1. Heard Mr. Rajan Mishra, Advocate, for the petitioners and Mr. Mohit Kumar Daraad, Advocate, for the respondent. 2. Shriram General Insurance Company Limited (the opposite party) has filed above revision petition from the order of State Consumer Disputes Redressal Commission, Himachal Pradesh dated 19.04.2016 passed in Appeal No.15 of 2016 (arising out of order of District Consumer Disputes Redressal Forum, Sirmour at Nahan dated 12.10.2015 passed in CC/43/2011), whereby District Forum has allowed the complaint and directed the petitioners to reopen the case of the complainant and after taking report of the surveyor take fresh decision and State Commission has allowed the appeal of the respondent and consequently allowed the complaint and directed the petitioners to pay Rs.150000/- as insurance claim, Rs.20000/- as compensation for harassment and Rs.10000/- as litigation costs. 3. Dharam Singh (the respondent) filed CC/43/2011, for directing Shriram General Insurance Company Limited (the Insurer) to pay Rs.150000/- as insurance claim, Rs.100000/- as compensation for harassment and Rs.5000/- as litigation costs. The respondent stated that he had purchased a TATA-INDICA DLS BS II, having Chassis no.600132AUZP03813 and Engine No.475D105AUAUZP02351, Registration No. HP 01 S 0364 and obtained Commercial Vehicle Package Policy No.107013/31/11000601 for the period of 16.06.2010 to 21.05.2011 from the opposite party. On 21.06.2010, when the car was parked outside of the Klitch Drug India Limited at Nihalgarh and the son of the complainant was standing there, at about 6:30 pm, Sh. Tilak Raj and Deep Chand along with others, named in FIR, armed with weapons came there and broke the car, threw oil on it and lit fire, due to which, the car was totally burnt. F.I.R. No.213 dated 21.06.2010 was lodged of the said incident. The complainant intimated the incident to the Insurer on 21.06.2010, on which, the Insurer appointed Mr. Harsh Kumar Chopra as the surveyor. The surveyor inspected the vehicle on 23.06.2010 at the place of incident. As desired by the surveyor, the papers were handed over to him for assessment of the loss. However, the Insurer, vide letter dated 20.12.2010, closed the claim on the ground that on the date of incident, fitness of the car has expired. 4. The petitioner filed its written reply and admitted issuance of the Commercial Vehicle Package Policy No.107013/31/11000601 for the period of 16.06.2010 to 21.05.2011. The petitioner stated that the vehicle was registered as commercial vehicle and on the date of incident its ‘permit’ and ‘fitness’ had expired. The vehicle was being plied without ‘permit’ and ‘fitness’, in violation of the terms of the policy. The surveyor submitted his report dated 27.06.2010, observing that as loss had not occurred accidently, as such, investigator may be appointed. The Insurer, then, appointed an investigator. The Investigator, vide his letter/reminders dated 13.07.2010, 17.08.2010 and 30.08.2010, demanded the papers relating to ‘Permit’ and ‘Fitness’ of the vehicle but the complainant failed to supply these documents. The Investigator collected information from the office of the concerned Regional Transport Authority and submitted his report dated 10.12.2010, stating that ‘Fitness’ was valid till 11.04.2007 and ‘Permit’ was valid till 20.04.2010. On the date of incident dated 21.06.2010, ‘Permit’ and ‘Fitness’ were expired. The claim was closed vide letter dated 20.12.2010 as the vehicle was being plied, in violation of the terms and condition of the policy. The complaint is liable to be dismissed. 5. District Forum, after hearing the parties, vide its judgment dated 12.10.2015, held that as the claim was closed on the ground that the complainant had not responded to the various letters of the surveyor as such, the claim be reopened and after obtaining fresh report from the surveyor, the Insurer may take fresh decision on merit and directed the Insurer to reconsider the claim. The respondent filed Appeal No.15 of 2016 from the order of District Forum. State Consumer Disputes Redressal Commission, Himachal, vide order dated 19.04.2016, held that the surveyor in his report has found total loss of the vehicle as such the insurance claim for IDV Rs.150000/- was liable to paid and the Insurer has illegally closed the claim. On these findings, the appeal was allowed by State Commission. Hence this revision has been filed. 6. We have considered the arguments of the parties and examined the record. The petitioner closed the claim, vide letter dated 20.12.2010, on the ground that on the date of incident ‘Fitness’ of the vehicle had expired, which was violation of the terms & condition of the policy. Investigator has reported that ‘Fitness’ was valid till 11.04.2007 and ‘Permit’ was valid till 20.04.2010 while incident in which total loss of the vehicle occurred on 21.06.2010. These factual aspects are not challenged by the respondent. 7. Supreme Court in Ashok Kumar v. New India Assurance Co. Ltd., (2024) 1 SCC 357, held as follows:- 30. It is well settled in a long line of judgments of this Court that any violation of the condition should be in the nature of a fundamental breach so as to deny the claimant any amount. (See Manjeet Singh v. National Insurance Co. Ltd., (2018) 2 SCC 108, B.V. Nagaraju v. Oriental Insurance Co. Ltd. v. Oriental Insurance Co. Ltd., (1996) 4 SCC 647, National Insurance Co. Ltd. v. Swaran Singh , (2004) 3 SCC 297 and Lakhmi Chand v. Reliance General Insurance [Lakhmi Chand v. Reliance General Insurance, (2016) 3 SCC 100.) 42. National Insurance Co. Ltd. v. Nitin Khandelwal, (2008) 11 SCC 259 and Amalendu Sahoo v. Oriental Insurance Co. Ltd., (2010) 4 SCC 536 lay down the correct formula that where there is some contributory factor, a proportionate deduction from the assured amount would be all that the Insurance Company can aspire to deduct. We are inclined to accept the plea of the appellant that in the case at hand, on the facts governing the scenario, Clause (iii) of the Table set out in para 14 of Amalendu Sahoo [Amalendu Sahoo v. Oriental Insurance Co. Ltd., (2010) 4 SCC 536 is attracted and the District Forum and the State Commission were justified in awarding the entire 75% of the admissible claim. 8. Supreme Court in National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297, held that even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insurer under Section 149(2) of the Act. 9. In the present case loss has occurred as some miscreants, armed with weapons came and broke the car, threw oil on it and lit fire, due to which, the car was totally burnt. The Investigator/Surveyor/Insurer have not doubted the cause of loss. Breach of the policy terms that the vehicle was plied even after expiry of its ‘Fitness’ and ‘Permit’ have no correlation with/contributed to the loss of the vehicle, as such, it cannot be treated as of fundamental nature. In view of the law laid down by Supreme Court, the claim has to be settled on non-standard basis i.e. 75% of the sum insured. State Commission has awarded 100% of the sum insured as such order of State Commission is liable to be modified. ORDER In view of aforesaid discussions, the revision is partly allowed. The order of the State Consumer Disputes Redressal Commission, Himachal Pradesh dated 19.04.2016 passed in Appeal No.15 of 2016, is partly modified to the extent that the petitioner shall pay 75% of sum insured i.e. Rs.150000/- with interest @9% per annum from the date of filing of the complaint. Rest portion of the order is affirmed. |
