ABDULRASHID ABDULHAMID SHEIKH Vs. NATIONAL INSURANCE CO LTD

JUDGEMENT

(1.) The Complainant was owner of Maruti Omini Van (car for short) bearing registration number GJ-01-0681 which was insured with the Opponent Insurance Company for Rs.1,00,000/- and the insurance policy was valid from August 28, 1989 to August 27, 1990. The car driven by Fakrudin Rasulbhai met with an accident near Dhanduka on October 15, 1989. It is alleged that ST bus collided with the car as a result of which the driver Fakrudin sustained fatal injuries and the car was extensively damaged. FIR was lodged with the Police. According to the Complainant, the car was a total loss. He intimated the Opponent about the accident on October 18, 1989. The car, however, could not be inspected and claim form could not be submitted to the Opponent as the car was in custody of the police. It was only after the Court handed over the custody of the car to the Complainant that he could file claim for the loss sustained by him. The Opponent appointed surveyor Nanubhai Patel to assess the damage to the car and the Surveyor surveyed the car. According to the Complainant the Surveyor conveyed to him that he could be paid Rs.1 lakh for the car on total loss basis. The opponent also assured the Complainant that he would be paid Rs.1 lakh in settlement of his claim However, the Opponent by its letter dated November 26, 1990 informed the Complainant that his claim was treated as "no claim". Thereafter the Complainant contacted the Opponent and the concerned officer told him that the aforesaid letter dated November 26, 1990 was written through mistake and that his claim would be paid shortly. Thereafter the Complainant wrote letters to the Opponent but there was no response from it. Therefore, according to the Complainant the Opponent was guilty of deficiency of service on its part. On the above grounds, the Complainant has prayed for recovery of Rs.1,39,797.26 which includes Rs.1,00,000/- for total loss of the car, Rs.39,797.26 for interest, Rs.25,000/- compensation for mental torture and tension and Rs.5,000/- as costs of the complaint.

(2.) The Opponent has resisted the complaint by its written statement Exh.12. The main contention of the Opponent is that the Complainant had committed breach of the terms of the policy by using the car for transporting passengers for hire and transporting illicit liquor. It is submitted that at the time when the accident occurred, one passenger namely Mohamed Hussein was travelling by the car for a fare of Rs.50/-. illicit liquor bottles worth Rs.15,000/- in several boxes were in the car at the time of accident. This was clear from the FIR and the statements recorded by the police in the course of investigation of offence registered on the basis of the FIR. It is submitted that the Complainant has concealed material facts in the complaint. It is further submitted that no assurance or promise was given to the Complainant for payment of Rs.1 lakh as alleged by him. The Complainant had not furnished relevant documents as required by the Opponent. It was under these circumstances that the Complainant's claim was rejected. The Opponent has prayed for dismissal of the complaint.

(3.) The Complainant has produced FIR lodged with the police in regard to the accident. In this report which is made by Mohamed Hussein Ahmed Husen it is stated to the effect that Mohamed Hussein was travelling by the car on payment of fare of Rs.25/- for going to Dhandhuka. When the car was proceeding towards Dhandhuka, it met with an accident near Vatali village. S. T. Bus was coming from opposite direction. There were also trucks with full lights coming from opposite direction. The driver of the car lost control over the car and it dashed against the S. T. bus. Mohamed Hussein has stated that he sustained injuries. The driver also sustained injuries. Mohamed Hussein has further stated that he had seen boxes containing foreign liquor in the car. It would thus appear that the document produced by the Complainant himself shows that a passenger was travelling by the car and boxes containing liquor bottles were carried in the car. According to the Opponent it was because of offence punishable under Prohibition Act registered by Police that the Complainant was not able to get custody of the car for sometime. By carrying passenger in the car it is apparent that breach of the relevant condition of the police is committed by Complainant. However, under the policy decision taken by the Insurance Company the Complainant could have been paid what is called 'non standard claim'. So far as liquor bottles carried in the car are concerned, it is true that if this allegation is proved, offence under the Prohibition Act is committed. But there is nothing in the policy which disentitles the Complainant from claiming compensation for the loss suffered by him in the accident on account of the said offence, if any, committed by the Complainant or any other person. It is, therefore, that we have observed that the Complainant could have been paid non-standard claim if it was established that the car was damaged in the accident.