ORDER  

26.05.2017

Smt. Renu Sinha, Member (F)  

                           The present appeal is directed against the order dt. 14.09.2015, passed by the District Forum, Siwan, in Complaint Case No. 192/14, wherein it was directed to ops NIC to pay the complainant the insured amount the Bolero vehicle BR-29-H-7726 within two months and to pay further Rs. 5,000/- as compensation and Rs. 2,000/- as litigation cost.

2.                         The complaint case filed by the complainant in the District Forum alleging deficiency in service against the ops National Insurance Co. for nonpayment of the amount against the loss of Bolero vehicle due to theft on 31.03.12 and even after final investigation report of the police found the case of theft as true and submission of all relevant documents to insurance Co. as demanded for settlement of the claim, repudiated on 31.05.14 on grounds of violation of policy condition, being disappointed the complainant filed a complaint case in District Forum seeking relief of payment of the amount against the loss of insured vehicle due to theft within valid period of the policy with compensation and litigation cost. The ops Insurance Co. contested the matter taking the stand that the vehicle of the complainant insured with the ops Insurance Co. for private use only but as per the settlement of the driver before Police it was found used for commercial purpose who was stopped by unknown man with his family and on request to carry to Thaway Temple the driver agreed and on the next day when the driver went to meet natural call leaving the key with the vehicle itself on request of the child girl, on return found the vehicle missing from the parking place, which confirmed the vehicle was on hire and the driver left the key in the vehicle a gross negligence on the part of driver who left the vehicle unattached at the mercy of miscreants, so the Insurance Co. not liable to pay claim against the loss as there was violation of policy condition and the repudiation justified. The district Forum after hearing the parties and on consideration of the materials produced as evidences on their behalf, taking note of the statement of the driver before Police that after dropping the complainant while on way to his residence village Pratppur near Siwan station a man with family requested to carry them to Thaway Temple was initially denied saying the vehicle is for Private use only but on persistence request, the driver agreed to carry them to Temple on the next morning found the vehicle missing from parking place and the police investigation Final report found the case of theft as true and there was no any documentary evidence produced by the Insurance Co. establishing the facts that the said vehicle was used for commercial purpose, mere on the basis of statement of the driver before police that he carried a family to Thaway Temple with purpose to help, held the stand that the vehicle was used as commercial purpose taken by the Insurance Co. for the repudiation of the claim, not proved and accordingly passed the impugned order allowing the claim of the complainant with compensation and litigation cost.

3.                  Being aggrieved with the order of the District Forum, the appellant Insurance Co. have come in appeal stating that the alleged claim of the respondent/complainant repudiated on proper consideration of the ground of violation of policy condition therefore loss due to theft is not tenable. The order passed by District Forum allowing the claim not proper and fit to be set aside.

4.                     Heard the counsel for the appellant Insurance Co. We have also heard the counsel for the respondent. Perused the materials available on record along with the impugned order in detail.

5.                      Admittedly, the vehicle of the complainant/respondent was insured for sum of Rs. 4,99,917/- only with appellants, covering such risk for the period from 31.04.11 to 12.04.12 for Private use only and the incident of theft occurred on 31.03.12 which is within the valid period of the policy and it appears that immediately after the incident of theft of vehicle, the FIR was lodged to concerned police station and information of the incident was given to the Insurance Co. and the police investigation Final Report found the case of theft as true and the insurance claim was repudiated on 31.05.14 on the grounds of violation of policy condition on the basis of settlement of the driver holding the vehicle used for commercial purpose by the Insurance Co.

6.                Now the point for the consideration is whether the said vehicle of the complainant which was insured for Private use only, used as commercial purpose by the insured or not. In this regard, except the statement of the driver before the Police stating under compelling circumstances and with motive to help decided to carry a family with a child to Thaway Temple is not credible evidence to establish the vehicle was used for commercial purpose violation of policy condition when no any documentary evidence has been brought on record by the insurance co. in support of their stand. Under the circumstances, we are of the opinion that the findings of the District Forum holding deficiency in service on part of the appellant Insurance Co. for non payment cannot said to be faulted. In view of above facts and circumstances, the impugned order appears quite justified and legal as such not inclined to interfere the same which stands confirmed. The insured complainant/respondent is entitled to get the insured amount of Rs. 4,99,917/- as per the policy issued against the Bolero vehicle BR-29H-7726 on account of loss due to theft.

7.                In result, the order of the District Forum is affirmed. We do not find any merit in the present appeal and same stands dismissed.

            S.K. Sinha                        ( Upendra Jha)                     (Renu Sinha)                    

             President                       Member(M)                          Member (F) 

           Mukund