STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

New India Assurance Company Limited, through its Manager, K.B. Bindal, SCO.36-37, Sector 17A, Chandigarh. (complaint address -New India Assurance Company Limited SCO No.104-106, Sector 34-A, Chandigarh).

……Appellant

V e r s u s

Harinder Singh, son of Gurdev Singh, resident of House No.424, Sector 33-A, Chandigarh

              ....Respondent  

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:    JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

                   SH.JAGROOP SINGH MAHAL, MEMBER.

Argued by:  Sh.Rahul Sharma, Advocate proxy for Mrs.Veena Ashwani Talwar, Advocate for the appellant.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.             This appeal is directed against the order dated 02.12.2011, rendered by the District Consumer Disputes Redressal Forum -I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, and directed the Opposite Party (now appellant), as under:-

“In view of the foregoing, in our opinion, this complaint is allowed and is accepted in favour of the complainant and against the insurance policy, by way of which the OP is directed to pay IDV amount of Rs.1,80,000/- to the complainant.  It is also directed to pay Rs.25,000/- to the complainant as compensation for mental agony and harassment, besides Rs.7000/- as litigation costs.

The order shall be complied with by the OP within a period of 30 days from the date of receipt of copy of this order, failing which OP shall pay penal interest @ 12% on the awarded amount from the date of filing of the complaint i.e. 10.5.2011 till its realization besides paying litigation cost of Rs.7000/-”.

2.           The facts, in brief, are that the complainant, being the registered owner of Toyota Qualis bearing Registration No.CH-04-J-2784 (wrongly mentioned in the complaint as CH-01-J-2884), got insured the same, with the Opposite Party for the period from 17.5.2010 to 16.5.2011, for the Insured Declared Value (hereinafter to be referred as IDV) of Rs.1,80,000/-.  On 29.11.2010, when the vehicle was being driven by Satinder Singh, Driver of the complainant, for going to Pehowa, on the way, he was approached by three young boys, one of whom was having plaster, on his leg and arm, for giving them lift. He gave them lift, in the vehicle, in question. When they reached Markanda, one of the three boys asked the driver to stop the car, to answer the call of nature. The car was stopped. That boy went out, in the fields, and after about five minutes, when he came back, the boy with plaster caught the driver from behind, and the third boy, put a revolver on his head. They put handkerchief on the eyes and mouth of the driver, and tied him with a  knot. The driving licence of the driver, his mobile handset, besides Rs.950/- cash, alongwith vehicle, were taken away by those miscreants. The driver was thrown out of the vehicle. Thereafter, the driver managed to remove the handkerchief from his mouth and shouted for help. Some villagers, from the nearby village, came and saved him from danger. The driver, immediately, reported the matter to the Police, as a result whereof FIR No.135 dated 30.11.2010, was registered, at Police Station Ismailabad, District  Kurukshetra. The vehicle could not be traced by the Police. The complainant, filed an insurance claim, with the Opposite Party, but it refused to pay the claim, vide letter Annexure C-4 dated  02.02.2011, on the ground, that the vehicle, was being used as Taxi for commercial purpose, at the time of theft. It was stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.

3.             The Opposite Party, put in appearance, and filed its written version, wherein, the  factual matrix of the case was admitted. It was stated that the vehicle, in question, was being used, in contravention of the terms & conditions of the Insurance Policy (Annexure R-1), as the same(vehicle),  was insured under the Standard Private Car Package Policy, but it was being plied for hire and reward i.e. commercial purpose.  It was further stated that, thus,  the claim was not payable, under the terms & conditions of the Insurance Policy. It was further stated that, therefore, the claim, was rightly repudiated vide letter dated 02.02.2011 Annexure R-4. It was denied that there was any deficiency, in rendering service, on the part of the Opposite Party. The remaining averments, were denied, being wrong.

4.             The Parties led evidence, in support of their case.

5.             After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

6.             Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.

7.             We have heard the Counsel for the appellant, and, have gone through the evidence and record of the case, carefully. 

8.             The Counsel for the appellant, submitted that since the vehicle, in question, was got insured, by the insured, under the Standard Private Car Package Policy, but the same was being used as a taxi, in violation of the terms and conditions of the said policy, the claim was rightly repudiated. He further submitted that, no doubt, the Investigator was appointed by the Opposite Party, who gave report to the effect, that it was a case of genuine theft. He further submitted that, since the parties were bound by the terms and conditions of the policy, aforesaid, any breach thereof, by the complainant was sufficient to invalidate his claim. He further submitted that the District Forum, was wrong, in coming to the conclusion,  that the complainant was entitled to indemnification of the IDV of the vehicle, theft in respect whereof, was committed.  He further submitted that the order of the District Forum, being illegal, is liable to be set aside.

9.             After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, and the evidence, on record, we are of the considered opinion, that the appeal is liable, to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter. There is, no dispute, about the factum, that the vehicle, in question, was got insured by the complainant, for the period from 17.05.2010 to 16.05.2011, under the Standard Private Car Package Policy. It is also not disputed, that when the lift was given by the driver of the complainant, to three unknown persons, they overpowered him, and snatched the vehicle, as also his belongings, aforesaid, and threw him out. No doubt, the vehicle, in question, was being used as a taxi, at the time, the incident took place.. The question, that arises, for consideration, is, as to whether, the claim of the complainant, could be repudiated, only on the ground, that it (vehicle), was being used as a taxi, for commercial purpose, in violation of the terms and conditions of the policy. In our considered opinion, the claim of the complainant, could not be lawfully repudiated, on this ground alone. Breach of the condition of the insurance policy, by using a private vehicle, as taxi, was not fundamental and germane to the theft of the same. In Niharika Maurya Vs. New India Assurance Company Ltd., and Ors. II (2011) CPJ 241 (NC), Tata Sumo vehicle, bearing Registration No.BR-IP-7998, was insured comprehensively with the New India Assurance Company Ltd., for a sum of Rs.4,80,605/- on 22.09.2002. The policy was valid from 29.09.2002 to 28.09.2003. On 19.05.2003, when the vehicle, which was driven by Vinod Singh, driver, did not return to Patna, till late night. The vehicle could not be traced. The petitioner lodged the FIR, with the Police, on 22.05.2003, and, subsequently, came to know from her driver that the vehicle was forcibly stopped on 19.05.2003, near Hazipur, and three miscreants entered the same, and, ultimately, snatched the same. The claim of the complainant was settled to the extent of 49% of the total claim of Rs.4,80,605/-, on non-standard basis, on the ground, that  though the vehicle was got insured, as a Standard Private Car Package Policy, but the same was being used for commercial purpose. On complaint, having been filed by the complainant, for payment of full insured declared value of the vehicle, the District Forum, allowed the same. Feeling aggrieved, the Insurance Company, filed an appeal, before the State Consumer Disputes Redressal Commission. The State Consumer Disputes Redressal Commission, held, that since the vehicle, was being used for commercial purpose, in violation of the terms and conditions of the policy, the Insurance Company, was justified in settling the claim on non-standard basis.

10.           Feeling aggrieved, against the order of the State Consumer Disputes Redressal Commission, the complainant, filed Revision Petition, wherein, the Hon`ble National Consumer Disputes Redressal Commission, while relying upon National Insurance Company Ltd. Vs. Nitin Khandelwal, IV (2008) CPJ 1(SC)=(2008) 11SCC259, held that, in the case of theft of vehicle,  violation of the terms and conditions of the policy, that the same (vehicle), was being used for commercial purpose was not germane and fundamental to the same (theft), and, as such, the claim of the complainant, could not be repudiated, on this ground. Ultimately, the Hon`ble National Consumer Disputes Redressal Commission, accepted the Revision Petition, and restored the order of the District Forum, holding that the petitioner/complainant, would be entitled to reimbursement of the entire loss caused, due to theft. The facts of  Niharika Maurya`s  case (supra), are similar and identical to the facts of the instant case. The principle of law, laid down, in Niharika Maurya`s  and National Insurance Company Ltd.`s cases (supra),  is fully applicable to the facts of the instant case. Under these circumstances, the District Forum, was right, in coming to the conclusion, that repudiation of the claim of the complainant, on the ground, that the vehicle  was being used for commercial purpose, in breach of the terms and condition of the insurance policy, was illegal and invalid. The District Forum, was also right in holding, that the Opposite Party, was grossly deficient, in rendering service. The District Forum, was also right, in holding, that the complainant was entitled to the insured declared value of the vehicle. In this view of the matter, the submission of the Counsel for the appellant, being devoid of merit, must fail, and the same stands rejected.

11.         No other point, was urged, by the Counsel for the appellant.

12.         The order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

13.         For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.

14.         Certified Copies of this order be sent to the parties, free of charge.

15.         The file be consigned to Record Room, after completion

Pronounced.

February 6, 2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

Rg