JUDGEMENT

          Complainantby filing this complaint alleged that she purchased a Mahindra Scorpio SLE White on 30.08.2009 for a sum of Rs.8,32,399/- having its Registration No.WB-20U-2838 and after purchase, it was insured under the present Insurance Company having Insurance Policy No.OG-10-2401-1801-00016-921 and said policy was valid for the period from 05.09.2009 to 30.08.2010 on paymentof the premium of Rs.25,002/- for the said Insurance Policy and she purchased the said vehicle with the Financial Assistance of AXIS Bank Ltd. and has been paying EMI as agreed upon in between the complainant and the op no.2 (AXIS Bank).

          Further it is submitted that the said Scorpio SLE was registered with the Regional Transport Authority at Alipore, South 24 Parganas(op no.3).  Fact remains that on 05.03.2010 one Unnikrishnan Nair who is the neighborer of the complainant requested her to assist him by giving her said vehicle for his Emergency purpose at Ritika Lodge at Dankuni for 2 days and accordingly the complainant had given the said vehicle to Unnikrishnan Nair with her driver namely Rabin Roy to meet his urgent need on 05.03.2009 and the said vehicle was parked in DankuniGarrage near Himalaya Plaza for 3 days as and when needed and the driver of the complainant Rabin Roy was staying nearby hotel Ritika Lodge at Dankuni for the period from 05.03.2009 to 08.03.2010 and on 08.03.2010 in the morning the said Unnikrishnan Nair went outside the said Ritika Lodge for his personnel business and when he came back to the said Ritika Lodge, he found that Rabin Roy with other drivers of different vehicles are lying in unconscious conditions and immediately they were hospitalized to the nearest hospital and after coming back from hospital, they noticed that the said vehicle along with other vehicles were stolen and immediately he lodged a written complaint with the nearest Dankuni Police Station on 08.03.2010 and the same has been treated as FIR No.18/2010 dated 08.03.3010 u/s 328/379/34 I.P.C. and he also intimated the said incident to the complainant over telephone.

          After getting such information complainant could not move to the place of incident as he was out of station 08.03.2010 but on the following date, the complainant with his neighbor Mr. Unnikrishnan Nair moved to place of incident and also visited the police station at Dankuni where she was intimated the Police Station at Dankuni and in that case cognizance was taken on the basis of the complaint lodge by Unnikrishnan Nair.  However, the complainant had also given a written complaint about the said incident with request to keep her complaint with the Dankuni Police Station Case No.18/2010 dated 08.03.2010.

          Subsequently the complainant came to know from her driver that one Ajoy Gupta who was also staying in the said Ritika Lodge had given fruits and sweets to him along with other drivers and after taking the said foods he got unconscious ad when he regainedhis sense he found that he was in hospital and he got the information from Unnikrishnan Nair that the said vehicle was stolen from DankuniGarrage where the vehicle was parked.

          In respect of that FIR, Ld. Chief Judicial Magistrate, Seerampur, Hooghly took cognizance of the said FIR Registered as Dankuni P.S. Case No. 18/2010 dated 08.03.2010 u/s 328/379/34 I.P.C., G.R. No.210/2010 and subsequently it was transferred to Additional Chief Judicial Magistrate, Seerampore, Hooghly, Investigating Officer (I.O.) submitted his final report in the said case before the Ld. Court on 18.07.2011.

          In respect of the vehicle the complainant lodged insurance claim for the said car having Registration No.WB-20U 2838 to the op no.1 on 08.03.3010 due to theft of the said vehicle against the coverage of insurance policy No.OG-10-2401-1801-00016921 valid for the period from 05.09.2009 to 30.08.2010 and the same has been recorded as Claim No.OC-10-2401-1801-00011400 dated 08.03.2010 against loss or theft of the said vehicle and in support of the said Insurance claim, the complainant submitted all the original papers to the op no.1 with the claim form and the theft intimation of the said vehicle was given to the op no.2 in writing on 28.04.2010 by the complainant followed by an Advocate’s letter dated 14.05.2010.

          The complainant also gave theft intimation in respect of the said vehicle to the R.T.A.I. Alipore, South 24 Parganas, (the op no.3).  Subsequently by a letter dated 25.06.2010, the op no.1 intimated to the complainant that the insurance claim of the complainant stand repudiated as she violated the basic terms and conditions of the insurance policy and the reason of repudiation is that the complainant gave the said vehicle on hire basis to one Unnikrishnan Nair and asked the complainant to let them know within 7 days from the date of receipt of the said letter as to why the claim of the complainant should not be repudiated.

          Again the op no.1 wrote another letter dated 14.07.2010 to the complainant where they have stated that the claim of the complainant has been repudiated as she failed to reply of the letter dated 25.06.2011 followed by a letter dated 02.07.2010 and for which complainant wrote a letter dated 26.07.2010 to the op no.1 with request to return the original documents to the complainant since her Insurance Claim had already been repudiated by them.  In the said letter, it was also intimated to them by the complainant that she would take legal action for redressal and for such wrongful repudiation of the Insurance Claim.

          Thereafter op no.1 wrote a letter on 23.08.2010 to the complainant by stating that the comprehensive package policy in respect of the said vehicle is guided by it’s terms and conditions and the limitation as to the use of the said vehicle and it is also stated that the FIR itself proves that Unnikrishnan Nair hired the said vehicle.  In reply to the said letter dated 23.08.2010 the complainant wrote a letter on 09.09.2010 to the op no.1 denying the contents made in their letter dated 23.08.2010.

          Op no.1 over telephone asked the complainant to submit the copy of FIR in respect of Dankuni Police Station Case No.18/2010 dated 08.03.2010 u/s 328/379/34 I.P.C. along with copy of Final Report being No.85 dated 24.06.2011in respect of the theft vehicle having Registration No.WB-20U 2838 and accordingly complainant submitted the photostate copy of FIR and copy of Final Police Report in conncetion with Dankuni Police Station Case No. 18/2010 dated 08.03.2011 u/s 328/379/34 I.P.C. with a request to op no.1 for consideration of the Insurance Claim of the complainant similar was followed by a subsequent letter but no effect.

          Lastly complainant has alleged that the said vehicle had not been used on hire basis in violation of the terms of Insurance Policy as alleged by the op no.1 and the Principle as laid down by the Hon’ble Supreme Court in difference cases that in case of theft of vehicle breach of condition is not germane and the Insurance Company is liable to indemnify the owner of the vehicle in the case of comprehensive policy for the loss by way of theft caused to the owner and the Insurance Company cannot repudiate the claim in case of loss of vehicle due to theft.

          Fact remains that the complainant had taken a comprehensive policy and had got the vehicle by payment of insurance premium of Rs.25,000/- and practically the said vehicle was used on hire basis as it appears from Final Police Report of Dankuni Police Station submitted before the Ld. Court of the Additional Chief Judicial Magistrate, Seerampur, Hooghly and complainant is a bonafide consumer of the op no.1 so he is entitled to get relief for wrongful repudiation by the op no.1.

          On the other hand op no.1 by filing written statement submitted that no doubt the said vehicle of the complainant bearing Registration No. WB 20 U 2838 (Mahindra Scorpio SLE) was insured by a valid policy of insurance issued by this op no.1 bearing policy no.OG-10-2401-1801-00016921 valid from 31.08.2009 to 30.08.2010 and the said policy was subject to certain terms and conditions and hire and reward was specifically excluded in the terms and conditions of the said policy, as also has been incorporated in the certificate of the policy itself and as the complainant has filed the said policy of insurance certificate, the same is not filed and the detailed terms and conditions of the said policy are filed by the op for consideration.

          Fact remains complainant has stated that the said vehicle was handed over to one person Unnikrishnan Nair for his urgent personal need, but in the FIR by the said borrower Unnikrishnan Nair himself has admitted that he had borrowed the vehicle after noticing an advertisement in the Sanmarg Hindi Newspaper wherein requirementfor some vehicles was sought for shooting of some film and accordingly he had taken away to Dankuni the said vehicle of the complainant along with some other vehicles.

          Thereafter it is submitted that the vehicle had been borrowed against paymentof monetary consideration and not for any urgent personal need.  It is furthermore submitted that as the complainant herself has brought the FIR on record, she cannot rely on a part of the document while refuting the rest.   Though the complainant has filed the copy of said FIR along with her complaint, but as the copy of the same is illegible.  Without prejudice to the above, this op no.1 submitted that though it does not admit the alleged theft of the said vehicle at the alleged material place, date and time, but even if for the sake of argument it is assumed though not admitted that the said vehicle was stolen, as alleged, it is established beyond doubt that at the time of such alleged loss of the said vehicle, the same was being used against hire and reward.  Therefore, under the terms and conditions of the policy of Insurance there is no liability of the op no.1 to pay any claim and the same was duly intimated to the complainant by the op no.1 vide letters dated 29.01.2010, 02.07.2010 and finally by letter dated 23.08.2010 in which it was specifically mentioned that by using the said vehicle against hire and reward the complainant has committed clear and specific violation of the policy of insurance, so there is no deficiency in service on the part of the op no.1.

          Moreover it is admitted position that the said vehicle was entrusted to said Ajay Gupta at the time of alleged loss of the same and that person had his active part in the alleged loss of the said vehicle.  Therefore, even if for the sake of argument of such loss of vehicle is assumed to be true though not admitted, under no circumstances, the same can be considered as theft but rather the same can be considered only as breach of trust.  However, the terms and conditions of the policy of insurance, does cover breach of trust and the op is not liable to pay any claim and compensation to the complainant as prayed for and in the present op denied all the allegations and prayed for dismissal of this case.

Decision with reasons

          On comparative study of the complaint and written version and also hearing the argument of the Ld. Lawyer of both the parties and after considering the terms and conditions of the policy it is clear that there is an important notice in the said policy to that effect “the insured is not indemnified if the vehicle is used or driven otherwise than in accordance with this schedule.  Any payment made by the company by reason of wider terms appearing in the Certificate in order to comply with the Motor Vehicle Act, 1988 is recoverable from the insured.  See the clause headed Avoidance of Certain Terms and Right of Recovery”.  As per said policy it is found that the said car was a private car and same was covered by package policy and complainant paid total premium of Rs.25,000/- and as per said terms and conditions of the policy no doubt company will indemnify the insured against the loss or damage to the motor car insured hereunder and or its accessories whilst thereon – by burglary housebreaking or theft.

          In clause – company shall not be liable to make any payment under the policy in respect of being used otherwise than in accordance with the limitation as to use and further there is limitation as to use of the vehicle ; the policy covers use of the 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 and so considering the limitation as to use, it is clear that private car cannot be used for hire or reward.  But it must be used for his/her personal cause. 

          In this regard we have gone through the several rulings including reported in 2013 (4) CPR 165 (NC) wherefrom we have gathered that insurer and insured shall be strictly governed by the policy condition and no explanation or relaxation can be made on the ground of equity and if the above principle of law is relied in this case, in that case we find that there is no scope to go outside the terms and conditions of the policy and under any circumstances this Forum cannot decide any matter giving any explanation or relaxation to the insured.

          In this case main contention of the Ld. Lawyer for the complainant is that in view of the submitted one ruling reported in (2008) II Supreme Court Cases 259 in case of theft of vehicle nature of use of vehicle cannot be looked into and insurance company cannot repudiate the claim on that basis.  Fact remains that we have gone through the ruling wherefrom we have found that in that case claim of the insured was repudiated on the ground at the time of theft of the said vehicle was used as taxi for carrying passengers on payment.  But Ld. State Commission granted compensation after applying non-standard basis principle and in the present case it is proved beyond any manner of doubt that this vehicle was handed over to Unnikrishnan Nair on payment of money for using the same by the person who areUnnikrishnan Nair and Ajay Gupta.  But truth is that on that day more than 6 vehicles were stolen from that very place at Dankuni and even CID investigation was held but miscreants could not be searched out and vehicles could not searched out.  So, FRT was submitted by the investigating officer before the Ld. CJM of Sreerampur, Hooghly and same are no doubt a fact.  It is equally proved that complainant had stated false story about handing over the car to her friend but it is proved that the complainant let out the same on receipt of money to Unnikrishnan Nair and that was hired for the purpose of bringing film stars for the purpose of shooting and in the above situation we have gathered that there is no other alternative but to rely upon the judgement as referred by the complainant in view of the fact, the fact of that case and the present case are tallying and so there is no other alternative but to grant non-standard basis compensation with such interest @ 6% p.a.. 

          Fact remains that the theft was committed by miscreants adopting a peculiar method and not only one car was stolen but at a time 5 to 6 cars were stolen and same are not yet traceable by the CID also.  So, in the above situation we are convinced to hold that no doubt as per terms and conditions of the insurance policy that was repudiated.  But in view of the Hon’ble Supreme Court judgement we have no other alternative but to allow compensation on non-standard basis i.e. 75% of the assured sum and from the policy we have gather that total sum assured was Rs.7,90,761/- and if we consider the non-standard basis of compensation as per decision of the Hon’ble Supreme Court in that case the complainant is entitled to 75% of the total sum assured and that is Rs.5,93,071/-.  But there is another clause where it is specifically mentioned if the vehicle’s age is exceeding 6 months but not exceeding one year in that case depreciation amount of15% shall be deducted and in respect of that clause no doubt this Forum cannot go behind that and when the valuation of the car was fixed Rs.7,90,761/- and non-standard basis compensation has been Rs.5,93,071/- then out of that 15% shall be deducted, as because the age of the car on 08.03.2010 was more than 6 months.  So, out of that 15% should be deducted as per terms and conditions as depreciation cost of the said car.

          So, a sum of Rs.88,950/- ( 15% value of the amount) is deducted as depreciation cost and so after such calculation complainant is entitled to Rs.5,04,120/- as non-standard basis compensation (75% of insured amount) after deductionof depreciation cost of 15% of the assessed amount of compensation Rs.5,93,070/-  and for which the complainant is entitled to Rs.5,04,120/- as compensation for theft of the car only relying upon the ruling reported in (2008) II Supreme Court Cases No.259 and also interest @ 6% p.a. over the same w.e.f. 08.03.2010 and till its payment because on 08.03.2010 the claim was filed by the complainant.

          But we are convinced that complainant made false allegation and statement that the car was handed over to his friend that is not true but it was let out on hire on payment to Unnikrishnan Nair and Unnikrishnan Nair practically seeing the advertisement for such car for getting it in hire.  So, under any circumstances complainant is not entitled to get any further relief in this case not even any cost on the ground she did not appear before this Forum with clean hand.  In this context, we are trying to express our experience in this regard that most of the people who are purchasing beautiful cars as private car has not been using for their own purpose but it is being let out on hire to different organizations like hotel etc. and they are not willing to change their status as commercial car because tax of the commercial car is very high and to deceive the Government and to avoid higher payment of tax such sort of complainant has been enjoying huge amount by letting it in higher by allowing their cars to different organizations to enjoy and people are running their business in this ways and this car was used by the complainant for business purpose though it was registered as insured private car but purpose is otherwise which is proved from the present fact and circumstances.

          In this context we have gone through the FIR filed by Unnikrishnan Nair and after studying the said complaint it is clear that Unnikrishnan Nair hired it for Ajay Gupta on the basis of advertisement and not only that he hired another Bolero bearing No.WB-58K-5273 and some other vehicles.  So, it is proved that the complainant has suppressed the material fact that it was hired by Unnikrishnan Nair for hire and for which we are not considering any other relief in this case because if we rely upon the ruling reported in 2013 (4) CPR 165 (NC) we are bound to follow the policy conditions very strictly and there is no scope on the part of the Forum to give any exemption or relaxation on the ground of equity because it is a contract in between the insured and the Insurance Company who must have to follow it.  But anyhow considering the judgement of the Supreme Court we have allowed the part compensation as per spirit of that judgement.

          Accordingly, the complaint succeeds in part.

          Hence, it is

ORDERED

          That the complaint be and the same is allowed in part on contest without any cost against the ops Bajaj Allianz Insurance Company Ltd. (op no.1) but same is dismissed against op nos. 2 & 3 because they are noway related regarding insurance of the vehicle.

          Accordingly op no.1 is hereby directed to pay a sum of Rs.5,04,120/- as compensation for theft of the car and also 6% p.a. interest over the same w.e.f. 08.03.2010 and till its payment and insurance company is hereby directed to release the said amount at once to the complainant by issuing such cheque for payment within 45 days from the date of this order failing which for non-compliance of the Forum’s order op no.1 shall have to pay punitive damages @ Rs.300/- per day till full satisfaction of the decree and if it is collected same shall be deposited to State Consumer Welfare Fund of this Forum.

          Op no.1 is directed to comply the order very strictly otherwise penal measures would betaken against them for which they shall be liable and even after that further penalty of Rs.10,000/- may be imposed against op no.1.