Advocates:
Counsel for the Parties :
For the Complainant:Mr. R.B. Kalantri, Advocate.
For the Opp. Parties:Mr. M.R. Mundada, Advocate.

ORDER

Mr. Justice G.G. Loney, President — This is a complaint in which allegations are made regarding the deficiency in the service of opposite party. Admitted facts are that complainant had insured his vehicle bearing No. MHV-7292 with the opposite party. The last renewed Insurance Policy was from 27.4.1989 to 26.4.1990. It is alleged by the complainant that on 8.5.1989, when he was proceedings to Nagpur with luggage, he noticed that the axle of the vehicle was damaged. He locked the vehicle and went to Amaravati to fetch the mechanic. Complainant alleged that he reached the spot of the vehicle on the next day morning but found that the vehicle was not on the spot. The complainant made a search of the vehicle and when was unable to trace it, reported the incident to Toisa Police Station on 9.5.1989. On returning to Amaravati, the complainant informed the Divisional Manager of opposite party No. 2, and also the Regional Transport Officer, Amaravati, about the theft of his vehicle.

2. Ultimately, the complainant approached the opposite parties to settle his Insurance claim as regards the loss of the vehicle. According to complainant, he co-operated with the Opposite Parties in supplying of the necessary details for the settlement of his claim. The complainant alleged that whenever he visited the office of the opposite party at Amaravati, Mr. Deshpande and Mr. Vivek Ketkar, the Surveyor, used to demand new documents on each occasion with a view to delay the settlement.

The complainant further alleged that Mr. Vivek Ketkar, the authorised Surveyor of Opposite Parties, even demanded complainant to arrange Rs. 16,000/- for some urgent work. The complainant alleged that he raised the loan of Rs. 16,000/- on payment of interest for this purpose. The complainant further alleged that Mr. Deshpande did not settle the claim, even after the compliance all the requirements of Mr. Ketkar for further investigation. It is repeatedly alleged by the complainant that Shri Ketkar, Surveyor, renewed his demand for money for settlement of claim, failing which he threatened to make some adverse remarks. It is again alleged that since the complainant was required to pay interest on the borrowed amount of Rs. 16,000/-, he wanted back his money from Shri Ketkar. Ultimately, Shri Ketkar returned to the complainant the amount of Rs. 16,000/- on 26.1.1990, by a cheque. The cheque bears No. 765520, issued on Bank of Baroda. It is the claim of the complainant that the said cheque, issued by Shri Ketkar, bounced back and he did not get his amount back from Shri Ketkar. In short, the complainant’s allegations are that he was given lot of harassment by Mr. Deshpande and Shri Ketkar and ultimately rejected his claim. Therefore, he lodged his complaint for the settlement of his claim with compensation.

3. Opposite Parties filed their written version in which the Insurance particulars are admitted to be correct. It is submitted that the Opposite Parties were not satisfied with the claim of complainant and repudiated his claim. According to the Opposite Parties, the claim of complainant is fake and fabricated one. The Opposite Parties, however, admitted in the written version that Shri Ketkar was entrusted with the work of investigation into the complainant’s claim and that he had returned Rs. 16,000/- by cheque, dated 26.1.1990. Thus, the claim of the complainant was opposed by Opposite Parties.

4. We have heard Shri R.B. Kulantri, Advocate for the complainant and Shri M.R. Mundada, Advocate for the Opposite Parties.

5. In view of the admission of the opposite parties that the vehicle in question was insured and that the claim was lodged by the complainant with the Opposite Parties on 26.5.1989, we are shocked to know that despite the repeated efforts of the complainant, his claim was not settled by the Opposite Party on the ground that they did not believe the statements made by the complainant about the theft of the vehicle. It is found from para 5 of the written version of the Opposite Party that they could not collect the papers from Tiosa Police Station as it was set on fire by the mob on 6.3.1990 and, therefore, they collected the statements made by the complainant to the Police from the file of Judicial Magistrate, Chandur Railway. It is further alleged that the statement made by complainant were incorrect, in consistent and contradictory. According to the Opposite Parties, they repudiated the claim of the complainant disbelieving the statement of the complainant made to the Police. In our view, the Insurance claim of the complainant cannot be rejected merely on the basis of the statements made to the Police by the complainant. Section 162 of the Criminal Procedure Code prohibits the use of statements made to Police, except to contradict a witness in a criminal trial. It is further within the competence of a Criminal Court to believe or disbelieve a person with reference to his police statement in a trial. The Opposite Parties perused the Police statements from the Court file and relying on those statements rejected the claim of complainant by forming its own opinion. In our view, such a use of police statements by the Opposite Parties is highly objectionable and illegal to reject the complainant’s claim. It appears that the criminal case is pending before the Magistrate and matter is sub- judice. It may amount to contempt of Court if before the decision of Court the Opposite Party forms its opinion to disbelieve the complainant. The complainant has filed on record the Xerox copy of the Insurance Policy in question and copies of his applications made to the Opposite Parties and his affidavit, dated 14.3.1991. The Opposite Parties also filed the investigation report of the Surveyor, dated 28.08.1990. The correspondence made with the R.T.O. by the complainant and two affidavits one of Mr. Satish Sanghi and Mr. Vivek Ketkar.

6. After hearing both the Parties and after perusal of record, we find that there is no convincing and satisfactory explanation from the Opposite Parties not to settle the claim of the complainant. The reason given by the Opposite Party is not acceptable to us as it is based on illegal and irrelevant consideration. The Opposite Party, instead of making its own investigation, wrongly formed its opinion to reject the complainant’s claim. In view of the allegations made by the complainant as regards the payment of money to Shri Vivek Ketkar, the allegations in the complaint assumes special significance. It is also found from the correspondence that Mr. Deshpande also lodged a complaint against the complainant in the Police Station at Amaravati. Further correspondence was also made by Shri Deshpande to the R.T.O. with a view to involve the complainant in a criminal case.

7. It is to be noted that during the course of arguments, Shri Deshpande, Divisional Manager of the Opposite Party No. 2, himself argued the case although the senior and reputed Advocate was present. It is also note-worthy that the joint written version placed on record is signed by Shri Deshpande alone. It does not find the signature on behalf of the Opposite Party No. 1 at all. The signature made by Shri Deshpande is not on behalf of and for Opposite Party No. 1. No affidavit has been filed by Shri Deshpande in support of his allegations. No evidence was led by Shri Deshpande in rebuttal of the allegations made by the complainant. Under these circumstances, the burden of proof which was on the Opposite Parties to disprove the complainant’s case, has not been discharged.

8. The Opposite Party also raised frivolous and un-maintainable ground about the maintainability of the complaint and hence, we reject the submission of the Opposite Party that the claim of the complainant is false.

9. We have on record a copy of the Insurance Policy, and some important documents. The first one is the Insurance Policy Cover Note, dated 27.4.1989, showing the details that the vehicle bearing No. MHV-7292 owned by Shri Ravindra G. Jichkar was insured on payment of premium of Rs. 1,406/-, for the value of Rs. 60,000/- for the period 27.4.1989 to 26.4.1990. Cover Note Number is 20584. It is supported by another document, dated 28.4.1989 of having paid Rs. 1,466/- by Shri R.G. Jichkar to National Insurance Company at Amaravati, towards premium of the Insurance. The receipt is bearing No. 85465. These two documents clearly show the complainant as the owner of the vehicle and that the Opposite Parties insured his vehicle accepting the premium from the complainant covering the risk upto Rs. 60,000/-. The complainant has also produced on record the xerox copy of spot panchanama dated 9.5.1989 and other documents. The Insurance Policy clearly indicates that the complainant was the owner of the vehicle in question. The complainant has alleged that his vehicle was stolen and that he reported the matter to the Police Station, Tiosa, is also supported from the Police investigation papers. All these circumstances prima-facies how that the complainant made a report about the theft of his vehicle and the Police has taken the cognizance of his complaint and made investigation. Whatever may be the result of the criminal case, there is no difficulty to accept the fact that incident of theft was reported by the complainant. The Insurance Policy in question indemnifies the loss of vehicle. The complainant has claimed the loss of Rs. 60,000/- in his complaint, in addition to the amount of compensation.

10. The claim of the complainant was investigated by Shri V.M. Ketkar and his report, dated 28.8.1990 is on record. A perusal of the said report shows that the entire investigation made by Shri V.M. Ketkar was tainted, biased and with prejudice. It is clear from the report that the Surveyor had animus against the complainant since he has mentioned in the report that the complainant tried to attack him with knife. The Surveyor went out of the way to contact the Magistrate at Chandpur Railway to obtain the Police statements from the Police Case Papers. That only shows the bars of the Surveyor to reject the claim of the complainant by hook or crook. The Surveyor further went to the extent of making the recommendation to the Opposite Party that the vehicle was sold out in scrap market and not stolen. This observation is without any basis. Thus, the Survey Report has to be totally rejected as a colourable exercise of the authority given to the Surveyor by the Opposite Party. The allegations made by the complainant in his complaint that the Surveyor demanded Rs. 16,000/- and were actually paid stands proved through a Xerox copy of the repayment made by cheque issued by the said Surveyor in favour of the complainant on 26.1.1990. According to the complainant, this cheque bounced from the Bank. Considering the allegations of the complainant in the complaint against the Surveyor, couple with the Xerox copy of the cheque and the colourable Survey Report, we find that the Opposite Party was entirely misled to deny the claim of the complainant. We are convinced that the complainant was harassed at the instance of the Surveyor, who has been found to be under the clout of allegations made by the complainant. We are convinced that the complainant has proved the allegations made in the complaint and deserves the settlement of his claim by paying him the compensation. The complainant has claimed Rs. 60,000/- as the loss of his vehicle and Rs. 1,08,000/- towards the loss of his vehicle and travelling expenses, amount of Rs. 16,000/- paid to Shri Ketkar, Sruveyor. We find that the complainant’s claim as regards the loss of his vehicle covered under the Policy in question required to be settled for Rs. 60,000/- -, as it is a case of total loss. The other claims of the complainants for the loss of business, travelling expenses and amount of Rs. 16,000/- paid to Shri Ketkar cannot be granted. There is no proof on record to show the loss of business and the travelling expenses made by the complainant. Similarly, Rs. 16,000/- alleged to have been paid to Shri Ketkar cannot be granted since he is not a party to the complaint. Hence, we pass the following order:—

ORDER

The Opposite Parties Nos.1 and 2 are jointly and severally directed to settle the claim of the complainant for Rs. 60,000/- towards the loss of his vehicle. The complainant also be paid Rs. 500/- as cost of this proceeding. Both the aforesaid amounts be paid to the complainant within 30 days from the receipt of this order, failing which the complainant will be at liberty to approach this Commission for appropriate action. A copy of this order be sent to the Chairman of the Insurance Company.

Complaint allowed with costs.