JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

          The complainant owned a vehicle bearing No.HR-31F-0800, which he had got insured with the petitioner company for the period from 01.02.2012 to 31.01.2013.  The complainant had employed a driver namely Manoj for driving the vehicle for her.  The case of the complainant is that in the morning of 23.6.2012, the driver informed her that three persons namely Minu, Suresh alias Hakla and Naveen had called him and taken him to Gurgaon for some work.  He went to the house of Minu in the night of 22.6.2012.  When they reached a Bridge on the canal near Village Basana the vehicle was snatched from him by some persons.  The complainant there-upon asked Manoj to meet her near police station, Kalanaur.  Manoj met her there but could not give a satisfactory response and left the police station making an excuse.  A case under Section 406/34 of IPC was registered at the police station against Manoj, Suresh, Minu and Naveen.  The vehicle was later recovered on 27.6.2012 in a damaged condition.  The complainant obtained an estimate for repair of the vehicle from Raj Motors, Rohtak, who estimated the cost of repair at Rs.3,03,925/-.  The complainant allegedly paid that amount and lodged a claim.  The claim was however, repudiated vide letter dated 03.1.2013. 

2.      Being aggrieved the complainant approached the concerned District Forum by way of a consumer complaint.  The complaint was resisted by the petitioner company, primarily on the ground that the vehicle was being used for commercial purpose, thereby contravening a terms of insurance policy.  It was alleged that the theft was committed by the driver in connivance with others persons named by him.  It was also stated in the written version that the insurer had appointed one Gurjeet Singh Pahwa as a surveyor, who has assessed a loss to the complainant to the tune of Rs.1,99,392.44 but the claim was rejected on the grounds given in the letter dated 03.1.2013.

3.      The District Forum vide its impugned order dated 07.4.2014 directed as under:

          “8.     ………Resultantly, the complaint is allowed and the opposite party No.1 is directed to make the payment of Rs.3,03,295/- to the complainant within 45 days, in case of failure the opposite party No.1 will also pay a simple interest @ 9% per annum from the date of filing of the complaint i.e. 23.1.2013 till its full realization of amount.  Parties will bear their own costs.”

4.      Being aggrieved from the order passed by the District Forum, the petitioner company approached the concerned State Commission by way of an appeal.  The said appeal having been dismissed, the petitioner is before this Commission by way of this revision petition.

5.      It is submitted by the learned counsel for the petitioner that since the vehicle was being used for a commercial purpose as would be evident from the driver having taken Minu, Suresh and Pandit Naveen in the vehicle, the complainant was not entitled to any reimbursement from the petitioner company, she having breached a term of the insurance policy, which required the vehicle to be used only for her personal purposes.  I however, find no merit in the submission.  There is no direct evidence of the vehicle having been used by the complainant as a Taxi or for any other commercial purpose. There is no evidence of Manoj having taken hire charges from Minu, Suresh and Pandit Naveen before allowing them to sit in the vehicle.  There is no evidence of any charges having been collected by the complainant from Minu, Suresh and Naveen. Therefore, the alleged commercial use of the vehicle, in my opinion, does not stand proved.  The insurer therefore, was not justified in repudiating the claim.

6.      The next question which arises for consideration is the amount to which the complainant is entitled for the damage caused to the vehicle.  The case of the complainant is that he had incurred expenditure of Rs.3,05,000/- on repair of the vehicle, after obtaining an estimate from M/s. Raj Motors Company.  A perusal of the survey report would show that no invoice was produced by the complainant before the surveyor.  If the invoice relied upon by the complainant are genuine, there is no reason why she should not have produced them before the surveyor for the purpose of verification.  Had the invoices been produced before the surveyor, it would have been possible for him to verify the genuineness of the documents and also verify whether all the parts mentioned in the invoices were actually used in the insured vehicle or not.  It would also have been possible for the surveyor to verify as to what exactly was the payment made by the complainant for the repair of the vehicle.  That having not been done, and the invoices etc. having otherwise not been proved before the District Forum, either by filing an affidavit of persons who issued the invoices or by producing him as the witness, the fora below, in my opinion, were not justified in allowing the claim on the basis of those invoices.

7.      The surveyor assessed the gross loss to the complainant at Rs.2,10,592.44, and after making some deductions he arrived at the figure of Rs.1,99,392.44.  The complainant is entitled only to the aforesaid amount form the petitioner company with appropriate interest.  The payment in terms of the order of the State Commission has already been made to the complainant.

8.      For the reasons stated hereinabove, the revision petition is disposed of with the following directions:

(i)      The petitioner company had to pay a sum of Rs.1,99,392.44 to the complainant along with interest on that amount @ 9% per annum from the date of institution of the consumer complaint till the date of payment.

(ii)      The excess payment received by the respondent / complainant from the petitioner company shall be refunded to the petitioner company within three months from today without any interest, failing which the complainant will be liable to pay interest on that amount @ 9% per annum with effect from the date on which the payment was received by her.