1.      The present Revision Petition has been filed by the Petitioner under Section ­­­21(b) of the Consumer Protection Act, 1986 (the “Act”) against impugned order dated 26.02.2013, passed by the learned State Consumer Disputes Redressal Commission, Delhi (‘State Commission’) in FA No. FA-09/751, wherein the Appeal filed by the OP/ Appellant (Respondent herein) was allowed and set aside the Order dated 07.09.2009, passed by the District Consumer Disputes Redressal Forum, Kasturba Gandhi Marg, New Delhi (“District Forum”) in Consumer Complaint No. 1298 of 2005.

2.      There was a delay of 120 days in filing the present Revision Petition. For the reason stated in Application of Condonation of delay (being IA No. 6862/2013) the same is condoned.

3.      For the sake of clarity, the parties are referred to as stated in the original Complaint filed before the District Forum. Nawab Khan denoted as the Complainant/Petitioner (Respondent before the State Commission). M/s. Bajaj Allianz General Insurance Co Ltd. is identified as OP/Respondent (Appellant before the State Commission.

4.      In facts in brief, as per the Complainant, are that he owned a Maruti Van Car No. DL-4C-M-0086, purchased with a loan from Standard Chartered Bank, resulting in the vehicle being hypothecated in the bank's name. The said vehicle was insured with the OP from 17.09.2002 to 16.09.2003, with an assured value of Rs.1,85,000/- including accessories. On 05.10.2002, while the Complainant was traveling to Faridabad, the vehicle was involved in an accident when a speeding matador collided with it from behind. The impact was so severe, requiring the Complainant to arrange for a crane to lift the vehicle to M/s Gautam Motors for repairs. The Complainant promptly informed the OP, and an agreement was reached wherein the OP acknowledged the damage as constituting a total loss and agreed to release the full assured value of Rs.1,85,000/- after deducting salvage. However, it was alleged that the OP subsequently sent a letter dated 22.11.2002 repudiating the Complainant's claim. Aggrieved by this repudiation and alleging deficiency in service, the Complainant filed Consumer Complaint No. 1298/2005 before the District Forum, seeking direction for the OP to pay the insured amount of Rs.1,85,000/- along with other compensation for mental agony and harassment caused to him.

5.      In reply, the Complaint, the OP contended that at the time of the accident, the vehicle was being used for hire and reward, specifically to transport eight teachers to and from Nagar Nigam Primary School Mithapur, Delhi, to Faridabad and their respective residences. Upon receiving intimation of the loss, the Complainant submitted a claim form to the OP. In response, the OP appointed Sh. Sanjeev Malhotra as the surveyor, who inspected the vehicle and submitted his status report and final survey report dated 23.11.2002, assessing the loss at Rs.1,14,500/- on a net salvage basis. Subsequently, the OP appointed Trikuta Pvt. Ltd. as an investigator, who, in their report dated 19.11.2002, stated that at the time of the accident, the vehicle was indeed being used for hire and reward to ferry school teachers. The report further indicated that the school teachers had provided written confirmation that they were paying Rs.700 per month as fare to the Complainant for transportation services. Based on the investigation report dated 19.11.2002, the OP, vide letter dated 22.11.2002, rejected the claim made by the Complainant.

6.      The learned District Forum vide Order dated 07.09.2009, allowed the complaint with the following findings:

  “OP has repudiated the claim of the complainant after relying upon the report of the surveyor/investigator. OP is the paymaster of the surveyors who appoints them for favourable report and surveyors cannot displease their masters. Therefore, OP can rely upon the report of the surveyor because it suits them but such report is not binding on this forum who had arrived at his independent decision and is not governed by the stirrers of surveyors. The car was insured with the OP and merely dropping of teachers or anybody else will not make it a commercial use. More so if the teachers have used the car as a taxi and paid the fare why should they issued receipt and statement to the surveyors. The extent to which the surveyor can go in order to favour their paymaster can be imagined from the case in hand. Otherwise also what op is to do as to whether the vehicle was for personal use or some other use and the use of the car will not stop the Complainant from claiming the total insurance amount when the car is total loss on account of the accident. OP is bound to pay the IDV to the Complainant in particular when the surveyor has also declared that the car is a total loss.

This forum orders as follows

1. OP will pay Rs. 1,85,000/- to the Complainant and the OP will remove the entire rackage of the car. Subject to the condition that the Complainant will give Intently bond to the OP and fill all the necessary forms and will get the vehicle transferred in the name of OP with the transport department.

2. On account of mental agony and harassment, OP will pay Rs. 50,000/- to the Complainant as compensation.

3. OP will pay Rs. 10,000/- to the Complainant towards the cost of litigation.”     

7.      Aggrieved by the Order of the District forum, the OP Insurance Co. /Appellant filed an Appeal No. FA-09/751 (FA/751/2009) before the learned State Commission. The State Commission vide order dated 26.02.2013 allowed the Appeal and set aside the Order of the District Forum, as follows: -

“7.      The main contention of the appellant is that the vehicle was being used for hire or reward which was specifically forbidden in the conditions of insurance. The relevant part of the agreement is reproduced below:

"LMITATION AS TO USE:

  The Policy covers use of vehicle for any purpose other than: Hire or reward, Carriage of goods (other than samples or personal luggage), organized racing, Pace making, Speed testing, Reliability trials, Any purpose in connection with Motor Trade.”

  This provision clearly forbids use of vehicle for commercial purpose and its violation makes any insurance claim void.

8. The respondent/complainant has denied use of the vehicle on hire but has not been able to prove his point beyond doubt; on the other hand the appellant insurance company had filed statements of the teacher who hired the vehicle for journey to and from to their school in Jaitpur. The above evidence provided by the appellant to prove the point that the respondent /complainant violated the condition of insurance has not been disapproved by the complainant to our satisfaction. He has denied its usage for commercial purpose but failed to provide any evidence to support his contention whereas the OP/appellant had filed the letters of the teachers to prove his point which is uncontroverted by the respondent/ complainant.

9. In view of the above, it is evident that the respondent/ complainant has violated the conditions of the insurance. The learned District Forum has failed to appreciate the incontrovertible evidence in this regard. Therefore, in the interest of justice, it is justified to grant relief to the appellant.

10. Accordingly, the appeal is hereby allowed and the order fated 7.09.2009 of the District Forum is hereby set aside and consequently the complaint bearing No. 1298/05 by the respondent/complainant stand dismissed.”

8.      Dissatisfied by the Impugned Order dated 26.02.2013, the Complainant/Petitioner filed the instant RP No. 3860 of 2013.

9.      The petitioner/Complainant in the present case has raised several grounds in the petition:

a) The State Commission wrongly observed that the petitioner has violated conditions of the insurance policy without any proof substantiating the same.

b) The impugned order dated 26.02.2013 is liable to be set aside as the surveyor appointed by the respondent, in his assessment report, submitted that the vehicle was damaged to the extent that it came under the category of total loss. Therefore, the insurer is liable to release the total assured value of Rs.1,85,000/- in favor of the petitioner. Since the same has been unreasonably delayed, the petitioner is entitled to compensation and costs as well, which were rightly awarded by the District Forum, New Delhi.

c) The State Commission failed to take note that in the present case, the said investigator also relied upon the statement of some unknown persons that teachers were traveling in the said vehicle after paying a certain sum of money. The investigation report is vague and full of false and fabricated facts. There is no receipt or proof of any kind that can establish the fact that the said teachers were commuting by the insured vehicle. There is no financial transaction at all between the petitioner and the said teachers upon whose statement the respondent is relying. Furthermore, if there was such serious injury to the said unknown teachers, then why is there no medical record available to establish the same.

d) The State Commission wrongfully held that the burden of proof that the vehicle was not being run for commercial purposes is upon the petitioner. The presumption is that the vehicle is used as per the terms and conditions of the policy unless the contrary is proved by the other party. However, even if it is presumed that the vehicle was being run for earning livelihood; then also the complainant is a consumer, and the vehicle was not being used for commercial purposes as alleged. The claim of the complainant was not liable to be repudiated, and the complainant is entitled to the release of the entire claim amount as the vehicle was assessed as a total loss. By not releasing the assured amount, the respondent has committed a deficiency in service and is engaged in unfair trade practices by withholding the due amount of the complainant despite assessing the vehicle for total loss.

10.    Upon receiving notice of the instant Revision Petition, the Respondent filed written submission and asserted the order of State Commission.

11.    The learned Counsel for the Petitioner/Complainant, in his arguments, reiterated the grounds stated in the revision petition and emphasized the contention that there is not an iota of proof suggesting that the vehicle was being used as a commercial vehicle. Therefore, they prayed for the revision petition to be allowed.

12.    In her arguments, the learned Counsel for the OP/Respondent Insurer reiterated the findings of the State Commission and argued that the Respondent Insurance Company relied on the policy terms and conditions, FIR, WS filed before the District forum, Survey Report, and documents filed on 01.04.2019 before the Commission, which are part of the record of fora. There is no infirmity in the impugned order passed by the State Commission, and the present Revision Petition is devoid of merit.

13.    I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned Counsels for both the parties.

14.    The main issue of the case revolves around whether the petitioner/complainant violated the conditions of the insurance policy by using the insured vehicle for commercial purposes, and if so, whether repudiation of the claim justifies such violation. Additionally, the dispute centers on determination of loss under the policy, if any, for which the Complainant is entitled.

15.    It is undisputed that the Complainant owned Maruti Van Car No. DL-4C-M-0086 he purchased by tasking loan from Standard Chartered Bank and the said vehicle was insured with the OP from 17.09.2002 to 16.09.2003, with an assured value of Rs.1,85,000/- including accessories. It is also undisputed that on 05.10.2002, while he was traveling to Faridabad, the vehicle was involved in an accident. The Complainant promptly informed the OP. The OP repudiated the claim vide letter dated 22.11.2002 on the grounds that ‘the vehicle is being used commercially at the time of the accident’. Aggrieved by this repudiation, he filed CC No. 1298/2005 before the District Forum, seeking payment of the insured amount of Rs.1,85,000/- along with other compensation for mental agony and harassment caused to him. It is the contention of the OP that at the time of the accident, the vehicle was being used for hire and reward, specifically to transport eight teachers to and from Nagar Nigam Primary School Mithapur, Delhi, to Faridabad and their respective residences as established by the surveyor who submitted a report dated 23.11.2002, assessing the loss at Rs.1,14,500/- on net salvage basis and the investigator. The investigation report indicated that the school teachers had provided written confirmation that they were paying Rs.700 per month as fare to the Complainant for transportation services. Based on the investigation report dated 19.11.2002, the OP rejected his claim.

16.    It is the contention of the Complainant that the State Commission wrongly held that the burden of proof that the vehicle was not being run for commercial purposes is upon the petitioner. He argued that the presumption is that the vehicle is used as per the terms and conditions of the policy unless the contrary is proved by the other party. As per him, even if it is presumed that the vehicle was being run for earning livelihood, then also the Complainant is a consumer, and the vehicle was not being used for commercial purposes as alleged. However, at no stage the Complainant admitted carrying of the passengers for payment and that it is for his livelihood. Further, the vehicle in question was purchased for and insured for private purpose. Thus, using it for conveying passengers on payment will amount to violation of the insurance policy in question.

17.    The present case is a fit case to put reliance on the Judgment of Hon’ble Supreme Court in United India Insurance Co. Ltd. v. Harchand Rai Chandan Lal, (2004) 8 SCC 644 decided on 24.09.2004 wherein it was held as under:  “Therefore, it is settled law that the terms of the contract has to be strictly read and natural meaning be given to it. No outside aid should be sought unless the meaning is ambiguous”

18.    That the terms and conditions of the Policy are sacrosanct have been reiterated by the Hon’ble Supreme Court in Suraj Mal Ram Niwas Oil Mills Pvt. Ltd. Vs. United India Insurance Co. Ltd. (2010) 10 SCC 567 and Canara Bank Vs. United India Insurance Co. Ltd. (2020) 3 SCC 455. 

19.    The observation/ order of the Hon’ble Supreme Court in Suraj Mal (Supra) is reproduced below:-

“26. Thus, it needs little emphasis that in construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the court to add, delete or substitute any words.  It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer.  Therefore, the endeavour of the court should always be to interpret the words in which the contract is expressed by the parties.”

20.    It is a matter of record that at no stage the Complainant admitted carrying of the passengers for payment and that it is for his livelihood. In any case further, the vehicle in question was purchased for and insured for private purpose. It is established that he has been conveying teachers to school regularly. It is infeasible that the same was done on gratis regularly. He did not assert that he was doing so for livelihood during the pleadings. Thus, purchasing a vehicle for private purpose, insuring for private purpose and using it for conveying passengers on payment will amount to violation of the insurance policy in question. Therefore, the stand of the OP in this regard is as per law. Therefore, I do not find any illegality or impropriety in the order of the learned State Commission in Appeal No. 751 of 2009 dated 26.02.2013. The Revision Petition No.3860 of 2013 is, therefore, Dismissed.

21.    There shall be no orders as to costs.

22.    All pending Applications, if any, stand disposed of accordingly.