Present         (1)     Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                                         

                    (2)     Smt. Karishma Mandal,

                              Member

Date of Order : 27.02.2018

                    Nisha Nath Ojha

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

1. To direct the Insurance Company to pay the claim amount of Rs. 6,18,000/- to the complainant along with interest as well as compensation and litigation cost.

2. The facts of this case lies in a narrow compass which is as follows:-

The complainant has asserted that he has purchased a vehicle being Bolero SLX MID for his personal use from Sonali Auto Pvt. Ltd. Patna in 2011 after taking loan from HDFC Bank. The monthly installment of the aforesaid vehicle was fixed as Rs. 11,438/- per month. The complainant has purchased a private car package policy for the said vehicle from opposite party no. 1 and 2 for a period of 1 years from 18.08.2011 to 16.08.2012 for total sum of Rs. 6,18,000/-. After purchasing the aforesaid vehicle, the vehicle was registered with Patna DTO being registration no. BR 01PC 6481 ( vide annexure – 1 series).

It is further case of the complainant that on 24.03.2012 the complainant came to his nursing home situated at Gurhatta and parked his vehicle in front of main gate of Guru Gobind Singh Hospital. The same vehicle remain parked there till morning of 4:15 AM on 25.03.2012. at about 6:00 AM when complainant came at the parking place in order to proceed for his home then he noticed that vehicle was not there and the same was stolen. The complainant thereafter lodged the FIR with Khajekalan P.S. being P.S. case no. 39/12 dated 25.03.2012 U/s 379 IPC. Thereafter the police investigated the case and submitted final report bearing no. 124/12 dated 30.07.2012 stating therein that the occurrence is true but clueless.

It further appears that the learned court has accepted the final report vide order dated 26.09.2012. All these documents have been annexed as annexure – 5 series and in the record.

The further case of the complainant is that after the occurrence of theft he immediately reported the occurrence of theft to insurance company but his claim has been repudiated on the ground that the aforesaid vehicle being a private car was being used as a Taxi. The complainant has annexed all the relevant documents including retail invoice, registration documents Insurance documents etc. which have been marked from annexure – 1 to 5 and annexure – 6 is the rejection of claim by opposite parties. It appears from annexure – 6 that the claim has been repudiated for violence of condition no. 8.

On behalf of opposite party no. 1 and 2 a show cause cum written statement has been filed admitting the purchase of private car package policy which has been annexed as annexure – 1 of the written statement.

In Para – 10 and 11 of written stating the opposite party no. 1 and 2 has asserted following facts, “that the complainant misrepresented in proposal form that the vehicle is new and is a private car whereas the same is taxi the insurance company informed the complainant vide letter dated 05.12.2012 ( annexure – VI of the complaint petition) that his claim s not tenable due to violation of policy terms and conditions.”

“that the complainant suppressing the facts filed this false and frivolous case. It is relevant to mention here that only due to latches of the complainant the insurance company constrained to repudiate his claim.”

Heard the learned counsel for the parties in detail and perused the record.

The learned counsel for the opposite party no. 1 and 2 has vehemently stated that insurance is based on observation of terms and condition agreed between the parties.

It has been further submitted that the complainant by getting the vehicle in question insured under private car package policy has used the same as Taxi which is clear violation of terms and condition of the contract, the details of which mentioned in the repudiation letter annexed by the complainant as annexure – 6.

Replying the aforesaid submission, the learned counsel for the complainant has submitted that in the case of theft the fact whether the aforesaid vehicle was private or Taxi is not essential and even if there is violation of terms and condition, despite that the opposite party no. 1 and 2 are bound to give 75% of the aforesaid insured amount of Rs. 6,18,000/-. He has relied on a Judgment of Hon’ble Apex Court reported in 2008 (3) PLJR SC 417 National Insurance Company Ltd. Vrs. Nitin Khandelwal.

We have perused the aforesaid citation of Hon’ble Apex Court carefully.

We think to quote Para – 13, 14 and 16 of the aforesaid Judgment which are as follows, “in the case in hand. The vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant – insurance company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy. The appellant – insurance company ought to have settled the claim on non – standard basis. The insurance company cannot repudiate the claim in toto in case of loss of vehicle due to theft.”

“in the instant case, the state commission allowed the claim only on non – standard basis, which has been upheld by the National Commission. 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 the vehicle cannot be looked into and the insurance company cannot repudiate the claim on that basis.”

“the state commission has allowed only 75% claim of the respondent on non – standard basis. We are not deciding whether the state commission was justified in allowing the claim of the respondent on non – standard basis because the respondent has not filed any appeal against the said order. The said order of the state commission was upheld by the National Commission.”

We are of the opinion that the case is covered under aforesaid Judgment of the Apex Court. Hence the complainant is entitled to receive 75% of total insured amount of Rs. 6,18,000/-.

We therefore find and hold that by not paying insurance covered to the complainant the opposite party no. 1 to 2 has committed great deficiency.

We therefore direct the opposite party no. 1 and 2 to pay 75% of the insured amount to the complainant through H.D.F.C. Bank Ltd. ( opposite party no. 3) within the period of two months from the date of receipt of this order or certified copy of this order failing which opposite party no. 1 and 2 will have to pay 10% interest on the above mentioned 75% of the insured amount till its final payment.

Opposite party no. 1 and 2 are further directed to pay Rs. 25,000/- ( Rs. Twenty Five Thousand only ) to the complainant by way of compensation and litigation costs within the aforesaid period of two months.

Accordingly, this complaint stands allowed to the extent referred above.

                             Member                                                                              President

                                                                                                           President –    Nisha Nath Ojha,   

                                                                                                                         District & Sessions Judge (Retd.

                                                                                                              Member -  SMt. Karishma Mandal