DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.

                                                Complaint No. CC/010/279  of    16.4.2010 

                                                Decided on: 3.9.2010

Gurpal Singh aged about 50 years s/o Sh.Sucha Singh, R/o H.No.257, Ward No.3, Patran, District Patiala.

                                                                             -----------Complainant

                                      Versus

1.                 The New India Assurance Company Limited, Main Road, Samana through its Branch Manager.

2.                 The New India Assurance Company Limited,Chhoti Baradari, Patiala, through its Sr.Divisional Manager.

3.                 The New India Assurance Company Limited, 87, Mahatma Gandhi Road, Fort, Mumbai through its Chairman/Managing Director.

                                                                             ----------Opposite parties.

                                      Complaint under Sections 11 to 14 of the

                                      Consumer Protection Act.                                   

                                      QUORUM

                                      Sh.Inderjit Singh, President

                                      Smt.Neelam Gupta, Member                               

Present:

For the complainant:     Sh.K.S.Sidhu,Advocate   

For opposite parties:     Sh.D.P.S. Anand, Advocate

                                         ORDER

SH.INDERJIT SINGH, PRESIDENT

                                      Complainant Gurpal Singh has brought this consumer complaint under Sections 11 to 14 of the Consumer Protection Act,1986 as amended up to date ( hereinafter referred to as the Act) against  the opposite parties fully detailed and described in the head note of the complaint.

2.                                   As per averments made in the complaint the case

of   the complainant is like this:-

                                      That the complainant got insured his Scorpio car bearing No.Pb-11AF-8522 with opposite party no.1 vide policy No.361401/31/08/01/00006848 for the period 18.2.2009 to 17.2.2010 for sum insured of Rs.4,60,000/- against premium Rs.11908/-.At the time of insurance the representative of opposite parties inspected the vehicle alongwith documents. That the complainant and his family members used the vehicle for private and domestic purposes only. That on 2.10.2009 friend of the complainant namely Baljit Singh s/o Baldev Singh borrowed the above said Scorpio car of the complainant for going to Jind(Haryana) to meet his friend and on the intervening night of 03/04-10-2009, the Scorpio car was got stolen when it was parked outside the house of Baljit Singh’s friend. That the matter was reported to the PS Jind city and a FIR u/s 379 IPC was also lodged on 4.10.2009.Thereafter the complainant lodged claim with opposite parties and they deputed surveyor and investigator. The  complainant completed all formalities as desired by opposite parties surveyor and investigator and all the original claim papers are with the opposite parties. That after completion of all formalities complainant visited the offices of opposite parties for settlement of claim but complainant was shocked to receive no claim letter dated 17.3.2010 from opposite party no.1 with the remarks that vehicle was being used as commercial. The complainant went to the office of opposite party no.1 immediately and explained that vehicle was borrowed by friend of the complainant and moreover the vehicle has been stolen at night when it was parked outside the home and it was not being used as taxi and requested to reconsider the claim but they did not listen the complainant. That due to non payment of genuine claim, opposite parties have committed deficiency in service and complainant has suffered lot of harassment and mental agony. Hence this complaint.

3.                                   Notice of the complaint was given to the opposite parties, who appeared and filed a joint written reply contesting the claim of the complainant. It is denied that the documents of the car were inspected and further denied that the car was being used for private and domestic purposes. That the insurance company has issued Private Car Policy B Package for personal use of Scorpio bearing No.PB-11F-AF-8522 in the name of S.Gurpal Singh son of S.Sucha Singh, House No.257, House No.3, Patran District Patiala for the period 18.2.1009 to 17.2.2010 for a sum of Rs.4.60000/- for personal and private use. It is denied that the friend of the complainant borrowed the above said car for going to Jind. It is further denied  that on the intervening night of 03/04-10-2009 the Scorpio car was got stolen from outside the house of Baljit Singh’s friend. It is denied that the matter was reported to the P.S.Jind City on 4.10.2009. That on receipt of intimation of loss the Insurance company had deputed Sh.Hari Ram Mittal Investigator Bhiwani to investigate the case who in his report dated 20.2.2010 has found that the car was being used on hire and reward as the same has been hired by Sh.Sudhir Gautam a candidate of Haryana Janhit from Jind Vidhan Sabha Election 2009 and has recorded the statement of Smt.Krishana Gautam wife of Gayender Gautam resident of House No.1831 Urban Estate Jind that the car was hired for election purpose. He has further recorded the statement of Ex.Panchyat Member Sh.Jasbir Singh son of Kartar Singh Patran to the fact that the said car was being regularly used as taxi at Bus stand Patran. The investigator has further confirmed that he contacted Sh.Baljit Singh driver of the car who failed to produce the driving licence and details there which means he was not having valid and effective driving licence. The claim has been rejected as per terms and conditions of the policy as the car was being used for commercial purposes and insured has been informed thereof through registered cover. It is denied that the complainant had supplied all the documents as demanded by the surveyor and investigator. It is denied that after completion of all formalities complainant visited the offices of opposite parties for claim. The claim of the complainant has since been repudiated due to the violation of the terms and conditions of the policy at the hands of the complainant and he has been informed accordingly. It is denied that the complainant went to the office of opposite party no.1 immediately and explained that vehicle was borrowed by friend of the complainant and was not being used as taxi and reconsider the claim. It is denied that the opposite parties have committed any deficiency in service rather the complainant had breached the terms and conditions of the policy by using the car for commercial purposes. All other averments made in the complaint have also been denied and have prayed that complaint be dismissed.

4.                                   The parties in order to prove their case have tendered their respective evidence on the record.

5.                                   The parties have filed the written arguments. We have gone through the same and have also heard the learned counsel for the parties.

 6.                                  the complainant had got his Scorpio car bearing No,PB-11AF-8522 insured with New India Assurance Co.Ltd.(opposite party No.1) vide policy,Ex.C4 for the period 18.2.2009 to 17.2.2010  in the sum of Rs.4,60000/- against premium of Rs.11908/-. On 2.10.2009 friend of the complainant namely Baljit Singh s/o Baldev Singh borrowed the Scorpio car from the complainant for going to Jind(Haryana) to meet his friend and on the intervening night of 03/04.10.l2009 the Scorpio car was stolen when it was parked outside the house of Baljit Singh’s friend. An FIR ,Ex.C5 bearing No.650 dated 4.10.2009 was lodged in police station Jind city by Baljit Singh. The complainant lodged the complaint with the opposite parties when the vehicle was not traced by the police. The claim was repudiated by the opposite parties vide letter,Ex.C6 dated 17.3.2010 allegedly for violation of the terms and conditions of the policy i.e. the vehicle which had been insured is a Pvt. Vehicle was being used as commercial vehicle when the same was stolen. In other words the vehicle was not being used for the purpose it was insured i.e. a private passenger vehicle was being used as commercial vehicle.

7.                                   The learned counsel for the opposite parties as argued that in this case the investigator Sh.Hari Ram Mittal gave the report,Ex.R4 dated 20.2.2010 that the Scorpio car was used as a regular taxi. It is also in the report that Baljit Singh driver of the vehicle went to Jind with the vehicle on 2.10.2009.He has also admitted that the vehicle was being used in the election of Sudhir Gautam.It is also in the report of investigator that Smt.Krishna Gautam w/o Sh.Gayender Gautam told him that the vehicle in dispute was sent by her parents on hire for election purposes alongwith so many other vehicles used in election. According to the opposite parties in view of the report of investigator there was no doubt that the vehicle was being used as a taxi at the relevant time.

8.                                   Before we cite some  authorities that in such cases the claim of complainant cannot be repudiated, we are independently of the view that  it hardly makes any difference in case of theft of a vehicle where the same was being used as a taxi or as a passenger car though the vehicle might have been insured as a passenger car. The user of the vehicle at the relevant time of theft has no nexus interse i.e. the theft and the user of the vehicle.

9.                                   On facts it has no where come on the record that the complainant – owner of the vehicle had at any time permitted/authorized Baljit Singh, driver of the vehicle  to use the vehicle as a taxi ( assuming that the vehicle was being used as a taxi).However, the learned counsel for the opposite parties has pointed out that in fact Baljit Singh, driver of the vehicle had stated before the investigator ( Sh.Hari Ram Mittal) that he had brought the vehicle for the purpose of election of Sh.Sudhir Gautam. That does not help the opposite parties at all. It is no where pointed out that Baljit Singh, driver had taken the vehicle with the permission of the complainant for the use of same in the election of Sh.Sudhir Gautam.  The Hon’ble National Commission in Kesar Ben Vs. M/s United India insurance Co. Ltd.2001(1)CLT 236 observed that it must be proved as a fact in such circumstances that the vehicle was being used or plied as a taxi with the consent of the owner.

10.                                 Hon’ble Chattisgarh State Consumer Disputes Redressal Commission in Oriental Insurance Company Ltd. Vs.Manorama Mishra and Another 2005(1) CLT 407 was dealing with a similar matter where a taxi was carrying passengers in excess of the permitted capacity. It was held  that surely there was a breach of the terms and conditions of the policy in as much as more passengers were being carried out than permitted. It was held that carrying of  more passengers in a taxi was not the cause of  the accident. As observed in the earlier part of the judgment the plying of the vehicle as a passenger vehicle or as a taxi has no nexus with the theft. Take for instance if a passenger car is being plied as a taxi and the driver of the vehicle drops the passenger at a particular point and thereafter parks the vehicle somewhere else for having rest or taking meals, would it have said that at the relevant time the vehicle was being used as a taxi? According to us the answer has to be in the negative.

11.                                 The Hon’ble National Commission in National Insurance Company Ltd. Vs. Prem Chand 2001(2) CLT 555 was dealing with a similar point. In that case owner of the vehicle had lodged the claim with the insurance company on account of theft of the vehicle from the parking lot of the PGI Chandigarh.The owner of the vehicle was a resident of Kurukeshtra and the vehicle was bearing registration No.HR-05-5565.It was not disputed that at the time of theft there was no one in the vehicle and it was lying parked. The District Forum dismissed the complaint as it found that repudiation was based on the report of the investigator appointed by the insurance company. On appeal the Hon’ble State Commission held that in such circumstances the claim had to be settled as non standard claim as provided in the insurance policy which provides that if there is any breach of warranty/condition of policy including limitation as to use the claim had to be settled as non standard claim. The Hon’ble National Commission after relying upon its own earlier judgment in National Insurance Company Ltd. Vs.Shri Muni Lal Yadev R.P.No.438 of 2001 decided on 11.4.2001 ( which is now reported in 2001(11)CPR(NC) ) up held the judgment of the Hon’ble State Commission.

12.                                 For the foregoing reasons we are of the view that the claim of the complainant ought to have been settled as non standard claim. The opposite parties are  bound to pay 75% of the said amount of loss of Rs.4,60,000/-On this point we are also supported by the authorities National Insurance Company Ltd. Vs.Nitin Khandelwal 2008 ACJ 2035, National Insurance Co. Ltd. Vs. Balwant Singh 2010(1) CPC 689 and Amalendu Sahoo Vs. Oriental Insurance Co.Ltd.2010 CTJ 485(Supreme Court) (CP).

13.                                 We therefore, partly allow this complaint and direct the opposite parties to pay to the complainant 75% of the amount of Rs.4,60,000/- .The complainant will get interest @9% per annum on the said amount from the date of the filing of the complaint till payment along with the costs of Rs.2000/- within a period of one month from the date of receipt of copy of this order. The copy of this order be sent to the parties as per rules.

                                      File be consigned to the record.

Pronounced.

Dated:3.9.2010.

                                                                             President

                                                                             Member