01-10-2015 – Due to long and uncertain period of absence of the Members, single member bench of President is functioning in their absence, in view of the order of Hon’ble National Commission in Revision Petition No. 4434 of 2014, in the matter of Mr. Netaji Surrendra Mohan Nayyar -vs- Citibank; and the judgement passed by Hon’ble Kerala High Court in the W.P. (C) No. 30939 of 2010 (N) P.K. Jose -vs- M. Aby & ors.        

2. Heard the parties.
3. This appeal has been filed along with a petition for condoning the delay of about 108 days in filing this appeal.
4. Learned counsel for the respondent contested the prayer for condoning the delay.

5. It appears from the limitation petition, that it is not said therein that free copy of the impugned order was not supplied to the O.P.-Appellant (Insurance Company for short). It is said that the certified copy was ready on 14.4.2015, thereafter, it is said that due to internal process such delay had occurred.

6. It is true that liberal approach is taken while condoning the delay but then each days delay has to be explained satisfactorily. In this case absolutely vague and general grounds are made out for condoning the long delay of about 108 days.

However, in the interest of justice the delay is condoned but on payment of cost of Rs. 5000/- by the Insurance Company to the complainant.

7. On merit, Mr. Ghosh submitted that the vehicle was insured as a private vehicle and the premium was paid accordingly but from the F.I.R. itself, it will appear that the vehicle was used for hire and reward and during course of such use, it was looted by the passengers, who hired the vehicle. Thus, he submitted that the insured himself is guilty of such use of the vehicle and it’s consequent theft. He also submitted that there was no endorsement in the driving licence for plying public service vehicle. Therefore, he submitted that the learned District Forum could not have allowed the claim even on non-standard basis. He also submitted that in any event the order with regard to interest is quite high.

8. On the other, learned counsel appearing for the respondent- complainant supported the impugned order and submitted that the learned District Forum   rightly awarded the claim on non-standard basis in view of the decision of Hon’ble Supreme Court 2008 (3) JLJR (SC) 357.

He also submitted that in reply to the questionnaire, the complainant said before learned District Forum that at the time of lodging of F.I.R., the informant was not in balance mental state due to such occurrence and therefore, the signed on the F.I.R. written by the police. He submitted that the occurrence was not correctly narrated in the F.I.R.

9. In reply, Mr. Ghosh submitted that in that case the complainant should wait the decision of the criminal court.

10. Be that as it may. It appears that the use of the private vehicle for hire and reward was clearly a breach of the Insurance Policy. Therefore, the learned District Forum rightly awarded claim on non-standard basis.

11. However, in the facts and circumstances of this case, I think it proper to modify the operative portion of the impugned order as follows.

12. The Appellant- Insurance Company will pay Rs. 2,32,500/- + Rs. 10,000/- as litigation cost ( instead of Rs. 3000/-) + Rs. 5000/- (being the cost of condoning the delay) i.e. total Rs. 2,47,500/- within 45 days of this order, failing which, the appellant- Insurance company will also  have to pay simple interest @ 12% on the said amount, from the date of this order till the date of payment/ realization.

With this modification this appeal stands disposed off.

             Issue free copy of this order to all concerned for information and needful.

          Ranchi,

          Dated:- 01-10-2015