Present         (1)     Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                                         President

                    (2)     Smt. Karishma Mandal,

                              Member

Date of Order :  06.11.2015

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. This complaint is for total compensation of Rs. 8,50,000/- ( Rs. Eight Lakh Fifty thousand only ) which includes cost of stolen Bolero which is estimated at the time of theft i.e. depreciated value Rs. 4,46,783/- ( Rs. Four Lakh Forty Six Thousand Seven Hundred Eighty Three only ) as well as Rs. 3,50,000/- ( Rs. Three Lakh Fifty thousand only ) as Compensation and Rs. 20,000/- ( Rs. Twenty Thousand only ) as litigation costs.

2. Brief facts of the case which led to the filing of complaint are as follows:-

The complainant purchased Bolero Jeep bearing Registration No. BR – 01PB – 0265 for his personal use and the said vehicle was hypothecated by opposite party no. 2 State Bank of India, Bikram Branch, Patna. At the time of theft the vehicle was parked at the house of the driver namely Jitendra Singh who was driving the vehicle since three months. The vehicle was parked at the house of driver since about one month. The vehicle was parked by the driver on 22.06.2010 as good as it was parked formerly on 23.06.2010 when the driver went near the vehicle where he parked the vehicle he did not find the said vehicle. Thereafter the driver searched the vehicle hectically everywhere but could not found. The driver informed the owner Sri Ajay Kumar Pathak that the vehicle was stolen. Driver of the said vehicle met with the owner of the said vehicle and Paliganj P.S. case No. 127/2010 dated 23.06.2010 under section379 IPC registered by Paliganj Police Station on the statement of the owner of the said vehicle. ( Vide Annexure – 1 )

Thereafter the complainant informed the opposite party no. 1 Insurance Company about the incident of theft of Bolero bearing No. BR – 01PB – 0265 claim No. 210/156387 was lodged by the Insurance Company and required documents were demanded by the Insurance Company from the complainant, the complainant submitted all required documents as demanded by the Insurance Company. ( Vide Annexure – 2 and 3 )

The Bolero Car bearing registration no. BR 01PB 0265 engine no. GF94K95176 chasis no. MAIXA2GF95K7308 was insured with Reliance General Insurance Company Ltd. w.e.f. 03.11.2009 to 02.11.2010. The policy was issued from opposite party no. 1 Act the material five of incident of theft of the Bolero vehicle was insured with opposite party no. 1 Reliance general Insurance Co. Ltd. (Annexure – 4 and 5)

The police investigated the matter of theft of Bolero Jeep and after investigation found the incident of theft of Bolero as true and thereafter final form was submitted by the police investigating officer before A.C.J.M. Danapur. The learned A.C.J.M. Danapur accepted the final form. (Annexure – 6 and 7)

The insurance company deputed the surveyor who contacted the complainant for survey or has got written some technical worch from the complain and assured the complaint for absolutely settlement of the claim of the complaint. But the claim was still pending till today and the Bank interest is growing day to day and thus the complainant is facing mentally physically and eronomically loss due to deficient and negligent service on the part of the opposite party no. 1 and 2 Reliance Insurance Company. The Insurance Company is sitting tight over the matter. It shows gross negligent service on the part of the opposite party no. 1 and 2.

The Insurance Company has given letter dated 9^th June 2010 which was received by the complainant on 2^nd July 2011. The letter has been given by the Insurance company prior to theft of the vehicle because the theft occurred on 23.06.2010 and the letter has been given 9^th June 2010. Hence the letter is frivolous vexatious and concocted. Letter of repudiation is not justified because the vehicle was never used on him and reward and hence the granted taken by the company is entirely baseless. (Annexure – 8)

The real fact is that the investigation investigator appointed by the Insurance Company demanded Rs. 50,000/- from the complaint for setting the claim when the complaint denied to pay Rs. 50,000/- to the surveyor or loss assessor frivolous grand has adopted by the Insurance Company. The complainant wrote a letter to Reliance Insurance Company in connection with illegal demand of Rs. 50,000/- by the survey or loss assessor from the complainant for settling the claim received by the information has already given to officials of the Insurance Company but still today the claim is pending. (Annexure – 9)

The opposite party without considering the facts and circumstances repudiated the claim of the complainant on 09.06.2010 prior to theft of the vehicle. The repudiation is legally not sustainable in the eye of law as well as terms of policy.

The cause of action initially arose on 23.06.2010 and exactly on 19.07.2011 as such the complaint is within limitation.

The learned forum has territorial as well as peculiar jurisdiction to entertain the claim of the complainant.

3. The Opposite Party no. 1 and 2 in their written statement as well as Additional Written Statement has submitted as follows :-

1. The complainant purchased Bolero no. BR 01PB 0265 for his perusal use and its Insurance vide policy no. 2401792311004867 valid from 03.11.2009 to 02.11.2010 was done by the present opposite party. ( Annexure 4, page no. 21)
2. The complainant’s vehicle was stolen on 23.06.2010 in the morning from the possession of his driver, Jitendra Singh. ( Annexure – 1, Page 13)
3. The investigator/surveyor submitted their report dated 23.08.2010 to the opposite party and from this report is becomes clear that Insured used his vehicle for commercial purpose and he has also admitted this fact that his vehicle was used for hire. ( Annexure – A)
4. Hon’ble Supreme Court in United India Insurance Co. Ltd. and others versus Roshan Lal Oil mills Ltd. and other [(2000) 10 SCC Page 19] held that non consideration of survey report has resulted in miscarriage of justice and set aside the judgment passed by the commission. Hon’ble Court remanded the matter for fresh hearing. The surveyor report is important evidence and it has to be considered, for settling the claim.
5. The opposite parties are bound to accept the surveyor report, Insurance Act, provides for appointment of a surveyor in the case of accident/THEFT and its report cannot be ignored by the Insurance Co.
6. Surveyor is a person who has technical knowledge of motor vehicle and they are given License by Govt. authorities to assess the loss. He is an independent person, he is not an employee of the Insurance Co. The Insurance Company cannot function on the whims of the complainant, it has to follow the rules prescribed of Govt. of India.
7. There is no deficiency of service on the part of the opposite parties and this case is not maintainable as the complainant is not a as he consumer used his vehicle for commercial purpose.

4. The Complainant in his rejoinder to the written statement has submitted as follows :-

1. In the present case the opposite party neither denied incident of theft of the vehicle nor the policy of the said vehicle and hence on this score only the claim as filed by the complainant is maintainable on facts as well as legally sustainable.
2. As per statement made in the written statement by the opposite parties are fully imaginary and baseless and was given only to harassing and lingering attitude of the opposite parties because the surveyor of the opposite parties never told in his survey report that the claim of the complainant is not payable.
3. It is further submitted by the complainant is that the survey report is not final as per several judgments of the Hon’ble National Commission as well as Hon’ble Supreme Court of India and this score only the additional written statement filed by the opposite parties by dismissed with cost.
4. With reference to the statement made by the Insurance Company is that the Insured complainant has only given the vehicle in question rarely to identified person and hence it is wrong to say that the vehicle was used commercially the opposite parties have not produced any evidence in support of the same.
5. The vehicle in question which was stolen by the theft has not stolen in course of commercially use. The said vehicle was parked at the residence of the driver of the vehicle and in those circumstances it is wrong to say the vehicle was used commercially.
6. The complainant never violated the terms and condition of the policy the opposite parties have taken commercial use of the vehicle only to harass the genuine claim of the complainant. This stand of the opposite parties clearly shows that the opposite parties are deficient and negligent to performing their duty and on this score additional written statement filed by the complainant be rejected with cost and complaint filed by the complainant be allowed.
7. As per judgment passed in Nitin Khandelwal case in civil appeal no. 3409/2008 reported in (2008) 3 PLJR 417 Supreme Court in the case of theft of vehicle breach of condition is not jermane. The Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused the insurer. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.

The fact of the case has been briefly narrated in the foregoing paragraphs.

It is the case of the complainant that complainant has purchased a Bolero which was use to be ply by driver Jitendra Singh. The complainant himself use the vehicle to go to the school as well as personal works. The aforesaid Jeep was parked by the driver of the vehicle at the door of the house of the driver on 22.06.2010 and in the morning of 23.06.2010 complainant was informed that his vehicle has been stolen and thereafter the F.I.R. was instituted as Annexure – 1. Thereafter the police investigated the matter and the occurrence was found to be true as will appear from Annexure – 6 which is final report. The aforesaid report was accepted by the learned court as will appear from Page 27 of the complaint petition. It appears that Vide Annexure – 2 the complainant filed claim petition with opposite party no. 1 with several relevant documents as will mention in Annexure – 2. The opposite party no. 1 repudiated the claim of the complainant Vide Annexure – 8 on the ground that “ the vehicle was frequently used for hire and remand. Hence at the time of theft vehicle was used as other than its purpose ”. On behalf of opposite party no. 1 and 2 written statement has been filed in which it has been asserted that the vehicle was given to customer on hire charges and that is why the vehicle was kept by the driver. It has been further stated that it was the duty of the complainant to take protection of the vehicle in which the complainant failed. It has been further stated in additional written statement that the opposite parties are bound to accept survey report because he has technical knowledge and repudiation has been done on the basis of survey report. ( the report of surveyor has been Annexed as Annexure – A ) in para – 5 of the written statement “ that there is no deficiency on the part of opposite parties and this case is not maintainable as the complainant is not a consumer as he used his vehicle for commercial purpose”. On behalf of the complainant a rejoinder has been filed stating therein that the complainant violated the terms and conditions of opposite parties. He has denied the charges of negligence and violation of the policy.

It is needless to say that the only ground of repudiation is that the aforesaid vehicle was used for commercial purposes and the complainant did not take proper protection of the vehicle.

It is needless to say that now it has been settled by Hon’ble Apex Court that the Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft. He Hon’ble Apex Court of India in citation reported in (2008) 3 PLJR 417 National Insurance Company Vrs. Nitin Khandelwal ( Civil Appeal No. 3409/2008 ) has been pleased to hold as follows in para – 14 of the aforesaid judgment “ on consideration of the totality of the facts and circumstances in the case, the law seems to be well settled that in case of theft of vehicle, nature of use of vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis”.

It is needless to say that opposite party no. 1 and 2 are bound to allow the Insurance claim of the complainant in terms of law declared by the Hon’ble Apex Court referred above. We therefore hold that by repudiating the claim of the complainant on the ground of using the vehicle commercially the opposite parties have committed deficiency.

We therefore direct the opposite party no. 1 and 2 to pay the Insurance amount i.e. Rs. 4,46,783/- ( Rs. Four Lac Forty Six Thousand Seven Hundred Eighty Three only ) to the complainant through the opposite party no. 3 within three months from the date of receipt of this order or certified copy of this order failing which the opposite parties have to pay interest @ 10% per annum on the aforesaid amount till it is paid finally.

We further direct the aforesaid opposite party no. 1 and 2 to pay Rs. 25,000/- ( Rs. Twenty Five Thousand only ) by way of compensation and litigation costs to the complainant through opposite party no. 4 within three months as indicated above.

Accordingly, this case stands allowed to the extent indicated above.

                                        Member                                                                   President