PRESENT

                   Complainant by Adv.Mohit Bhansali present.     

                    Opponent by representative Shri.Prakash kasable present.            

ORDER

(Per- Mr. S. D. MADAKE, Hon’ble President.)

1.                The complainant has filed a case u/s.12 of the Consumer Protection Act for deficiency in service against opponents Insurance company.

2.                According to complainant he purchased the vehicle Scorpio bearing no.MH-04/DJ-1369 by obtaining loan from the bank. He has taken the insurance policy of Cholamandalam M.S. General Insurance Com.Ltd. for a period from 11/09/2007 to 10/09/2008.  He paid premium of Rs.30,113/-.

3.                According to the complainant during the insurance period on 10/07/2008 when vehicle was parked at his residence at Sion the same was not traced.  He  lodged F.I.R. on 11/07/2008 at Sion police station.  Thereafter, he filed a claim as per the insurance contract to the opponents. However, the opponents rejected the said claim on the ground of breach of contract of insurance. According to the complainant the said rejection was improper and without valid grounds.

4.                The insurance company by written version on 17/01/2013 had denied the contents of the complainant.  It is alleged that complainant had purchased the said Mahindra Jeep with the sole purpose of plying the same on hire and reward i.e. for commercial purpose against “limitation to use” in violation of the terms of the policy. The said claim was rejected on 26/09/2008 on merit after due application of mind.

5.                It is submitted that the complainant had though taken insurance cover for non transport vehicle, however, the same was used regularly as transport vehicle in breach of policy and law, rules and regulations.  The opponents submitted that learned Insurance  Ombudsman rightly rejected the claim of complainant by  judgment dated 08/09/2009.   

6.                The opponents further submitted that complainant has admitted the vocation as a driver in the F.I.R. and was using the vehicle for his livelihood at the time of theft.

6.                The opponents averred that complaint is time barred under the provisions of C.P. Act as well as under the general law of limitation and it would be travesty of justice if such a gross delay is condoned without sufficient cause. The complaint is liable to be rejected.

8.                The complainant filed on record the documents relating to the title of the vehicle, police report, rejection letter, death certificate and other medical documents etc. 

9.                The opponents filed on record insurance policy, F.I.R. investigation report, complainant’s diary, order  of Ombudsman etc.

10.              After receipt of complaint, this forum passed order on 14/05/2012  and admitted the complaint. The claim was rejected by insurance company on 26/09/2008. The claim was rejected by Ombudsman on 08/09/2009. The complaint is filed on 14/05/2012.

11.              The complainant stated in para-18 of the complaint that he received the order of rejection on 22/12/2008 and he ought to have file the complaint on or before 21/12/2010.

12.              The complainant stated in para-10 to 16 the circumstances regarding the delay caused in filing the complaint on time. After rejection of the claim by Insurance company and Ombudsman, he contacted Grahak Panchayat Member, Chembur for filing application of review. He stated that vehicle was purchased by obtaining loan from ICICI Bank.  The recovery agents were threatening to him and family members for the said loan.

13.              The complainant stated that his father was 100 years old and his mother was 83 years old who were suffering from various ailments at the advanced age of their life. They were shocked due to the said loan. His father died in depressed condition on 30/04/2010. Due to death of father his mother could not bear the said shock and she stopped talking to anybody.

14.              Complainant was required to be at native place for managing the property affairs of his late father and taking care of mother. He came to Mumbai with his mother in April-2011. He was virtually empty and lost everything        what he had, so in such depressed situation he could not even think to pursue the matter before proper forum.  He was totally broken down financially and morally. He first decided to look-after his mother and earn the bread & butter.

15.              The complainant in para-14 of the complaint stated that the worst in his life was when ICICI bank recovery department learnt that he is residing in Mumbai, they started to visit his premises and threatened him and his mother with dire consequences. He stated that during that period he was under utmost tension to manage everything and he thought it better to give up his life instead of living. He could not do the same for two reasons as his father was freedom fighter and he could not leave his mother alone.

16.              The complainant stated that the tension during that period was such that he could not even think any other thing in his life. He was operated for piles on 20/12/2011 and was bed-ridden at home during 20/12/2011 to 20/02/2012.

17.              The opponents submitted that the cause of action arose on the date of occurrence and complaint is filed in May-2012 which is barred by limitation. This forum cannot be used to initiate and maintain such fraudulent, belated and barred claims. There is no application for condonation of delay.

18.              We have carefully perused the facts and circumstances for deciding the reasons mentioned in complaint and written version and come to the conclusion that the grounds of delay are just and convincing. We therefore, feel it proper in the interest of justice to condone the delay which is properly explained by complainant.

19.              Admittedly, the vehicle was stolen during the insurance period. The police papers show that vehicle was stolen, however, the accused is not traceable. On perusal of investigation conducted by insurance company regarding the use of the vehicle on the basis of documents, we are of the opinion that though the vehicle was taken for private use the same was used for hire. This is violation of limitation as to use as per terms of the policy. However, we are of the opinion that this is not a fundamental breach of the policy. Mere use of the vehicle for some occasions for hire will not disentitle the complainant to recover the insurance amount as per contract. There is no nexus between the incident of theft and the use of the vehicle.

20.              As per the Law laid down by The Hon’ble Supreme Court and National Consumer Disputes Redressal Commission, in the case of theft of vehicle breach of condition is not germen. The insurance company is liable to indemnify the owner of the vehicle when the insurer had obtained comprehensive policy for the loss caused to the insurer. The insurance company cannot repudiate the claim in toto in case of loss of vehicle due to theft.

21.              We are of the considered view in the interest of justice that the insurance company was under an obligation to settle the claim on non-standard basis. The insurance company is liable to pay the claim as per Law. On the basis of settled legal position, the complainant is entitled    only 75% amount as per insurance agreement. The opponent parties are therefore, liable to pay Rs.5,98,290/- to the complainant.  The complainant is entitled for interest @ Rs.9% p.a from the date of admission of this complaint i.e. 14/05/2012. In view of peculiar facts from the case, we direct the parties to bear their own costs.

22.              In the result, we pass the following order.

                                        ORDER

1.      RBT complaint No.213/2012 is partly allowed.

2.      The opponent parties are directed to pay Rs.5,98,290/- with interest

        @ Rs.9% p.a. from the date of 14/05/2012 till realization.

3.       No order as to costs.

4.      Copy of this order be sent to both parties.