Petitioner was the opposite party No.1 before the District Forum.

          Shortly stated, the facts of the case are that the respondent got his jeep insured from the petitioner insurance company for a sum of Rs.3 Lacs from 07.8.1999 to 06.8.2000.  It is alleged in the complaint that on 31.5.2000, while the complainant was standing on the Reva Bus Stand, three passengers requested him to give lift them upto

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Sohagi and on humanitarian grounds, respondent agreed to give lift to them upto Sohagi; that he received Rs.540/- from them; that the said three persons took away the vehicle forcibly and an FIR was registered.  Respondent submitted the claim with the insurance company which was repudiated on the ground that whereas the vehicle was registered for private use of the complainant, the same was being used as commercial vehicle i.e. TAXI.  Aggrieved by this, respondent filed a complaint before the District Forum.

          District Forum vide its order dated 08.7.2004 dismissed the complaint, aggrieved against which the respondent filed an appeal before the State Commission. 

          The State Commission following its earlier order in Appeal No.1463/2004 “M/s Track Way Securities Vs. National Insurance Co.) decided on the same day, allowed the complaint and directed the petitioner to pay a sum of Rs.2,02,500/- along with interest                 @ 8% p.a. w.e.f. 21.3.2010 till realization.

          Petitioner being aggrieved has filed the present revision petition.

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          We need not examine the question in hand in great detail as the point in issue is concluded by the judgment of Supreme Court of India in “National Insurance Co. Ltd. vs. Nitin Khandelwal, (2008) 11 SCC 259” in which it has been observed as under:

12. Pursuant to the notice issued by this Court, the respondent has filed a comprehensive counter affidavit. The appellant relied upon the judgment of this Court in the case of National Insurance Co. Ltd. v. Kusum Rai and Ors. MANU/SC/1533/2006 : AIR2006SC3440 . According to the respondent, this case has no application so far as the instant case is concerned. The aforesaid case relates to the accident where the main or contributory cause of accident was negligent driving at the relevant time of the accident. The instant case relates to the theft of the car. It is not a case of third party risk. In the instant case, the vehicle has not been recovered. It is also incorporated in the counter affidavit that it is not disputed that the vehicle was comprehensively insured. Since the vehicle in question had been stolen, therefore, in the case of theft of vehicle, the breach of condition is not germane. In Kusum Rai’s case (supra), the cases of Jitendra Kumar v. Oriental Insurance Co. Ltd. and Anr. MANU/SC/0475/2003 :

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AIR2003SC4161 and National Insurance Co. Ltd. v. Swaran Singh and Ors. MANU/SC/0021/2004 : AIR2004SC1531 were also considered. This Court in Jitendra Kumar’s case, in paras 9 and 10, observed as under

‘’9. The question then is; can the Insurance Company repudiate a claim made by the owner of the vehicle which is duly insured with the company, solely on the ground that the driver of the vehicle who had nothing to do with the accident did not hold a valid licence? The answer to this question, in our opinion, should be in the negative. Section 149 of the Motor Vehicles Act, 1988 on which reliance was placed by the State Commission, in our opinion, does not come to the aid of the Insurance Company in repudiating a claim where the driver of the vehicle had not contributed in any manner to the accident. Section 149(2)(1)(ii) of the Motor Vehicle Act empowers the Insurance Company to repudiate a claim wherein the vehicle in question is damaged due to an accident to which driver of the vehicle who does not hold a valid driving licence is responsible in any manner. It does not empower the Insurance Company to repudiate a claim for damages which has occurred due to acts to

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which the driver has not, in any manner, contributed i.e. damages incurred due to reasons other than the act of the driver.

10. It is the case of the parties that the fire in question which caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act, or omission of the driver. Therefore, in our considered opinion, the Insurance Company could not have repudiated the claim of the appellant.”

(Emphasis supplied)

Facts of the present case are similar to the facts of Nitin Khandelwal’s case (supra).  Respectfully following the view taken by Supreme Court in the case supra, we dismiss this revision petition and upheld the orders passed by the State Commission.

          The petitioner had deposited a sum of Rs.2 Lacs before the District Forum on 06.9.2006 which has been withdrawn by the respondent.  No interest has been paid.  The petitioner is directed to pay the balance amount within six weeks after adjusting the sum of

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Rs.2 Lacs which has already been withdrawn by the respondent, failing which the respondent would be at liberty to file an execution application.