Mr. Justice S.A. Shah, President—The complainant is holding a driving licence for heavy motor vehicles since 1966 and is the owner of truck No. GRR 5731 Ashok Leyland make Model of 1984. According to him he brought this vehicle with the help of Bank of Baroda, Ahmedabad by obtaining a loan for Rs. 1.65 lakhs and managed for the remaining money of Rs. 60,000/- by selling away his old vehicle.

2. The complainant got the above vehicle insured with the opposite party — the New India Assurance Co. Limited for a sum of Rs. 2 lakhs and paid the premium of Rs. 3,977/- and a policy No. 31210201-13317 was issued by the opposite party covering the truck risk i.e. own damage basic and liability to public risk. The policy is issued on February 22, 90 for the period commencing from 24.2.90 to 23.2.91. This fact has not been disputed by the opposite party.

3. Unfortunately on March 19,1990 while the vehicle was on its way to Igatouri from Ahmedabad met with a road accident which according to the complainant occurred between Surat and Bombay near village Karangan. The vehicle was loaded with gear box articles and also some bags containing tomatoes. As disclosed in para 6 of the complaint another vehicle was coming from the opposite direction and dashed with the vehicle in question. Copies of the police panchnama and police report have been annexed with the petition of the complaint at Annexure-B collectively. It appears that the driver and cleaner of the vehicle in question have died in the accident. It also appears that the driver and cleaner of the vehicle as given lift to 3 to 4 persons who also died as they were in the truck at the time of accident. According to the complainant these persons were going with the bags containing tomatoes and these persons were given lift after the truck left Ahmedabad, with their bags containing tomatoes.

The complainant proceeds to state that on account of this accident a big fire took place and the vehicle in question was completely smashed and destroyed and no longer roadworthy. The accident, was immediately reported to the opposite party and a motor claim form duly completed and signed was given on 1.4.90. It appears that the opposite party did not accept the claim and disowned its liability from indemnifying the loss by memorandum dated 9.8.90 on the ground that some unauthorised persons were travelling in the vehicle in question at the time of accident and by the said memorandum they closed the claim file of the complainant illegally. A copy of the memorandum is annexed at Annexure-D.

The complainant appears to have sought the services of a qualified private surveyor and got the survey report of the damaged vehicle on 11.9,90 after the opposite party closed the file and the private survey report is also annexed at Annexure E which says that ‘on repair basis would be around Rs. 2,55,000/-. Even then the vehicle will not give the satisfactorily services.’ He has given detailed account of the spare parts and labour cost. In the last para the surveyor has stated that the vehicle being Ashok Leyland 1984 model in his opinion the market value of the above vehicle on the date of accident would be around Rs. 1,50,000/- to Rs. 1,60,000/- and it might fetch Rs. 35,000/- to Rs. 40,000/- as salvage. He had also verified all R.T.O. documents and were found to be in order.

Having failed to receive any relief on making representation the complainant has approached this Court by filing the complaint.

4. The Insurance Company has filed its version on 6.8.91 denying their liability to make payment. The opposite party has admitted that the complainant’s truck had a head on collision with one tanker coming from the opposite direction. This tanker was loaded with HCL acid which ignited and caught fire immediately and burnt 7 persons to death, 2 persons to serious injuries and extensive damage to both the vehicles. Thereafter the Company had deputed their own surveyor who visited the place on March 20,1990 and prepared a sp