The complainant Sri Lakshmi Kant Pd. Yadav, has filed this complaint petition against Branch Manager, National Insurance Company Ltd. Branch office J.K. Complex Ramdayalu Nagar for realization of Rs. 4,80,000/- as value of tractor, Rs. 80000/- as economical loss and Rs.60000/- as Monthly loss.
The brief, facts of the case is that the complainant purchased a tractor of Messi Farguson Registration No.- BR-06G-8523. The aforesaid tractor was insured with o.p. Insurance Company Ltd., bearing Policy No.-170604/47/12/9700000540 validity dated 06-12-2012 to 12-11-2013. The further case is that the aforesaid tractor was being driven by the driver and the same was returning from Muzaffarpur after servicing but the same was snatched away by unknown miscreants. on the point of pistal, for which Karza P.S.Case No.-182/2013 u/s-392 IPC was registered. After investigation Police Submitted Final Form showing ‘the case true but no clue’. The further case is that the complainant approached many times in the office of the o.p for claim of the insurance but the o.p didn’t pay the same. At last, he sent a legal notice on 07-06-2013. The o.p replied the same on 21-07-2016 with wrong facts.
The complainant has filed the following documents with the complaint petition- Photocopy of FIR of Karza P.S. Case No. 182/2013 -annexure-1 photocopy of Certificate of Registration -annexure-2, photocopy of Retail Invoice of Tractor –annexure-3, photocopy of Tax Token -annexure-4, photocopy of certificate of Insurance -annexure-5.
On issuance of notices, o.p appeared and filed his w.s. on 02-02-2018 with prayer to dismiss the complaint petition. It has been mentioned in the w.s. that the case as filed is not maintainable and the complainant has no cause of action against o.p. It has been further mentioned in the w.s. that the o.p has rightly denied the claim of the claimant on legal ground of violation of the term and condition of the policy as the tractor in question vide Regn. No.-BR06G-8523 was registered for commercial purpose while policy is issued only for agricultural purpose, hence, there is no deficiency of the service of this o.p. It has been further mentioned that as per D.L., driver is allowed to drive L.M.V., but tractor is not endorsed in his license. It has been further mentioned that o.p informed on 21-11-2013 about the said looting of the vehicle on 12-11-2013 after delay of 9 days that is caused repudiation of claim being suspicious and doubtful claim. It has been further mentioned that in reply of the legal notice sent to this o.p dated 09-06-2016, the o.p National Insurance Company found the claim as ‘no claim’ on 21-07-2016. It has been further mentioned that as soon as claim by complainant was lodged, surveyor was appointed, who found the amount of the claimed loss were not material because the complainant has violated the terms and condition of the insurance policy and the driver was not with proper driving license to drive a tractor, was driving the said tractor at the material time.
The complainant has examined himself on affidavit as AW-1. He has also filed a photocopy of D.L. Vinod Ram, photocopy of Certificate of registration of the vehicle along with photocopy of FIR of Karza P.S. Case No.-182/2013 and photocopy of order dated 29-05-2015 passed by J.M. 1st Class Muzaffarpur in G.R. Case No.2552/2013.
O.P has raised first question in the w.s. that the vehicle was registered as commercial, so the complainant is not a consumer within meaning of section 2 (1) (d) of the Consumer Protection Act -1986 and he has violated the terms and condition of insurance on perusal of photocopy of Insurance Certificate -annexure-2, It transpires that the aforesaid tractor was insured with o.p company for agriculture purpose. The registration of the vehicle was tractor (commercial) 102. The case of the complainant is that the tractor was returning from Muzaffarpur after servicing and in the way, the same was looted away by unknown miscreants. The complainant has also supported this version in his examination–in-chief filed on affidavit. There is no case of the o.p that the vehicle was used for commercial purpose. The tractor is used for agriculture purpose and farmers also used the same for carrying their product to the market, so in our view, the act of the tractor at the time of occurrence was under the purview of commercial purpose. In the case of M/S Harsoliya motor V/s National Insurance Company Ltd., First Appeal No.-159/2004 decided on 03-12-2004 Hon’ble National Consumer Dispute Redressal Commision New Delhi, has observed in its findings that at the outset it is to be stated that an insured who takes the insurance policy cannot trade or carry on any commercial activity with regard to the insurance policy taken by him. Under Sec-3 of the Insurance Act-1938 – “No person is permitted to carry on business of insurance unless he obtains a certificate of registration from the Insurance Recovery and Development authority. Hon’ble N.C.D.R.C. has further observed that hiring of services of the insurance Company by taking insurance policy by complainants who are carrying on commercial activities cannot be held to be a commercial purpose. The policy is taken for reimbursement or for indemnity for the loss which may be suffered due to versions perils. There is no question of trading or carrying on commerce in insurance policies by the insured. May be that insurance coverage is taken for commercial activities, carried out by the insured. Hon’ble N.C.D.R.C. further observed in the case that from the aforesaid decision, it is apparently found taking vide meaning of the commercial purpose it would mean that goods purchased or services hiring should be used in any activity directly intended to generate profit. The profit is main aim of commercial purpose. But in a case where goods purchased or services hired in activity which is not directly insured to judicial profit, it would not be commercial purpose.”
No evidence has been adduced on behalf of o.p. to show that the complainant was generating any profit from the tractor. So, an inference can easily be drawn that the tractor was not being used for commercial and mere registration as commercial does not come under the purview of commercial activity.
Another question raised by o.p in his w.s. that the driver as per D.L was only competent to drive L.M.V. vehicle on the material time of incident. On perusal of D.L. of Vinod Ram, it transpires that the same was valid for L.M.V.+ M.J.V, HMV. M.J.M., medium goods vehicle and H.M.V. is Heavy Motor Vehicle. So, it transpires that drive was competent to the driver the vehicle at the material time.
O.P. has also raised receiving of claim after 9 days of delay. This question has been raised on behalf of o.p., so burden of proof lies of his shoulder but no evidence has been adduced on behalf of o.p to show that the complainant filed the intimation/claim after 9 days of delay.
In the case of Om Prakash V/s Reliance General Insurance Company, Civil Appeal No.-15611/2017 decided on 04-10-2017, Hon’ble S.C. has held that rejection of the claims on purely technical ground in mechanical manner will result in the loss of confidence of policy - holder in the insurance industry. If the reason for delay in making claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. If it is also necessary to state here that it would not be fair and reasonable to reject the genuine claim which had already been verified of found to be correct by the investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of the Consumer. It is beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act.”
On the basis of above discussion and directions of the Hon’ble court’ we are of the considered opinion that there is deficiency on the part of the o.p for repudiating the claim of the complainant.
Accordingly, the complaint petition is allowed and the o.ps are directed to pay Rs. 4,80,000/- as value of the tractor and Rs. 10,000/- as litigation cost within two months from the date of order/, on failure they shall be responsible to pay the above amount with 9 % p.a. interest till realization. Let a copy of this order to be furnished to both the parties as per rule.
