cleaner are not placed on record. No attempt is made to prove the so-called confessions. Gurmal Singh''s confession is also not brought on record. The socalled confessions made by these persons are not duly proved. We, therefore, fail to see how any reliance could be placed on the report of the Investigator. The Investigator himself has admitted that the police refused to supply him copies of documents but merely permitted him to examine the case papers. As observed above, what case papers he had examined is not stated. The opponent has thus failed to prove that the complainant''s truck was found and that it was lying at Jawaja Police Station.

The opponent has also relied on the report of State Forensic Laboratory of Rajasthan which is dated January 30, 1993. In this report the description of the truck given is Tata truck bearing registration number DEC 1119 with apparent chassis number 344 117 230180 and engine number 692 102 023191. In the result of the examination which is stated in the report, it is observed that the apparent chassis number is not genuine and the engine number plate was not original. So far as gear box number, front axle number and steering box number were concerned, it was stated that there was no tampering with those numbers and that those numbers tallied with the service book of the complainant''s truck. Therefore, besides the gear box number, front axle number, steering gear box number, there was no evidence "which could identify the truck as the truck belonging to the complainant. Therefore, on the basis of the report of the State Forensic Laboratory of Rajasthan, it cannot be held that the truck of the complainant was traced and it was lying at Jawaja Police Station.

IN the light of the above discussion, there is no reason to disbelieve the complainant''s statement that his truck which was stolen has not been found. Thus, there is total loss of the truck. IN our opinion, the opponent was not justified in not sanctioning the complainant''s claim for payment on the basis of the INvestigator''s report and the report of the State Forensic Laboratory of Rajasthan. The opponent failed to give decision on the claim made by the complainant for a very long time. We are, therefore, of the opinion that there was deficiency of service on the part of the opponent. Repudiation of the claim of the complainant is not bona fide. IN our opinion, therefore, the opponent is liable to pay compensation to the complainant. The next question which we are called upon to consider is the quantum of compensation payable to the complainant. The truck was insured for Rs. 3,70,000/- and the complainant has, in this complaint, claimed compensation of Rs. 3,70,000/-. It was argued on behalf of the opponent that the complainant cannot claim the full insurance amount of Rs. 3, 70, 000/-. It was urged that the opponent should be directed to assess the loss as some deductions are required to be made from the insurance amount. The opponent has not led any evidence to show what amounts were required to be deducted from the insurance amount. Under the terms of the insurance policy, the opponent has agreed to indemnify the complainant against loss/damage to the complainant''s truck by theft. The complainant had proved that his truck has been stolen and that it has not been found. The opponent is, therefore, liable to indemnify the complainant for the loss suffered by him. In absence of any other evidence, there is no reason to disbelieve the complainant when he says that he has suffered loss of Rs. 3,70,000/-, the amount for which the truck was insured. As observed above, the opponent has not proved that any amount was deductible there from under the terms of the insurance policy. We, therefore, hold that the complainant is entitled to claim from the opponent Rs. 3,70,000/- for the loss suffered by him due to theft of the truck. The complainant is not entitled to claim any compensation for the socalled mental torture, pain and shock.

IN the result, we partly allow this complaint and pass the following order: ORDER The opponent is directed to pay to the complainant Rs. 3,70,000/- together with interest @ 18% p.a. from July 1, 1991 till realisation and cost of Rs. 3,000/- within one month from the date of this order. Complaint partly allowed with costs.