Date of decision : 20.3.2008.<br /> Kapil son of Ram Krishan resident of House No.132, Krishna Nagar, Old hospital, Kapurthala.<br /> Complainant.<br /> Versus<br /> 1. The New India Assurance Company Limited, D.C. Chowk, Jalandhar Road, Kapurthala through its Branch Manager.<br /> 2. The New India Assurance Company Limited, G.T. Road, Rayya Mandi, Tehsil Rayya, District Amritsar through its Branch Manager.<br /> Opposite parties.<br /> Complaint under the Consumer Protection Act.<br /> Quoram : Sh.A.K. Sharma President.<br /> Sh.Surinder Mittal, Member.<br /> Present : Sh. Mukesh Gupta counsel for the complainant.<br /> Sh.Bhupinder Pal Singh counsel for opposite parties.<br /> JUDGMENT (SH.A.K. SHARMA PRESIDENT)<br /> Present complaint under Section 12 of the Consumer Protection Act, 1986 as amended upto date has been filed by the complainant Kapil against opposite parties i.e. the New India Assurance Company Limited through its Branch Manager, D.C. Chowk Jalandhar Road, Kapurthala and also through its Branch Manager Rayya Mandi, Tehsil Rayya, District Amritsar seeking direction against the opposite parties to pay the insurance amount of Rs.5,50,195/- included interest for theft of insured tractor trolley and also for damages for mental tension and harassment due to deficiency in service on the part of opposite parties..<br /> 2. In nutshell, the facts of the complaint lie in narrow compass. Complainant is registered owner of Swaraj tractor bearing registration No.PB41-A-7419 and got insured with opposite party No.2 vide insurance policy No.360502/47/05/00861 w.e.f.. 14.11.2005 to 13.11.2006 for Rs.3,75,250/- and his trolley was also insured with the opposite party No.2 vid policy No.360502/31/05/02213 for Rs.95000/- for the same period. Unfortunately the aforesaid tractor and trolley were stolen on 11/4/06 by some miscreant and to this FIR No.20 dated 18/4/2006 under Section 379 IPC was also got registered with Police Station Dhilwan. He also intimated about lost tractor trolley and further claimed insurance amount in respect of stolen vehicle i.e. tractor trolley from the opposite party No.2 Insurance Company but the same was illegally and arbitrarily rejected vide letter dated 31/5/2007 by the opposite party No.2 that at the time of theft the tractor was used for the commercial purpose and not for the agriculture purpose despite the fact that he has given full eplanation of use of tractor for agriculture purpose. Therefore, repudiation of his justifiable insurance claim is illegal, arbitrary for which he is entitled to the reliefs claimed.<br /> 3. Opposite parties appeared and controverted allegations of the complainant and resisted his claim. Certain preliminary objections have been raised that this Forum has no jurisdiction to try this complaint and complainant has no cause of action to file the present complaint. On merits, opposite parties defended repudiation of insurance claim of the complainant as valid and legal principally on the ground that complainant violated terms and conditions of the insurance policy of the tractor trolley because at the time of theft of said vehicle, same was being used for commercial purpose as the insured is a partner of brick kiln at Baba Bakala which is clear cut violation of insurance policy condition ' limitation as to use'. Therefore, there is no question of any deficiency in service on the part of opposite parties to repudiate the insurance claim of the complainant.<br /> 4. In support of his version complainant has produced in evidence affidavits and documents Ex.C1 to C9.<br /> 5. On the other hand opposite parties produced in evidence affidavits Ex.R1 to r7.<br /> 6. We have heard arguments of learned counsel for the parties and perused ocular as well as documentary evidence on the record. Learned counsel for the complainant has assailed repudiation letter dated 2.9.2007 of his insurance claim by the opposite party Insurance Company as illegal, null and void and arbitrary being contrary to the terms and conditions of the insurance policy Ex.R2 in respect of his stolen insured tractor trolley. On the other hand repudiation of insurance claim has been defended as legal and valid on account of violation of terms and condtion of insurance policy Ex.R1 condition 'limitation as to use'.<br /> 7. We have considered rival contentions of counsel for the parties. We find considerable merit in the contentions of learned counsel for complainant. The factum of insurance policy No. 360502/47/05/00861 for Rs.3,75,250/- in respect of tractor and insurance policy No.360502/31/05/02213 for Rs.95000/- in respect of trolley and tractor and trolley both insured for the period from 14/11/2005 to 13/11/2006 vide Ex.C3 and C4/R2 and R3 is not disputed. The theft of insured tractor and trolley by some miscreant by way of forcible snatching the vehicle from Sarwan Singh driver of the vehicle on 17/4/06on way back from the brick kiln at Baba Bakala of the complainant is also disputed and duly proved vide FIR No.20 dated 18/4/06 lodged with the Police Station, Dhilwan and intimation of loss vide application Ex. Ex.C9 dated 5/9/07 and also its being not traceable vide Ex.C6 of Police Station, Dhilwan and further supported by finding of investigation report of Sh.K.S. Chandok Investigating officer vide Ex.R4 is also duly proved. The Insurance Company has repudiated the claim vide letter dated 2/9/07 Ex.R6 on the basis of investigation report Ex.R4 that insured was partner of brick kiln and the insured vehicle was used for brick kiln purpose at the time of theft of the vehicle and the vehicle was being used for commercial purpose which was absolutely in violation of policy condition 'limitation as to use'. To substantiate its defence plea Insurance Company has also produced in evidence Ex.R4 investigation report Ex.R4 alongwith statement of the driver Sarwan Singh Ex.R5 and affidavit of K. S.Chandok investigating officer Ex.R7 and also affidavit of Sh.I.S.Sandhu Senior Divisional Manager of the opposite parties. Insurance Company has not filed any affidavit of Sarwan Singh in support of plea of commercial use of the vehicle for the purpose of carrying bricks and after uploading the same in Subanpur from the brick kiln of the complainant during the course of theft occurrence though one statement of Sarwan Singh Ex.R5 purported to be made by him by the investigating officer has been produced. The finding of the investigator in the report Ex.R5 is that insured is a partner of Brick Kiln at Baba Bakala. He has purchased farmers package policy for captioned vehicle where as it was in use for brick kiln purpose at the time of theft as per statement of driver of stolen vehicle. Complainant however, deposed vide affidavit Ex.C1 that Sarwan Singh was employee in their brick kiln was asked to perform agriculture work at Kapurthala and for that purpose he was given the aforesaid tractor bearing No.PB41-A-7419 alongwith the trolley and when he was coming to Rayya on the abovesaid tractor and trolley so as to get the regular service/repair of the tractor from Rayya but on the same day, unfortunately the tractor and trolley was stolen on the way by some miscreant. No reliance can be placed upon recorded statement of Sarwan Singh by the investigator and the same has been contradicted by Sarwan Singh driver vide affidavit Ex.C2 that he was in fact deputed to perform agricultural work in the tractor trolley on 17/4/2006 and he was returning to get regular service/repair of the tractor from Raiya when it was stolen on the way and FIR was registered. Therefore, we do not find any evidence of the change of user of the tractor for any commercial purpose. Investigation finding to that effect elapses on the basis of affidavit of Sarwan Singh driver.<br /> 8. Even assuming that insured vehicle was used for carrying the brick kiln at the time of theft occurance , the same could not construed as a fundamental cause of theft resulting into fundamental breach of terms and conditions of the insurance policy. Reliance is also placed upon case reported as II (2007) CPJ 489 National Insurance Company vs. Gurbachan Singh wherein insurance claim was repudiated as tractor was carrying passengers-hence used for commercial purpose breaching conditions of the policy-held that exclusion clause of the policy must be read to serve main purpose of policy which is to indemnify loss. If breach of condition is not so fundamental to cause accident, then repudiation unjustified. Contract for insurance is a simple contract and has nothing to do with the purpose of user of the vehicle. Therefore, provisions of social welfare legislation like Consumer Protection Act need broader interpretation to achieve the ends of justice and not to scuttle the justifiable claim of losses either in terms of human lives or property. Learned counsel for the opposite parties Insurance Company has, no doubt, relied upon a case reported as III (2007) CPJ 160 (NC) to buttress his case about vehicle being used against limitation as to use. However, close analysis of facts of the said case bring it on different footing with the present one as in the said case jeep was registered as a private omni bus with the Transport Authority but the same was handed over to three unknown persons by the owner at the rate of Rs.500/- per day on hire and thus was being used against limitation as to use. In the instant case, as already observed, carrying of bricks in the tractor trolley on a strange occasion though not convincingly proved cannot be termed as a fundamental breach of condition of the policy so as to disentitle the complainant to the insurance claim.<br /> In the ultimate analysis of aforesaid discussion, we accept the complaint and hold repudiation of the insurance claim by the opposite party Insurance Company as arbitrary, illegal and award compensation to the extent of Rs.3,75,250/- for the loss of tractor and for the loss of trolley Rs.95000/- minus deduction of deprecation charges with 9% interest on the said amounts from the date of rejection i.e. 2/9/07 till realisation and further award monetary compensation of Rs. 5000/- for mental agony and physical harassment on account of deficiency in service and Rs.500/- as cost of litigation which would be paid by the opposite parties to the complainant within a period of one month from the receipt of copy of this order.<br /> Let certified copies of judgment rendered be supplied/despatched to the parties without any unnecessary delay and thereafter file be consigned to record room.<br /> <br /> Announced : ( Surinder Mittal ) ( A.K. Sharma )<br /> 20.3.2008 Member President.<br />